VICKI BOCELLE VS. LAUREN K. CALDWELL (FD-01-0150-16, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 27, 2017
• Docket: A-0245-16T1
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2245-16T7

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

HASHEEN SANDERS,

Defendant-Respondent. _______________________________

Submitted March 7, 2017 – Decided April 12, 2017

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Complaint No. W-2017-000013-0712.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Kayla Elizabeth Rowe, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant (Tamar Lerer, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

We granted the State's motion for leave to appeal the trial

court's January 31, 2017 order denying the State's motion for the detention of defendant and imposing conditions for

defendant's pretrial release. We affirm.

Defendant was charged in four complaint-warrants in

connection with four separate incidents that allegedly occurred

on January 11, 2017. He was charged in three of the incidents

with third-degree attempted burglary,1 N.J.S.A. 2C:5-1(a)(1) and

N.J.S.A. 2C:18-2(a)(1). In the fourth incident, defendant was

charged with second-degree burglary, N.J.S.A. 2C:18-2(a)(1), and

third-degree theft, N.J.S.A. 2C:20-3(a).

The State moved for defendant's pretrial detention. At a

January 31, 2017 hearing, the State presented the complaint-

warrants, affidavits of probable cause, preliminary law

enforcement incident reports (PLEIR), and the public safety

assessment (PSA).2

1 The parties and court incorrectly identified the attempted burglary charges as fourth-degree offenses. An attempted burglary is of the same degree as the completed crime of burglary. N.J.S.A. 2C:5-4. Under our criminal code, burglaries are graded as either second-degree or third-degree offenses. N.J.S.A. 2C:18-2(b). The complaint-warrants alleging the attempted burglaries here do not include any facts supporting a charge of attempted second-degree burglary. See N.J.S.A. 2C:18- 2(b)(1) and (2). There is no basis in the record to conclude the misconception concerning the degrees of the three attempted burglaries affected the court's release decision.

2 The nature of these documents and their application in matters governed by the new Bail Reform Act, N.J.S.A. 2A:162-15 to -26, which became effective January 1, 2017, are more fully discussed (continued)

2 A-2245-16T7 The judge determined the affidavits established probable

cause for each of the charges. The affidavits showed defendant's

fingerprints were found at the scenes of two of the attempted

burglaries, and a boot print found at the scene of the third

attempted burglary matched the boots worn by defendant at the

time of his arrest. Defendant admitted to the commission of two

of the attempted burglaries, including the one where the boot

print was found. Defendant was also identified by the victim of

the alleged second-degree burglary, and defendant confessed to

committing that burglary as well.

The PSA assigned a score of three for risk of failure to

appear, four for risk of criminal activity, and a flag for an

elevated risk of violence. The PSA included a recommendation

against defendant's pretrial release. Defendant did not dispute

there was probable cause for the charges and acknowledged his

prior criminal record, but argued it had been five years since

his last criminal conviction and that detention was not

necessary to either protect the public or ensure his appearance

at future court proceedings.

(continued) elsewhere. See State v. Robinson, __ N.J. Super. __ (App. Div.), leave to appeal granted, __ N.J. __ (2017); State v. Ingram, __ N.J. Super. __ (App. Div.), leave to appeal granted, __ N.J. __ (2017); State v. C.W., __ N.J. Super. __ (App. Div. 2017).

3 A-2245-16T7 The judge noted that the State had "a very strong case" and

explained he was required to "consider a number of different

factors in determining whether or not to detain" defendant. The

court considered defendant's age and criminal history, including

his prior convictions for eluding, multiple aggravated assaults,

possession of a controlled dangerous substance, and a number of

prior failures to appear for court proceedings. The judge

acknowledged defendant was previously sentenced on three

occasions to lengthy prison terms. The judge also considered the

PSA's scoring of the risk factors and its recommendation against

release, which the judge recognized could be utilized to

overcome the presumption of release to which defendant was

otherwise entitled.

The judge found probable cause and concluded that the facts

presented a detention decision that "could go either way," but

was satisfied there were accommodations and conditions that

would ensure defendant's appearance in court and protect the

community.3

3 We reject the State's contention that the judge's rhetorical statement, "I don't know why but I'm inclined . . . to . . . keep you under [twenty-four]-hour house arrest," shows the judge did not have a reasoned basis for his release decision. The record shows the court reviewed the seriousness of the charges, defendant's prior criminal history, and the PSA and made a reasoned determination there were conditions short of detention (continued)

4 A-2245-16T7 The judge conditioned defendant's release upon his residing with

his niece with twenty-four hour home detention and electronic

monitoring, weekly telephone reporting to pre-trial services,

and bi-weekly personal reporting to pre-trial services.

Defendant was further ordered to avoid all contact with the

victims and to report any change of address to pre-trial

services.

Following the State's filing of the motion for leave to

appeal the court's order, the judge issued a letter opinion

amplifying the reasons for his decision in accordance with Rule

2:5-6(c). The judge explained that he "placed [d]efendant on the

strictest conditions possible, short of detention," that the

electronic monitoring "will pinpoint and provide satellite

coordinates of [defendant's] exact location at all times," and

that "pretrial services will be able to confirm [defendant's]

location at all times." The judge determined the conditions

imposed ensure defendant's appearance at all court proceedings,

the protection of the community, and that defendant will not

obstruct the criminal justice process.

(continued) that ensured defendant's appearances for court appearances and protected the public.

5 A-2245-16T7 Based on our review of the record, we do not discern any

abuse of the judge's considerable discretion, see C.W., supra,

slip op. at 33-40, by releasing defendant upon the strict and

comprehensive conditions set forth in the court's order, and

determining the State failed to satisfy its "heavy burden [of

establishing] the need for detention by 'clear and convincing

evidence.'" Id. at 38 (quoting N.J.S.A. 2A:162-18(a)(1)).

Affirmed.

6 A-2245-16T7