STATE OF NEW JERSEY, Plaintiff-Appellant, v. ANTOINE MCCRAY, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant, v. SAHAILE GABOUREL, Defendant-Respondent.
DOCKET NOS. A-3745-17T6 A-0358-18T6
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
March 29, 2019
RECORD IMPOUNDED. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. APPROVED FOR PUBLICATION March 29, 2019. Argued February 26, 2019.
Before Judges Yannotti, Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 17-11-1346 in A-3745-17.
Claudia Joy Demitro, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Claudia Joy Demitro, of counsel and on the briefs).
Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for respondents (Joseph E. Krakora, Public Defender, attorney; Laura B. Lasota, of counsel and on the briefs).
The opinion of the court was delivered by
YANNOTTI, P.J.A.D.
The State appeals from orders entered by the Law Division, which dismissed charges under
I.
A. State v. McCray
On April 16, 2017, Antoine McCray was charged in complaint-warrant W-2017-1274-2004 with second-degree robbery, during which force was used and bodily injury inflicted, in violation of
On August 29, 2017, McCray was charged in complaint-warrant W-2017-0904-1205 with the disorderly persons offense of theft by unlawful taking,
On November 16, 2017, a grand jury returned Indictment No. 17-11-1345, which charged McCray with conspiracy to use a credit card fraudulently, contrary to
On February 5, 2018, McCray pled guilty to four counts of third-degree conspiracy to use a credit card fraudulently, specifically count four of Indictment No. 17-11-1345, count three of Indictment No. 17-12-1391, and counts one and three of Indictment No. 17-12-1418. He also pled guilty to fourth-degree contempt of court as charged in Indictment No. 17-11-1346.
At the plea hearing, McCray provided a factual basis for the pleas. Regarding the contempt charge, he admitted that the court previously had entered an order permitting his pretrial release, and as a condition of his release, he was “supposed to remain offense free.” He also admitted that he committed the offenses for which he was pleading guilty while he was on pretrial release.
The judge who accepted the plea advised counsel that he had concerns about the validity of the contempt charge. The judge stated that on the sentencing date, he would determine whether to reject the plea to that offense
The judge heard oral argument on April 13, 2018, and filed a written opinion that day, in which the judge ruled that the contempt charge must be dismissed. In his opinion, the judge stated that neither the CJRA nor the court rules implementing the Act authorize a charge of contempt under
The judge entered an order dated April 13, 2018, dismissing the indictment with prejudice. The judge denied the State‘s motion for a stay of the order pending appeal, and later sentenced defendant on the other charges to which he pled guilty. The judge imposed concurrent terms of four years of incarceration, each without a period of parole ineligibility. The State‘s appeal followed.
Defendant Sahaile Gabourel was charged under complaint-warrant W-2018-2988-0906 with seven charges related to the possession and distribution of a controlled dangerous substance (CDS), including second-degree possession of a CDS with intent to distribute within 500 feet of a public park,
In an affidavit of probable cause, an officer of the Jersey City Police Department (JCPD) stated that on July 10, 2018, he observed Gabourel distribute heroin to another individual, in exchange for currency. The officer arrested Gabourel and found that he was in possession of twenty-nine glassine bags of heroin.
On July 11, 2018, the State filed a motion under the CJRA for Gabourel‘s pretrial detention. The judge conducted a hearing on July 16, 2018, and denied the State‘s motion. The judge stated that he was “going to put a curfew in place” and instructed Gabourel on this condition. The judge told Gabourel he had to remain in his residence from 6:00 p.m. to 6:00 a.m. The judge stated, “If you go out you‘re violating the terms of your release.” The judge asked Gabourel if he understood those terms, and he replied, “Yes.”
On July 23, 2018, at 8:09 p.m., two officers of the JCPD observed Gabourel standing on a street corner in Jersey City, in violation of the curfew. The officers apparently were aware of the curfew requirements of the pretrial release order, and determined that Gabourel was violating the order. The officers stopped and arrested him. He had three Percocet pills in his possession.
Gabourel was charged in complaint-warrant W-2018-3276-0906 with fourth-degree contempt of court,
The judge thereafter conducted a hearing on the State‘s motion. The judge found that Gabourel had disobeyed the pretrial release order by violating the curfew. The judge also found that the State met its burden for revocation of defendant‘s pretrial release. The judge found, however, that the CJRA did
II.
On appeal, the State argues that the trial court judges erred by dismissing the contempt charges against defendants. The State contends the judges erred by finding that the CJRA and the court rules implementing the Act do not permit the State to charge a defendant with contempt under
“[I]ndictments are presumed valid and should be dismissed only upon the clearest and plainest ground and only if palpably defective.” State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div. 1997) (citing State v. N.J. Trade Waste Ass‘n, 96 N.J. 8, 18-19 (1984); State v. Weleck, 10 N.J. 355, 364 (1952); State v. Engel, 249 N.J. Super. 336, 359-60 (App. Div. 1991)). “A trial court . . . should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case.” State v. Morrison, 188 N.J. 2, 12-13 (2006) (citing State v. Hogan, 144 N.J. 216, 236 (1996); State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987)).
We will not reverse an order dismissing an indictment unless shown to be a mistaken exercise of discretion. State v. Warmbrun, 277 N.J. Super. 51,
Here, it is undisputed that judges had entered orders pursuant to the CJRA releasing defendants pretrial on conditions. Among other conditions, McCray was ordered not to commit a new offense while on release, and Gabourel was ordered to comply with a curfew. Thereafter, McCray committed new offenses and Gabourel violated the curfew. Thus, the State had prima facie evidence that defendants purposely or knowingly disobeyed judicial orders. See
The State contends that the trial judges erred by finding that the CJRA does not permit the State to charge defendants with contempt under
“The overriding goal of all statutory interpretation ‘is to determine as best we can the intent of the Legislature, and to give effect to that intent.‘”
We must interpret the words of a statute in accordance with “their ordinary meaning and significance.” DiProspero, 183 N.J. at 492 (citing Lane v. Holderman, 23 N.J. 304, 313 (1957)). We also must consider the relevant provisions of the statute “in context with related provisions so as to give sense to the legislation as a whole.” Ibid. (citing Chasin v. Montclair State Univ., 159 N.J. 418, 426-27 (1999)).
“If the plain language chosen by the Legislature ‘leads to a clearly understood result’ that is consistent with the legislative objectives of the statute and its context with related provisions, we apply the law as written.” Robinson, 217 N.J. at 604 (first quoting State v. Hudson, 209 N.J. 513, 529 (2012); and then citing State v. Rangel, 213 N.J. 500, 509 (2013)). We may not “rewrite a plainly written” statute “or presume that the Legislature intended something other than that expressed by way of the plain language.” DiProspero, 183 N.J. at 492 (quoting O‘Connell v. State, 171 N.J. 484, 488 (2002)).
clear and convincing evidence that no amount of monetary bail, non-monetary conditions of pretrial release 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:162-18(a)(1) .]
If the court determines that the defendant should not be detained pretrial, it shall order the defendant‘s release on his or her personal recognizance if it “finds that the release 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.”
(a) the eligible defendant shall not commit any offense during the period of release;
(b) the eligible defendant shall avoid all contact with an alleged victim of the crime;
(c) the eligible defendant shall avoid all contact with all witnesses who may testify concerning the offense that are named in the document authorizing the eligible defendant‘s release or in a subsequent court order; and
(d) any one or more non-monetary conditions as set forth in [
N.J.S.A. 2A:162-17(b)(2) ].[
N.J.S.A. 2A:162-17(b)(1) .]
The non-monetary conditions in
The CJRA also states that if the court releases an eligible defendant pretrial, it must inform the defendant of:
(a) all the conditions, if any, to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the eligible defendant‘s conduct; and
(b) the penalties for and other consequences of violating a condition of release, which may include the immediate issuance of a warrant for the eligible defendant‘s arrest.
The failure of the court to notify the eligible defendant of any penalty or consequence for violating a condition of release as required by this subparagraph shall not preclude any remedy authorized under the law for any violation committed by the eligible defendant.
[
N.J.S.A. 2A:162-23(a)(1) .]
In addition, the CJRA sets forth the grounds upon which a court may revoke an eligible defendant‘s pretrial release and order detention.
Upon motion of a prosecutor, when an eligible defendant is released from custody before trial pursuant to [
N.J.S.A. 2A:162-17 orN.J.S.A. 2A:162-22 ], the court, upon a finding that the eligible defendant while on release has violated a restraining order or condition of release, or upon a finding of probable cause to believe that the eligible defendant has committed a new crime while on release, may not revoke the eligible defendant‘s release and order that the eligible defendant be detained pending trial unless the court, after considering all relevant circumstances including but not limited to the nature and seriousness of the violation or criminal act committed, finds clear and convincing evidence that no monetary bail, non-monetary conditions of release or combination ofmonetary 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, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.
The rules adopted by the Supreme Court to implement the CJRA also discuss the trial court‘s authority to address violations of the conditions of release.
the court, upon a finding, by a preponderance of the evidence, that the defendant while on release violated a restraining order or condition of release, or upon a finding of probable cause to believe that the defendant has committed a new crime while on release, may revoke the defendant‘s release and order that the defendant be detained pending trial where the court, after considering all relevant circumstances including but not limited to the nature and seriousness of the violation or criminal act committed, finds clear and convincing evidence that no monetary bail, non-monetary conditions of release or combination of monetary bail and conditions would reasonably assure the defendant‘s appearance in court when required, the protection of the safety of any other person or the community, or that the defendant will not obstruct or attempt to obstruct the criminal justice process.
Although
Indeed, the court does not have authority to charge a defendant with a criminal offense. The prosecutor has the discretion to prosecute those whom the prosecutor believes has violated the law. See State v. Hermann, 80 N.J. 122, 127 (1979) (citations omitted). Furthermore, our “State Constitution guarantees the grand jury a central role in the enforcement of the criminal law of this State.” Hogan, 144 N.J. at 227 (citing
Moreover, as stated previously,
On appeal, the State argues that the term “remedy” in
Defendants argue, however, that because there is no provision in the CJRA that specifically authorizes a criminal contempt charge, the Legislature intended that the remedies in
Our Supreme Court has noted that “[i]n many respects, the text of the [CJRA] follows the federal Bail Reform Act of 1984 [(BRA)],
The federal BRA and the D.C. Code authorize the filing of criminal contempt charges for certain violations of conditions of pretrial release. See
Defendants argue that in passing the CJRA, the Legislature intentionally omitted a similar provision authorizing prosecution for contempt of court for a violation of a condition of pretrial release. In this regard, we note that when the legislation was first introduced,
In addition to revocation of release as authorized by this section, a violation of a condition of pretrial release imposed pursuant to [the CJRA] or any other law, may subject the defendant to civil contempt, criminal contempt, forfeiture of bail, or any combination of these sanctions and any other sanctions authorized by law.
[S. 946/A. 1910 (2014).]
shall be liberally construed to effectuate the purpose of relying upon contempt of court proceedings or criminal sanctions instead of financial loss to ensure the appearance of the defendant, that the defendant will not pose a danger to any person or the community, and that the defendant will comply with all conditions of bail.
[S. 946/A. 1910 (2014).]
These provisions were deleted from the versions of
In the absence of such a statement or some other evidence of legislative intent, it is reasonable to conclude that the members of the Legislature believed there was no need to include a provision in the CJRA similar to the provisions in the federal BRA and D.C. Code authorizing a criminal contempt prosecution for a violation of a pretrial release order. It is also reasonable to infer that the members of the Legislature believed a pretrial release order was a judicial order under
The State further argues that New Jersey‘s case law confirms its ability to charge a defendant with contempt under
In Gandhi, the defendant became obsessed with a woman who rebuffed his desire for a romantic and sexual relationship. Gandhi, 201 N.J. at 171. The woman filed a complaint against the defendant charging harassment, but later withdrew the complaint. Ibid. The trial court nevertheless “issued an oral restraining order” directing the defendant not to have any contact with the woman. Ibid.
The defendant violated the order and he was charged with stalking under
The State filed additional charges against the defendant, and the charges included numerous counts of contempt of court under
On appeal, the defendant argued that the no-contact orders and the bail orders with no-contact provisions, were an insufficient factual basis for finding that he engaged in stalking in violation of a court order, which elevated the stalking charge from a fourth-degree to a third-degree offense. Id. at 188. The Supreme Court rejected that argument, noting that “[w]e insist on compliance with judicial orders to promote order and respect for the judicial process.” Id. at 190.
The Court added that, “The no-contact orders in [the] defendant‘s bail orders did not lose their character as judicial no-contact orders merely because bail consequences could attach for their violation. As judicial no-contact orders, [the] defendant was obligated to strictly comply with them.” Ibid. The Court also stated that the defendant‘s violation of the bail orders “provid[ed] the bases for the numerous contempt charges filed against him.” Id. at 191.
The Court‘s reasoning in Gandhi applies here. Conditions set forth in a pretrial release order “d[o] not lose their character” as a judicial order merely because other consequences, such as revocation of release, could attach for their violation. See id. at 190. We expect defendants to strictly comply with the court‘s pretrial release orders. We therefore conclude that a pretrial release
Defendants argue, however, that case law addressing violations of court orders in other contexts shows that the Legislature did not intend that a defendant who violates conditions in a pretrial release order would be subject to prosecution for criminal contempt. Defendants cite State v. Williams, 234 N.J. Super. 84 (App. Div. 1989), in support of this argument.
In Williams, after the defendant was convicted of certain offenses, the trial court sentenced him to three years of probation and time served, but ordered that the defendant shall have no contact with his ex-wife and certain other individuals. Id. at 86. The defendant violated the no-contact condition and he was charged with three counts of contempt of court under
We held that a violation of a condition of probation may not be charged as criminal contempt. Id. at 93. We observed that the probation statute allows the court to place “statutory conditions” in the order placing a defendant on probation, and the consequence of a violation is specified in
We also stated that “[c]ontempt of court should not be superimposed as an additional remedy in a probation violation setting if the act that occasions the violation is not otherwise criminal.” Ibid. We concluded “that when the Legislature expressly stated in
We are convinced that defendants’ reliance upon Williams is misplaced. In Williams, the court held that a violation of probation could not be the basis of a criminal contempt charge because in the probation statute the Legislature had prescribed the sanctions the court may impose for violations, which may include “forfeiture of [the defendant‘s] conditional exemption from punishment for the original crime” rather than additional punishment for the probation violation. Id. at 92 (quoting Williams v. State, 528 A.2d 507, 508 (Md. 1987)).
This reasoning does not apply to violations of a pretrial release order because the CJRA is not a substantive criminal enactment, and pretrial detention under the Act is not punishment. See United States v. Salerno, 481 U.S. 739, 746-48 (1987) (holding that federal BRA is a regulatory measure that does not provide for punishment). In
In further support of their argument, defendants rely upon State ex. rel. S.S., 367 N.J. Super. 400 (App. Div. 2004), aff‘d, 183 N.J. 20 (2005). In that case, a juvenile was adjudicated delinquent for contempt after she violated the court‘s order, which required that she obey the rules of her home and school. Id. at 403-04. We reversed the adjudication of contempt. Id. at 416.
We noted that while
The Supreme Court affirmed our judgment, substantially for the reasons stated in our opinion. S.S., 183 N.J. at 21-22. The Court concluded that in view of the legislative goals of the criminal contempt statute and the State‘s juvenile justice system, the trial court should not have subjected the juvenile to an adjudication of delinquency based on the conduct at issue. Ibid. (quoting S.S., 367 N.J. Super. at 413).
Defendants’ reliance upon the decisions in S.S. is misplaced. Those decisions are based on an assessment of the Legislature‘s purposes of the criminal contempt statute and the statutes governing the juvenile justice system. The reasoning does not apply to violations of pretrial release orders.
The goal of the criminal contempt statute is to promote compliance with judicial orders by punishing those who purposely or knowingly fail to comply with those orders. See
upon pretrial release by non-monetary means to reasonably assure an eligible defendant‘s appearance in court when required, the protection of the safety of any other person or the community, that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, and that the eligible defendant will comply with all conditions of release, while authorizing the court, upon motion of a
prosecutor, to order pretrial detention of the eligible defendant when it finds clear and convincing evidence that no condition or combination of conditions can reasonably assure the effectuation of these goals.
Permitting the State to charge an eligible defendant with criminal contempt under
IV.
On appeal, defendants argue that the trial courts did not err by ordering the dismissal of the criminal contempt charges because they were not properly notified that they could be charged with contempt if they violated a condition of pretrial release. We disagree.
“No one shall be punished for a crime unless both that crime and its punishment are clearly set forth in positive law.” In re DeMarco, 83 N.J. 25, 36 (1980). “The question ultimately is one of fairness . . . [and t]he test is whether the statute gives a person of ordinary intelligence fair notice that his conduct is forbidden and punishable by certain penalties.” Id. at 37.
We are convinced that
In support of their argument, defendants rely upon State v. D.G.M., 439 N.J. Super. 630 (App. Div. 2015). In that case, a complainant obtained a final restraining order (FRO) against the defendant pursuant to the Prevention of Domestic Violence Act,