No. A-56-16 (079079)

Aug. 1, 2017 (Date Decided)

Judge Rabner

FOR APPELLANT: Joseph E. Krakora, Public Defender (Joseph E. Krakora, Public Defender, attorney; Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the briefs).

FOR RESPONDENT: Claudia Joy Demitro, Deputy Attorney General (Christopher S. Porrino, Attorney General of New Jersey, attorney; Claudia Joy Demitro, of counsel and on the briefs).

Defendant appealed from the appellate division’s decision affirming the trial court’s ruling rejecting defendant’s claim that the state was required to present a live witness to establish probable cause at a detention hearing. Defendant was arrested for second-degree possession of a firearm, after officers observed him in possession of a defaced, loaded handgun. Both the affidavit of probable cause and the preliminary law enforcement incident report indicated that officers personally observed defendant in possession of the offending handgun.

The state moved for detention, submitting the complaint, affidavit of probable cause, the PLEIR, a public safety assessment, and defendant’s criminal history. Defense counsel objected to detention, arguing that the Criminal Justice Reform Act and court rules required the state to present a live witness to establish probable cause. The trial court disagreed, ruling that the state could obtain detention by proffer, noting that it still retained discretion to order witness testimony. The trial court further held that the document submitted by the state established probable cause for the charges, and that defendant posed a risk to the community if released.

Defendant appealed, arguing that both the CJRA and court rules, as well as due process considerations, precluded the state from proceeding by proffer alone. The appellate division affirmed, rejecting defendant’s statutory and due process arguments.

On appeal, the court affirmed, agreeing that neither the CJRA nor due process required the state to present live testimony at a detention hearing. The court noted that while statute gave defendants the right to cross-examine witnesses at a detention hearing, such right did not obligate the state to present witnesses at the hearing. The court further noted that the CJRA mirrored the federal Bail Reform Act, which did not require the prosecution to present live testimony to establish probable cause. The court ruled that the CJRA’s silence on a witness requirement was not an indication that the legislature intended to require the state to present live testimony. The court noted that the CJRA had been held to have sufficient procedural protections of constitutional rights. The court further held that trial courts were still empowered to require the state to present live witnesses if they were dissatisfied with the state’s proffer.