STATE OF NEW JERSEY VS. DONOVAN WHITE STATE OF NEW JERSEY VS. LARRY BOSTIC (17-05-1216, ESSEX COUNTY AND STATEWIDE AND W-2017-1470-0614, CUMBERLAND COUNTY AND STATEWIDE)(CONSOLIDATED)(RECORD IMPOUNDED)
A-4778-16T6/A-5364-16T6
| N.J. Super. Ct. App. Div. | Dec 5, 2017Background
- Two consolidated appeals from orders revoking pretrial release and ordering detention: State v. Donovan White (Essex County) and State v. Larry Bostic (Cumberland County).
- White: arrested for second-degree robbery, PSA recommended no release; court nevertheless released him on multiple conditions including home detention with electronic monitoring (EMD). After alleged EMD failures and location traces, Pretrial Services filed violation reports; a revocation hearing occurred on July 7, 2017 without defendant’s expected witness present; judge revoked release and detained White.
- Bostic: charged with secretly videotaping juvenile employees; PSA recommended release but trial court initially detained him; appellate remand ordered release on home detention/EMD/exclusion zones. Pretrial Services arrested Bostic when EMD allegedly showed he left home and entered victim-exclusion zones; revocation hearing relied on violation report and Google map; judge revoked release and detained Bostic.
- Court framed governing law under the Criminal Justice Reform Act (CJRA): default presumption of non-monetary release, mandatory notice of release conditions, right to counsel and to present/cross-examine witnesses at revocation hearings, State’s burden to prove violation (preponderance) and then prove by clear and convincing evidence that no conditions will reasonably assure the CJRA’s goals before detaining.
- Appellate court found procedural and evidentiary defects: White did not receive adequate notice of hearing and was denied a reasonable adjournment to present witnesses; Bostic was arrested on reporting to Pretrial Services without warrant and was not shown to have been provided clear victim-exclusion-zone information, and the State failed to prove the alleged violations by a preponderance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the revocation hearing procedure and notice for White adequate? | State relied on Pretrial Services reports and argued hearing on July 7 was proper. | White said he lacked notice of July 7 hearing and was denied adjournment to present witnesses and evidence about EMD problems. | Court: notice was inadequate and denial of adjournment was an abuse of discretion; vacated detention and remanded for a new hearing. |
| May the State prove a condition-of-release violation by proffer (Pretrial Services report) and is intent required? | State: proffer of violation report can suffice; no requirement to show intentionality. | Defendants argued need for live testimony/cross-examination and that violations must be purposeful. | Court: proffer may establish violation by preponderance; CJRA does not require proof of intent, but inadvertence is a relevant factor against detention. |
| Can a Pretrial Services "no release" PSA recommendation be used as prima facie evidence at a revocation hearing? | State argued PSA can be considered to overcome presumption of release. | White argued prima facie use limited to initial detention only. | Court: where no initial detention decision was made, the PSA "no release" recommendation may be considered as prima facie evidence to overcome the presumption of release. |
| Did the State meet burden to revoke Bostic's release based on alleged entry into victim-exclusion zones and leaving home? | State relied on violation report and Google map to show zone entry and roaming. | Bostic argued he was never given victim addresses or exclusion-zone parameters; he left home to comply with reporting instructions; arrest at Pretrial Services was improper. | Court: State failed to prove violations by a preponderance; taking Bostic into custody on reporting was improper; vacated detention and ordered immediate release subject to conditions. |
Key Cases Cited
- State v. Robinson, 229 N.J. 44 (N.J. 2017) (describing CJRA's purposes and preference for non-monetary release)
- State v. Ingram, 230 N.J. 190 (N.J. 2017) (probable cause at initial detention hearing may be established by proffer)
- State v. Gibson, 218 N.J. 277 (N.J. 2014) (discussion of probable cause standard)
- State v. Williams, 93 N.J. 39 (N.J. 1983) (description of preponderance standard)
- State v. C.W., 449 N.J. Super. 231 (App. Div. 2017) (discretion to consider Pretrial Services recommendation as prima facie evidence)
- State v. K.P.S., 221 N.J. 266 (N.J. 2015) (law-of-the-case doctrine context)
- United States v. LaFontaine, 210 F.3d 125 (2d Cir. 2000) (federal courts permit proffer at release-revocation hearings)
- United States v. Aron, 904 F.2d 221 (5th Cir. 1990) (permitting government proffer; noting limits on probative value without cross-examination)
- United States v. Davis, 845 F.2d 412 (2d Cir. 1988) (similarly allowing proffer at revocation proceedings)