                        RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4417-16T6

STATE OF NEW JERSEY,
                                          APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                            September 29, 2017
v.
                                            APPELLATE DIVISION

IMANI WILLIAMS,

     Defendant-Respondent.
_____________________________

           Argued September 14, 2017 - Decided September 29, 2017

           Before Judges Alvarez, Currier, and Geiger.

           On appeal from the Superior Court of New
           Jersey, Law Division, Burlington County,
           Warrant No. W-2017-000508-317.

           Jennifer     B.     Paszkiewicz,     Assistant
           Prosecutor, argued the cause for appellant
           (Scott   A.    Coffina,   Burlington    County
           Prosecutor, attorney; Ms. Paszkiewicz, of
           counsel and on the brief).

           Philip G. Pagano, Assistant Deputy Public
           Defender, argued the cause for respondent
           (Joseph   E.   Krakora,    Public Defender,
           attorney; Jared Dorfman, Assistant Deputy
           Public Defender, on the brief).

     The opinion of the court was delivered by

CURRIER, J.A.D.

     In this appeal, we address whether, in a pretrial detention

hearing,   defendant's     pregnancy    should    be    given    greater
consideration        than    any     other    pretrial       detention        factor       in   a

judge's assessment under the Criminal Justice Reform Act (Act),

N.J.S.A. 2A:162-15 to -26.                  Because we conclude that the trial

judge    abused      his    discretion       in     giving    defendant's            pregnancy

greater      weight        than     all     other       pertinent     factors         in    his

determination to release her, we reverse.                         Pregnancy, like any

other medical condition, is only considered for its impact on

the   risk      of   a   defendant        posing    a    danger     to     the   community,

obstructing justice or failing to appear in court.                                   N.J.S.A.

2A:162-20.

      In     June    2017,    defendant       was       charged     with      second-degree

robbery,        N.J.S.A.          2C:15-1(a)(1);          second-degree          aggravated

assault, N.J.S.A. 2C:12-1(b)(1); and disorderly persons theft by

unlawful taking, N.J.S.A. 2C:20-3(a).                      The victim of the crimes

told police that defendant and another person had "jumped" her

from behind and thrown her to the ground.                         She was punched and

kicked     in    the     head,      face,    and    body     while       on    the    ground,

resulting in several shattered teeth as well as swelling and

bruising to her eyes and face.                Money was stolen from her purse.

      On the Public Safety Assessment (PSA), N.J.S.A. 2A:162-25,

the Pretrial Services Program rated defendant a six for new

criminal activity and a five for failure to appear.                                   It also

flagged      defendant       for     an     elevated       risk     of     violence.        The




                                              2                                       A-4417-16T6
recommendation      was    that   defendant           remain      in    custody      pending

trial.

      The State filed a notice for pretrial detention, N.J.S.A.

2A:162-19(a), and a hearing was conducted on June 13, 2017.                                In

support of its request that defendant be detained pending trial,

the     State    noted      defendant's          extensive           juvenile       history,

including       several     violations           of        probation,         two    pending

disorderly      persons     charges,      and         a    2016   disorderly         persons

conviction for assault by auto resulting in a sixty-day period

of incarceration.           Defendant failed to appear for court six

times within the previous two years.

      Defense counsel informed the court that defendant had a

full-time job and had recently learned that she was eight weeks

pregnant.       He requested she be released under condition of in-

person reporting.         Counsel argued that defendant's "employment

as well as her pregnancy would assure both her appearance in

court as well as the safety of the community."

      After the judge found the State had established probable

cause, he turned to the request for detention pending trial.

The   judge     explained    that    he     had       reviewed       the      PSA   and   its

recommendation,      and     acknowledged             the     serious      second-degree

charges and defendant's multiple prior failures to appear.                                The

judge    further   stated     that     he       was       familiar     with    defendant's




                                            3                                       A-4417-16T6
extensive    juvenile   history,1   having   served   as   the   county's

juvenile judge during the pertinent timeframe.             Nevertheless,

the judge determined that the State's proofs fell "just slightly

below clear and convincing evidence" because the PSA did not

take into account that defendant was eight weeks pregnant or

that her pregnancy "present[ed] issues with regard to care in a

correctional facility."      The judge concluded that defendant's

pregnancy required the denial of the State's motion for pretrial

detention.

    The judge explained that he would

            impose some very strict pretrial release
            provisions in light of the fact that the
            State was just a tad short of clear and
            convincing evidence and [that his decision]
            was impacted by [defendant's] pregnancy
            . . . and the issues that would pose to the
            correctional facility and correctional staff
            in terms of . . . prenatal care.

He warned defendant that pregnancy was "a card that [she could]

play once" and if she committed a new offense or violated a

condition of her release, whether she was "eight weeks pregnant,

six months pregnant, eight months pregnant, it [would] not make

any difference whatsoever and the [c]ourt [would] evaluate the

facts independent[ly] at that time."




1
  Defendant was twenty years old at the time of the detention
hearing.



                                    4                            A-4417-16T6
     As conditions of release, the judge required defendant to

report in-person weekly to pretrial services. The judge also

imposed a curfew from 5:00 p.m. to 6:00 a.m. daily, permitting

defendant to leave her residence only to go to work and prenatal

appointments.2

     The   court   granted   the   State's     request   for   a   stay    of

defendant's      release   pending       appeal.   In    discussing       the

application for a stay, the judge commented:

           in light of the [PSA] and the history of
           [defendant] who is only 20 but who had an
           extensive juvenile history, that . . . the
           State was very close to establishing by
           clear and convincing evidence . . . that
           [defendant] should be detained, but . . .
           the court believes that . . . [defendant's
           pregnancy]   justified   her   release  on
           conditions . . . .

     The judge further remarked:

           but for the pregnancy, . . . the [c]ourt
           would have detained [defendant]. Her scores
           were . . . extremely high on the [PSA]. She
           has a significant history for a person who
           is 20 years old. . . . [A]ll of the
           necessary indicia were there which the
           [c]ourt felt were . . . mitigated by . . .
           the fact that [defendant] is . . . eight
           weeks pregnant.




2
  Neither defendant nor her counsel made any representation that
she had seen a doctor for her pregnancy or was receiving
prenatal care.




                                     5                             A-4417-16T6
    We granted the State leave to appeal the trial court's

order    on    an       emergent   basis      to    review    the    question:   whether

defendant's         pregnancy      is    a    medical      condition     sufficient     to

override all other applicable factors, thus requiring pretrial

release.       The      State   argues       that    the   trial     court   abused    its

discretion         in    denying   pretrial         detention      by   according   undue

weight        to        defendant's      pregnancy,          and    speculating       that

defendant's medical needs could not be met while in jail.                                We

agree.

    The Act took effect on January 1, 2017.                         It is premised on

               "pretrial release by non-monetary means to
               reasonably assure" that a defendant will
               "appear[] in court when 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."   If a court finds by clear and
               convincing evidence that "no condition or
               combination of conditions" would achieve
               those goals, the court, upon motion by the
               prosecutor, may order that a defendant be
               held pending trial.

               [State v. Robinson, 229 N.J. 44, 55 (2017)
               (quoting N.J.S.A. 2A:162-15)].

    Under Section 18 of the Act, the trial court is authorized

to order pretrial detention if it finds by clear and convincing

evidence that no conditions of release would reasonably assure a

defendant's appearance in court, the safety of the community,

and the integrity of the criminal justice process.                               N.J.S.A.




                                               6                                 A-4417-16T6
2A:162-18(a).    At the hearing itself, "the court may take into

account" the following:

         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, including:

                (1)    the   eligible     defendant's
                character,   physical    and    mental
                condition,        family         ties,
                employment, financial resources,
                length    of   residence     in    the
                community, community ties, past
                conduct, history relating to drug
                or    alcohol     abuse,     criminal
                history,   and   record    concerning
                appearance at court proceedings;
                and

                (2) whether, at the time of the
                current offense or arrest, the
                eligible    defendant    was    on
                probation, parole, or on other
                release pending trial, sentencing,
                appeal, or completion of sentence
                for an offense under federal law,
                or the law of this or any other
                state;

         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




                                  7                            A-4417-16T6
            by the eligible            defendant's          release,        if
            applicable; and

            f.   The   release recommendation  of   the
            pretrial services program obtained using a
            risk assessment instrument under [N.J.S.A.
            2A:162-25].

            [N.J.S.A. 2A:162-20].

     Although the trial judge here properly considered several

of   the    listed       applicable    factors,        he    elevated        defendant's

medical condition of pregnancy above all of the other pertinent

factors, based on his unfounded speculation that her pregnancy

might cause "issues" to the correctional facility.3                               The judge

determined that defendant's pregnancy compelled her release.                                We

disagree.     In     determining           whether       pretrial       detention          is

appropriate,       the     trial    court       should      consider        all     of    the

applicable    factors       noted     in   the      statute,     giving      appropriate

weight to each.

     We do not suggest that there will never be circumstances

under   which   a    defendant's       pregnancy         could    be    a    determining

factor in a judicial decision regarding pretrial detention.                                  A

trial   court      could    conclude       that     pregnancy,      like      any        other

medical    condition,       may    require      a   defendant's        release      as     the

3
  We note that N.J.A.C. 10A:31-13.10 requires county correctional
facilities to promptly provide pregnant inmates with medical
services, including prenatal evaluation and care, obstetrical
services, and postpartum and follow-up medical care.




                                            8                                      A-4417-16T6
condition itself might affect the risk of the defendant posing a

danger      to    the       community,          obstructing         justice       or       failing    to

appear in court.               See N.J.S.A. 2A:162-20.                   Here, however, there

is no indication that defendant's pregnancy was classified as

high     risk      or        presented       any          unusual       medical    complications

requiring specialized treatment.                            Nor is there any indication

that the jail was unable to provide appropriate prenatal medical

care to defendant.                   The reasons given by the trial judge for

defendant's pregnancy warranting her release were speculative,

unsupported            by    any     facts       in       the     record,     and,         therefore,

irrelevant to a pretrial detention determination.

       In   its        orders      denying       the       State's       motion    for       pretrial

detention,        the        trial    court       did       not   explain     in       writing       its

reasons for deviating from the recommendation in the PSA.                                             In

State v. C.W., 449 N.J. Super. 231, 263 (App. Div. 2017), we

stated      that        N.J.S.A.       2A:162-23(a)(2)               requires          a    court     to

"explain in writing specifically why it deviated from the [PSA]

recommendation advising against [a] defendant's release."                                        While

ordinarily we would remand the matter to the trial court for

compliance        with       the     statute,         we    sufficiently          understand         the

reasons     for        the    denial       of    detention.             The   trial         judge    was

thorough         and    candid        in   stating          his     reasoning      for       ordering

defendant's        release         contrary        to      the    PSA    recommendation,            and,




                                                      9                                       A-4417-16T6
thus,   a     remand    would    be   an    unnecessary      use   of   stretched

resources.

      In giving undue weight to defendant's pregnancy over all

other applicable factors, and failing to consider what import

the pregnancy might have on her risk of posing a danger to the

community, obstructing justice or failing to appear in court,

the   judge    abused    his    discretion.    See   C.W.,    supra,    449   N.J.

Super. at 255.         Therefore, we reverse the trial court's decision

and remand for entry of an order of pretrial detention.

      Reversed.




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