                                      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                                 NOT FOR PUBLICATION WITHOUT THE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-3553-19T6

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

DAVID A. PINEIRO,

     Defendant-Respondent.
___________________________

                   Submitted June 30, 2020 – Decided July 20, 2020

                   Before Judges Messano, Vernoia and Rose.

                   On appeal from an interlocutory order of the Superior
                   Court of New Jersey, Law Division, Passaic County,
                   Complaint No. W-2020-00201-1602.

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for appellant (Mark Niedziela, Assistant
                   Prosecutor, of counsel and on the briefs).

                   Adrienne D. Edward, attorney for respondent.

PER CURIAM
      The State appeals from an order granting defendant David A. Pineiro's

motion to reopen his detention hearing and releasing defendant from detention

pending disposition of the second-degree eluding and disorderly persons

possession of marijuana charges for which the court ordered his detention in the

first instance. Because the court did not make sufficient findings supporting its

decision to reopen the detention hearing and release defendant pending trial, we

vacate the court's order and remand for further proceedings.

                                       I.

      On February 9, 2020, Clifton police arrested and charged defendant with

second-degree eluding, N.J.S.A. 2C:29-2(b), and the disorderly persons offense

of possession of marijuana, N.J.S.A. 2C:35-10(a)(4). The State moved for his

detention pending trial.

      At the detention hearing, the judge summarized a police report describing

the incident leading to defendant's arrest. The report stated that on February 9,

2020, at 9:00 p.m., a Clifton police officer observed defendant driving a

motorcycle at a high rate of speed and weaving in and out of traffic. The

motorcycle did not have illuminated taillights or a license plate. Defendant's

actions caused other motorists on the roadway to "slam on their brakes to avoid

a collision" with defendant.


                                                                         A-3553-19T6
                                       2
      The officer activated the emergency lights and siren on his marked police

vehicle and pursued defendant, who increased his speed, maneuvered through

traffic on Route 3, and traveled a "substantial distance" before crashing his

motorcycle, suffering injuries, and being transported to the hospital. Defendant

was found in possession of a marijuana cigarette. The State reported defendant's

license was suspended and his motorcycle was neither registered nor insured.

      The Public Safety Assessment (PSA) showed defendant was twenty-six

years old, and the assessment included a score of two out of six for defendant's

risk of failure to appear and a score of three out of six for his risk of new criminal

activity. The PSA revealed defendant had convictions in 2011 and 2015 for

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and

received five-year prison terms for each conviction. Defendant also had 2018

and 2019 convictions for third-degree distribution of a controlled dangerous

substance within 1,000 feet of school property, N.J.S.A. 2C:35-7(a), and

received probationary terms for each. In August 2019, defendant was convicted

of a disorderly persons offense, possession of a controlled dangerous substance ,

N.J.S.A. 2C:35-10(c). Defendant had a violation of probation in December

2019, and he was on probation for his 2018 and 2019 convictions when he was

arrested on the eluding charge.


                                                                              A-3553-19T6
                                          3
      The PSA revealed defendant did not have any prior failures to appear for

court proceedings.    The PSA included a recommendation of release with

monthly reporting.

      The State argued defendant presented a risk of flight based on the nature

of the eluding charge and defendant's prior record and because defendant was

on probation when the eluding offense was allegedly committed. The State also

asserted defendant's prior record and his actions during his alleged flight from

the police established that he posed a risk to the safety of the community if

released.

      Defendant's counsel asserted defendant was recently married, lived with

his wife and his mother, and had significant community ties. Counsel also

claimed defendant had a history of employment, defendant was about to

commence new full-time employment, and defendant recently completed an

educational program. Counsel explained defendant did not stop initially in

response to the police pursuit because the motorcycle was loud and defendant

could not hear the police car siren, and later defendant did not stop because the

police were very close and he thought they would strike him. Counsel also

argued defendant was concerned injuries he suffered in the crash were not




                                                                         A-3553-19T6
                                       4
diagnosed in the hospital and defendant did not feel safe he would receive proper

treatment in jail.

      In a detailed bench decision, the judge found clear and convincing

evidence no conditions of release would reasonably assure defendant's

appearance in court and the safety of the community. See N.J.S.A. 2A:162-

18(a)(2).   The judge considered and addressed the information detailed in

N.J.S.A. 2A:162-20.1


1
   N.J.S.A. 2A:162-20 provides that the court "may take into account" the
following information in making a detention decision:

             a. The nature and circumstances of the offense charged;

             b. The weight of the evidence against the
             [presumptively] 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


                                                                          A-3553-19T6
                                         5
      More particularly, the court first considered the nature and circumstances

of the offense, explaining that defendant's actions in eluding the police and his

exposure to a ten-year prison sentence supports a finding he presents a

significant flight risk. 2   See N.J.S.A. 2A:162-20(a).        Second, the court

considered the parties' proffers and found the weight of the evidence against

defendant, as detailed in the officer's incident report, was "very strong." See

N.J.S.A. 2A:162-20(b). The court explained the officer pursued defendant in a

marked police vehicle and defendant's conduct—speeding, evasive driving, and



             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 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.
2
   The court did not consider, and the State did not argue the court should
consider, that based on defendant's criminal history, he is eligible as a persistent
offender for an extended-term sentence of up to twenty years on the second-
degree eluding charge. See N.J.S.A. 2C:44-3(a).
                                                                            A-3553-19T6
                                         6
causing other drivers to "slam on their brakes in order to avoid" colliding with

him—placed others at a risk of harm.

      Next, the court considered defendant's personal characteristics, his family

and community ties, and his employment. See N.J.S.A. 2A:162-20(c)(1). The

court noted defendant's prior criminal history, including his convictions and

mandatory prison sentences in 2011 and 2015 for weapons offenses, his more

recent 2018 and 2019 drug convictions, and his December 2019 violation of

probation.

      Fourth, the court found defendant allegedly committed the eluding offense

while on probation for his prior drug conviction. See N.J.S.A. 2A:162-20(c)(2).

Fifth, the court found defendant posed a risk to the community because the

alleged eluding "went on for a substantial distance" during which defendant "put

individuals . . . at risk of having a car crash," and, as it turned out, a crash of

defendant's vehicle occurred. See N.J.S.A. 2A:162-20(d).

      The court also found there was no evidence defendant posed a risk of

obstructing or attempting to obstruct the criminal justice process. See N.J.S.A.

2A:162-20(e). Last, the court considered the PSA's risk assessment scores and

recommendation defendant be released with monthly reporting. See N.J.S.A.

2A:162-20(f). The court disagreed with the PSA recommendation, finding


                                                                           A-3553-19T6
                                        7
defendant posed a "significant" flight risk because of his exposure to a ten-year

prison sentence on the eluding charge and the PSA recommendation did not

adequately account for the weight of the evidence, that defendant was found in

violation of probation in December 2019, and that defendant was serving

probationary sentences on both his 2018 and 2019 convictions when the alleged

eluding occurred.

      The court concluded the State overcame the presumption of release by

clear and convincing evidence. The court determined there were no conditions

of release that could be imposed that would assure defendant would appear for

future court proceedings and that would protect the safety of the community.

The court entered an order granting the State's detention motion. Defendant did

not appeal from the court's order.

      Defendant obtained new counsel and filed a motion for reconsideration of

the detention order. On March 3, 2020, a different judge heard the motion.

Defense counsel reprised the arguments made during the initial hearing and also

asserted defendant was unaware the police were pursuing him because his

motorcycle did not have mirrors and he was wearing a full helmet that prevented

him from hearing the police siren. The State argued defendant failed to provide

any justification for reopening his detention hearing under N.J.S.A. 2A:162 -


                                                                         A-3553-19T6
                                       8
19(f), nothing had changed since the prior judge issued the detention order, and

the evidence supported the first judge's findings and detention order.

      The judge denied defendant's motion, finding defendant's arguments

presented issues for a jury, and that, because a conviction for second-degree

eluding would require imposition of a prison sentence, there was a risk

defendant would fail to appear at future court proceedings. The court concluded

it would "not reverse the" first judge's "finding."3 Defendant did not appeal from

the judge's order denying his motion for reconsideration.

      On April 28, 2020, defendant filed a motion to reopen his detention

hearing. Relying on his counsel's certification; medical records from the jail;

and various Executive Orders, New Jersey Supreme Court orders, and

publications concerning the COVID-19 pandemic; defendant claimed the

pandemic, and his asthma condition, constituted a change in circumstances




3
  It is unclear from the record whether the court considered defendant's motion
as one for reconsideration under Rule 4:49-2, or as a motion to reopen the
detention hearing under N.J.S.A. 2A:162-19(f). Defendant's counsel stated he
moved for reconsideration, the State argued defendant was not entitled to
"reopen" his detention hearing, and the judge did not identify the legal standard
he applied in denying the motion. We need not resolve the issue because
defendant does not appeal from the court's March 3, 2020 determination and
order.


                                                                          A-3553-19T6
                                        9
supporting his request to reopen his detention hearing. 4 Defendant's counsel

further asserted that application of health protocols and social distancing

standards are not feasible in correctional institutions and defendant is in

particular danger if he were to contract COVID-19. Defendant requested release

on his own recognizance pursuant to N.J.S.A. 2A:162-19(f), which provides for

the reopening of a detention hearing, and N.J.S.A. 2A:162-21(b), which

provides for temporary release from detention for a compelling reason.

      In a May 8, 2020 letter brief, the State opposed defendant's motion to

reopen the record and argued "defendant [was] asking the Court to give undue

weight to the [COVID]-19 virus without considering the import the virus may

have on his risk of posing a danger to the community, obstructing justice, or

failing to appear in court." The State also claimed that because pretrial services

had suspended in-person reporting, "defendant would pose an even greater risk

to the community if he were released." The State urged the court to deny release



4
   Defendant's April 9, 2020 records from his admission to the Bergen County
jail, to which he was transferred after first being incarcerated in the Passaic
County jail, showed defendant reported he had asthma; he used an inhaler twice
per day to treat the asthma; he had no prior hospitalizations for asthma; and he
did not experience asthma symptoms more than three times per month. The
medical practitioner assessed defendant as having "possible intermittent
asthma," determined defendant's asthma was under "fair to good control," and
cleared defendant for general population within the jail.
                                                                          A-3553-19T6
                                       10
because "no evidence [established] that [COVID-19] in and of itself will impact

the defendant's risk of posing a danger to the community, his obstructing justice

or his failing to appear in court."

      After hearing argument on the motion, the same judge who denied

defendant's motion for reconsideration, made the following limited findings:

             I am going to release [defendant] with conditions, and
             I am doing so for the following reasons. Number one,
             he did have a low score (indiscernible) PSA; two, we
             don't have any failures to appear; three, he does suffer,
             and the medical records indicate, that he does suffer
             from asthma, which is a factor that makes him more
             likely to contract [COVID-19] than those who don't.
             While he may be being treated for it in the county jail,
             the treatment is for his asthma. But treatment for
             asthma, as far as I know, does not make one immune to
             [COVID-19] so. And it does make him more prone to
             getting it because he has asthma.

      The court ordered defendant released to home confinement with weekly

telephonic reporting until the ban on in-person reporting was lifted, at which

time defendant would be required to report in person each week. The State

requested a stay pending appeal, and the court granted that request. The same

day the court entered a corresponding order. 5




5
  The order referred to an attachment containing written findings and reasons;
however, no such findings and reasons were attached.
                                                                         A-3553-19T6
                                       11
      On May 12, 2020, the State filed an emergent application for leave to

appeal. We granted the motion, continued the stay pending appeal, and included

the following instruction: "The State must address and identify with

particularity what specific measures are available in the County Detention

Facility to accommodate defendant's medical needs without exposing him to an

unreasonable risk of harm."

      In response to that instruction, the State submitted a May 11, 2020,

certification from Warden Steven Ahrendt of the Bergen County Sheriff's

Office. The certification details the actions taken to address COVID-19 within

the Bergen County Jail (the facility).

      According to Ahrendt, the facility is capable of housing 1200 inmates and

detainees. As of the date of the certification, "the [f]acility house[d] 123 male

and 6 female [United States Immigration and Customs Enforcement (ICE)]

detainees and a total of 230 county inmates." Each cell, except for those in the

mental health unit, is approximately ten feet by seven feet in size and has one

bunk bed for two inmates. "Apart from the beds, there is 70.6 square feet in the

cells." The mental health housing unit has four individual cells containing one

bed each, in addition to a large dormitory area with four rows of five bunk beds

(total of forty beds) that are "spaced apart."


                                                                         A-3553-19T6
                                         12
      The facility has a medical infirmary overseen by a medical doctor as well

as three part-time psychiatrists, one full-time and one part-time dentist, twelve

full-time nurses, and four full-time and three part-time licensed practical nurses.

"Due to the COVID-19 outbreak, additional Bergen County medical staff

are . . . on-site 24/7 to provide full coverage for all detainee/inmate medical

needs."

      Ahrendt reported that, in response to COVID-19, the facility implemented

the following changes:

          a. As of "March 13, 2020, all ICE detainee intake at the [f]acility has
             been suspended indefinitely."

          b. All county inmates are subject to a medical screening during intake,
             which includes: assessment for fever and respiratory illness; and
             questioning as to whether the inmate has been in contact in the past
             two weeks with someone who has tested positive for the virus "and
             whether they have traveled from or through area(s) with sustained
             community transmission." Those with COVID-19 symptoms will
             be isolated and possibly sent for testing. Those who test positive
             will be isolated and treated at the facility unless they require
             hospitalization, in which case they will be transferred to the local
             hospital.

          c. No social visits and tours are permitted. An inmate may meet with
             an attorney so long as there is no contact and a glass partition
             separates them. Phone conferences are permitted.

          d. Prior to entering the facility, staff and vendors must undergo a
             medical screening, which includes a temperature check. Those with
             a temperature above 100 degrees Fahrenheit are not permitted in the
             facility.

                                                                           A-3553-19T6
                                       13
e. All staff must wear face masks inside the facility.

f. To comply with the [Center for Disease Control (CDC)] guidelines
   on social distancing in correctional facilities, inmates must remain
   inside their cells throughout the day except for a sixty-minute period
   when six inmates at a time are permitted to leave their cells for
   recreational activities and showering. The inmates "have 2643
   square feet of space within the [f]acility available for recreational
   use" and have "ample room for" "social distancing" without
   "commingling."

g. If an inmate has COVID-19 symptoms or has tested positive for the
   virus, the inmate must remain in his or her cell and "phones will be
   made available in the housing unit for use by that inmate."

h. In evaluating and testing inmates, the facility follows CDC
   guidelines. "As such, medical staff immediately evaluate any
   detainees and inmates who complain of illness," and inmates may
   make "daily sick calls as needed." Those with symptoms "will be
   provided a surgical mask" and may, at the discretion of the Medical
   Director, be transported to the hospital for evaluation.

i. Inmates testing positive who do not need to be hospitalized are
   housed in the North 2 unit, which, as of March 30, 2020, has been
   reserved exclusively for inmates who have tested positive or are
   symptomatic. These inmates are housed individually in a cell with
   their own personal toilet and sink. Those with symptoms are housed
   on one side of the unit and those with confirmed tests are on the
   other side. "There is approximately 30-40 feet between the known
   positive cases and suspected positive cases in North 2. To date,
   there are no ICE detainees who are housed in North 2 who are
   symptomatic and there are three county inmates who are
   symptomatic, but housed in Medical." One inmate who tested
   positive was released from the facility on March 26, and another
   inmate tested positive while at the hospital undergoing treatment for
   an unrelated condition.



                                                                 A-3553-19T6
                             14
j. Asymptomatic inmates, excluding ICE detainees, who have been
   exposed to the virus are housed, or "cohorted," in a unit together for
   fourteen days. "If no new COVID-19 case develops in 14 days, the
   cohorting of these detainees will terminate."

k. Two ICE detainees tested positive for the virus and both were
   housed in the North 6 unit. As a result, all inmates in this unit were
   cohorted.

l. The facility has increased cleaning. "All housing units are sanitized
   no less than four times per day" and "[f]resh air is constantly
   circulated by opening doors and utilizing handler/vents throughout
   the day." To avoid congregating, all meals are eaten inside the cells.
   Disinfectant spray, hand sanitizer, and soap is provided in every
   unit. "The administration is encouraging both staff and the [f]acility
   general population to use these tools often and liberally."

m. "The [f]acility provides education on COVID-19 to all staff,
   detainees, and inmates to include the importance of hand washing
   and hand hygiene, covering coughs with the elbow instead of with
   hands, and requesting to seek medical care if they feel ill." Inmates
   have "daily access to sick call," and signs posted in English and
   Spanish throughout the facility advise inmates and staff on the
   "hygienic protocol" and social distancing.

n. All inmates are given surgical masks, which they must wear when
   outside their cells.

o. "[T]o increase disinfectant capacity throughout the agency," the
   sheriff's office purchased "three electric and one gas-powered
   fogger[s]" "to sanitize units in the jail and patrol vehicles after each
   shift."

p. "The [Bergen County Jail] signed a purchase order with Keefe
   Commissary to provide free one-time commissary benefit to all
   county inmates and ICE detainees. Each will get a 'food pack' and
   'snack pack' free of charge."


                                                                   A-3553-19T6
                              15
      Ahrendt also described the then-current status of COVID-19 cases within

the facility. He noted: (a) two ICE detainees had tested positive for COVID-19,

one was released on March 26, 2020, and the other was released from quarantine

on April 13, 2020; (b) three inmates were suspected of having the virus and were

currently on medical observation; (c) one inmate tested positive but was not

currently housed at the facility; and (d) "[e]leven Bergen County Corrections

Police Officers and two [n]urses who work at the [f]acility have tested positive"

and were "in quarantine and are not working at the [f]acility currently."

      On appeal, the State contends the court abused its discretion by reopening

defendant's detention hearing and by ordering his release. Defendant argues his

asthma condition and the COVID-19 pandemic constitute a material change in

circumstances supporting the court's reopening of the detention hearing and the

court did not abuse its discretion by ordering his release with the conditions

imposed.

                                       II.

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

"shall be liberally construed" to rely "primarily . . . upon pretrial release,"

without the use of monetary bail, to achieve three aims: to ensure that defendants

appear in court, to protect the safety of the community, and to guard against


                                                                            A-3553-19T6
                                       16
"attempt[s] to obstruct the criminal justice process."      N.J.S.A. 2A:162-15.

Where the State requests detention of a defendant entitled to the presumption of

release under N.J.S.A. 2A:162-18(b), "it must establish probable cause for the

offenses charged, unless the defendant has already been indicted[,]" State v.

Hyppolite, 236 N.J. 154, 164 (2018) (citation omitted), and, "to rebut the

presumption of release, [it] must 'prove[] by clear and convincing evidence that

no release conditions would reasonably assure the defendant's appearance in

court, the safety of the community, or the integrity of the criminal justice

process," ibid. (quoting State v. Ingram, 230 N.J. 190, 200-01 (2017) (second

alteration in original)).

      We review a court's "pretrial detention decisions under the [CJRA]" under

an abuse of discretion standard. State v. S.N., 231 N.J. 497, 500 (2018). Thus

"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." Ibid.

      Defendant moved for relief from the court's February 13, 2020 detention

order under N.J.S.A. 2A:162-19(f) and N.J.S.A. 2A:162-21(b).             N.J.S.A.

2A:162-19(f) provides for the reopening of a detention hearing,


                                                                          A-3553-19T6
                                       17
            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.

            [N.J.S.A. 2A:162-19(f).]

In contrast, N.J.S.A. 2A:162-21(b) provides for a "temporary release" from

detention of an eligible defendant "to the extent that the court determines the

release to be necessary for preparation of the eligible defendant's defense or for

another compelling reason."

      In its decision, the court did not explain whether it granted defendant's

motion under either or both statutes. On appeal, however, defendant argues the

court properly granted his request to reopen his detention hearing and order his

release under N.J.S.A. 2A:162-19(f). He does not contend the court's release

order was proper under N.J.S.A. 2A:162-21(b), and with good reason. By its

plain terms, N.J.S.A. 2A:162-21(b) permits only a "temporary release" from

detention, and that is neither what defendant sought before the motion court n or

what the court granted. Defendant did not seek a temporary release from pretrial

detention; such a request would implicitly be for a limited period that would end

                                                                          A-3553-19T6
                                       18
with a return to pretrial detention. Defendant sought release from detention

through the disposition of his charges at trial, and that is what the court ordered.

We find N.J.S.A. 2A:162-21(b) inapplicable to defendant's motion, and we do

not address it further. We limit our discussion to whether the court properly

reopened defendant's detention hearing and ordered his release under N.J.S.A.

2A:162-19(f).

        N.J.S.A. 2A:162-19(f) "imposes a materiality standard to determine

whether to reopen a detention hearing when information 'that was not

known . . . at the time of the hearing' later surfaces." Hyppolite, 236 N.J. at 166.

"The court may reopen the hearing if the newly revealed [information] 'has a

material bearing' on whether the defendant poses a risk" of failing to appear for

future court appearances, a threat to the safety of any other person or the

community, or a risk that the defendant will obstruct the criminal justice process.

Ibid.

        A court must "examine whether there is a reasonable possibility – not

probability – that the result of the [detention] hearing would have been different

had the" new information been disclosed at the time of the initial detention

hearing. Ibid. The materiality "standard focuses the parties and the court on

whether [the information] is important to the hearing's outcome from a


                                                                            A-3553-19T6
                                        19
reasonably objective vantage point." Id. at 170. The standard also places "[t]he

burden . . . on the State to demonstrate that a new hearing is not required." Ibid.

      "Judges retain discretion to decide whether to reopen a detention hearing"

under N.J.S.A. 2A:162-19(f). Id. at 171. When a court decides a request to

reopen a detention hearing, "it should provide a statement of reasons" for the

decision to allow "review on appeal." Id. at 172.

      Where, as here, a court decides to reopen the hearing, it "must again

decide whether the State has presented clear and convincing evidence to justify

detention." Ibid. That is, the court must determine if the State has presented

            clear and convincing evidence that no amount of
            monetary bail, non-monetary conditions of pretrial
            release 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.

            [N.J.S.A. 2A:162-18(a)(1); see also Hyppolite, 236 N.J.
            at 172.]

      The court may consider all the information bearing on the detention

decision, Hyppolite, 236 N.J. at 172; see also N.J.S.A. 2A:162-20, and must

"assess[] the full body of evidence" presented and "make the required statutory

findings," Hyppolite, 236 N.J. at 172. "To decide whether the State has satisfied


                                                                           A-3553-19T6
                                       20
its burden to justify pretrial detention, 'the court may take into account . . . [t]he

nature and circumstances of the offense,' '[t]he weight of the evidence,' the

defendant's 'history and characteristics,' the 'nature and seriousness' of the risk

of danger and obstruction the defendant presents, and Pretrial Services'

recommendation." Id. at 164 (quoting N.J.S.A. 2A:162-20).

      Here, the court did not make any findings in the first instance supporting

its decision to reopen defendant's detention hearing. The court did not make any

factual findings supporting, and did not conclude as a matter of law, that

defendant's asthma, the COVID-19 pandemic, or the conditions in the jail had

"a material bearing on the issue of whether there are conditions of release that

will reasonably assure" defendant will appear for future court proceedings and

not pose a risk to the safety of others and the community. N.J.S.A. 2A:162-19.

      Additionally, the judge's scant findings supporting his release decision are

limited to references to defendant's "low" PSA scores6 and defendant's lack of

any prior failures to appear. The court also made a finding that is without any




6
  In fact, defendant's PSA score for new criminal activity was a three, which is
in the mid-range for that risk factor.


                                                                              A-3553-19T6
                                        21
support in the record–that defendant's asthma condition makes it more likely he

will contract COVID-19.7

      In stark contrast to the detailed findings of the judge who ordered

defendant's detention, the judge who ordered defendant's release did not

consider, and did not make the requisite findings as to, the weight of the

evidence, defendant's prior history and characteristics, the nature and

seriousness of the risk of danger posed by defendant if released, and the other

information identified in N.J.S.A. 2A:162-20. See Hyppolite, 236 N.J. at 165.

The court also failed to consider whether the State could appropriately address

the COVID-19 risks within the jail. See, e.g., Williams, 452 N.J. Super. at 22

(explaining a jail's ability to provide appropriate medical care is factor to be

considered in making a detention determination for an eligible defendant with a

medical issue).


7
    The record is bereft of any evidence that defendant's asthma condition
increases his susceptibility to getting the COVID-19 virus. Moreover, the record
is devoid of evidence from any medical professional that defendant's claimed
asthma condition will result in an adverse outcome if he contracts COVID-19.
We do not minimize the seriousness of COVID-19 for defendant or any other
person. We mention the dearth of evidence only to make clear that the court's
finding defendant is more likely to contract COVID-19 because he has asthma,
which is central to the court's release determination, finds no support in the
record. A judge's speculation about the effects of defendant's medical condition
does not support a proper release decision. See State v. Williams, 452 N.J.
Super. 16, 21-22 (App. Div. 2017).
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      "It is vital" to proper appellate review "that the trial court make the

necessary findings and explain its reasons" when making detention decisions

under the CJRA. State v. C.W., 449 N.J. Super. 231, 255 (App. Div. 2017). The

court's failure to do so here renders it impossible to determine whether the court

properly exercised its discretion in reopening the detention hearing in the first

instance and ordering defendant's release in the second. The lack of findings

supporting the court's decisions requires that we vacate the court's order and

remand for the court to promptly reconsider defendant's motion to reopen his

detention hearing.

      On remand, the court shall permit the parties to make supplemental

submissions to address the current status of defendant's medical condition, the

circumstances in the jail, and any other matters pertinent to defendant's motion;

and the court shall hear additional arguments from counsel. The court shall

determine and make findings as to whether defendant is entitled to reopen his

detention hearing under N.J.S.A. 2A:162-19(f). See Hyppolite, 236 N.J. at 169-

72. If the court determines the hearing should be reopened, the court shall

consider the record presented, including any additional submissions of the

parties on remand and all relevant information under N.J.S.A. 2A:162-20. The

court shall make findings supporting any release determination under N.J.S.A.


                                                                          A-3553-19T6
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2A:162-19(f).8 Defendant shall remain detained pending the remand court's

decision on defendant's motion to reopen his detention hearing.

      We do not address defendant's claim he should be released pursuant to

Rule 3:21-10(b)(2), which allows for the amendment of "a custodial sentence to

permit the release of a defendant because of illness or infirmity of the

defendant." The argument was not raised before the motion court, see State v.

Robinson, 200 N.J. 1, 20 (2009), and the Rule is inapplicable because defendant

does not seek release from service of a custodial sentence.

      Vacated and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.




8
  The record on remand shall include all prior submissions to the motion court,
Ahrendt's May 11, 2020 certification, and any additional submissions made by
the parties to the remand court.
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