New Jersey v. S.N.

Annotate this Case

This appeal sought the proper standard for appellate review of pretrial detention decisions under the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. In a complaint-warrant, the State charged defendant S.N. with first-degree aggravated sexual assault on a person under the age of thirteen; fourth-degree lewdness; and second-degree child endangerment. Following defendant’s arrest, a pretrial services officer prepared a Public Safety Assessment (PSA) that rated defendant a 1 out of 6, the lowest possible risk score, for both failure to appear and new criminal activity. Despite the low risk scores, the PSA concluded “No Release Recommended.” The State then moved for pretrial detention. The prosecution certified that there was a “serious risk” that “defendant will not appear in court,” and “defendant will pose a danger to any other person or the community.” The certification stated, “[d]efendant’s victim is his step-daughter. Defendant is a risk to harm and intimidate his victim and her mother and to obstruct justice by interfering with the investigation and witnesses. Defendant is a risk of flight because his biological mother and sister live in Canada.” The trial court found that the State had established probable cause that defendant committed the charged offenses. The court specifically found that defendant was eligible for detention under the statute. The court gave “great weight to [the No Early Release Act]NERA, the fact that this is a NERA offense and first degree, the dual citizenship, due to the extensi[ve] exposure of incarceration if convicted, the fact that release was not recommended, and the fact that this is considered a violent offense.” The Appellate Division reversed and released defendant with conditions, finding the trial court abused its discretion by not considering defendant’s age, level of prior criminal involvement and ties to the community.” The Appellate Division required as part of defendant’s release that “defendant must report to pretrial detention as frequently as necessary to determine his compliance with restraining orders prohibiting him from having any contact with the victim or her family . . . . [and] must surrender his passport.” The Supreme Court agreed that the trial court abused its discretion, finding that the trial court’s decision rested on an “impermissible basis,” “fail[ed] to take into consideration all relevant factors,” including defendant’s characteristics as he stood before the court, and “reflects a clear error in judgment.” The next appropriate procedural step was to remand the matter to the trial court to determine the suitable conditions of release: Remand is required because the trial court has the opportunity at a detention hearing to “hear and see witnesses” and gain a “'feel’ of the case which a reviewing court cannot enjoy.”

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. S.N. (A-60-16) (079320)

Argued September 11, 2017 -- Decided January 30, 2018

SOLOMON, J., writing for the Court.

In this appeal, the Court determines the proper standard for appellate review of pretrial detention decisions
under the Criminal Justice Reform Act (CJRA),
N.J.S.A. 2A:162-15 to -26.

In March 2017, law enforcement obtained an arrest warrant for defendant S.N. for acts alleged to have been
committed against his stepdaughter in 2012. In a complaint-warrant, the State charged defendant with first-degree
aggravated sexual assault on a person under the age of thirteen; fourth-degree lewdness; and second-degree child
endangerment. The affidavit of probable cause in support of the complaint-warrant stated that the victim told a staff
member at her school that defendant came into her bedroom and sexually assaulted her approximately fifty times
while she was in the sixth and seventh grades. In addition, the State prepared a preliminary law enforcement
incident report (PLEIR), which stated that “defendant was known to the victim as [f]amily.”

Following defendant’s arrest, a pretrial services officer prepared a Public Safety Assessment (PSA) that
rated defendant a 1 out of 6—the lowest possible risk score—for both failure to appear and new criminal activity.
Despite the low risk scores, the PSA concluded “No Release Recommended.”

The State moved for pretrial detention. The prosecution certified that there is a “serious risk” that
“defendant will not appear in court,” and “defendant will pose a danger to any other person or the community.” In
addition, the certification stated, “[d]efendant’s victim is his step-daughter. Defendant is a risk to harm and
intimidate his victim and her mother and to obstruct justice by interfering with the investigation and witnesses.
Defendant is a risk of flight because his biological mother and sister live in Canada.”

Defense counsel countered that the State did not present clear and convincing evidence to support its
detention motion, and that the State’s arguments were based on “mere speculation.” Defense counsel noted that
defendant had no prior record, including no disorderly persons offenses, had no failures to appear, was gainfully
employed, and had the support of his adoptive parents, who live in New Jersey. Regarding defendant’s biological
mother in Canada, counsel stated defendant has not had “telephonic or face-to-face contact with her” and defendant
“doesn’t even know where she lives.” Further, defense counsel claimed that defendant lived in the same home as
the victim “until a couple of years ago” and that “no further problems apparently . . . have been even alleged.”

The trial court found that the State had established probable cause that defendant committed the charged
offenses. In making the pretrial detention determination, the judge reviewed the circumstances of the charged
offenses, the potential sentence if convicted, defendant’s risk of flight in light of his dual U.S. and Canadian
citizenship, and the potential for defendant’s obstruction of the criminal justice process. The court specifically
found that defendant is eligible for detention under the statute “because this is a first degree [offense] with No Early
Release attaching to it pursuant to N.J.S.A. 2A:162-19(a)(1).” The court gave “great weight to NERA, the fact that
this is a NERA offense and first degree, the dual citizenship, due to the extensi[ve] exposure of incarceration if
convicted, the fact that release was not recommended, and the fact that this is considered a violent offense.”

The Appellate Division reversed and released defendant with conditions. The panel, citing State v. C.W.,

449 N.J. Super. 231 (App. Div. 2017), found that “[t]he trial court abused its discretion by not considering
defendant’s age, level of prior criminal involvement and ties to the community.” The Appellate Division required as
part of defendant’s release that “defendant must report to pretrial detention as frequently as necessary to determine
his compliance with restraining orders prohibiting him from having any contact with the victim or her family . . . .
[and] must surrender his passport.” The Court granted leave to appeal.
230 N.J. 349, 350 (2017).

1
HELD: The proper standard of appellate review of pretrial detention decisions is whether the trial court abused its
discretion by relying on an impermissible basis, by relying upon irrelevant or inappropriate factors, by failing to
consider all relevant factors, or by making a clear error in judgment. Here, the trial court abused its discretion.

1. To determine the appropriate standard of appellate review in the absence of an “explicit statutory command,” a court
first must “ask whether the 'history of appellate practice’ yields an answer. Second, at least where 'neither a clear
statutory prescription nor a historical tradition exists,’ [a court asks] whether, 'as a matter of the sound administration of
justice, one judicial actor is better positioned than another to decide the issue in question.’” McLane Co. v. EEOC, 581
U.S. ___,
137 S. Ct. 1159, 1166-67 (2017). Although the CJRA does not explicitly set forth the appropriate scope of
appellate review of trial court detention decisions, the pointed use of the permissive “may” in those provisions
establishes the trial court’s significant discretion in making pretrial detention decisions and suggests that deferential
review is appropriate. (pp. 14-20)

2. Turning to the first inquiry under the McLane test, there is further support for the abuse of discretion standard in the
history of appellate practice. Since the 1800s, appellate courts have acknowledged that bail determinations were
discretionary. Over many decades, appellate courts have reviewed many bail determinations for abuse of discretion.
There is no indication that the Legislature intended to change that practice under the new system. As to the second part
of the test in McLane, courts have long deferred to trial courts’ factual determinations because they hear and see the
witnesses and have the “feel” of the case. With respect to detention determinations, trial courts regularly handle
detention motions under the CJRA and will continue to develop expertise in the CJRA’s application. In C.W., the panel
concluded that an abuse of discretion standard should apply to detention determinations under the CJRA, and correctly
enunciated the standard.
449 N.J. Super. at 235, 252–55. To determine whether the trial court abused its discretion in
ordering defendant’s detention, the Court reviews whether the decision “rest[s] on an impermissible basis,” “was based
upon a consideration of irrelevant or inappropriate factors,” “fail[ed] to take into consideration all relevant factors and
whe[ther] [the] decision reflects a clear error in judgment.” Id. at 255. (pp. 20-25)

3. The State’s burden to overcome the statutory presumption of release is substantial because “[i]n our society liberty is
the norm, and detention prior to trial or without trial is the carefully limited exception.” State v. Robinson,
229 N.J. 44,
68 (2017). The CJRA specifically delineates the kind of evidence that the court may consider in making a detention
decision. Defendant’s characteristics as he stood before the court, pursuant to
N.J.S.A. 2A:162-20, were as follows: he
was fifty years of age; he had a PSA score of 1/6—the lowest score—for both “[f]ailure to appear” and “[n]ew criminal
activity”—he was gainfully employed, had no criminal history, had no violence flags, and had strong ties to the
community including the support of his adoptive parents and his relationship with his biological children; he was born
in Canada, but adopted shortly thereafter; defendant has dual U.S.-Canadian citizenship. (pp. 25-28)

4. The nature and circumstances of the offense are pertinent to whether the statutory presumption of release has been
overcome. However, the court based its detention decision almost entirely upon the offense charged, even though that
charge does not carry a presumption of detention. See
N.J.S.A. 2A:162-18(b). The court also relied on unsupported
conclusory statements by the prosecutor to establish risk of obstruction even though there was no evidence of
defendant’s obstructive conduct. As defense counsel noted, defendant lived in the same home as the victim “until a
couple of years ago” and “no further problems apparently . . . have been alleged.” The court based defendant’s risk of
flight upon his dual U.S.-Canadian citizenship even though the evidence presented at the detention hearing was that
defendant had “lived in New Jersey [for] almost his entire life” and that defendant has no ties to Canada because he has
no contact with his biological mother and does not know where she lives. In summary, the trial court, in ordering
defendant detained, failed to properly consider defendant’s characteristics as he stood before the court. Furthermore,
the trial court relied upon general, conclusory statements put forward by the prosecutor at the detention hearing.
Because the court’s detention decision does not set forth articulable facts supporting its exercise of judicial discretion, it
is not entitled to deference. The trial court’s detention decision constituted an abuse of discretion. Remand is required
because trial courts are better positioned to determine conditions of release. (pp. 28-31)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED
to the trial court for a hearing to determine the appropriate conditions of release.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.

2
SUPREME COURT OF NEW JERSEY
A-
60 September Term 2016
079320

STATE OF NEW JERSEY,

Plaintiff-Appellant,

S.N.,

Defendant-Respondent.

Argued September 11, 2017 – Decided January 30, 2018

On appeal from the Superior Court, Appellate
Division.

Sarah Lichter, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General, attorney;
Sarah Lichter, of counsel and on the brief;
Jeffrey L. Weinstein, Hunterdon County
Assistant Prosecutor, on the brief).

Philip De Vencentes argued the cause for
respondent (Galantucci, Patuto, De
Vencentes, Potter & Doyle, attorneys; Philip
De Vencentes, on the briefs; Richard G.
Potter, of counsel and on the briefs).

Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor
Director, argued the cause for amicus curiae
County Prosecutors Association of New Jersey
(Richard T. Burke, President, attorney;
Frank J. Ducoat, of counsel and on the
brief; Kayla Elizabeth Rowe, on the brief).

Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney; Alexander R. Shalom,

1
Edward L. Barocas, and Jeanne M. LoCicero,
on the brief).

Elizabeth C. Jarit, Assistant Deputy Public
Defender, argued the cause for amicus curiae
Office of the Public Defender (Joseph E.
Krakora, Public Defender, attorney;
Elizabeth C. Jarit, of counsel and on the
brief).

JUSTICE SOLOMON delivered the opinion of the Court.

In this appeal, we determine the proper standard for

appellate review of pretrial detention decisions under the

Criminal Justice Reform Act (CJRA),
N.J.S.A. 2A:162-15 to -26.

After doing so, we must apply that standard to the facts of the

present appeal.

We conclude that the proper standard of appellate review is

whether the trial court abused its discretion by relying on an

impermissible basis, by relying upon irrelevant or inappropriate

factors, by failing to consider all relevant factors, or by

making a clear error in judgment.

Here, we affirm the Appellate Division’s judgment reversing

the trial court’s decision to detain defendant. We do so

because the trial court relied on inappropriate factors and

failed to consider all relevant factors in finding that there

was sufficient evidence before the court to overcome the

presumption of defendant’s release.

2
The facts and procedural history are culled from the record

of defendant’s detention hearing.

In March 2017, law enforcement obtained an arrest warrant

for defendant S.N.1 for acts alleged to have been committed

against his stepdaughter2 in 2012. In a complaint-warrant, the

State charged defendant with first-degree aggravated sexual

assault on a person under the age of thirteen,
N.J.S.A. 2C:14-

2(a)(1); fourth-degree lewdness, 2C:14-4(b)(1); and second-

degree child endangerment,
N.J.S.A. 2C:24-4(a).3 The affidavit

of probable cause in support of the complaint-warrant stated

that the victim told a staff member at her school that defendant

came into her bedroom and sexually assaulted her approximately

fifty times while she was in the sixth and seventh grades. The

affidavit also disclosed that, in 2015, the victim told a friend

that defendant had “touched her in a sexual manner.” In

addition, the State prepared a preliminary law enforcement

1 As per Rule 1:38-3(c)(12), initials will be used to preserve
the confidentiality of the victim in this case.

2 Defendant and the victim’s mother were never married and
defendant is not the victim’s biological father.

3 Two months after defendant’s arrest on the complaint-warrant,
he was indicted for first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault,
N.J.S.A.
2C:14-2(b); second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a)(1); and fourth-degree lewdness,
N.J.S.A.
2C:14-4(b)(1).

3
incident report (PLEIR), which stated that “defendant was known

to the victim as [f]amily.”

Following defendant’s arrest, a pretrial services officer

prepared a Public Safety Assessment (PSA)4 that rated defendant a

1 out of 6 -- the lowest possible risk score -- for both failure

to appear and new criminal activity. The PSA noted that

defendant did not have any prior criminal history or failures to

appear, but the current charges pending against defendant

stemmed from a violent offense. Despite the low risk scores,

the PSA concluded “No Release Recommended.”

The State moved for pretrial detention, pursuant to

N.J.S.A. 2A:162-19. In support of its pretrial detention

motion, the prosecution certified that the charged crime could

subject defendant to “an ordinary or extended term of life

imprisonment,”5 there is a “serious risk” that “defendant will

not appear in court,” and “defendant will pose a danger to any

4 The PSA is a tool that “assesses the level of risk for failure
to appear and for new criminal activity on a scale of 1 to 6,
with 6 being the highest, and may include a flag to denote new
violent criminal activity.” State v. Robinson,
229 N.J. 44, 62
(2017). In addition, “[t]he PSA . . . recommends whether to
release a defendant and what, if any, conditions of release to
impose.” Ibid.

5 The State had not, in fact, charged defendant with an offense
that carried an ordinary or extended term of life imprisonment.
The prosecutor corrected this assertion on the record at the
pretrial detention hearing.

4
other person or the community.” In addition, the certification

stated, “[d]efendant’s victim is his step-daughter. Defendant

is a risk to harm and intimidate his victim and her mother and

to obstruct justice by interfering with the investigation and

witnesses. Defendant is a risk of flight because his biological

mother and sister live in Canada.”

At the detention hearing, the State submitted the affidavit

of probable cause in support of the complaint-warrant, the

PLEIR,6 and the PSA. The prosecutor claimed that the PSA did not

take into account defendant’s dual citizenship or the risk to

the victim because “[defendant] knows where she lives. He knows

where her mother lives. And the fear is that if he’s released,

he will harm them physically.” Regarding the potential for

obstruction, the prosecutor stated that

[t]hese sorts of cases are sensitive in the
sense that if a defendant has access to the
victim or other family members, we know -- and
it’s common sense -- that the defendant often
tries to obstruct justice by trying to
convince family members and other people in
the family to say it didn’t happen, or put
pressure on the victim.

6 It is not clear from the transcript that the PLEIR was offered
or admitted into evidence. However, probable cause is not
disputed and, therefore, it does not affect the ultimate outcome
of this case.
5
The State also sought a restraining order to prohibit defendant

from having contact with the victim, her mother, and his three

biological children (the victim’s half-siblings).

Defense counsel countered that the State did not present

clear and convincing evidence to support its detention motion,

and that the State’s arguments were based on “mere speculation.”

Defense counsel further noted that defendant had no prior

record, including no disorderly persons offenses, had no

failures to appear, was gainfully employed, and had the support

of his adoptive parents, who live in New Jersey. Regarding

defendant’s biological mother in Canada, defense counsel stated

defendant has not had “telephonic or face-to-face contact with

her” and defendant “doesn’t even know where she lives.” Counsel

noted that defendant’s biological mother had visited New Jersey

“more than a decade ago,” but it “ended in [defendant’s] getting

a restraining order against her, [and] her being physically

removed from his house by the police.”

Further, defense counsel claimed that defendant lived in

the same home as the victim “until a couple of years ago” and

that “no further problems apparently . . . have been even

alleged.” Defense counsel also asserted that defendant is

involved in the lives of his three biological children and has

had “constant contact” with them despite no longer living in the

same household.

6
The trial court issued an oral ruling at the end of the

detention hearing granting the State’s motion for pretrial

detention and the restraining order. The court found that the

State had established probable cause that defendant committed

the charged offenses. In making the pretrial detention

determination, the judge reviewed the circumstances of the

charged offenses, the potential sentence if convicted,

defendant’s risk of flight in light of his dual U.S. and

Canadian citizenship, and the potential for defendant’s

obstruction of the criminal justice process “[b]ased on the fact

that this is essentially a he said, she said situation.”

The court gave great weight to “the nature and seriousness

of the danger to any other person or community that would be

posed by the defendant’s release.” Also, the court specifically

found that defendant is eligible for detention under the statute

“because this is a first degree [offense] with No Early Release

attaching to it pursuant to N.J.S.A. 2A:162-19(a)(1).” The

court summarized its detention decision as follows:

Based on the factors I’ve outlined, the Court
does find that the nature and circumstances
should be given great weight, as well as the
flight risk due to dual citizenship. Also,
the protection of the safety of any other
person or the community, as well as the fact
that -- and/or the defendant will not obstruct
or attempt to obstruct the criminal justice
process.

7
In making my decision today I’ve given great
weight to NERA,7 the fact that this is a NERA
offense and first degree, the dual
citizenship, due to the extensi[ve] exposure
of incarceration if convicted, the fact that
release was not recommended, and the fact that
this is considered a violent offense.
Therefore, based on all of the above the Court
will grant the State’s motion and pretrial
detention will occur.

In “[t]he history and characteristics of the defendant”

section of the pretrial detention order, the court wrote,

“[r]isk of flight –- family in Canada, no prior record, dual

citizenship, employed. Resident of NJ.” Under “[t]he nature

and seriousness of the danger to any other person or the

community that would be posed by the defendant’s release,” the

court wrote that the alleged crime was a first-degree aggravated

sexual assault and further noted “NERA.” Regarding the risk of

obstruction, the court wrote “potential to intimidate.” The

court also listed “Further Reasons for Pretrial Detention”:

- NERA offense –- [first degree]

- [D]ual citizenship creates a high risk of
flight due to the extensive exposure to
incarceration

- Release not recommended

- Violent offense

7 “NERA” refers to the “No Early Release Act,” N.J.S.A. 2C:43–
7.2.
8
Pursuant to Rule 2:9-13, defendant appealed from the trial

court’s pretrial detention order, and the Appellate Division

reversed and released defendant with conditions. The panel,

citing State v. C.W.,
449 N.J. Super. 231 (App. Div. 2017),

found that “[t]he trial court abused its discretion by not

considering defendant’s age, level of prior criminal involvement

and ties to the community.” The Appellate Division required as

part of defendant’s release that “defendant must report to

pretrial detention as frequently as necessary to determine his

compliance with restraining orders prohibiting him from having

any contact with the victim or her family . . . . [and] must

surrender his passport.”

This Court granted the State’s emergent motion for leave to

appeal and for a stay of the Appellate Division’s order to

release defendant on conditions.
230 N.J. 349, 350 (2017). We

granted leave to appear as amicus curiae to the American Civil

Liberties Union of New Jersey (ACLU), the Office of the Public

Defender (OPD), and the County Prosecutors Association of New

Jersey (CPANJ). Following oral argument, we lifted the stay,

allowed defendant’s release, and directed that “the trial court

may enforce the Appellate Division’s order reversing the order

for defendant’s pretrial detention, including establishing the

schedule for defendant to report 'as necessary to determine his

compliance with restraining orders.’”
230 N.J. 585 (2017).

9
II.

We summarize the parties’ arguments on appeal as follows.

The State urges this Court to adopt an abuse of discretion

standard and claims that the appellate panel essentially

reviewed the detention decision de novo, substituting its own

judgment for that of the trial court. The State further

contends that the Appellate Division compounded its error by

imposing conditions of release without a remand to the trial

court.

The State asserts that, in its detention order, the trial

judge highlighted facts that pertain “to every subcategory of

N.J.S.A. 2A:162-20, which is merely a permissive list of factors

a court may consider” and, therefore, the trial court did not

fail to consider any relevant factors, and did not err in

ordering pretrial detention. The State posits that “[t]he PSA

is only a starting point” and that the court “properly gave

great weight to the nature and circumstances of the offense

charged” and properly “considered the risk that defendant would

contact the victim . . . and that defendant knows how to contact

the victim as she is [his] stepdaughter.” The State also notes

that the court was permitted to consider defendant’s dual

citizenship as an indication of an enhanced flight risk.

10
Lastly, the State, citing C.W.,
449 N.J. Super. at 231,

asserts that the panel was required to identify factors that the

trial court should have considered and then remand to the trial

court.

Noting that a majority of circuit courts have adopted a

standard of independent review, defendant urges the Court to

reject a more deferential standard and to adopt a standard that

“calls for independent review, while according deference to the

trial judge’s factual findings that are clearly and convincingly

supported by the evidence presented by the prosecutor.”

Defendant asserts that “[t]here is a significant difference

between the nature of the liberty interest involved for a

defendant between seeking a review of an order setting

unreasonable release conditions . . . and an order denying

release under any conditions.” The latter type of review is at

issue in this case; it “necessarily requires an independent

review” of the evidence to determine whether that evidence

clearly and convincingly supports the State’s motion for

pretrial detention.

Regardless of which standard the Court adopts -- abuse of

discretion or independent review with deference -- defendant

argues that the panel was correct to reverse the trial court’s

order of detention because the State failed to produce clear and

11
convincing evidence to rebut the presumption of pretrial

release. Defendant claims the State offered “little more than

its boilerplate recitation” that defendant posed a risk of

flight and of obstruction.

The amici all urge the Court to adopt an abuse of

discretion standard. The ACLU and the OPD assert that the trial

court abused its discretion in ordering detention. Conversely,

the CPANJ asserts that the trial court did not abuse its

discretion.

The ACLU argues that “the trial court abused its discretion

by considering inappropriate factors, by failing to consider

necessary factors and by engaging in a clear error of judgment.”

The ACLU notes that defendant is an United States citizen, that

his dual citizenship alone is not probative of risk of flight,

and that “there is no evidence, other than [d]efendant’s

relationship to the complaining witness, to suggest he would

interfere in the investigation or prosecution of the case.”

The ACLU asserts that the court incorrectly held the fact

that the case “is essentially a he said, she said situation”

against defendant because “a defendant should not be deemed to

be higher risk because there is less evidence.”

The ACLU also claims that the trial court failed to

consider necessary factors such as defendant’s employment, ties

12
to the State of New Jersey, age, and lack of a criminal record.

The ACLU therefore contends that the court abused its discretion

by failing to consider factors that would make it more likely

that defendant would appear in court when required.

The OPD makes similar arguments. It contends that the

trial court failed to make an individualized risk assessment by

failing to consider defendant’s age, employment, residence, and

lack of criminal record. The OPD further argues defendant

“received the lowest PSA scores, had no violence flag,8 was

gainfully employed, had absolutely no criminal history, and had

strong family ties in New Jersey.” According to the OPD, the

court also “inappropriately considered the defendant’s dual

citizenship and familiarity with the complaining witness as

evidence of risk of flight and obstruction when neither fact

establishes an actual risk that the defendant would engage in

such future conduct.” Additionally, the OPD argues that the

court did not provide any statement to support its finding that

defendant posed a danger to the community.

The OPD claims that the trial court ordered defendant

detained pretrial based solely on the charged crime, even though

first-degree sexual assault is not one of the enumerated

8 Violence flags are generated as part of a PSA “if there is a
statistical likelihood that the defendant would engage in a New
Violent Criminal Activity.” State v. C.W.,
449 N.J. Super. 231,
240 (App. Div. 2017).
13
offenses that the Legislature identified in the CJRA. The OPD

reaches this conclusion “[b]ecause the only other reasons put

forward -- that [defendant] has dual citizenship and knows the

victim -- even if properly considered, could not be sufficient

to overcome a presumption of release.”

The CPANJ similarly asks this Court to confirm “that the

appropriate appellate standard of review in pretrial detention

cases is abuse of discretion, with de novo review only

appropriate when the pretrial detention hearing court has

misapplied the law.” According to the CPANJ, this standard

comports with the purpose of the CJRA and “the historical

standards of review for pretrial and post-conviction decisions.”

The CPANJ claims that, before the CJRA, appellate courts

reviewed bail determinations for abuse of discretion, and

“[t]here is no legal or public policy reason to disturb a legal

standard that advances the efficient administration of pretrial

justice and appropriate risk management.”

Finally, according to the CPANJ, assuming the judge abused

her discretion, the panel should have remanded the case “for

consideration in light of the appellate court’s ruling.”

III.

Our initial task is to determine the scope of appellate

review of pretrial detention decisions made by the trial court

14
under the CJRA. Although this is the first time this Court has

confronted the issue, guidance is provided by the United States

Supreme Court’s decision in McLane Co. v. EEOC, 581 U.S. ___,

137 S. Ct. 1159 (2017).

In McLane, the Supreme Court employed a two-part test to

determine the appropriate standard of appellate review in the

absence of an “explicit statutory command.”
137 S. Ct. at 1166-

67. In Pierce v. Underwood, a case involving the award of

counsel fees under the Equal Access to Justice Act, 28 U.S.C. §

2412(d), the Court provided an example of what would qualify as

a “relatively explicit statutory command” that would reveal “the

standard of appellate review”: “[T]he court, in its discretion,

may allow the prevailing party . . . a reasonable attorney’s

fee.”
487 U.S. 552, 558 (1988) (alterations in original)

(quoting 42 U.S.C. § 1988). Absent such a command, a court

first must “ask whether the 'history of appellate practice’

yields an answer. Second, at least where 'neither a clear

statutory prescription nor a historical tradition exists,’ we

ask whether, 'as a matter of the sound administration of

justice, one judicial actor is better positioned than another to

decide the issue in question.’” McLane,
137 S. Ct. at 1166-67

(quoting Pierce,
487 U.S. at 558-60).

15
To determine whether there is a “clear statutory

prescription” in favor of a particular review standard, we look

to the text of the CJRA. We note that the CJRA does not specify

a standard of review, unlike the example furnished in Pierce.

That does not mean, however, that the statute cannot provide

guidance as to the appropriate level of review. Indeed,

although the United States Supreme Court did not find an

“explicit statutory command” in the legislation at issue in

Pierce, it found the use of permissive language highly

significant:

We turn first to the language and structure of
the governing statute. It provides that
attorney’s fees shall be awarded “unless the
court finds that the position of the United
States was substantially justified.” 28
U.S.C. § 2412(d)(1)(A) (emphasis added). This
formulation, as opposed to simply “unless the
position of the United States was
substantially justified,” emphasizes the fact
that the determination is for the district
court to make, and thus suggests some
deference to the district court upon appeal.
That inference is not compelled, but certainly
available.

[Pierce,
487 U.S. at 559.]

We therefore review the applicable provisions of the CJRA.

We do so in the context of the statutory requirement that the

CJRA “shall be liberally construed to effectuate the purpose of

primarily relying upon pretrial release by non-monetary means to

reasonably assure” that a defendant will “appear[] in court when

16
required,” will not endanger “the safety of any other person or

the community,” and “will not obstruct or attempt to obstruct

the criminal justice process.”
N.J.S.A. 2A:162-15.

The CJRA provides that, “following the issuance of a

complaint-warrant,” as occurred in this case, a defendant “shall

be temporarily detained to allow the Pretrial Services Program

to prepare a risk assessment with recommendations on conditions

of release.”
N.J.S.A. 2A:162-16(a); see also
N.J.S.A. 2A:162-

25. Thereafter, the CJRA authorizes trial courts, “upon motion

of a prosecutor,” to order a defendant detained pretrial “when

it finds clear and convincing evidence that no condition or

combination of conditions can reasonably assure the effectuation

of [the] goals” of safeguarding against danger, flight, and

obstruction.
N.J.S.A. 2A:162-15.

When considering a prosecutor’s detention motion, trial

courts must consider the risk assessment and recommendations and

“shall make a pretrial release decision” within forty-eight

hours of the “defendant’s commitment to jail.”
N.J.S.A. 2A:162-

16(b)(1). To make that decision, the “court shall hold a

hearing to determine whether any amount of monetary bail or non-

monetary conditions or combination of monetary bail and

conditions . . . will reasonably assure” that the three goals

set forth above are met.
N.J.S.A. 2A:162-19(c). If, as in this

case, the prosecutor moves for detention where there is no

17
indictment, the prosecutor must first establish at the hearing

that probable cause exists that the defendant committed the

charged offense.
N.J.S.A. 2A:162-19(e)(2). Unless the

defendant is charged with murder or a crime for which he would

be subject to an ordinary or extended life term,
N.J.S.A.

2A:162-19(b), the CJRA imposes a presumption against pretrial

detention,
N.J.S.A. 2A:162-18(b); R. 3:4A(b)(5). The State can

rebut that presumption of release only by presenting “clear and

convincing evidence.”
N.J.S.A. 2A:162-18(a)(1); see also R.

3:4A(b)(5).

At a pretrial detention hearing, the defendant has the

right “to testify, to present witnesses, to cross-examine

witnesses who appear at the hearing, and to present information

by proffer or otherwise.”
N.J.S.A. 2A:162-19(e)(1). The State

need not present a live witness at a detention hearing, State v.

Ingram,
230 N.J. 190, 213 (2017), but it has the option to do

so. Additionally, “the trial court has discretion to require

direct testimony if it is dissatisfied with the State’s

proffer.” Ibid.

At the hearing, the court “may take into account” various

factors, including “[t]he nature and circumstances of the

[charged] offense”; the weight of the evidence proffered against

the defendant; characteristics of the defendant as he or she

stands before the court, including his or her employment status,

18
familial ties, and length of residence in the community; “[t]he

nature and seriousness of the danger” that would be posed to

other persons or the community if the defendant were released;

the risk that the defendant will obstruct the criminal justice

process; and the PSA recommendation.
N.J.S.A. 2A:162-20.

If the court orders pretrial detention, it shall “include

written findings of fact and a written statement of the reasons

for the detention.”
N.J.S.A. 2A:162-21(a)(1); see also R.

3:4A(c). A defendant may appeal a pretrial detention order as

of right, pursuant to court rules.
N.J.S.A. 2A:162-18(c); see

also R. 2:9-13(a). Because the defendant remains detained

pending appeal, the court shall hear the defendant’s appeal in

an expedited manner.
N.J.S.A. 2A:162-18(c); R. 2:9-13(a).

Although the CJRA does not explicitly set forth the

appropriate scope of appellate review of trial court detention

decisions, its language supports that the proper standard of

appellate review is abuse of discretion. First, the Legislature

used both “may” and “shall” in various provisions of the CJRA.

See generally
N.J.S.A. 2A:162-15 to -26. “Where a statutory

provision contains both the words 'may’ and 'shall,’ it is

presumed that the lawmaker intended to distinguish between them,

'shall’ being construed as mandatory and 'may’ as permissive.”

Aponte-Correa v. Allstate Ins. Co.,
162 N.J. 318, 325 (2000).

19
Under the CJRA, “the court may take into account” certain

information.
N.J.S.A. 2A:162-20 (emphasis added). If the court

finds by clear and convincing evidence that no conditions of

release will be sufficient, “the court may order, before trial,

the detention of an eligible defendant.”
N.J.S.A. 2A:162-

18(a)(1) (emphasis added). By contrast, the trial court must

provide a written statement of reasons if it orders detention.

N.J.S.A. 2A:162-21(a)(1). The pointed use of the permissive

“may” in those provisions establishes the trial court’s

significant discretion in making pretrial detention decisions

and suggests that deferential review is appropriate. See

Pierce,
487 U.S. at 559.

Nevertheless, because the statutory language is not

sufficiently explicit to dispose of the question here, we apply

the two-part McLane test.

Turning to the first inquiry under that test, we find

further support for the abuse of discretion standard in “the

history of appellate practice.” McLane,
137 S. Ct. at 1166.

Since the 1800s, appellate courts have acknowledged that

bail determinations were discretionary and not readily

reviewable by appellate courts. See Parsell v. State,
30 N.J.L.
530, 546 (1863) (finding that “the law confides 'the exclusive

order and directions in such cases [(referring to discharging

20
bail, &c.,)] to the legal discretion and judgment of the court

having jurisdiction over the subject matter; and courts of error

will not deem themselves at liberty to review the same’”

(alteration in original) (quoting Wright v. Green,
11 N.J.L.
334, 337 (Sup. Ct. 1830) (involving trial court’s decision to

set aside amercement and discharge debtor))).

As a result, over many decades, appellate courts have

reviewed many bail determinations for abuse of discretion. See

State v. Fajardo-Santos,
199 N.J. 520, 531, 533-34 (2009)

(stating that a trial court “engage[s] in a fact-sensitive

analysis in setting bail” and noting our Court “us[ed] [an]

abuse of discretion standard to review [the] fact-sensitive

determination whether to remit forfeited bail” in State v.

Ventura,
196 N.J. 203, 206 (2008)); State v. Korecky,
169 N.J.
364, 373 (2001) (“The imposition of a bail condition is a matter

of judicial discretion.”); State v. Johnson,
61 N.J. 351, 364

(1972) (noting that “bail liberty is a matter for the discretion

of the trial courts” and that “discretion must be exercised

reasonably”); State v. Steele,
430 N.J. Super. 24, 34 (App. Div.

2013); State v. Petrucelli,
37 N.J. Super. 1, 6 (App. Div. 1955)

(noting that “[t]he amount of bail is left to sound judicial

discretion” and that appellate courts are “not warranted in

nullifying a trial court’s exercise of judicial discretion in

the absence of showing that its action was clearly

21
unreasonable”). There is no indication that the Legislature

intended to change that practice under the new system. See

C.W.,
449 N.J. Super. at 254-56.

The second part of the Supreme Court’s test in McLane is

whether “as a matter of sound administration of justice, one

judicial actor is better positioned than another to decide the

issue in question.”
137 S. Ct. at 1166-67 (quoting Pierce,
487 U.S. at 559-60). We have long deferred to trial courts’ factual

determinations because they “hear and see the witnesses and

. . . have the 'feel’ of the case, which a reviewing court

cannot enjoy.” State v. Johnson,
42 N.J. 146, 161 (1964). As a

consequence, trial courts are “better positioned” than appellate

courts to make factual determinations.

With respect to detention determinations, trial courts

regularly handle detention motions under the CJRA and, going

forward, will continue to develop expertise in the CJRA’s

application. See Ingram,
230 N.J. at 212 (stating that under

CJRA, “the State moved for detention in 7824 cases in the first

half of 2017” with “[c]ourts h[olding] hearings in 5548 of those

cases”).

The Legislature’s significant use of permissive language in

the CJRA, the history of appellate deference to the factual

findings of trial courts, the history of appellate review of

22
bail decisions for abuse of discretion, and the ongoing

development of trial court expertise in applying the CJRA, all

suggest that abuse of discretion is the appropriate appellate

standard of review for determinations made in pretrial detention

hearings under the CJRA.

In C.W., cited by the Appellate Division here, the panel

also concluded that an abuse of discretion standard should apply

to detention determinations under the CJRA.
449 N.J. Super. at
235, 252–54. The panel found support in the words and policy

objectives of the CJRA -- “the objectives of the [CJRA] in

attaining the expeditious resolution of criminal cases could be

thwarted if this court routinely second-guessed decisions on

pretrial detention motions simply because we personally would

have reached a different result than the trial judge.” Id. at

256.

C.W. correctly recognized that, “[i]n many instances, the

pretrial hearing may entail no witness testimony and no need for

credibility findings by the trial court, to which we ordinarily

accord great deference.” Id. at 257. Nevertheless, regardless

of whether the evidence is live testimony, a videotaped

statement, or documentary evidence, deference is owed to the

trial court’s determinations of fact and credibility. State v.

S.S.,
229 N.J. 360, 379 (2017) (“[A] standard of deference to a

23
trial court’s fact findings, even fact findings based solely on

video or documentary evidence, best advances the interests of

justice in a judicial system that assigns different roles to

trial courts and appellate courts.”); State v. Elders,
192 N.J.
224, 244 (2007).

We conclude that the appellate panel in C.W. identified the

proper standard of review of detention decisions under the CJRA

-- abuse of discretion. We find that the panel correctly

enunciated the standard when it stated that,

[w]hile the concept is difficult to define
with precision, an appellate court “may find
an abuse of discretion when a decision
'rest[s] on an impermissible basis’ or was
'based upon a consideration of irrelevant or
inappropriate factors.’” Steele, 430 N.J.
Super. at 34-35, 61 (quoting Flagg v. Essex
Cty. Prosecutor,
171 N.J. 561, 571 (2002)).
An appellate court can also discern an abuse
of discretion when the trial court fails to
take into consideration all relevant factors
and when its decision reflects a clear error
in judgment. State v. Baynes,
148 N.J. 434,
444 (1997). Likewise, when the trial court
renders a decision based upon a misconception
of the law, that decision is not entitled to
any particular deference and consequently will
be reviewed de novo. See, e.g., State v.
Stein,
225 N.J. 582, 593 (2016); State v.
Williams,
441 N.J. Super. 266, 272 (App. Div.
2015).
[C.W.,
449 N.J. Super. at 255.]

Under that standard, “[a] reviewing court generally will give no

deference to a trial court decision that fails to 'provide

24
factual underpinnings and legal bases supporting [its] exercise

of judicial discretion.’” C.W.,
449 N.J. Super. at 255 (second

alteration in original) (quoting Clark v. Clark,
429 N.J. Super.
61, 72 (App. Div. 2012)). In other words, a trial court’s

detention decision not supported by articulable facts is not

entitled to deference and may constitute an abuse of discretion.

IV.

Our final task is to determine whether the trial court

abused its discretion in ordering defendant’s detention. This

determination requires a review of whether the trial court’s

decision “rest[s] on an impermissible basis,” “was based upon a

consideration of irrelevant or inappropriate factors,” “fail[ed]

to take into consideration all relevant factors and whe[ther]

[the] decision reflects a clear error in judgment.” C.W.,
449 N.J. Super. at 255 (first alteration in original) (internal

citations omitted).

Where, as here, the defendant has not been indicted, the

CJRA requires trial courts to determine at a detention hearing

whether the State established probable cause and demonstrated by

clear and convincing evidence that a defendant’s danger, risk of

flight, and risk of obstruction overcomes the presumption of

release. See
N.J.S.A. 2A:162-18(a)(1); -19(e)(2); -20(a), (b).

Because the finding of probable cause is not at issue here, we

confine our consideration to the trial court’s conclusion that

25
defendant’s danger, risk of flight, and risk of obstruction

overcame the presumption of his release. See
N.J.S.A. 2A:162-

18(a)(1); -19(e)(2); -20(a), (b).

We repeat the following principles that guide our final

determination. The State’s burden to overcome the statutory

presumption of release is substantial because “[i]n our society

liberty is the norm, and detention prior to trial or without

trial is the carefully limited exception.” State v. Robinson,

229 N.J. 44, 68 (2017) (alteration in original) (quoting United

States v. Salerno,
481 U.S. 739, 755 (1987)). If the court

orders pretrial detention, it shall “include written findings of

fact and a written statement of the reasons for the detention.”

N.J.S.A. 2A:162-21(a)(1); see also R. 3:4A(c). Indeed, “[a]

reviewing court generally will give no deference to a trial

court decision that fails to 'provide factual underpinnings and

legal bases supporting [its] exercise of judicial discretion.’”

C.W.,
449 N.J. Super. at 255 (second alteration in original)

(quoting Clark,
429 N.J. Super. at 72).

The CJRA specifically delineates the kind of evidence that

the court may consider in making a detention decision.
N.J.S.A.

2A:162-20. As noted above, pursuant to
N.J.S.A. 2A:162-20, the

court may take into account various factors, including “[t]he

nature and circumstances of the [charged] offense;” “the weight

of the evidence” proffered against the defendant;

26
characteristics of the defendant as he stands before the court,

including his or her employment status, familial ties, and

length of residence in the community; “[t]he nature and

seriousness of the danger” posed to other persons or the

community if the defendant were released; the risk that the

defendant will obstruct the criminal justice process; and the

PSA recommendation.

The court here considered the nature of the offense charged

and gave it “great weight.” The court acknowledged the weakness

of the State’s case by stating that the proofs were limited to

“he said, she said.” Even though the weakness of the State’s

case generally militates in favor of release, the court used

this factor to support the prosecutor’s claim that there was a

risk of obstruction. That was so, even though there was no past

conduct by defendant or empirical evidence offered by the

prosecutor to support the contention that

Defendant’s characteristics as he stood before the court,

pursuant to
N.J.S.A. 2A:162-20, were as follows: he was fifty

years of age; he had a PSA score of 1/6 -- the lowest score --

27
for both “[f]ailure to appear” and “[n]ew criminal activity”; he

was gainfully employed, had no criminal history, had no violence

flags, and had strong ties to the community including the

support of his adoptive parents and his relationship with his

biological children; he was born in Canada, but adopted shortly

thereafter, and has lived in the United States; because he was

born in Canada, defendant has dual U.S.-Canadian citizenship;

and his birth mother visited him on one occasion more than ten

years ago, and the visit ended with defendant obtaining a

restraining order against her.

In addition, defense counsel proffered, without dispute by

the prosecutor, that defendant had “no telephonic or face-to-

face contact with [his mother]” and “doesn’t even know where to

go find her”; defendant lived in the same home as the victim

“until a couple of years ago” and “no further problems

apparently . . . have been alleged”; and defendant is involved

in the lives of his three biological children and has had

“constant contact” with them despite no longer living in the

same household.

The nature and circumstances of the offense are pertinent

to whether the statutory presumption of release has been

overcome. However, the court based its detention decision

almost entirely upon the offense charged, even though that

charge does not carry a presumption of detention. See N.J.S.A.

28
2A:162-18(b). The court also relied on unsupported conclusory

statements by the prosecutor to establish risk of obstruction

even though there was no evidence of defendant’s obstructive

conduct. As defense counsel noted, defendant lived in the same

home as the victim “until a couple of years ago” and “no further

problems apparently . . . have been alleged.”

The court based defendant’s risk of flight upon his dual

U.S.-Canadian citizenship even though the evidence presented at

the detention hearing was that defendant had “lived in New

Jersey [for] almost his entire life” and that defendant has no

ties to Canada because he has no contact with his biological

mother and does not know where she lives.

In summary, the trial court, in ordering defendant

detained, failed to properly consider defendant’s

characteristics as he stood before the court. Furthermore, the

trial court relied upon general, conclusory statements put

forward by the prosecutor at the detention hearing. For

example, at the detention hearing, the prosecutor asserted in a

conclusory fashion that defendant’s dual citizenship created a

risk of flight and that because defendant knows where the victim

and her mother live “the fear is that if he’s released, he will

harm them physically.” Lastly, the prosecutor stated, without

factual support, that “[t]hese sorts of cases are sensitive”

because “defendant has access to the victim and other family

29
members” and that “it’s common sense . . . that the defendant

often tries to obstruct justice by trying to convince family

members and other people in the family to say it didn’t happen,

or put pressure on the victim.” Because the court’s detention

decision does not set forth articulable facts supporting its

exercise of judicial discretion, it is not entitled to

deference.

We are thus constrained to find that the evidence at the

detention hearing did not overcome the CJRA’s presumption of

release. The trial court’s detention decision constituted an

abuse of discretion because it “rest[s] on an impermissible

basis,” “was based upon a consideration of irrelevant or

inappropriate factors,” “fail[ed] to take into consideration all

relevant factors,” including defendant’s characteristics as he

stood before the court, and “reflects a clear error in

judgment.” C.W.,
449 N.J. Super. at 255 (first alteration in

original) (internal citations omitted).

Having determined that the trial court abused its

discretion by detaining defendant, the next appropriate

procedural step is to remand the matter to the trial court to

determine the suitable conditions of release. Remand is

required because the trial court has the opportunity at a

detention hearing to “hear and see witnesses” and gain a “'feel’

of the case which a reviewing court cannot enjoy.” Johnson, 42

30 N.J. at 161. Trial courts are therefore better positioned to

determine conditions of release.

For the reasons set forth above, we affirm as modified the

judgment of the Appellate Division and remand to the trial court

for a hearing to determine the appropriate conditions of

release.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion.

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