No. A-4417-16T6

Sept. 29, 2017 (Date Decided)

Judge Currier

FOR APPELLANT: Jennifer B. Paszkiewicz, Assistant Prosecutor (Scott A. Coffina, Burlington, County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brief).

FOR RESPONDENT: Philip G. Pagano, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender, attorney; Jared Dorfman, Assistant Deputy Public Defender, on the brief).

The state appealed from the trial court’s denial of the state’s motion for pretrial detention of defendant. Defendant was charged with second degree robbery, second degree aggravated assault, and disorderly persons theft by unlawful taking. The victim alleged that defendant and another person threw her to the ground and punched and kicked her in the head, face, and body. Defendant’s public safety assessment rated defendant a six for criminal activity and a five for failure to appear, flagged her for an elevated risk of violence, and recommended she remain in custody pending trial.

At the pretrial detention hearing, defense counsel informed the trial court that defendant had a full-time job and had recently learned she was eight weeks pregnant. Defense counsel requested defendant be released on condition of in-person reporting, arguing that her employment and pregnancy would ensure her appearance before the court and protect the public’s safety. The trial court denied the state’s motion for pretrial detention, holding that, despite the seriousness of defendant’s charges, her juvenile criminal history and multiple failure to appear, the state’s proofs fell below clear and convincing evidence because defendant’s PSA failed to consider her pregnancy or the unique issues regarding her care in a correctional facility. Instead, the trial court imposed in-person weekly reporting and a curfew restricting her to leaving her home only for work and medical appointments.

On appeal, the state challenged whether pregnancy was a medical condition sufficient to override all applicable factors and warrant pretrial release. The state argued that the trial court abused its discretion by placing undue weight on defendant’s pregnancy and speculating that a correctional facility could not meet her medical needs. The court agreed and reversed the trial court’s order. The court ruled that the trial court improperly raised defendant’s pregnancy above all other pertinent factors based solely on the trial court’s speculation that a correctional facility would have issues treating defendant’s pregnancy. Although the court acknowledged that pregnancy could warrant pretrial release, it noted that there was no finding that defendant’s pregnancy affected her risk to public safety, or that she required unusual medical treatment.