RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2371-19T6
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MALEEK D. DORSEY,
Defendant-Respondent.
Submitted May 6, 2020 – Decided May 18, 2020
Before Judges Fisher and Rose.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Ocean County, Complaint No. W-2019-000604-1511.
Bradley D. Billhimer, Ocean County Prosecutor, attorney for appellant (Samuel J. Marzarella, Chief Appellate Attorney, of counsel and on the brief; Cheryl L. Hammel, Assistant Prosecutor, on the brief).
Mark Anthony Bailey, attorney for respondent.
PER CURIAM We granted leave to consider the State's interlocutory appeal of a Law
Division order denying pretrial detention of a defendant charged with shooting
offenses. Because we conclude defendant presents a danger to the community,
we vacate the trial court's order granting conditional release, and remand the
matter for entry of an order detaining defendant pretrial.
Defendant Maleek D. Dorsey was arrested on December 30, 2019, and
charged in a complaint-warrant with two counts of attempted murder, N.J.S.A.
2C:5-1(a)(1) and 2C:11-3(a)(1); second-degree possession of a handgun for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b)(1). The State thereafter moved
for defendant's pretrial detention pursuant to the Criminal Justice Reform Act
(CJRA), N.J.S.A. 2A:162-15 to -26. In support of its motion, the State presented
the trial court with the investigating officers' reports and the detective's affidavit
of probable cause.
According to the record, in the early morning hours of December 29, 2019,
police were called to an active shooting scene in the parking lot of a Ja ckson
Township shopping plaza. Police arrived after the gunfire had stopped and while
the crowd was still dispersing. "Every person [police] attempted to speak to
stated they did not see or hear anything." Police observed a blood trail leading
A-2371-19T6 2 to a car with blood on its hood; another car with two bullet holes in the trunk
area; and multiple shell casings from two different caliber guns in the parkin g
lot. Clifford Holland and Joel Hernandez were hospitalized with gunshot
wounds as a result of the shootout.
A cooperating witness (CW), who "wishe[d] to remain anonymous for fear
of retaliation," gave a statement to police indicating an "altercation" had begun
among patrons attending a private party in a lounge and "segued out into the
parking lot area." The CW saw defendant – who was known to the CW by his
full name – "retrieve a firearm from the trunk of a black 4-door passenger car
with tinted windows and then discharge same multiple times." 1
Police obtained surveillance video, which corroborated the CW's account.
According to the detective who viewed the video, 2 defendant was seen "firing
the weapon in the direction of [Hernandez's car.]" Defendant then turned toward
Holland, "firing the weapon, and then again firing, striking Holland in the back
exiting through his chest." Defendant "exchang[ed] more gunfire," then drove
away.
1 Another witness also told police defendant was the shooter, but apparently that witness did not provide a sworn statement. 2 The video was not provided to the trial court at the hearing. A-2371-19T6 3 At the time of his arrest, defendant was twenty-seven years old, with no
prior criminal history. Accordingly, defendant's scores on the public safety
assessment (PSA) were assessed at "1" – the lowest rung of the six-level ladder
– for risk of failure to appear and risk of new criminal activity. Nor was
defendant "flagged" for an elevated risk of violence. But the PSA recommended
against defendant's release pretrial.3
On January 17, 2020, the trial court conducted a hearing on the State's
motion. Defendant acknowledged there was probable cause he committed the
charged offenses. The court found probable cause that defendant "did go into
the trunk of a vehicle, that he did have a weapon, he did fire shots at individuals.
Some of them were struck. And so we have the attempted murder." The court
also recognized "that gun might be out there."
The trial court departed from the PSA recommendation "for a number of
reasons." Most of those reasons reflected defendant's lack of criminal history:
"no red flag denoting an elevated risk of violence"; "he's not on pretrial
monitoring"; "he has no []pending charges"; "he has no disorderly persons
convictions"; "he has no indictable convictions"; "he has no violent
3 Although the copy of the PSA provided by the State does not indicate whether release was recommended, the court cited the no-release recommendation and that fact is not disputed by the parties. A-2371-19T6 4 convictions"; "[h]e's never failed to appear [in court] in two years or older";
"[h]e never served fourteen days or more"; and "[h]e's not on probation or
parole."
Turning to defendant's history and characteristics, the trial court
considered that defendant had retained counsel; he was supported by his mother
and girlfriend, who attended the hearing; he was "a lifelong resident of both
Ocean [County] and also New Jersey"; and he has two children. The court also
recognized defendant was unemployed.
In reaching its decision, the trial court cited State v. S.N., 231 N.J. 497
(2018), noting the defendant in that case was charged with first-degree
aggravated sexual assault and received the same PSA scores as defendant in the
present matter. The court then reasoned the defendant in S.N. "would have been
a danger to [the victim] and also the community," yet the Supreme Court
remanded the detention order to the trial judge to release the defendant with
conditions.
Accordingly, the trial court released defendant subject to Level 3+
monitoring, with home detention and electronic monitoring, and precluded
defendant from having contact with the alleged victims. The court memorialized
A-2371-19T6 5 its decision in an order dated January 17, 2020. We thereafter extended the trial
court's stay of its order pending this appeal.
On appeal, the State argues the court mistakenly exercised its discretion
by denying its motion for defendant's pretrial detention. We review such orders
under an abuse of discretion standard. S.N., 231 N.J. at 515-16.
The CJRA permits the State to file a motion for the pretrial detention of a
defendant who is charged with certain offenses. N.J.S.A. 2A:162-19(a). When
the State seeks the pretrial detention of a defendant who has not been indicted,
the trial court first must determine whether there is probable cause the defendant
committed the charged offense. N.J.S.A. 2A:162-19(e)(2). To establish the
grounds for a defendant's pretrial detention, the State must show by clear and
convincing evidence
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2371-19T6
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MALEEK D. DORSEY,
Defendant-Respondent.
Submitted May 6, 2020 – Decided May 18, 2020
Before Judges Fisher and Rose.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Ocean County, Complaint No. W-2019-000604-1511.
Bradley D. Billhimer, Ocean County Prosecutor, attorney for appellant (Samuel J. Marzarella, Chief Appellate Attorney, of counsel and on the brief; Cheryl L. Hammel, Assistant Prosecutor, on the brief).
Mark Anthony Bailey, attorney for respondent.
PER CURIAM We granted leave to consider the State's interlocutory appeal of a Law
Division order denying pretrial detention of a defendant charged with shooting
offenses. Because we conclude defendant presents a danger to the community,
we vacate the trial court's order granting conditional release, and remand the
matter for entry of an order detaining defendant pretrial.
Defendant Maleek D. Dorsey was arrested on December 30, 2019, and
charged in a complaint-warrant with two counts of attempted murder, N.J.S.A.
2C:5-1(a)(1) and 2C:11-3(a)(1); second-degree possession of a handgun for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b)(1). The State thereafter moved
for defendant's pretrial detention pursuant to the Criminal Justice Reform Act
(CJRA), N.J.S.A. 2A:162-15 to -26. In support of its motion, the State presented
the trial court with the investigating officers' reports and the detective's affidavit
of probable cause.
According to the record, in the early morning hours of December 29, 2019,
police were called to an active shooting scene in the parking lot of a Ja ckson
Township shopping plaza. Police arrived after the gunfire had stopped and while
the crowd was still dispersing. "Every person [police] attempted to speak to
stated they did not see or hear anything." Police observed a blood trail leading
A-2371-19T6 2 to a car with blood on its hood; another car with two bullet holes in the trunk
area; and multiple shell casings from two different caliber guns in the parkin g
lot. Clifford Holland and Joel Hernandez were hospitalized with gunshot
wounds as a result of the shootout.
A cooperating witness (CW), who "wishe[d] to remain anonymous for fear
of retaliation," gave a statement to police indicating an "altercation" had begun
among patrons attending a private party in a lounge and "segued out into the
parking lot area." The CW saw defendant – who was known to the CW by his
full name – "retrieve a firearm from the trunk of a black 4-door passenger car
with tinted windows and then discharge same multiple times." 1
Police obtained surveillance video, which corroborated the CW's account.
According to the detective who viewed the video, 2 defendant was seen "firing
the weapon in the direction of [Hernandez's car.]" Defendant then turned toward
Holland, "firing the weapon, and then again firing, striking Holland in the back
exiting through his chest." Defendant "exchang[ed] more gunfire," then drove
away.
1 Another witness also told police defendant was the shooter, but apparently that witness did not provide a sworn statement. 2 The video was not provided to the trial court at the hearing. A-2371-19T6 3 At the time of his arrest, defendant was twenty-seven years old, with no
prior criminal history. Accordingly, defendant's scores on the public safety
assessment (PSA) were assessed at "1" – the lowest rung of the six-level ladder
– for risk of failure to appear and risk of new criminal activity. Nor was
defendant "flagged" for an elevated risk of violence. But the PSA recommended
against defendant's release pretrial.3
On January 17, 2020, the trial court conducted a hearing on the State's
motion. Defendant acknowledged there was probable cause he committed the
charged offenses. The court found probable cause that defendant "did go into
the trunk of a vehicle, that he did have a weapon, he did fire shots at individuals.
Some of them were struck. And so we have the attempted murder." The court
also recognized "that gun might be out there."
The trial court departed from the PSA recommendation "for a number of
reasons." Most of those reasons reflected defendant's lack of criminal history:
"no red flag denoting an elevated risk of violence"; "he's not on pretrial
monitoring"; "he has no []pending charges"; "he has no disorderly persons
convictions"; "he has no indictable convictions"; "he has no violent
3 Although the copy of the PSA provided by the State does not indicate whether release was recommended, the court cited the no-release recommendation and that fact is not disputed by the parties. A-2371-19T6 4 convictions"; "[h]e's never failed to appear [in court] in two years or older";
"[h]e never served fourteen days or more"; and "[h]e's not on probation or
parole."
Turning to defendant's history and characteristics, the trial court
considered that defendant had retained counsel; he was supported by his mother
and girlfriend, who attended the hearing; he was "a lifelong resident of both
Ocean [County] and also New Jersey"; and he has two children. The court also
recognized defendant was unemployed.
In reaching its decision, the trial court cited State v. S.N., 231 N.J. 497
(2018), noting the defendant in that case was charged with first-degree
aggravated sexual assault and received the same PSA scores as defendant in the
present matter. The court then reasoned the defendant in S.N. "would have been
a danger to [the victim] and also the community," yet the Supreme Court
remanded the detention order to the trial judge to release the defendant with
conditions.
Accordingly, the trial court released defendant subject to Level 3+
monitoring, with home detention and electronic monitoring, and precluded
defendant from having contact with the alleged victims. The court memorialized
A-2371-19T6 5 its decision in an order dated January 17, 2020. We thereafter extended the trial
court's stay of its order pending this appeal.
On appeal, the State argues the court mistakenly exercised its discretion
by denying its motion for defendant's pretrial detention. We review such orders
under an abuse of discretion standard. S.N., 231 N.J. at 515-16.
The CJRA permits the State to file a motion for the pretrial detention of a
defendant who is charged with certain offenses. N.J.S.A. 2A:162-19(a). When
the State seeks the pretrial detention of a defendant who has not been indicted,
the trial court first must determine whether there is probable cause the defendant
committed the charged offense. N.J.S.A. 2A:162-19(e)(2). To establish the
grounds for a defendant's pretrial detention, the State must show by clear and
convincing evidence
that no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions will reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process . . . .
[N.J.S.A. 2A:162-19(e)(3).]
The trial court found probable cause defendant committed the charged
offenses. The court further found the State had not established by clear and
A-2371-19T6 6 convincing evidence that defendant should be detained pretrial and that Level
3+ monitoring would assure defendant's appearance in court and would
sufficiently protect the victims and the community.
We are convinced, however, that the court's order denying pretrial
detention and releasing defendant subject to non-monetary conditions was a
mistaken exercise of discretion. Although the court recognized the seriousness
of the charges, it failed to give sufficient weight to the charges and the concerns
raised about the safety of the community. Defendant has been charged with two
counts of attempted murder for shooting into a crowd, then leaving the scene
with the gun, which – as the court correctly recognized – still "might be out
there." Those charges are clearly of a serious nature. See State v. Mercedes,
233 N.J. 152, 172 (2018) (noting that judges considering a detention motion may
rely heavily on the seriousness of the pending charge).
In addition, the court did not give sufficient weight to the strength of the
evidence in support of the charges, noting there were "other issues" in the case.
Although the video recording was not played in court, it was undisputed – at
least for purposes of the detention hearing – that defendant was identified in the
video shooting Holland in the back and shooting at Hernandez's car. And both
Holland and Hernandez were hospitalized with gunshot wounds.
A-2371-19T6 7 We also find S.N. readily distinguishable from the present matter. In that
case, the defendant was arrested in 2017 for crimes allegedly committed in 2012.
231 N.J. at 501. The defendant had not lived in the same home as the victim for
two years, and the State based its case on the word of the child victim regarding
events that had occurred five years before. Id. at 501-03. In the case under
review, the offenses occurred hours – not years – before defendant was charged,
and they were captured on video.
Finally, the court erroneously gave significant weight to defendant's
support system and relied on the fact that defendant would be living with his
family while on pretrial release. Defendant was living with his family when he
allegedly committed the offenses charged here, and that living arrangement did
not deter him from engaging in the alleged conduct in the middle of the night.
Moreover, neither defendant's mother nor his girlfriend testified about what role
they would play in assuring defendant's compliance with the conditions of his
release. Accordingly, the record is devoid of any competent evidence regarding
their support.
We therefore conclude the trial court mistakenly exercised its discretion
by denying the State's motion for defendant's pretrial detention. The court failed
A-2371-19T6 8 to take into consideration all relevant factors, and its decision represents a clear
error of judgment. S.N., 231 N.J. at 515-16.
Reversed and remanded. We do not retain jurisdiction.
A-2371-19T6 9