Bill Text: NJ S1675 | 2018-2019 | Regular Session | Introduced
Bill Title: Establishes rebuttable presumption that person who commits crime with bail restrictions be detained prior to trial.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2018-02-05 - Introduced in the Senate, Referred to Senate Law and Public Safety Committee [S1675 Detail]
Download: New_Jersey-2018-S1675-Introduced.html
Sponsored by:
Senator JEFF VAN DREW
District 1 (Atlantic, Cape May and Cumberland)
SYNOPSIS
Establishes rebuttable presumption that person who commits crime with bail restrictions be detained prior to trial.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning pretrial detention of certain offenders and amending P.L.2014, c.31 and P.L.1994, c.144.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 5 of P.L.2014, c.31 (C.2A:162-19) is amended to read as follows:
5. a. A prosecutor may file a motion with the court at any time, including any time before or after an eligible defendant's release pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17), seeking the pretrial detention of an eligible defendant for:
(1) any crime of the first or second degree enumerated under subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2);
(2) any crime for which the eligible defendant would be subject to an ordinary or extended term of life imprisonment;
(3) any crime if the eligible defendant has been convicted of two or more offenses under paragraph (1) or (2) of this subsection;
(4) any crime enumerated under paragraph (2) of subsection b. of section 2 of P.L.1994, c.133 (C.2C:7-2) or crime involving human trafficking pursuant to section 1 of P.L.2005, c.77 (C.2C:13-8) or P.L.2013, c.51 (C.52:17B-237 et al.) when the victim is a minor, or the crime of endangering the welfare of a child under N.J.S.2C:24-4;
(5) any crime enumerated under subsection c. of N.J.S.2C:43-6;
(6) any crime or offense involving domestic violence as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19); or
(7) any other crime for which the prosecutor believes there is a serious risk that:
(a) the eligible defendant will not appear in court as required;
(b) the eligible defendant will pose a danger to any other person or the community; or
(c) the eligible defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure or intimidate, a prospective witness or juror.
b. When a motion for pretrial detention is filed pursuant to subsection a. of this section, there shall be a rebuttable presumption that the eligible defendant shall be detained pending trial because no amount of monetary bail, non-monetary condition 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, if the court finds probable cause that the eligible defendant:
(1) committed murder pursuant to N.J.S.2C:11-3; [or]
(2) committed a crime with bail restrictions as defined in subsection a. of section 1 of P.L.1994, c.144 (C.2A:162-12) or any other crime for which the eligible defendant would be subject to an ordinary or extended term of life imprisonment.
c. A court shall hold a hearing to determine whether any amount of monetary bail or non-monetary conditions or combination of monetary bail and conditions, including those set forth under subsection b. of section 3 of P.L.2014, c.31 (C.2A:162-17) will 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.
d. (1) Except as otherwise provided in this subsection, the pretrial detention hearing shall be held no later than the eligible defendant's first appearance unless the eligible defendant, or the prosecutor, seeks a continuance. If a prosecutor files a motion for pretrial detention after the eligible defendant's first appearance has taken place or if no first appearance is required, the court shall schedule the pretrial detention hearing to take place within three working days of the date on which the prosecutor's motion was filed, unless the prosecutor or the eligible defendant seeks a continuance. Except for good cause, a continuance on motion of the eligible defendant may not exceed five days, not including any intermediate Saturday, Sunday, or legal holiday. Except for good cause, a continuance on motion of the prosecutor may not exceed three days, not including any intermediate Saturday, Sunday, or legal holiday.
(2) Upon the filing of a motion by the prosecutor seeking the pretrial detention of the eligible defendant and during any continuance that may be granted by the court, the eligible defendant shall be detained in jail, unless the eligible defendant was previously released from custody before trial, in which case the court shall issue a notice to appear to compel the appearance of the eligible defendant at the detention hearing. The court, on motion of the prosecutor or sua sponte, may order that, while in custody, an eligible defendant who appears to be a drug dependent person receive an assessment to determine whether that eligible defendant is drug dependent.
e. (1) At the pretrial detention hearing, the eligible defendant has the right to be represented by counsel, and, if financially unable to obtain adequate representation, to have counsel appointed. The eligible defendant shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing.
(2) In pretrial detention proceedings for which there is no indictment, the prosecutor shall establish probable cause that the eligible defendant committed the predicate offense. A presumption of pretrial detention as provided in subsection b. of this section may be rebutted by proof provided by the eligible defendant, the prosecutor, or from other materials submitted to the court. The standard of proof for a rebuttal of the presumption of pretrial detention shall be a preponderance of the evidence. If proof cannot be established to rebut the presumption, the court may order the eligible defendant's pretrial detention. If the presumption is rebutted by sufficient proof, the prosecutor shall have the opportunity to establish that the grounds for pretrial detention exist pursuant to this section.
(3) Except when an eligible defendant has failed to rebut a presumption of pretrial detention pursuant to subsection b. of this section, the court's finding to support an order of pretrial detention pursuant to section 4 of P.L.2014, c.31 (C.2A:162-18) that no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions will 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 shall be supported by clear and convincing evidence.
f. The hearing may be reopened, before or after a determination by the court, at any time before trial, if the court finds that information exists that was not known to the prosecutor or the eligible defendant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will 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.
(cf: P.L.2014, c.31, s.5)
2. Section 1 of P.L.1994, c.144 (C.2A:162-12) is amended to read as follows:
1. a. As used in this section:
"Crime with bail restrictions" means a crime of the first or second degree charged under any of the following sections:
(1) Murder 2C:11-3.
(2) Manslaughter 2C:11-4.
(3) Kidnapping 2C:13-1.
(4) Sexual Assault 2C:14-2.
(5) Robbery 2C:15-1.
(6) Carjacking P.L.1993, c.221, s.1 (C.2C:15-2).
(7) Arson and Related Offenses 2C:17-1.
(8) Causing or Risking Widespread
Injury or Damage 2C:17-2.
(9) Burglary 2C:18-2.
(10) Theft by Extortion 2C:20-5.
(11) Endangering the Welfare of Children 2C:24-4.
(12) Resisting Arrest; Eluding Officer 2C:29-2.
(13) Escape 2C:29-5.
(14) Corrupting or Influencing a Jury 2C:29-8.
(15) Possession of Weapons for Unlawful Purposes 2C:39-4.
(16) Weapons Training for Illegal Activities
P.L.1983, c.229, s.1 (C.2C:39-14).
(17) Soliciting or Recruiting Gang Members
P.L.1999, c.160, s.1 (C.2C:33-28).
(18) Human Trafficking P.L.2005, c.77, s.1 (C.2C:13-8).
"Crime with bail restrictions" also includes any first or second degree drug-related crimes under chapter 35 of Title 2C of the New Jersey Statutes and any first or second degree racketeering crimes under chapter 41 of Title 2C of the New Jersey Statutes.
"Crime with bail restrictions" also includes any crime or offense involving domestic violence, as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19), where the defendant was subject to a temporary or permanent restraining order issued pursuant to the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) and is charged with a crime committed against a person protected under the order or where the defendant is charged with contempt pursuant to N.J.S.2C:29-9.
b. Subject to the provisions of subsection c. of this section, a person charged with a crime with bail restrictions may post the required amount of bail only in the form of:
(1) Full cash;
(2) A surety bond executed by a corporation authorized under chapter 31 of Title 17 of the Revised Statutes; or
(3) A bail bond secured by real property situated in this State with an unencumbered equity equal to the amount of bail undertaken plus $20,000.
c. [There] If a defendant is not detained prior to trial pursuant to subsection b. of section 5 of P.L.2014, c.31 (C.2A:162-19) there shall be a presumption in favor of the court designating the posting of full United States currency cash bail to the exclusion of other forms of bail when a defendant is charged with an offense as set forth in subsection a. of this section and:
(1) has two other indictable cases pending at the time of the arrest; or
(2) has two prior convictions for a first or second degree crime or for a violation of section 1 of P.L.1987, c.101 (C.2C:35-7) or any combination thereof; or
(3) has one prior conviction for murder, aggravated manslaughter, aggravated sexual assault, kidnapping or bail jumping; or
(4) was on parole at the time of the arrest; or
(5) was subject to a temporary or permanent restraining order issued pursuant to the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.), was charged with a crime committed against a person protected under that order, including a charge of contempt pursuant to N.J.S.2C:29-9, and either: (a) is charged with commission of a domestic violence crime that resulted in serious bodily injury to the victim; or (b) has at least one prior conviction for a crime or offense involving domestic violence against the same victim or has previously violated a final restraining order protecting the same victim, unless the court finds on the record that another form of bail authorized in subsection b. of this section will ensure the defendant's presence in court when required.
d. When bail is posted in the form of a bail bond secured by real property, the owner of the real property, whether the person is admitted to bail or a surety, shall also file an affidavit containing:
(1) A legal description of the real property;
(2) A description of each encumbrance on the real property;
(3) The market value of the unencumbered equity owned by the affiant as determined in a full appraisal conducted by an appraiser licensed by the State of New Jersey; and
(4) A statement that the affiant is the sole owner of the unencumbered equity.
e. Nothing herein is intended to preclude a court from releasing a person on the person's own recognizance when the court determines that such person is deserving.
(cf: P.L.2013, c.51, s.15)
3. This act shall take effect immediately.
STATEMENT
This bill establishes a rebuttable presumption that a person charged with a crime with bail restrictions is to be detained prior to trial.
Under P.L.2014, c.31, also known as the "Criminal Justice Reform Law," criminal courts are authorized to order the pretrial release of a defendant pending further proceedings, or order pretrial detention of defendants who are found to be a flight risk, a danger to another or the community, or likely to obstruct further criminal proceedings.
In addition, section 1 of P.L.1994, c.144 (C.2A:162-12) provides that a person charged with a crime with bail restrictions may only use full cash, certain surety bonds or certain bail bonds as a means of posting bail. These crimes include: murder; manslaughter; kidnapping; sexual assault; robbery; carjacking: arson; causing or risking widespread injury or damage; burglary, theft by extortion; endangering the welfare of a child; resisting arrest and eluding an officer; escape; corrupting or influencing a jury; possession of weapons for unlawful purposes; weapons training for illegal activities; soliciting or recruiting gang members; human trafficking; any first or second degree drug-related crimes; and certain domestic offenses. Persons charged with these enumerated crimes are not permitted to use the 10% cash option for posting bail.
Under this bill, if a court finds probable cause that a defendant committed a crime with bail restrictions there would be a rebuttable presumption that the person is to be detained pending trial because no amount of monetary bail, non-monetary conditions of release, or combination thereof would reasonably assure the defendant's appearance in court, the safety of any other person or the community, and that the defendant will not obstruct the criminal justice process. This presumption may be rebutted by the defendant upon a showing of the preponderance of the evidence in support of the defendant. If the defendant is unable to rebut the presumption, the court may order pretrial detention, but if rebutted, the prosecutor would still have the opportunity to establish grounds for pretrial detention. In addition, if the defendant is not detained prior to trial there would be a rebuttable presumption that a person charged with one of the enumerated crimes is prohibited from using the 10% cash option for posting bail.
A rebuttable presumption currently applies under P.L.2014, c.31 when a prosecutor makes a motion for the pretrial detention of a defendant charged with murder or any crime for which the defendant would be subject to an ordinary or extended term of life imprisonment. This bill extends that presumption to crimes with bail restrictions.
