RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1787-16T6

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, March 1, 2017

v. APPELLATE DIVISION

AMED INGRAM,

Defendant-Appellant. _____________________________________________

Argued February 14, 2017 – Decided March 1, 2017

Before Judges Messano, Espinosa and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. W-2017-000005-0408.

Joseph E. Krakora, Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret M. Butler, Assistant Deputy Public Defender, of counsel and on the brief).

Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Kevin J. Hein, Assistant Prosecutor, of counsel and on the brief).

Claudia Joy Demitro, Deputy Attorney General, argued the cause for amicus curiae Office of the Attorney General (Christopher S. Porrino, Attorney General, attorney; Ms. Demitro, on the brief).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey, attorneys; Mr. Shalom, Edward L. Barocas and Jeanne LoCicero, on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Defendant Amed Ingram appeals from the Law Division's

January 5, 2017, order granting the State's motion to detain

defendant pre-trial pursuant to the Bail Reform Act, N.J.S.A.

2A:162-15 to -26 (the Act). Defendant was arrested in Camden on

January 1, 2017, and charged in a complaint-warrant with:

second-degree illegal possession of a handgun, N.J.S.A. 2C:39-

5(b)(1); second-degree possession of a firearm with intent to

use it unlawfully, N.J.S.A. 2C:39-4(a)(1); second-degree

possession of a firearm by certain persons previously-convicted,

N.J.S.A. 2C:39-7(b)(1); and fourth-degree receipt of a defaced

firearm, N.J.S.A. 2C:39-9(e). The affidavit of probable cause

supporting the complaint-warrant stated that defendant was found

to be in possession of a defaced handgun and had previously been

convicted of possession of a controlled dangerous substance

(CDS) on school property, in violation of N.J.S.A. 2C:35-7.1

1 The record reveals that defendant had two prior convictions for distributing, dispensing or possessing with intent to distribute CDS within one-thousand feet of school property. N.J.S.A. 2C:35-7(a).

2 A-1787-16T6 At the pre-trial detention hearing on January 5, 2017, the

prosecutor submitted the complaint-warrant, the affidavit of

probable cause, the Public Safety Assessment (PSA),2 the

Preliminary Law Enforcement Incident Report (PLEIR)3 and

defendant's criminal history. During an earlier hearing

regarding a different defendant, defense counsel had lodged an

objection to the State's proffer of only documentary evidence,

which she renewed and incorporated by reference at defendant's

hearing.4 Judge Edward J. McBride overruled the objection and

admitted the documents in evidence.

Collectively, the complaint-warrant, affidavit of probable

cause and PLEIR stated defendant was in possession of a defaced

2 The Act required the Administrative Director of the Courts (the Director) to "establish and maintain a Statewide Pretrial Services Program which shall provide pretrial services to effectuate the [Act's] purposes[.]" N.J.S.A. 2A:162-25(a). Among other responsibilities, the Pretrial Services Program (PSP) must "conduct a risk assessment on [an] eligible defendant for the purpose of making recommendations to the court concerning an appropriate pretrial release decision," utilizing "a risk assessment instrument approved by the . . . Director" that meets certain criteria. N.J.S.A. 2A:162-25(b) and (c). The PSA was the approved risk assessment instrument. See Admin. Office of the Courts, "New Jersey Judiciary Pretrial Services Manual," at 16 (Dec. 27, 2016). 3 Our colleagues described in detail the genesis and intended purpose of the PLEIR in State v. Robinson, ___ N.J. Super. ___, ___ n.2 (App. Div.) (slip op. at 3), leave to appeal granted, ___ N.J. ___ (2017). 4 The transcript of the prior proceeding is part of the appellate record.

3 A-1787-16T6 Hi-Point model JHP .45 caliber handgun loaded with eight rounds,

the officer who swore out the complaint-warrant and another

officer "personally observed the offense[s]," the weapon had

been discharged and the gun and spent shell casings were

"seized/recovered." Relying on these documents, Judge McBride

concluded the State established probable cause that defendant

committed the crimes charged in the complaint-warrant.

In further support of the detention motion, the prosecutor

relied primarily on the PSA, which rated defendant's risk for

both failing to appear (FTA), and new criminal activity (NCA),

as six, the highest score on the PSA. The PSA, however, did not

include a "flag" highlighting a risk of new violent criminal

activity (NVCA). The PSA revealed defendant, who was twenty-

five years old, had an extensive criminal record and a history

of failing to appear. Defendant had a pending charge of simple

assault, N.J.S.A. 2C:12-1(a)(1), as well as five prior

indictable convictions, some of which resulted in incarceration.

He was on probation and had failed to appear in court five times

in the past. Release was not recommended, and if defendant were

released, it should be conditioned upon home detention with

electronic monitoring.

Defense counsel argued defendant was a lifelong county

resident, currently resided with his aunt, had a six-month old

4 A-1787-16T6 child whom he saw on a daily basis, was employed for the last

four or five months and had previously been employed elsewhere.

She urged Judge McBride to release defendant with the highest

level of monitoring, including electronic monitoring.

Judge McBride concluded the recommendation of Pretrial

Services was "prima facie evidence sufficient to overcome by

clear and convincing evidence the presumption of release." See

R. 3:4A(b)(5). He also considered: the nature and

circumstances of the offense, noting the weapons offenses were

punishable under the Graves Act, N.J.S.A. 2C:43-6(c), and

conviction of the certain persons offense carried a minimum five

year period of incarceration; the weight of the State's

evidence, including the officers' personal observations;

defendant's serious criminal record, including a juvenile

delinquency adjudication for a serious offense; and defendant's

current status as a probationer.5 Judge McBride found by clear

and convincing evidence that "no amount of monetary bail, non-

monetary conditions or combination" of both "would reasonably

assure[] defendant’s appearance in court when required [and/or]

the protection of the safety of any other person or the

5 The prosecutor offered a document that detailed defendant's New Jersey criminal history, which apparently included defendant's history of juvenile delinquency adjudications. The document is not in the record, and the PSA does not include juvenile adjudications.

5 A-1787-16T6 community." See N.J.S.A. 2A:162-19(e)(3). The order granting

the State's detention motion comprehensively reflects Judge

McBride's findings and conclusions.

Defendant filed this appeal as of right. N.J.S.A. 2A:162-

18(c); R. 2:9-13(a). Thereafter, we granted motions filed by

the Attorney General and the American Civil Liberties Union

(ACLU) to appear as amici.

As he did before Judge McBride, defendant argues that

permitting the State to establish probable cause at the

detention hearing solely by proffer, without calling "live

witnesses" or presenting "live testimony," violates due process

and the Act. At oral argument before us, defendant further

contended that the witness must have some personal knowledge of

the case, so there is an opportunity for meaningful cross-

examination. Defendant also argues the State failed to meet its

burden of proof justifying pretrial detention. The ACLU submits

that permitting the State to prove probable cause and grounds

for detention solely by proffer violates a defendant's right to

due process.

To the contrary, the State argues that proceeding by

proffer violates neither defendant's due process rights nor the

Act, and that, in this case, Judge McBride properly "exercised

[his] discretion" and found the State met its burden of proof.

6 A-1787-16T6 The Attorney General submits that proceeding by proffer at pre-

trial detention hearings does not violate the Act or a

defendant's due process rights.

Having considered these arguments, in light of the record

and applicable legal standards, we affirm.

I.

Except as necessary to resolve the issues before us, we

need not detail the legislative history of the Act, or its

underlying public policy goals, which our colleagues so capably

explained in Robinson, supra, ___ N.J. Super. at ___ (slip op.

at 7-17). The Act permits a prosecutor to seek pretrial

detention of a defendant arrested for certain enumerated crimes

or offenses, including Graves Act crimes, N.J.S.A. 2A:162-

19(a)(5), or for "any other crime for which the prosecutor

believes there is a serious risk that" the defendant will "not

appear in court as required," "pose a danger to any other person

or the community," or "obstruct or attempt to obstruct justice,

or threaten, injure, or intimidate, or attempt to threaten,

injure or intimidate, a prospective witness or juror"

(collectively, grounds for detention), N.J.S.A. 2A:162-

19(a)(7)(a)-(c).

If the court "finds probable cause that the eligible

defendant" committed murder or a crime potentially punishable by

7 A-1787-16T6 life imprisonment, then "there shall be a rebuttable presumption

that the eligible defendant shall be detained pending trial,"

and the defendant can rebut that presumption by a preponderance

of evidence. N.J.S.A. 2A:162-19(b) and (e)(2). For other

crimes, or where a defendant successfully rebuts the presumption

of detention, the prosecutor must establish grounds for

detention by clear and convincing evidence. N.J.S.A. 2A:162-

19(e)(3).

The Act provides that "[i]n pretrial detention proceedings

for which there is no indictment, the prosecutor shall establish

probable cause that the eligible defendant committed the

predicate offense." N.J.S.A. 2A:162-19(e)(2). Upon a finding

of probable cause, the judge must answer the critical question:

"whether any amount of monetary bail or 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, and that the eligible defendant will not

obstruct or attempt to obstruct the criminal justice process."

N.J.S.A. 2A:162-19(c).

At the detention hearing, a defendant has a right to be

represented by counsel and "shall be afforded an opportunity to

testify, to present witnesses, to cross-examine witnesses who

8 A-1787-16T6 appear at the hearing, and to present information by proffer or

otherwise." N.J.S.A. 2A:162-19(e)(1). The rules of evidence do

not apply, N.J.S.A. 2A:162-19(e)(1), and "[t]he hearing may be

reopened" prior to trial "if the court finds . . . information

exists" that "has a material bearing" on its decision regarding

grounds for detention, N.J.S.A. 2A:162-19(f).

A.

Citing the United States and New Jersey Constitutions,

defendant argues due process "mandates" the State present "a

live witness at the preventive detention hearing." Relying

largely on the reasoning of federal courts, which have

consistently permitted the government to proceed by proffer

under the analogous federal statutory scheme, and our own

jurisprudence predating the Act, we disagree.

The United States Constitution provides that no State shall

"deprive any person of life, liberty, or property, without due

process of law." U.S. Const. amend. XIV, § 1. Our Supreme

Court has explained, "Article I, paragraph 1 of the New Jersey

Constitution does not enumerate the right to due process, but

protects against injustice and, to that extent, protects 'values

like those encompassed by the principle[] of due process.'" Doe

v. Poritz,

(1995) (alteration in original)

(quoting Greenberg v. Kimmelman,

(1985)). "Due

9 A-1787-16T6 process is 'a flexible [concept] that depends on the particular

circumstances.'" H.E.S. v. J.C.S.,

(2003)

(alteration in original) (quoting

).

In examining a procedural due process claim, we first

"assess whether a liberty or property interest has been

interfered with by the State," and then determine "whether the

procedures attendant upon that deprivation are constitutionally

sufficient."

. Since pre-trial

detention clearly implicates defendant's liberty interest, we

focus only on whether the procedures defined or otherwise

implied by the Act are sufficient.

In Gerstein v. Pugh,

,

,

(1975), the United States Supreme Court considered

"whether a person arrested and held for trial under a

prosecutor's information is constitutionally entitled to a

judicial determination of probable cause for pretrial restraint

of liberty."

,

,

.

Recognizing that detention could "imperil the suspect's job,

interrupt his source of income, and impair his family

relationships," the Court held that "the detached judgment of a

neutral magistrate is essential" if the constitutional guarantee

of due process "is to furnish meaningful protection from

unfounded interference with liberty."

,

A-1787-16T6 863,

. Accordingly, the Court held that due

process "requires a judicial determination of probable cause as

a prerequisite to extended restraint of liberty following

arrest."

However, the Gerstein Court rejected the contention that

procedures for determining probable cause "must be accompanied

by the full panoply of adversary safeguards," including the

rights to counsel and to confront, cross-examine, and subpoena

witnesses.

,

,

.

The Court explained:

These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard — probable cause to believe the suspect has committed a crime — traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.

[Id. at 120,

,

(emphasis added).]

Additionally, the Gerstein Court "recognize[d] the

desirability of flexibility and experimentation by the States"

in developing appropriate pretrial procedures, and held that

"[w]hatever procedure a State may adopt, it must provide a fair

11 A-1787-16T6 and reliable determination of probable cause as a condition for

any significant pretrial restraint of liberty, and this

determination must be made by a judicial officer either before

or promptly after arrest."

,

,

. "[J]udicial determinations of probable

cause within 48 hours of arrest will, as a general matter,

comply with the promptness requirement of Gerstein." Cty. of

Riverside v. McLaughlin,

,

,

(1991).

Our jurisprudence recognizes that a timely judicial

determination of probable cause must accompany any significant

deprivation of an individual's liberty. See State v. Gonzalez,

(1989) (noting where a suspect "is to be

detained for any significant amount of time," a determination of

probable cause is "of constitutional dimension" (citing

,

,

)). Historically, our court rules have delineated a

process that passes constitutional muster.

Rule 3:3-1(a)(1) permits the issuance of an arrest warrant

only upon a finding of probable cause made by a judicial

officer. When a person is arrested without a warrant, Rule 3:4-

1(b) requires that the complaint-warrant (CDR-2) must be

presented to a judicial officer within twelve hours to determine

12 A-1787-16T6 whether process shall issue in accordance with Rule 3:3-1. In

State v. Tucker,

(1994), the Court concluded

prior iterations of these rules provided the necessary

constitutional guarantees required by Gerstein and McLaughlin,

i.e., a timely judicial determination of probable cause in order

to detain. See also Pressler & Verniero, Current N.J. Court

Rules, comment on R. 3:4-1 (2017).

Rule 3:4-2(c)(8) provides that at the first appearance, the

judge must "inform the defendant of his or her right to have a

hearing as to probable cause and of his or her right to

indictment by the grand jury and trial by jury." Rule 3:4-3(a)

provides, in pertinent part:

If the defendant does not waive a hearing as to probable cause and if before the hearing an indictment has not been returned against the defendant . . . , after notice to the county prosecutor a judge of the Superior Court shall hear the evidence offered by the State within a reasonable time and the defendant may cross-examine witnesses offered by the State. If, from the evidence, it appears to the court that there is probable cause to believe that an offense has been committed and the defendant has committed it, the court shall forthwith bind the defendant over to await final determination of the cause; otherwise, the court shall discharge the defendant from custody if the defendant is detained.

These procedures are "[i]n keeping with" Gerstein's holding that

"a defendant may not be retained in custody in the absence of

13 A-1787-16T6 probable cause." Pressler & Verniero, supra, comment on R.

3:4-3.

There are some obvious parallels between probable cause

hearings held pursuant to Rule 3:4-3(a), and the Act's

requirement that, absent specific circumstances not applicable

here, the State must establish probable cause at a pretrial

detention hearing. Both hearings occur after arrest but before

indictment, and the return of an indictment obviates the need

for any judicial determination of probable cause. Also, the

rules of evidence do not apply in either proceeding, and the

defendant has the right to representation and cross-examination

in both. The Act provides the defendant with the additional

opportunity to present evidence. N.J.S.A. 2A:162-19(e)(1).6

However, "[t]he probable cause hearing provided for by

[Rule 3:4-3(a)] is neither a constitutionally guaranteed stage

nor an essential component of the prosecution, and may, in any

case, be superseded by the grand jury's prior return of an

indictment." Pressler & Verniero, supra, comment on R. 3:4-3;

6 Defendants have no right to present evidence at a hearing held pursuant to Rule 3:4-3(a). In re State ex rel. A.D.,

(2012). Because the issue is not before us, we specifically do not consider the nature and scope of a defendant's ability at a pretrial detention hearing "to present witnesses . . . and to present information by proffer or otherwise." N.J.S.A. 2A:162-19(e)(1).

14 A-1787-16T6 see also State v. Smith,

(1960) ("The right [to

a preliminary hearing] was not known at the common law and is

not a constitutional requirement." (citations omitted)), cert.

denied,

,

,

(1961);

State v. Mitchell,

(App. Div. 1978) ("A

preliminary hearing is not an essential part of criminal

procedures.").7

7 A noted commentator has observed that, as a practical matter, a probable cause hearing under Rule 3:4-3 "rarely occurs." Leonard N. Arnold, New Jersey Practice Series, Criminal Practice and Procedure, Vol. 31, § 9:1 (2016-17 Ed.). Rather, "[i]t has become common for defendants to waive the probable cause hearing because defense counsel believe that the expanded rules of pre- trial discovery provide the defense with the same information that might be obtained at the probable cause hearing." Id. at § 9:4. Moreover, a probable cause hearing will not occur if an indictment is returned before the scheduled date. Id. at § 9.2, § 9.4; R. 3:4-3(a).

In 1971, the Supreme Court's Special Committee on Calendar Control — Criminal, recommended a number of procedural changes, including elimination of the probable cause hearing provided by Rule 3:4-3. New Jersey Law Journal, "Report of Supreme Court's Special Committee on Calendar Control — Criminal," 94 N.J.L.J. Index Page 185 (1971).

The experience of judges and prosecutors as well as defense counsel indicates that under present practice the probable cause hearing in the municipal court held pursuant to Rule 3:4-3 serves principally as a means of discovery, for which ample provision is made under Rule 3:13-3 . . . . The small percentage [of cases where no probable cause is found] hardly warrants perpetuation of a practice which in essence duplicates the function of the Grand Jury . . . . (continued)

15 A-1787-16T6 Moreover, in implementing the Act, the Court adopted a

comprehensive rule specifically codifying procedures governing

pre-trial detention motions filed by the prosecutor. Rule

3:4A(b)(2) requires that, at the hearing on the prosecutor's

motion and in the absence of an indictment, "the prosecutor

shall establish probable cause that the defendant committed the

predicate offense." However, the new Rule does not incorporate

Rule 3:4-3(a) by reference or otherwise.

Our court rules clearly permit the State to establish

probable cause, ex parte before a judicial officer, by merely

presenting "the complaint or an accompanying affidavit or

deposition." R. 3:3-1(a); R. 3:4-1(b). Our rules do not

specify and neither party has brought to our attention any New

Jersey precedent that holds how the State must proceed in

establishing probable cause, whether at a Rule 3:4-3(a) hearing,

Rule 3:4A hearing or otherwise, in order to satisfy the federal

and State constitutions. Our case law, however, implies that,

even when significant liberty interests are at stake, the State

(continued)

[Ibid.]

The committee's recommendation was not adopted, and the Rule, which has been amended several times since, has remained essentially unchanged.

16 A-1787-16T6 is not required to produce live witnesses to establish probable

cause.

For example, in In re J.G.,

(1997), the

Court held that, before a court can order HIV testing of a

defendant or juvenile pursuant to N.J.S.A. 2C:43-2.2, it must

find probable cause that the victim was exposed to the

assailant's bodily fluids and there was a possibility that the

AIDS virus had been transmitted.8 The Court explained:

Evidence sufficient to support a finding of probable cause can be gleaned from numerous sources, including sworn statements of the victim, the offender, law enforcement officers or other witnesses, the evidence presented in seeking an arrest warrant for the offender, the findings of the judicial officer who determined that there was probable cause to issue the arrest warrant, the evidence presented at a probable cause hearing held pursuant to Rule 3:4-3, testimony before the grand jury, the indictment returned against the offender by the grand jury, and any evidence presented at the trial of the offender for the alleged sexual assault against the victim. We anticipate that in most cases, an order requiring testing will issue forthwith upon an application from the prosecutor on notice to the offender.

If the evidence is not sufficient, the court may, in its discretion, hold a hearing to afford the State the opportunity to demonstrate that probable cause exists. The

8 Importantly, N.J.S.A. 2C:43-2.2 only requires that the defendant or juvenile be "charged" with, not convicted of, specific offenses.

17 A-1787-16T6 hearing should be similar to a preliminary hearing under Rule 3:4-3 in that both the offender and the State must be given notice, the offender may cross-examine witnesses offered by the State, the rules of evidence shall not apply, and the offender shall be entitled to counsel.

[Ibid. (emphasis added) (internal citations omitted).]

We have held that an initial temporary commitment under the

Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to

-27.38, must be on notice and subject to a judicial finding of

probable cause. In re Commitment of M.G.,

(App. Div. 2000). However, particularly since the

commitment was subject to a later hearing, we held that due

process was satisfied by a "probable cause hearing . . . [which]

shall be limited to an inquiry as to whether the documentation

provided to the judge satisfies the statutory requirements for

commitment."

(emphasis added).

The Act provides limited guidance regarding the procedures

the court must employ at a pretrial detention hearing. However,

the similarity between the Act's procedures, and those

established in the federal Bail Reform Act of 1984, 18 U.S.C.A.

18 A-1787-16T6 § 3141 to § 3150 (the Federal Act), suggest the New Jersey

Legislature intended our process to be similar.9

Indeed, the limited legislative history surrounding passage

of the Act supports this conclusion. For example, at the Senate

Law and Public Safety Committee (SLPSC) public hearing regarding

Senate Concurrent Resolution 128 (SCR-128), which "[p]ropose[d]

constitutional amendment to authorize, under certain

circumstances, pre-trial detention of persons in criminal

cases," Senator Donald Norcross, Chair of the SLPSC, noted that

SCR-128 "makes much needed changes to our State's bail system."

Pub. Hearing Before Senate Law and Pub. Safety Comm., Senate

Concurrent Resol. 128, at 1 (July 24, 2014).10 Senator Norcross

stated:

It is time that we give our justice system the ability to weigh the public risk certain offenses pose to keep residents safe when considering bail of dangerous criminals. More to the point, this measure would bring New Jersey in line with the Federal courts, which has allowed [sic] judges this discretion since 1984.

[Id. at 2 (emphasis added).]

9 We recognize that in this part of the opinion, we deal with "constitutional adjudication" and not statutory interpretation, something we discuss more fully below. State v. Pomianek,

, 88 n.8 (2015). 10 The hearing transcript may be found at http://www.njleg.state.nj.us/legislativepub/pubhear/slp07242014. pdf

19 A-1787-16T6 The Federal Act permits the government to seek pretrial

detention of a defendant arrested for certain enumerated crimes,

or "in a case that involves" either "a serious risk that such

person will flee," or "a serious risk that the person will

obstruct or attempt to obstruct justice, or threaten, injure, or

intimidate, or attempt to threaten, injure, or intimidate, a

prospective witness or juror."

(f)(2). A

judicial officer must hold a hearing to determine whether

conditions other than detention "will reasonably assure the

appearance of the person as required and the safety of any other

person and the community."

(f). At the

pretrial detention hearing, a defendant has a right to be

represented by counsel and "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 of evidence do not apply, and

"[t]he hearing may be reopened" prior to trial "if the court

finds that information exists" that "has a material bearing" on

its decision.

Like the Act, the Federal Act expressly

provides that a defendant may "present information by proffer or

otherwise," but is silent as to whether the government may do

likewise.

(f); N.J.S.A. 2A:162-19(e)(1).

20 A-1787-16T6 Both statutes create a rebuttable presumption in favor of

detention for certain enumerated crimes.

(e)(3); N.J.S.A. 2A:162-19(b). However, the Federal Act

applies this rebuttable presumption to a broader range of crimes

than the Act, including certain serious drug crimes, violent

crimes involving a firearm, and many offenses involving a minor

victim.

(e)(3). Also, unlike the Act, the

Federal Act requires the government to establish probable cause

only in those instances when the rebuttable presumption arises.

In United States v. Salerno,

,

,

(1987), the United States

Supreme Court upheld the constitutionality of the Federal Act

and concluded that its procedures did not violate a defendant's

due process rights. The Court noted that the procedural

protections provided "extensive safeguards" that "far exceed

what we found necessary to effect limited postarrest detention

in [Gerstein]."

,

,

.

In United States v. Gaviria,

(11th Cir. 1987),

the Eleventh Circuit specifically considered whether the Federal

Act allowed the government to proceed by proffer at a pretrial

detention hearing.

. The court held that even though

21 A-1787-16T6 the statute was silent on the issue, the government as well as

the defense could proceed by proffer.

The Gaviria court

noted that the Federal Act's procedural requirements were based

on a District of Columbia statute, which was held to be

constitutional in United States v. Edwards,

(D.C.

1981) (en banc), cert. denied,

,

,

(1982). Ibid.

The Edwards court noted "the same liberty interest of the

individual — to be free from pretrial detention — is involved in

a pretrial detention hearing and a Gerstein hearing on probable

cause."

. Although "pretrial

detention is not punishment, it clearly implicates a liberty

interest that requires a fair hearing within the mandates of

procedural due process."

.

Considering statutory language that, like the Act and the

Federal Act, expressly permitted the defendant "to present

witnesses, to cross-examine witnesses who appear at the hearing,

and to present information by proffer or otherwise," but was

silent as to the nature of the government's evidence, the

Edwards court held that "[t]he information presented to the

judicial officer by either the government or the defense may be

by proffer and 'need not conform to the rules pertaining to the

admissibility of evidence in a court of law.'"

at 1334

22 A-1787-16T6 (emphasis added) (quoting D.C. Code 1973, § 23-1322(c)(5)). The

court stated "[t]he legislative history of the statute confirms

Congress' intent that the information upon which the judicial

officer makes his finding need not be sworn testimony, and that

the hearing is not designed to afford defendants a discovery

device." Ibid. (citing H.R. REP. NO. 91-907, 91st Cong., 2d

Sess. 182, 184 (1970)).

Relying on Edwards and the legislative history of the

Federal Act, the Gaviria court held that "the government as well

as the defense may proceed by proffering evidence subject to the

discretion of the judicial officer presiding at the detention

hearing."

. Other circuits

considering the issue have reached the same conclusion. See

United States v. Smith,

(D.C. Cir. 1996) ("We

join our sister circuits in holding that the [Federal] Act

allows [the government to proceed by proffer]."); United States

v. Martir,

(2d Cir. 1986) (noting that

"Congress did not want detention hearings to resemble mini-

trials" and that "the government as well as the defendant should

usually be able to proceed by some type of proffer"); United

States v. Winsor,

(9th Cir. 1986) ("As in a

preliminary hearing for probable cause, the government may

proceed in a detention hearing by proffer or hearsay.").

23 A-1787-16T6 Federal district courts considering the issue have also

followed the reasoning in Gaviria and permitted the government

to proceed by proffer. See United States v. Whitman,

, 102 n.1 (D. Me. 2007) (rejecting the defendant's

argument that only he had a right to submit evidence at the

detention hearing by proffer); United States v. Cabrera-

Ortigoza,

(S.D. Cal. 2000) (noting "there is

no requirement of live testimony by the government at a

detention hearing" and holding that amendments to the federal

rules requiring the production of witness statements "do not

invalidate the use of proffers at a detention hearing"); United

States v. Ward,

(C.D. Cal. 1999)

(noting that "both the Government and the defendant may proceed

by proffer or hearsay" at a pretrial detention hearing), aff’d,

(9th Cir. 2007); United States v. Alston,

, 3 n.3 (D.D.C. 1995) (judicial officer has discretion

to permit the government to proceed by proffer); United States

v. Alonso,

(D. Puerto Rico 1993) (same).

As the overwhelming amount of federal precedent

demonstrates, pretrial detention is constitutionally permissible

upon a prompt judicial determination of probable cause as

required by Gerstein. Permitting the government to establish

24 A-1787-16T6 probable cause by proffer and hearsay is consistent with the

Federal Act and does not violate due process.

At oral argument, defendant sought to distinguish these

federal precedents by arguing the Federal Act requires the

government to establish probable cause only in those cases where

a rebuttable presumption of detention arises. 18 U.S.C.A.

3142(e)(3). He asserts that in many of the cited cases, the

government had already indicted the defendant, or the case

involved a crime for which the rebuttable presumption did not

apply, and therefore probable cause was not at issue. In other

words, the courts permitted the government to proceed by proffer

only as to grounds for detention but not as to probable cause.

Defendant cites United States v. Suppa,

(3d

Cir. 1986), in which the court remarked in dicta that it had a

"grave question whether the required finding of probable cause

may be based on a proffer of evidence by the government."

However, in Suppa, the court specifically never reached the

issue, ibid., and we found no other case expressing such

reservations. In United States v. Delker,

, 1396-

98 (3d Cir. 1985), the court expressly rejected the defendant's

argument that "hearsay may not be employed to demonstrate that

appellant committed the crime with which he is charged."

Moreover, in Edwards, the seminal case upon which most of the

25 A-1787-16T6 circuit and district courts rely, the hearing occurred before

indictment, and the defendant was charged with crimes that

required a judicial finding of probable cause.

. Yet, the court did not distinguish the

nature of the evidence admitted to prove probable cause from

that admissible to prove other factors supporting detention.

Defendant argues that our courts have cautioned against

reliance on hearsay in other proceedings involving deprivation

of liberty interests, for example, commitment hearings under the

SVPA and probation violation hearings. In re Commitment of

E.S.T.,

(App. Div. 2004) (requiring

examining doctors to testify at SVPA commitment hearing if

available); State v. Reyes,

(App.

Div.) (permitting use of hearsay at probation revocation hearing

only if "demonstrably reliable"), certif. denied,

(1986). Defendant also points out that our Supreme Court is

currently considering whether hearsay testimony alone can

justify the revocation of probation. See State v. Mosely,

Docket No. A-3212-14T4 (Sept. 7, 2016), certif. granted, ___

N.J. ___ (2016).11 Defendant argues that "there is an even

11 Similarly, the ACLU cites our decision in State v. Bacome,

, 239 n.7 (App. Div.), certif. granted,

(2015), which raised concerns about the use of hearsay at a suppression hearing. Since the briefs were filed, the Court (continued)

26 A-1787-16T6 greater rationale for mandating . . . broader protections at a

hearing where the defendant has yet to be convicted of any

crime."

However, at a pretrial detention hearing, the State is

required to establish probable cause for defendant's arrest on

the charges contained in the complaint-warrant. See State v.

Brown,

(2011) ("[F]or an arrest, 'there must

be probable cause to believe that a crime has been committed and

that the person sought to be arrested committed the offense.'"

(quoting State v. Chippero,

(2009))). "Although

it is difficult to define the concept with precision, probable

cause requires 'more than a mere suspicion of guilt' but less

evidence than is needed to convict at trial."

(quoting

State v. Basil,

(2009)). Unlike these other

types of hearings cited by defendant, the detention hearing is

not a final adjudication of contested facts and does not

ultimately affect either defendant's trial on the merits or the

punishment resulting if he is found guilty.

One other point convinces us that allowing the State to

proceed by proffer at the detention hearing does not violate

(continued) reversed our judgment without addressing the issue. State v. Bacome, ___ N.J. ___ (2017).

27 A-1787-16T6 defendant's due process. Defendant concedes that, had a grand

jury returned an indictment before the hearing, the State would

not have needed to demonstrate probable cause for defendant's

arrest. N.J.S.A. 2A:162-19(e)(2); see also

(2012) ("[T]he standard governing a grand jury's

decision whether to indict has also been characterized as one of

probable cause." (citing State v. Hogan,

(1996))). Yet, our courts have long accepted that an indictment

may be returned wholly on hearsay or other testimony that is

neither competent nor legally admissible at trial. State v.

Holsten,

(App. Div. 1988) (citations

omitted).

Moreover, it is beyond peradventure that the grand jury

process accords a defendant none of the procedural safeguards

provided by the Act. See, e.g., State v. Schmidt,

(App. Div. 1986) (noting the presentation to a

grand jury is not adversarial, and "consideration of the views

of the defense" is not required),12 rev'd on other grounds,

(1988); State v. Hart,

(App. Div. 1976) (noting grand jury proceedings are secret, with

the prosecutor in attendance but without defendant or defense

12 Although the prosecutor must present evidence that "directly negate[s] guilt" or is "clearly exculpatory."

.

28 A-1787-16T6 counsel present (citing R. 3:6-6(a))). No witness, including a

defendant, has the right to have counsel present in grand jury

proceedings. See In re Essex Cty. Grand Jury Investigation into

Fire at Seton Hall Univ. in S. Orange on Jan. 19, 2000,

, 291 n.9 (Law Div. 2003). In other words, probable

cause may be established and a defendant detained without any of

the procedural safeguards we have described as part of a

detention hearing under the Act. Yet, defendant does not

contend, nor could he, that a judicial determination of probable

cause based on the return of an indictment before the detention

hearing denies him due process.

In sum, we reject the contention that Judge McBride's

decision to detain defendant without the State calling a witness

to present live testimony at the hearing violated his due

process rights.

B.

Defendant also argues that the Act's language evinces the

Legislature's intent to require the State to produce live

testimony at the hearing. He contends "familiar canons of

statutory construction" lead to this conclusion. We disagree.

In construing a statute, our "goal . . . 'is to give effect

to the intent of the Legislature.'" State v. Morrison, ___ N.J.

___, ___ (2016) (slip op. at 22) (quoting Maeker v. Ross, 219

29 A-1787-16T6 N.J. 565, 575 (2014)). We first look at the statute's language,

giving the words their plain meaning and enforcing the statute

as written. State v. Grate,

(2015) (citing

State v. Drury,

(2007)). However,

[i]f the language is ambiguous or "admits to more than one reasonable interpretation, we may look to sources outside the language to ascertain the Legislature's intent." Such extrinsic sources, in general, may include the statute's purpose, to the extent that it is known, and the relevant legislative history.

[Drury, supra,

(quoting State v. Reiner,

(2004)).]

As noted, in several instances, the Federal Act and the Act

are nearly identical. "[W]hen sections of the federal and state

acts are substantially similar in language, it is appropriate to

conclude that our Legislature's 'intent in enacting the sections

of the . . . Act . . . was simply to follow the federal act.'"

State v. Diaz,

(App. Div. 1998)

(quoting State v. Fornino,

(App. Div.),

certif. denied,

, cert. denied,

,

,

(1988)); see also Pub. Hearing

Before Senate Law and Pub. Safety Comm., supra, at 2. Moreover,

the federal precedent we cited above is both instructive and

persuasive. See State v. Ball,

(1995) (noting

that state courts "heed federal legislative history and case law

30 A-1787-16T6 in construing" New Jersey's RICO statute, which was modeled on

the federal RICO statute), cert. denied,

,

,

(1996).

Initially, defendant contends the State must call a live

witness to establish probable cause but not to establish grounds

for detention.13 Indeed, the express language of the Act

supports the proposition that the State may establish grounds

for detention by documentary proffer alone. For example, the

Legislature specifically required PSP to generate the PSA for

the court's consideration in deciding whether detention was

appropriate. N.J.S.A. 2A:162-25. Rule 3:4A(b)(5) expressly

provides that "[t]he court may consider as prima facie evidence

sufficient to overcome the presumption of release a

recommendation by [PSP] . . . that the defendant's release is

not recommended (i.e., a determination that 'release not

recommended or if released, maximum conditions')." The

Legislature permitted the judge to consider this tool in

evaluating the State's proof as it relates to grounds for

detention. N.J.S.A. 2A:162-20(f).

13 As already noted, amicus ACLU submits live testimony is necessary to establish both probable cause and at least some of the statutory factors that might support grounds for detention, such as, for example, "[t]he nature and circumstances of the offense charged." N.J.S.A. 2A:162-20(a).

31 A-1787-16T6 Additionally, in reaching a decision on the grounds for

detention, the judge may consider evidence that is assuredly

documentary in nature in most instances, such as a defendant's

criminal history and "record concerning appearance at court

proceedings." N.J.S.A. 2A:162-20(c)(1). That the State may

prove grounds for detention by clear and convincing documentary

evidence alone militates against defendant's claim that the

State may not establish probable cause — requiring a much lesser

burden of proof — without a witness.14

Defendant argues the Act only permits a defendant to

"present information by proffer or otherwise," N.J.S.A. 2A:162-

19(e)(1), implicitly signifying the State may not proceed by

proffer, and had the Legislature intended to permit proof of

probable cause by proffer, it could have explicitly said that.

That reasoning is unpersuasive.

The Act is not only silent as to whether the State may

proceed by proffer, but it is also silent as to whether the

State may call witnesses, cross-examine witnesses, or

"otherwise" present information to the judge, all of which the

Act expressly permits a defendant to do.

We doubt the

14 Similarly, the Federal Act requires the government to prove grounds for detention by clear and convincing evidence.

(f)(2). As explained, federal precedent clearly permits the government to proffer evidence to meet this heightened burden of proof.

32 A-1787-16T6 Legislature's silence regarding the State's method of proving

probable cause necessarily signifies its intention to either

limit the type of evidence the State chooses to introduce, or

require the introduction of certain evidence, i.e., the

testimony of a live witness with knowledge of certain events.

Defendant also argues the Act permits him to "cross-examine

witnesses who appear at the hearing," thereby implicitly

compelling the State to produce a witness. We again disagree.

Clearly, if the State produces a witness, defendant is free to

cross-examine within the bounds set by the judge. However, the

plain language of the Act imposes no such burden on the State.

We hasten to add that at the detention hearing, the judge

may exercise his or her discretion and require additional proof

before reaching a decision, and the judge retains the authority

to insist that the State produce a witness. See, e.g., United

States v. Acevedo-Ramos,

(1st Cir. 1985) ("If

the court is dissatisfied with the nature of the proffer, it can

always, within its discretion, insist on direct testimony."

(quoting

)); United States v.

Sanchez,

(D. Mass. 2006) (noting the

magistrate may "require the Government to produce its percipient

witnesses[] in circumstances in which the 'accuracy' of the

hearsay evidence is 'in question'" (quoting Acevedo-Ramos,

33 A-1787-16T6 supra,

)); aff’d,

(1st Cir. 2010),

cert. denied,

,

,

(2010); United States v. Hammond,

(D. Md. 1999) (rejecting the government's proffered evidence and

ordering the production of a witness), rev'd on other grounds,

(4th Cir. 2000).

In sum, we find no support for defendant's contention that

the Act requires the State to establish probable cause by

producing a witness at the hearing with sufficient personal

knowledge to permit meaningful cross-examination.

C.

Lastly, we address practical considerations that arise if

the State must produce, as defendant urges, a witness with

particularized knowledge at every detention hearing. The Act

requires the detention hearing to take place "no later than the

eligible defendant's first appearance," although the State may

seek a continuance of three days if it has filed a motion

seeking detention. N.J.S.A. 2A:162-19(d)(1). We take judicial

notice of the filing of hundreds of detention motions throughout

the state since January 1, 2017.

Before us, defendant argued that far from serving the

laudable goals of expediency and judicial economy, permitting

the State to proceed by proffer will make "mini-trials" more

34 A-1787-16T6 likely, because defendants will subpoena witnesses or produce

affirmative evidence to contradict the State's proffer,

particularly when the affidavit of probable cause and PLEIR are

extremely terse, as in this case. Rather, we rely upon the

judges conducting these hearings to provide fair, just and

timely determinations, using all the tools at their command.

Then-judge, now Justice, Stephen G. Breyer, writing for the

court of appeals noted that permitting proffers and other

hearsay under the Federal Act "rests primarily upon the need to

make the bail decision quickly, at a time when neither party may

have fully marshalled all the evidence in its favor." Acevedo-

Ramos, supra,

. "Often the opposing parties

simply describe to the judicial officer the nature of their

evidence; they do not actually produce it."

However,

Judge Breyer noted that the "competing demands of speed and

reliability" may be satisfied through the judge's discretionary

power to "selectively insist[] upon the production of the

underlying evidence or evidentiary sources where their accuracy

is in question."

. In that way, the judge can

proceed "without unnecessarily transforming the bail hearing

into a full-fledged trial or defendant's discovery expedition."

.

35 A-1787-16T6 Additionally, we note that in light of our decision in

Robinson, supra, ___ N.J. ___ (slip op. at 27), the State must

provide a defendant with materials relating to the "facts on

which the State bases its pretrial detention application." As a

result, defendants will have a significant amount of information

by which to test the probable cause determination, first made at

issuance of the complaint-warrant, and again put to the test at

the pretrial detention hearing.

Finally, recognizing defendant's argument regarding the

paucity of detail in the documents in this particular case, we

caution prosecutors about reliance upon documentary proffers

that provide the thinnest reeds of support for probable cause.

Doing so may inhibit the State's ability to rely solely upon the

proffered evidence at the hearing, thereby leading to the

exercise of the judge's discretion to compel the introduction of

additional evidence or otherwise deny the State's request to

detain.

II.

Defendant contends the State failed to meet its burden of

proof justifying pretrial detention. In a single paragraph,

defendant argues releasing him with "strict conditions,"

including "electronic monitoring," would have satisfied the

goals of the Act, namely, assuring his appearance, protecting

36 A-1787-16T6 the community and preventing him from obstructing justice.

N.J.S.A. 2A:162-15. We disagree.

Although the Act provides for an appeal by right of a

pretrial detention order, N.J.S.A. 2A:162-18(c), it does not

specify the scope of our review. See also United States v.

Perry,

(3d Cir.) (noting the lack of a

standard of review in the Federal Act), cert. denied,

,

,

(1986). There is a split

among the federal circuits concerning the proper standard of

review. United States v. O'Brien,

(1st Cir.

1990). Some circuit courts apply de novo review to mixed

questions of law and fact and legal conclusions, but review the

factual findings under a clearly erroneous standard. United

States v. English,

(2d Cir. 2011). Others

reject the clearly erroneous standard for pretrial detention

decisions and require an independent review of the release

order, "giving deference to the determination of the district

court." O'Brien, supra,

.

The Attorney General submits an "abuse of discretion"

standard is appropriate; at oral argument before us, defendant

acknowledged that was most likely the appropriate standard of

review. We need not resolve the question, particularly since

neither party briefed the issue. We conclude that whatever

37 A-1787-16T6 standard applies, for all the reasons stated by Judge McBride

and incorporated in his order, the State proved the grounds for

detention in this case by clear and convincing evidence.

Affirmed.

38 A-1787-16T6