(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0599-20T6
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
v. November 24, 2020
PETER K. PAUL, APPELLATE DIVISION
Submitted October 30, 2020 – Decided November 24, 2020
Before Judges Ostrer, Vernoia and Enright.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Ocean County,
Complaint No. W-2019-000346-1507.
Nelson, Fromer, Crocco & Jordan, attorneys for
appellant (Steven E. Nelson, on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella, Chief
Appellate Attorney, of counsel; Cheryl L. Hammel,
Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
Rule 3:26-2(c)(2) governs a defendant's motion to relax conditions of his
or her pre-trial release under the Criminal Justice Reform Act, N.J.S.A.
2A:162-15 to -26. The Rule empowers the trial court to recalibrate a releasee's
conditions upon a showing of "a material change in circumstance." We hold
that pre-trial discovery that has reduced the "weight of the evidence" against
the defendant may constitute such changed circumstances. So may a
defendant's compliance with restrictive conditions over an extended period, if
such compliance coincides with another material change demonstrating that
the defendant's pre-trial behavior may be adequately managed by less
restrictive means than initially imposed. As the trial court here did not review
defendant's motion to relax his release conditions under Rule 3:26-2(c)(2), we
grant defendant's motion for leave to appeal, reverse the trial court's order
denying relief, and remand for reconsideration.
Defendant was charged in a February 26, 2019 complaint warrant with
first-degree strict liability for drug-induced death, N.J.S.A. 2C:35-9(a), and
related third-degree drug crimes. Rejecting the State's motion for pre-trial
detention, the trial court ordered defendant's release on level 3+ pretrial
monitoring, which included home detention without electronic monitoring. 1
His Public Safety Assessment recommended release on bimonthly reporting.
It stated he posed a level two risk of failure to appear, and a level three risk of
The court thereafter modified and relaxed the conditions three times, with the
State's consent, by orders entered April 10, and August 8, 2019, and April 15,
2020. The modifications expanded defendant's permissible movements outside
the home during designated times of the day for specific destinations or tasks.
Many of those involved his new role as the children's primary caretaker, as he
had lost his job and his wife returned to the workplace. Otherwise, home
By motion, defendant sought a further modification of his pretrial
conditions; specifically, he asked that the home detention condition be lifted
entirely. Defendant essentially argued that new developments in his pre -trial
investigation demonstrate hitherto unrecognized weaknesses in the State's
case. He argued these warrant review of the pretrial conditions and lifting of
home detention. Most significantly, he contended that the recently received
report of his toxicology expert raises doubts about the State's expert's opinion
that pills defendant allegedly distributed contained fentanyl and caused the
recipient's death. Defendant also contended that recently obtained telephone
records belie a statement by a State's witness. And he argued that the State
failed to preserve surveillance video of the exterior of the decedent's home,
new criminal activity, with no new violent criminal activity flag. Defendant
had no prior convictions and no prior failures to appear. He was forty-five at
the time, married and the parent of two children.
which raises questions about whether the decedent obtained the fatal dose of
fentanyl from a different person. Defendant also argued that his compliance
with release conditions for over a year supported further relaxation of the
conditions, which he claimed were unnecessarily burdensome.
The State responded that these developments did not weaken the State's
case and the justification for home detention was unchanged. The State argued
that defendant should seek relief from home detention on a task-specific basis,
if the need arose.
The trial court denied defendant's request. The court deemed defendant's
request as one to reopen a detention hearing under Rule 3:4A(b)(3). The Rule
provides that a detention hearing may be reopened upon a showing of newly
discovered information that materially bears on whether to detain the
defendant. The Rule states:
A hearing may be reopened at any time . . . if the court
finds that information exists that was not known by
the prosecutor or defendant at the time of the hearing
and that information has a material bearing on the
issue of whether there are conditions of release that
will 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.
The trial court stated that defendant's expert's opinion was "not relevant
for the purpose of this proceeding" as it related to "credibility determinations
that must be made by a jury." The court similarly characterized defendant's
other points regarding weaknesses in the State's case.
The court also rejected defendant's argument that his compliance with
release conditions for over a year warranted relaxing the conditions of release,
because his compliance "does not address the seriousness of the charge." The
court also noted that if defendant violated his conditions, the State could move
to revoke his pre-trial release.
The court concluded that "[d]efendant's motion does not alter the
reasoning for imposing home detention, which was the finding of probable
cause on the first-degree charge of strict liability drug induced death and the
seriousness of that offense. For these reasons the defendant's motion to reopen
the detention hearing is hereby denied."
Defendant sought leave to appeal, renewing his argument that the
recently discovered evidence undermines the strength of the State's case, and
that his compliance with release conditions warrants their relaxation. He
argues that the trial court erred in analyzing his motion under Rule 3:4A(b)(3).
We granted defendant's motion and now remand for reconsideration. We
review for an abuse of discretion the trial court's decision to detain or release a
defendant, and, the decision to impose conditions on release if ordered. State
v. S.N., 231 N.J. 497, 515 (2018). A trial court abuses its discretion when it
rests its decision on an impermissible basis or fails to consider relevant factors.
Ibid. We need not defer to "a decision based upon a misconception of the
law." Ibid. (quoting State v. C.W., 449 N.J. Super. 231, 255 (App. Div.
We remand because the trial court applied the wrong rule and failed to
consider relevant factors. The court should have analyzed defendant's motion
under Rule 3:26-2(c)(2), which allows the court to "review the conditions of
pretrial release . . . on its own motion, or upon motion by the prosecutor or the
defendant alleging that there has been a material change in circumstance that
justifies a change in conditions." If the court finds there has been "a material
change in circumstance," it may "set new conditions of release . . . ." See State
v. McCray, 243 N.J. 196, 208 (2020).
Instead, the court applied Rule 3:4A(b)(3), which pertains to reopening
the hearing at which the court decides to detain or not detain. See State v.
Hyppolite, 236 N.J. 154, 172 (2018) (stating that when a court reopens a
hearing under Rule 3:4A(b)(3), "the trial court must again decide whether the
State has presented clear and convincing evidence to justify detention").
Notably, Rule 3:26-2(c)(2) clarifies that on "finding . . . a material change in
circumstance," the court "may not order the defendant detained except as
provided in Rule 3:4A."
The Criminal Practice Committee drafted Rule 3:26-2(c)(2) to "allow a
judge to change conditions of release, i.e., step up or down conditions based on
new facts or a change in circumstance." Report of the Supreme Court
Committee on Criminal Practice on Recommended Court Rules to Implement
the Bail Reform Law, Part 1: Pretrial Release 86 (May 9, 2016) (Committee
Report, Part 1).2 The Committee explained that the Rule "would allow the
court, on its own motion, or on motion of the prosecutor or defense counsel, to
review conditions of pretrial release where there has been a material change in
circumstance that justifies a change in conditions of pretrial release." Ibid.
Unlike Rule 3:4A(b)(3), which the Committee noted "largely tracks the
language of N.J.S.A. 2A:162-19(f)", Report of the Supreme Court Committee
on Criminal Practice on Recommended Court Rules to Implement the Bail
Reform Law, Part 2: Pretrial Detention and Speedy Trial 12 (May 12, 2016),3
the Committee recognized that the Criminal Justice Reform Act did not
expressly authorize a court to modify conditions, Committee Report, Part 1 at
The report is available at https://njcourts.gov/courts/assets/supreme/
The report is available at https://njcourts.gov/courts/assets/supreme/
86. The Committee acknowledged that the proposed rule filled a "gap" in the
law. Ibid. Although the power to modify conditions was "not specifically
covered" by the statute, it was implied by a "liberal construction" of the
statute, and it enabled a court to fulfill the statute's purpose "'of primarily
relying on pretrial release'" to assure a defendant's appearance, protect public
safety, and uphold the criminal justice system's integrity. Ibid. (quoting
The power to modify conditions upon a material change in circumstance
is also essential to assure that the conditions remain the least restrictive
necessary. The CJRA requires courts to fashion pre-trial conditions that are
the "least restrictive" necessary to achieve those three goals of assuring a
defendant's appearance, protecting safety, and shielding the criminal justice
process from obstruction. See State v. Robinson, 229 N.J. 44, 55 (2017);
N.J.S.A. 2A:162-17 (stating that the non-monetary conditions imposed by the
court "shall be the least restrictive condition, or combination of conditions,
that the court determines will reasonably assure" the three goals are met).
A change in circumstance is "material" if there is a reasonable
possibility that it would warrant relaxing or restricting conditions. 4 Upon
By contrast, the materiality required in Rule 3:4A(b)(3) pertains to the
threshold determination whether to reopen the hearing. That rule requi res new
finding a material change, "the judge may set new conditions of release" if the
judge finds the change justifies them. R. 3:26-2(c)(2) (emphasis added); see
also Myers v. Ocean City Zoning Bd. of Adjustment, 439 N.J. Super. 96, 101
(App. Div. 2015) (noting that the word "may" conveys an action is permissive,
absent clear intent to the contrary); Committee Report, Part 1, at 86 (stating
intent to "allow" the court to change conditions).
In this case, it was not enough for the trial court to conclude that
defendant's evidence – regarding the cause of death and the possibility that the
victim obtained drugs from others – presents a jury question. The issue is
whether defendant's evidence, which he asserts is newly obtained, constitutes a
material change in circumstance, particularly insofar as it may affect the
"weight of the evidence" against him.
information that has a "material bearing on the issue of whether there are
conditions of release" that will reasonably assure the defendant's appearance,
protect safety, and prevent obstruction of the criminal justice process. The
Court in Hyppolite held that newly released exculpatory information has a
"material bearing" if "there is a reasonable possibility – not probability – that
the result of the hearing would have been different had the evidence been
disclosed." 236 N.J. at 169. The Court held that the "reasonable possibility"
standard "focuses the parties and the court on whether evidence is important to
the hearing's outcome from a reasonably objective vantage point," while
recognizing the limited record upon which the parties and the court must rely.
Id. at 169-70.
As we explained in State v. Carroll, 456 N.J. Super. 520, 533-34 (App.
Div. 2018), the weight of the evidence may affect the court's assessment of a
defendant's risk of flight, danger to the community, and risk to the criminal
The "weight of the evidence" factor is another
way of evaluating "the strength of the government's
case." See State v. Stewart, 453 N.J. Super. 55, 70
(App. Div. 2018) (citing 18 U.S.C. § 3142(g)(1) and
(2)). The weight of the evidence factor is important
because it reflects upon whether a person is likely to
appear, or to pose a danger to a person or the
community. See United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985) (interpreting analogous
"weight of the evidence factor" under federal law, 18
U.S.C. § 3142(g)). Assuming there is probable cause
to believe a defendant committed the offense, if the
weight of the evidence is weak, then the defendant
may be more willing to put the State to the test of a
trial, reducing the risk of a failure to appear. See State
v. Engel, 99 N.J. 453, 460 (1985) (noting that a "fair
likelihood" of conviction increases the "urge to
abscond") (quoting State v. Konigsberg, 33 N.J. 367,
Also, if the weight of the evidence is weak, then
a court may conclude it is less likely a defendant
actually committed the offense. That would allow a
court to conclude it less likely that the defendant
would, if released, pose a danger to the community –
assuming the offense involved harm to the community
– or pose a threat to the integrity of the criminal
justice process – assuming the offense implicated
interference with that process. See United States v.
Taylor, 289 F. Supp. 3d 55, 64-69 (D.D.C. 2018)
(discussing impact of "weight of the evidence" factor
in detention hearing under 18 U.S.C. § 3142(g)(2)).
[State v. Carroll, 456 N.J. Super. 520, 533-34 (App.
See also Hyppolite, 236 N.J. at 171 (suggesting that newly disclosed
exculpatory evidence that "undermined a finding at the initial hearing, such as
the weight of the evidence" may warrant a reopened hearing under Rule
3:4A(b)(3)); S.N., 231 N.J. at 517 (stating "weakness of the State's case generally
militates in favor of release").
The trial court was obliged to determine whether, in this case,
defendant's proffer of newly obtained favorable evidence changed the court's
weight-of-the evidence calculation, and that factor's impact on defendant's
release conditions. Like the initial detention hearing, reviewing defendant's
motion should not require a mini-trial. See Robinson, 229 N.J. at 68 (stating
that the detention hearing "should not turn into a mini-trial"). However, the
court must consider defendant's proffer and exercise its discretion. 5
We turn next to the court's consideration of defendant's lengthy
compliance with his release conditions. The court noted that defendant's
We can contemplate other changes – such as a key prosecution witness's
recantation or death, or the suppression of a statement or piece of evidence –
that would affect the weight of the evidence and may warrant relaxing release
conditions. On the other hand, the prosecution's case may become
significantly stronger after the initial decision, potentially creating the need for
more restrictive conditions to assure the defendant's appearance, to protect
community safety, or to assure the criminal justice system's integrity.
compliance did not address "the seriousness of the charge." The seriousness of
the charge will not change, unless a charge is dismissed or amended. And, no
doubt, the "nature . . . of the offense charged" is an essential consideration.
See N.J.S.A. 2A:162-20(a). But other circumstances bearing on a defendant's
risk of nonappearance, risk of threat to the safety of the community, and risk
of obstructing the criminal justice process may materially change during the
period of a defendant's lengthy compliance that justify a change in the
conditions. The question for the trial court remains whether defendant
presented a "material change in circumstance that justifies a change in the
The Criminal Justice Reform Act is modeled after the federal Bail
Reform Act, 18 U.S.C. §§ 3141 to 3156. State v. Pinkston, 233 N.J. 495, 507-
08 (2018). Notably, 18 U.S.C. § 3142(c)(3), like Rule 3:26-2(c)(2), authorizes
a court to modify conditions of release. By contrast, 18 U.S.C. § 3142(f),
which authorizes reopening a hearing, is the apparent model for N.J.S.A.
2A:162-19(f) and Rule 3:4A(b)(3), pertaining to reopening detention hearings.
Although 18 U.S.C. § 3142(c)(3) does not match word-for-word Rule
3:26-2(b)(3), it states that the court "may at any time amend the order to
impose additional or different conditions of release." The court may relax
conditions, see United States v. Hutchins, 298 F. Supp. 3d 1205, 1208 (E.D.
12 Wis. 2017), or restrict them, see United States v. Davis, 826 F. Supp. 404, 406
(D. Utah 1993). 6
The district court in Hutchins found that the defendant's consistent
compliance with conditions over an extended period of time justified relaxing
conditions of release. The district court affirmed the magistrate judge's
decision to remove GPS monitoring and curfew, which were imposed
primarily to assure the defendant's appearance. Hutchins, 298 F. Supp. 3d at
1206. The defendant was accused of crimes related to deploying malware.
Ibid. The court stated, "[I]f the Bail Reform Act requires no more than the
least restrictive conditions needed to reasonably assure the defendant's
appearance, then consistent compliance with existing conditions counsels in
favor of reducing their severity on the theory that lesser conditions will
suffice." Id. at 1208. The court distinguished a case where conditions – an
internet and email access ban – were designed to prevent recidivism by a
person accused of using those instrumentalities to commit wire fraud. The
6 We note that 18 U.S.C. § 3145(a), entitled "[r]eview of a release order,"
authorizes a district court, upon a motion from a defendant or the government,
to amend the conditions of release set by a magistrate judge, including those as
modified pursuant to 18 U.S.C. § 3142(c)(3), Hutchins, 298 F. Supp. 3d. at
1207, as well as those set in the magistrate judge's initial detention or release
order, see, e.g., United States v. Vasconcellos, 519 F. Supp. 2d 311, 314
Hutchins court found that removing the GPS and home monitoring conditions
"would not facilitate his recidivism." Ibid.
We recognize an important distinction between the federal statute and
our Rule. The federal statute does not require a threshold showing of a
"material change in circumstance" or new facts. So, the district court in
Hutchins rejected the government's argument that the defendant was required
to present "new facts," to justify changing his release conditions. Id. at 1209.
The district court was satisfied that the defendant's lengthy compliance
justified relaxing his conditions, stating, "the magistrate's conclusion is
consistent with the [c]ourt's ongoing obligation under Section 3142(c) to
ensure that only the least restrictive conditions necessary to reasonably assure
[the defendant's] appearance are employed." Ibid.
Because the Rule's drafters contemplated a showing of "new facts or a
change in circumstance," we conclude that something more than compliance
over time is required to support a defendant's motion to relax conditions. 7
7 Standard 10-5.12 of ABA's Criminal Justice Standards - Pretrial Release,
recommends that a showing of "changed or additional circumstances" on motion
by the prosecution, defense, or by request of the pretrial services agency, may
warrant review of a court's release decision or the conditions imposed. See ABA
Standards for Criminal Justice: Pretrial Release, Re-examination of the release or
detention decision: status reports regarding pretrial detainees (2007),
Indeed, to obtain a modification of the conditions under Rule 3:26-2(c)(2), the
moving party must demonstrate not only "a material change in circumstance"
but also that the material change "justifies a change in the conditions." A
defendant's consistent and extended compliance with conditions, coupled with
some material development, may result in lowering the risk a defendant will
flee, cause harm, or undermine the criminal justice process. If presented with
such facts, the court must determine whether the extended compliance, coupled
with some other material development, constitutes a material change in
circumstance and, if so, whether the change also justifies a modification of the
conditions of release. That determination will necessarily require that the
court consider all of the factors pertinent to the imposition of the conditions in
the first instance.
Here, we remand for the trial court to decide if defendant's extended
compliance with conditions, coupled with a material development, constitutes
a material change in circumstance that justifies relaxing his release conditions.
To make that determination, the court must consider how relaxing the
conditions would impact the conditions' ultimate purpose to assure defendant's
appearance, community safety, and the criminal justice system's integrity.
Each case is likely to be fact sensitive, drawing on the trial court's discretion.
We express no opinion as to whether, in this case, relaxation is warranted.
That determination shall, in the first instance, be made by the trial court.
Reversed and remanded for reconsideration. We do not retain