S3347

An Act concerning pretrial detention and amending P.L.2014, c.31.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 4 of P.L.2014, c.31 (C.2A:162-18) is amended to read as follows:

4. a. (1) The court may order, before trial, the detention of an eligible defendant charged with any crime, or any offense involving domestic violence as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19), enumerated in subsection a. of section 5 of P.L.2014, c.31 (C.2A:162-19), if the prosecutor seeks the pretrial detention of the eligible defendant [under] pursuant to section 5 of P.L.2014, c.31 (C.2A:162-19) and after a hearing pursuant to that section the court finds clear and convincing evidence that no amount of monetary bail, non-monetary conditions of pretrial release or combination of monetary bail and conditions would 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. The court may also order the pretrial detention of an eligible defendant when the prosecutor moves for a pretrial detention hearing and the eligible defendant fails to rebut a presumption of pretrial detention that may be established for the crimes enumerated [under] pursuant to subsection b. of section 5 of P.L.2014, c.31 (C.2A:162-19).

(2) For purposes of ordering the pretrial detention of an eligible defendant pursuant to this section and section 5 of P.L.2014, c.31 (C.2A:162-19) or pursuant to section 10 of P.L.2014, c.31 (C.2A:162-24), when determining whether no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, the court may consider the amount of monetary bail only with respect to whether it will, by itself or in combination with non-monetary conditions, reasonably assure the eligible defendant's appearance in court when required.

b. Regarding the pretrial detention hearing moved for by the prosecutor, except for when an eligible defendant is charged with a crime set forth [under paragraph] pursuant to subsection a. [(1) or (2) of subsection b.] of section 5 of P.L.2014, c.31 (C.2A:162-19), there shall be a rebuttable presumption that some amount of monetary bail, non-monetary conditions of pretrial release or combination of monetary bail and conditions would 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.

c. An eligible defendant may appeal an order of pretrial detention pursuant to the Rules of Court. The appeal shall be heard in an expedited manner. The eligible defendant shall be detained pending the disposition of the appeal.

d. If the court does not order the pretrial detention of an eligible defendant at the conclusion of the pretrial detention hearing [under] pursuant to this section and section 5 of P.L.2014, c.31 (C.2A:162-19), the court shall order the release of the eligible defendant pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17).

(cf: P.L.2014, c.31, s.4)

2. Section 5 of P.L.2014, c.31 (C.2A:162-19) is amended to read as follows:

5. a. A prosecutor may file a motion with the court at any time, including any time before or after an eligible defendant's release pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17), seeking the pretrial detention of an eligible defendant for:

(1) any crime of the first or second degree enumerated [under] in subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2);

(2) any crime for which the eligible defendant would be subject to an ordinary or extended term of life imprisonment;

(3) any crime if the eligible defendant has been convicted of [two] one or more offenses under paragraph (1) or (2) of this subsection;

(4) any crime enumerated [under] in paragraph (2) of subsection b. of section 2 of P.L.1994, c.133 (C.2C:7-2) or crime involving human trafficking pursuant to section 1 of P.L.2005, c.77 (C.2C:13-8) or P.L.2013, c.51 (C.52:17B-237 et al.) when the victim is a minor, or the crime of endangering the welfare of a child [under] pursuant to N.J.S.2C:24-4;

(5) any crime enumerated [under] in subsection c. of N.J.S.2C:43-6;

(6) any crime or offense involving domestic violence as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19); [or]

(7) any other crime for which the prosecutor believes there is a serious risk that:

(a) the eligible defendant will not appear in court as required;

(b) the eligible defendant will pose a danger to any other person or the community; or

(c) the eligible defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure or intimidate, a prospective witness or juror;

(8) any crime or offense committed while the eligible defendant is serving a sentence of probation or term of parole supervision.

b. When a motion for pretrial detention is filed pursuant to subsection a. of this section, there shall be a rebuttable presumption that the eligible defendant shall be detained pending trial because no amount of monetary bail, non-monetary condition or combination of monetary bail and conditions would 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, if the court finds probable cause that the eligible defendant[:] committed a crime enumerated in subsection a. of this section.

(1) [committed murder pursuant to N.J.S.2C:11-3;] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

(2) [committed any crime for which the eligible defendant would be subject to an ordinary or extended term of life imprisonment.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

c. A court shall hold a hearing to determine whether any amount of monetary bail or non-monetary conditions or combination of monetary bail and conditions, including those set forth [under] in subsection b. of section 3 of P.L.2014, c.31 (C.2A:162-17) 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.

d. (1) Except as otherwise provided in this subsection, the pretrial detention hearing shall be held no later than the eligible defendant's first appearance unless the eligible defendant, or the prosecutor, seeks a continuance. If a prosecutor files a motion for pretrial detention after the eligible defendant's first appearance has taken place or if no first appearance is required, the court shall schedule the pretrial detention hearing to take place within three working days of the date on which the prosecutor's motion was filed, unless the prosecutor or the eligible defendant seeks a continuance. Except for good cause, a continuance on motion of the eligible defendant may not exceed five days, not including any intermediate Saturday, Sunday, or legal holiday. Except for good cause, a continuance on motion of the prosecutor may not exceed three days, not including any intermediate Saturday, Sunday, or legal holiday.

(2) Upon the filing of a motion by the prosecutor seeking the pretrial detention of the eligible defendant and during any continuance that may be granted by the court, the eligible defendant shall be detained in jail, unless the eligible defendant was previously released from custody before trial, in which case the court shall issue a notice to appear to compel the appearance of the eligible defendant at the detention hearing. The court, on motion of the prosecutor or sua sponte, may order that, while in custody, an eligible defendant who appears to be a drug-dependent person receive an assessment to determine whether that eligible defendant is drug-dependent.

e. (1) At the pretrial detention hearing, the eligible defendant has the right to be represented by counsel, and, if financially unable to obtain adequate representation, to have counsel appointed. The eligible defendant shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing.

(2) In pretrial detention proceedings for which there is no indictment, the prosecutor shall establish probable cause that the eligible defendant committed the predicate offense. A presumption of pretrial detention as provided in subsection b. of this section may be rebutted by proof provided by the eligible defendant, the prosecutor, or from other materials submitted to the court. The standard of proof for a rebuttal of the presumption of pretrial detention shall be a preponderance of the evidence. If proof cannot be established to rebut the presumption, the court may order the eligible defendant's pretrial detention. If the presumption is rebutted by sufficient proof, the prosecutor shall have the opportunity to establish that the grounds for pretrial detention exist pursuant to this section.

(3) Except when an eligible defendant has failed to rebut a presumption of pretrial detention pursuant to subsection b. of this section, the court's finding to support an order of pretrial detention pursuant to section 4 of P.L.2014, c.31 (C.2A:162-18) 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 shall be supported by clear and convincing evidence.

f. The hearing may be reopened, before or after a determination by the court, at any time before trial, if the court finds that information exists that was not known to the prosecutor or the eligible defendant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.

g. When a motion for pretrial detention is filed pursuant to subsection a. of this section, a pretrial recommendation of no release pursuant to subsection f. of section 6 of P.L.2014, c.31 (C.2A:162-20) may constitute prima facie evidence to overcome the presumption of release as set forth in subsection b. of section 4 of P.L.2014, c.31 (C.2A:162-18), if the court finds probable cause that the eligible defendant committed any crime for which the eligible defendant would be subject to a mandatory term of imprisonment pursuant to subsection c. of N.J.S.2C:43-6 for a crime involving the use or possession of a firearm other than a violation of:

(1) subsection a. or d. of N.J.S.2C:39-3;

(2) paragraph (1) or (2) of subsection a. of N.J.S.2C:39-4;

(3) subsection a. of section 1 of P.L. 1998, c.26 (C.2C:39-4.1); or

(4) paragraph (1) of subsection b. or paragraph (1) or (2) of subsection c. of N.J.S.2C:39-5.

(cf: P.L.2022, c.43, s.1)

3. Section 10 of P.L.2014, c.31 (C.2A:162-24) is amended to read as follows:

10. a. Upon motion of a prosecutor, when an eligible defendant is released from custody before trial pursuant to section 3 or 8 of P.L.2014, c.31 (C.2A:162-17 or C.2A:162-22), the court, upon a finding that the eligible defendant while on release has violated a restraining order or condition of release, or upon a finding of probable cause to believe that the eligible defendant has committed a new crime while on release, [may not] shall revoke the eligible defendant's release and order that the eligible defendant be detained pending trial unless the court, after considering all relevant circumstances including but not limited to the nature and seriousness of the violation or criminal act committed, finds clear and convincing evidence that [no] monetary bail, non-monetary conditions of release, or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, [or] and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.

b. A court shall not revoke an eligible defendant's release and order that the eligible defendant be detained pending trial based on manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (12) of subsection b. of N.J.S.2C:35-5, or possession of marijuana or hashish in violation of paragraph (3) of subsection a. of N.J.S.2C:35-10.

(cf: P.L.2021, c.19, s.9)

4. This act shall take effect immediately.

STATEMENT

This bill expands the list of crimes for which there is a rebuttable presumption of pretrial detention and requires pretrial detention of a defendant who violates the conditions of pretrial release.

Under P.L.2014, c.31, also known as the Criminal Justice Reform Law (CJR), criminal courts are authorized to order the pretrial release of a defendant pending further proceedings or order pretrial detention of a defendant who is found to be a flight risk, a danger to another or the community, or likely to obstruct further criminal proceedings.

Currently, there is a rebuttable presumption that a defendant who is charged with murder or a crime that subjects the defendant to an ordinary or extended term of life imprisonment is to be detained pending trial. This rebuttable presumption applies when a prosecutor makes a motion for the pretrial detention and may be rebutted upon a showing of proof, by a preponderance of the evidence, in favor of the defendant. If the presumption is not rebutted, the court may order pretrial detention of the defendant. If the presumption is rebutted, the prosecutor still has the opportunity to establish grounds for pretrial detention.

This bill provides that the rebuttable presumption of pretrial detention applies to: any defendant who was previously convicted of a crime of the first or second degree which requires completion of 85 percent of their sentence prior to being eligible for parole release or a crime for which the defendant would be subject to an ordinary or extended term of life imprisonment. The rebuttable presumption also would apply to a defendant who is charged with:

· a crime of the first or second degree which requires the defendant to complete 85 percent of their sentence prior to being eligible for parole release;

· a crime for which the defendant would be subject to an ordinary or extended term of life imprisonment;

· a crime involving a sex offense, human trafficking when the victim is a minor, or endangering the welfare of a child;

· certain crimes involving a firearm;

· a crime or offense involving domestic violence;

· any other crime for which the prosecutor believes there is a serious risk that:

o the eligible defendant will not appear in court as required;

o the eligible defendant will pose a danger to any other person or the community; or

o the eligible defendant will obstruct or attempt to obstruct justice or threaten, injure, intimidate, or attempt to threaten, injure, or intimidate a prospective witness or juror; or

· any crime or offense committed while the eligible defendant is serving a sentence of probation or term of parole supervision.

Currently, the CJR permits a court to revoke the release and order detention pending trial if a defendant violates a condition of release or commits a new crime while on release, but only if it finds by clear and convincing evidence that no monetary bail or conditions of release would reasonably assure the defendant's appearance in court and the public’s safety, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.

This bill provides that if a defendant violates any condition of pretrial release, or commits any crime while on release, the court is required to revoke the pretrial release and order the defendant to be detained pending trial, unless the court, after considering all relevant circumstances including but not limited to the nature and seriousness of the violation or criminal act charged, finds clear and convincing evidence that an amount of monetary bail, non-monetary conditions of release, or combination of monetary bail and conditions of release would 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. However, the bill would not change current law which provides that the lowest level distribution offenses involving marijuana or hashish, and possession of marijuana or hashish, are not to be considered a violation of the terms of pretrial release.