State v. Steele, A-1232-12T3; Appellate Division; opinion by Ostrer, J.A.D.; decided and approved for publication March 14, 2013. Before Judges Messano, Lihotz and Ostrer. On appeal from the Law Division, Passaic County, Nos. 12-06-0481 and 12-07-0570. DDS No. 14-2-9310 [24 pp.]

On leave granted, defendant Tyrone Steele appeals from the trial court’s order denying his motion to reduce bail totaling $200,000, of which $150,000 must be cash, on two indictments charging fourth-degree offenses.

Defendant is a 42-year-old convicted sex-offender. He was released from prison on Dec. 2, 2010. He is no longer subject to post-release parole, but is subject to CSL and Megan’s Law. When charged with the offenses related to the challenged bails, defendant had been released on bail in connection with two previous alleged violations of his community supervision. He was subsequently charged with a third CSL violation.

The state’s plea offer called for defendant to plead to two counts of lewdness, and to the three CSL indictments; in return, the state would recommend two concurrent terms of 18 months on the lewdness charges, consecutive to three concurrent 18-month terms on the CSL charges.

In deciding to maintain the challenged bails, the trial court relied on its analysis of the enumerated bail factors set forth in Rule 3:26-1, but also considered defendant’s dangerousness to the community.

Held: The trial court inappropriately considered safety of the community when setting the amount of money bail for fourth-degree offenses; the bails on the two indictments exceed the acceptable range, and are greater than necessary to assure defendant’s appearance.

Given the trial court’s expressed concern for the safety of the community, the appellate panel addresses the manner in which a court may consider that factor in setting bail.

N.J.S.A. 2C:6-1 limits bail on fourth-degree crimes and lesser offenses to $2,500, unless the defendant poses "a serious threat to the physical safety of potential evidence or of persons involved in circumstances surrounding the alleged offense," or a higher bail is necessary to assure the defendant’s appearance. N.J.S.A. 2C:6-1 does not authorize bail or more than $2,500 to protect the general community.

The court may for "good cause shown" impose a bail of more than $2,500. The appellate panel interprets the statutory provision allowing a bail higher than $2,500 for "good cause shown," to import the factors identified in State v. Johnson, and codified in Rule 3:26-1(a)(1) to (8). These include, among others, the seriousness of the crime charged, the likelihood of conviction, and the potential punishment; as discussed, crimes of the same degree may vary in seriousness.

The appellate panel concludes the monetary bail set by the trial court is excessive and reflects an inappropriate consideration of the risk defendant will re-offend, not as a factor affecting his risk of flight, but as a factor affecting community safety. The court addressed defendant’s mental condition, his professed inability to understand or resist walking around his property naked, and his prior record of violent crime. In setting bail, the court expressly stated that it was concerned not only about risk of flight but also about the "safety of the community." The court may not set a monetary condition of bail to protect the community by assuring defendant’s pretrial detention.

The appellate panel concurs with the court that there was good cause to exceed the statutory limit of $2,500 for fourth-degree crimes. The circumstances here justified a higher bail to reasonably assure defendant’s appearance. Generally, increased sentencing exposure creates increased risk of flight. Defendant faced exposure to sentences significantly longer than those typically imposed on fourth-degree offenders. Nonetheless, reference to the bail schedules suggests the excessiveness of the court’s imposition of $150,000 cash bail for the lewdness counts, and $50,000 cash or bond on the third CSL charge.

The statutory presumption of an all-cash bail is reserved for persons generally charged with first-degree or second-degree offenses, or with the victimization of specific persons already protected by a court order. Although the bail schedules are guidelines only, the bails of $150,000 cash only and $50,000 no 10 percent option exceed the acceptable range, and are greater than necessary to assure defendant’s appearance.

To avoid further delay, the appellate panel exercises original jurisdiction, and modifies the monetary bail on the two indictments. Bail on indictment 12-07-0570, charging six counts of lewdness, shall be $75,000, cash or bond, and bail on indictment 12-06-0481, charging a violation of CSL, shall be $25,000, cash or bond.

The record demonstrates proof by a preponderance of the evidence that a 10 percent option would be insufficient to assure defendant’s appearance. The court found a significant risk of flight. There was no evidence that family members or other noncorporate sureties on a 10 percent bail would reliably assure defendant’s appearance. A corporate surety on a bail bond, who faces the risk of forfeiture of the full amount of the bond, would have a greater incentive to monitor defendant’s whereabouts, and assure his appearance in court.

The appellate panel also remands to the court to consider the imposition of appropriate nonmonetary conditions of bail for the protection of the community.

For appellant — William J. Rohr, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender). For respondent — Marc A. Festa, Senior Assistant Prosecutor (Camelia M. Valdes, Passaic County Prosecutor).