                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4898-18T6

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES E. BRYANT,

     Defendant-Appellant.
___________________________

                    Submitted October 2, 2019 - Decided November 7, 2019

                    Before Judges Yannotti and Hoffman.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Warrant No. 2019-006201-
                    0714.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Elizabeth Cheryl Jarit, Deputy Public
                    Defender, of counsel and on the briefs).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Frank J. Ducoat,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant James E. Bryant appeals from the June 14, 2019 Law Division

order requiring his pretrial detention pursuant to the Criminal Justice Reform

Act (CJRA), N.J.S.A. 2A:162-15 to -26. We affirm.

                                       I

      The record shows that on April 30, 2019, at around 9:30 a.m., police

observed defendant driving the wrong way down a one-way street in Newark.

The officers activated the lights and siren on their patrol vehicle to make a motor

vehicle stop. Rather than pull over, defendant disregarded the command to stop

and proceeded to speed down a busy street, weaving between vehicles, speeding

through a red light, and nearly hitting a pedestrian as he drove onto the sidewalk.

After defendant lost control and crashed, he exited the car and ran into a park,

where the officers found him hiding behind a storage unit. The officers placed

defendant under arrest and charged him with second-degree eluding.1

      The State filed a motion for defendant's pretrial detention. The Public

Safety Assessment (PSA) prepared by the Pretrial Services Program (PSP)

scored defendant 2 out of 6, with 6 being the highest, for risk of failure to appear,

and 3 out of 6 for risk of new criminal activity. Despite the dangerous nature of


1
  On July 2, 2019, after entry of the order under review, a grand jury in Essex
County returned an indictment charging defendant with second-degree eluding,
N.J.S.A. 2C:29-2b, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2).
                                                                             A-4898-18T6
                                           2
the charge and defendant's conduct, the computer-generated PSA did not include

a New Violent Criminal Activity flag indicating an elevated risk of violence.

The PSA recommended release with conditions.

      At the pretrial detention hearing, defendant conceded probable cause.

After hearing argument, the motion judge granted the State's motion and ordered

defendant's pretrial detention, notwithstanding the PSP recommendation of

pretrial release with conditions. Among the reasons for his decision, the judge

noted defendant's "extremely reckless" driving, his attempt to flee after losing

control of his vehicle, and the fact he faced "a presumption of incarceration" and

"anywhere between five and ten years in State prison" if found guilty of eluding,

a second-degree crime.

      Defendant appealed and we remanded the matter to the trial court for

reconsideration, and provided:

            On remand, the trial court shall reconsider its detention
            analysis and address the arguments presented in
            defendant's appellate brief, including the assertion that
            the court violated State v. Mercedes, [223 N.J. 152
            (2018)] by placing undue reliance on the pending New
            Jersey charges. The parties and the trial court shall also
            endeavor to ascertain the current status of the disorderly
            persons trespass charges in New York, which
            apparently are defendant's only other criminal or quasi-
            criminal matters in his history.



                                                                          A-4898-18T6
                                        3
      On remand, the motion judge conducted another detention hearing. He

first determined defendant’s New York case remained pending, with July 15,

2019 set as the next court date. After hearing argument from counsel, the motion

judge began by noting that he was "keenly aware" of the presumption against

detention in this case, as well as the factors that need to be addressed by the

court in any detention hearing.

      Beginning with the first of those factors – the nature and circumstances of

this offense – the judge noted "the dangerous circumstance" presented by the

events involved in defendant's alleged second-degree eluding. He detailed the

nature and circumstances of this particular eluding: after ignoring police

instructions to stop his vehicle for driving the wrong way down a one-way street,

defendant evaded police, disregarding their lights and sirens, driving at a high

rate of speed and in an "extremely reckless" manner by weaving in between

vehicles, running a red light, "and driving up on a sidewalk narrowly missing

pedestrians." Defendant then lost control of his vehicle and crashed. He forced

police to pursue him further by fleeing the scene on foot before finally being

apprehended.

      Turning next to the weight of the evidence, the motion judge found that

while this factor could be seen as related to the nature and circumstances of this


                                                                          A-4898-18T6
                                        4
offense, it is a separate consideration. Accord N.J.S.A. 2A:162-20a and -20b.

The judge found the weight of the evidence in this case "quite strong," including

the observations of two police officers, and dashcam and bodycam videos. He

concluded the State has a "very strong" case against defendant.

      Regarding the third factor, the nature and circumstances of the

characteristics of the defendant, the motion judge noted that he specifically

considered – both at the initial hearing and again on remand – defendant’s

prospective employment and ties to the community. He also reviewed the PSA,

which indicates defendant is 26, scored a 2 on the failure-to-appear scale and a

3 on the risk of new criminal activity scale, and has one pending charge of

criminal trespass out of New York.

      Addressing Mercedes, the motion judge noted that case, along with now-

amended Rule 3:4A(b)(5), stands for the proposition that when the PSA contains

a no-release recommendation that is based exclusively on the charged offense,

the court is no longer permitted to use that recommendation as prima facie

evidence to overcome the presumption of release. See 233 N.J. at 155. The

judge made clear that he "cannot and is not relying exclusively on the nature and

circumstances of the offense" in this case.




                                                                         A-4898-18T6
                                        5
      The motion judge further noted that defendant's open criminal trespass

charge out of New York qualifies as a "pending charge" that the court may

consider. See Mercedes 233 N.J. at 174. The judge did in fact consider it later,

noting that defendant was out on pretrial release, albeit not being monitored, on

his pending New York charge, which makes it "an appropriate consideration for

the Court to place some weight on that fact."

      Turning to the fourth statutory factor – the nature and seriousness of the

danger to any other person or the community that would be posed by the eligible

defendant's release, if applicable – the judge noted he was "extremely cognizant"

that defendant, like all others, is entitled to the presumption of innocence.

Defense counsel argued that by prefacing consideration of this factor with a

phrase like "if convicted" or "if these allegations prove to be true," the judge

was "presuming [defendant's] guilt to establish his dangerousness." After a

lengthy discussion, the judge decided that he would not consider this factor

because he already considered the facts and circumstances of this case as part of

his analysis on the first detention factor, nature and circumstances of the offense.

      Considering the totality of the circumstances of this case, the motion judge

then concluded, "by clear and convincing evidence, that there is no amount of

monetary bail, no monetary conditions, or combination of monetary bail and


                                                                            A-4898-18T6
                                         6
conditions that would protect the safety of any other person or the community,

as well as the defendant’s appearance in court when required."

      The judge reasoned that the nature and circumstances of this particular

case indicate an increased risk defendant will not appear when required. He

noted that "the lights and sirens by the police were telling him to pull over . . .

and he didn't. He was trying to escape . . . indicative of someone who may not

want to come back to court . . . . "

      The judge then entered an order continuing defendant's pretrial detention.

The order specifically listed "(1) the nature and circumstances of the offense,

(2) the weight of the evidence which is very strong . . . , and (3) [d]efendant's

criminal history" as reasons for defendant's pretrial detention.      This appeal

followed.

                                        II

      The decision on whether to order a defendant's pretrial detention is

committed to the sound discretion of the trial court and will not be reversed

unless shown to be a mistaken exercise of discretion. State v. S.N., 231 N.J.

497, 515 (2018) (citing State v. C.W., 449 N.J. Super. 231, 255 (App. Div.

2017)). To show an abuse of discretion, the defendant must establish that the

trial court's decision "rest[s] on an impermissible basis," "was based upon a


                                                                           A-4898-18T6
                                        7
consideration of irrelevant or inappropriate factors," shows that the court

"fail[ed] to take into consideration all relevant factors[,]" and represents "a clear

error [of] judgment." Id. at 515-16 (quoting C.W., 449 N.J. Super. at 255)

(internal quotations omitted).

      N.J.S.A. 2A:162-20 provides that in determining whether the State has

met its burden of showing whether a defendant should be detained pretrial, the

court may take into account:

                a. The nature and circumstances of the offense
                   charged;

                b. The weight of the evidence against the eligible
                   defendant, except that the court may consider the
                   admissibility of any evidence sought to be
                   excluded;

                c. The history and characteristics of the eligible
                   defendant, . . . .

                d. The nature and seriousness of the danger to any
                   other person or the community that would be
                   posed by the eligible defendant's release, if
                   applicable;

                e. The nature and seriousness of the risk of
                   obstructing or attempting to obstruct the criminal
                   justice process that would be posed by the
                   eligible defendant's release, if applicable; and

                f. The release recommendation of the pretrial
                   services program . . . .


                                                                             A-4898-18T6
                                         8
      On appeal, defendant argues the trial court abused its discretion by

"committing the same errors that necessitated the remand" order. He contends

the judge violated Mercedes by essentially ordering his pretrial detention based

solely on the basis of the alleged offense itself. We disagree.

      The record reflects the motion judge considered defendant’s personal

characteristics, including his age, lack of criminal record, pending New York

charge, PSA scores, prospective employment, and ties to the community. He

also considered the PSA recommendation to release defendant with conditions.

The judge acknowledged that these factors, with the exception of the pending

New York charges, weighed against the State's motion for pretrial detention.

      Defendant asserts the motion court put undue weight on the nature and

circumstances of the offense, arguing that every second-degree eluding creates

a risk of injury. If we were to accept this argument, the nature and circumstances

of the offense could never be considered in a second-degree eluding case

because every second-degree eluding case includes ignoring police commands

to stop, thereby creating a risk of bodily injury. While those are the elements of

eluding, we agree with the State that "defendant did more than satisfy them at a

prima facie level; he created a risk of serious bodily injury and even death in the

way in which he eluded, when he eluded, where he eluded, and for how long he


                                                                           A-4898-18T6
                                        9
eluded." Defendant's dangerous conduct did not end when he crashed his car;

instead, it continued as he placed the police and others at risk as he tried to

escape on foot.

      Defendant also argues that the facts in this case "comprise a typical

second-degree eluding case." We reject this argument as defendant did far more

than satisfy the basic elements of an eluding charge – speeding in a densely-

populated area at 9:30 a.m., illegally reversing, disregarding stop signs and red

lights, and driving up on a sidewalk, narrowly missing pedestrians. We discern

no error in the motion judge affording this factor considerable weight.

      Defendant further argues that S.N. supports his pretrial release. In S.N.,

a case involving a charge of aggravated sexual assault of a step-daughter by her

step-father, the Supreme Court reversed the detention decision, explaining that

the trial court improperly "based its detention decision almost entirely upon the

offense charged, even though that charge does not carry a presumption of

detention." Id. at 518. We find S.N. readily distinguishable; in that case, the

defendant was arrested in 2017 for crimes allegedly committed in 2012. Id. at

501. The defendant's PSA scores were 1/1, the defendant had not lived in the

same home as the victim for two years, and the State based its case on the word

of the child victim regarding events that occurred five years before. Id. at 501-


                                                                          A-4898-18T6
                                      10
02. In the case under review, defendant's PSA scores were 2/3, the alleged very

serious offense occurred weeks before as opposed to years before, and the State's

case is, as assessed by the motion judge, "very strong," given the observations

of multiple law enforcement officers and the video evidence.

      Defendant additionally argues the motion court improperly considered

evidence listed in the Preliminary Law Enforcement Incident Report (PLEIR)

that was not introduced at the detention hearing, in violation of State v.

Robinson, 229 N.J. 44, 73 (2017). However, the State was not required to turn

over in discovery the surveillance videos referenced in the affidavit of probable

cause and the PLEIR. "Neither the original nor the revised version of Rule 3:4–

2(c) calls for disclosure of surveillance videos and similar items. Instead . . . if

the affidavit of probable cause refers to a video, the State must disclose any

existing statement or report that summarizes its contents.” Id. at 73. Here, the

officer's affidavit of probable cause summarized the contents of those videos.2




2
  In that affidavit, Officer Jose Espana indicated what he and his fellow officers
observed firsthand, and that a body-worn camera (BWC) was activated. His and
other officers' observations were made from police vehicles, and in the PLEIR
he indicates there is video from a dashboard camera. Given the positioning of
those cameras (the BWC on the person and the dashcam facing outward from a
police vehicle), those videos presumably show much of what the officers
observed and what Officer Espana summarized in his affidavit.
                                                                            A-4898-18T6
                                        11
      Since defendant was indicted on July 2, 2019, his counsel now has access

to the video evidence referenced in the PLEIR and summarized in the affidavit

of probable cause. If what the videos show materially conflicts with the officer's

summary, defendant can file a motion to reopen the detention hearing. See

N.J.S.A. 2A:162-19f, R. 3:4A(b)(3).

      We are satisfied the record contains sufficient evidence to support the trial

court's findings of fact.    The findings are not based on speculation or

unsupported assumptions. We conclude the motion judge's decision to require

defendant's pretrial detention does not constitute a mistaken exercise of

discretion.

      Affirmed.




                                                                           A-4898-18T6
                                       12
