ASSEMBLY, No. 665

STATE OF NEW JERSEY

221st LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2024 SESSION

 


 

Sponsored by:

Assemblyman  SEAN T. KEAN

District 30 (Monmouth and Ocean)

 

 

 

 

SYNOPSIS

     Clarifies court’s discretion in imposing monetary conditions of bail; establishes rebuttable presumption that person charged with violent crime be detained prior to trial.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel.

  


An Act concerning pretrial release, amending P.L.2014, c.31 and supplementing Title 2A of the New Jersey Statutes.

 

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

 

     1.    (New section)  Notwithstanding any provision of law, court rule, or directive to the contrary, when a prosecutor does not seek pretrial detention for a defendant pursuant to section 5 of P.L.2014, c.31 (C.2A:162-19), the court may impose any combination of monetary bail and non-monetary conditions which would reasonably assure the defendant’s appearance in court when required, protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process.  The defendant or prosecutor shall have the right to request that a monetary condition of bail be set and shall receive the court’s due consideration of such request.

 

     2.    Section 1 of P.L.2014, c.31 (C.2A:162-15) is amended to read as follows:

     1.    The provisions of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.) and section 1 of P.L.      , c.     (C.         ) (pending before the Legislature as this bill) shall be liberally construed to effectuate the purpose of [primarily] relying upon pretrial release by monetary or non-monetary means to reasonably assure an eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, and that the eligible defendant will comply with all conditions of release, while authorizing the court, upon motion of a prosecutor, to order pretrial detention of the eligible defendant when it finds clear and convincing evidence that no condition or combination of conditions can reasonably assure the effectuation of these goals. Monetary bail may be set for an eligible defendant only when it is determined that no other conditions of release will reasonably assure the eligible defendant's appearance in court when required.

     For the purposes of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.), "eligible defendant" shall mean a person for whom a complaint-warrant is issued for an initial charge involving an indictable offense or a disorderly persons offense unless otherwise provided in sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.).

(cf: P.L.2014, c.31, s.1)

     3.    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 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 or more offenses under paragraph (1) or (2) of this subsection; 

     (4)   any crime enumerated under 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 N.J.S.2C:24-4;

     (5)   any crime enumerated under 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. 

     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:

     (1)   committed murder pursuant to N.J.S.2C:11-3;[or]

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

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

     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 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.

(cf: P.L.2014, c.31, s.5)

 

     4.    This act shall take effect on the 90th day following enactment.

 

 

STATEMENT

 

     This bill clarifies the court’s discretion in imposing monetary conditions of bail and establishes a rebuttable presumption that persons charged with certain violent crimes be detained prior to trial.

Monetary Conditions of Bail

     The bill provides that, notwithstanding any provision of law, court rule, or directive to the contrary, when a prosecutor does not seek pretrial detention for a defendant pursuant to N.J.S.A.2A:162-19, the court may impose any combination of monetary bail and non-monetary conditions which would reasonably assure the defendant’s appearance in court when required, protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process.  The bill also provides that the defendant or prosecutor shall have the right to request that a monetary condition of bail be set and shall receive the court’s due consideration of such request.

Pretrial Detention

     Under current law, upon motion by the prosecutor the court may order a defendant detained before trial under certain circumstances. In addition, if the court finds probable cause that the defendant committed murder or committed any crime for which the defendant would be subject to life imprisonment, there is a rebuttable presumption that the defendant be detained pending trial.

     This bill provides that the rebuttable presumption of pretrial detention would also apply to a defendant charged with any crime of the first or second degree enumerated under subsection d. of N.J.S.A.2C:43-7.2. These crimes include murder; aggravated manslaughter or manslaughter; vehicular homicide; aggravated assault; disarming a law enforcement officer; kidnapping; aggravated sexual assault; certain sexual assaults; robbery; carjacking;  aggravated arson;  burglary;  extortion; booby traps in CDS manufacturing or distribution facilities; strict liability for drug induced deaths; terrorism; producing or possessing chemical weapons, biological agents or nuclear or radiological devices;  racketeering, when it is a crime of the first degree; firearms trafficking; and causing or permitting a child to engage in a prohibited sexual act, knowing that the act may be reproduced or reconstructed or be part of an exhibition or performance.