                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0634-19T6

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

MARKELL B. PIERRE,

     Defendant-Respondent.
_________________________

                    Argued February 11, 2020 – Decided March 2, 2020

                    Before Judges Fisher and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Complaint No. W-2019-
                    002789-2004.

                    Michele C. Buckley, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for appellant (Lyndsay V. Ruotolo, Acting Union
                    County Prosecutor, attorney; Michele C. Buckley, of
                    counsel and on the brief).

                    Lucy Gray-Stack, Designated Counsel, argued the
                    cause for respondent (Joseph E. Krakora, Public
                    Defender, attorney; Lucy Gray-Stack, on the brief).
PER CURIAM

      At the conclusion of a pretrial detention hearing, the trial judge found the

State failed to demonstrate probable cause because a video, which captured

some of the moments before and about the time of defendant's arrest, convinced

her that the arresting officer's affidavit was untrustworthy. Consequently, the

judge both denied the State's motion to detain and dismissed the charges without

prejudice. We vacate the dismissal order and remand for further proceedings

because the State was not permitted to present any arguments about the

admissibility or significance of the video.

      Defendant was arrested on September 19, 2019, and charged with

disorderly-persons resisting arrest, N.J.S.A. 2C:29-2(a)(1), and fourth-degree

criminal mischief, N.J.S.A. 2C:17-3(a)(1). The next day, the State moved for

pretrial detention.

      To establish probable cause at the detention hearing, the State relied only

on the affidavit of Detective A. Gonzalez, who recounted that he and other

members of the narcotics bureau were operating in a particular area near

Jefferson Park in Elizabeth when they determined to arrest S.D. According to

Gonzalez, two other individuals – defendant and Valentino Pierre – "began to

approach" the officers arresting S.D., and as defendant and Valentino Pierre


                                                                          A-0634-19T6
                                        2
            approached my partners, I attempted to grab hold of
            [defendant's] arm while advising him that he was being
            placed under arrest. [Defendant] responded by taking
            the cellphone from Valentino's hand and attempting to
            pull away from me. I then proceeded to take [defendant]
            down to the ground with a leg sweep to effectuate the
            arrest. [Defendant] then attempted to push off the
            ground to avoid being placed in handcuffs, at which
            time, I applied a compliance hold while retrieving my
            handcuffs from my belt. I was able to keep [defendant]
            down on the ground and subsequently placed him under
            arrest.

Gonzalez also claimed that while escorting defendant to a patrol vehicle, he

"attempted to pull away from me in a possible attempt to flee," and that, "[w]hile

attempting to gain full control" of defendant, "both he and I slammed into [a]

patrol vehicle . . . causing a large dent to the rear passenger side door." Once

inside the vehicle, according to Gonzalez, defendant "continued his erratic

behavior by yelling profanities and repeatedly kicking the interior plastic

paneling of the vehicle's door causing additional dents." This affidavit was all

that the State provided to the court to demonstrate probable cause.

      In response, defendant provided a video captured by a mobile phone. The

video was viewed in chambers by the judge in the presence of all counsel, but it

was never admitted in evidence. Nor was the video played in open court;

instead, the judge described on the record what the video depicted. At our

request, the State provided a copy of the video, which we have reviewed.

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                                        3
      According to the judge, the video showed Valentino Pierre and defendant

            walking in Jefferson Park, down a path, to get a better
            view of [S.D.'s] arrest. They stay[ed] on the far side of
            the path away from the arresting officers as they filmed.
            At one point you hear a man's voice, presumably one of
            the Pierre brothers due to its proximity, say to others in
            the park, "get off the sidewalk, get off the sidewalk so
            they don't say we on the sidewalk."

According to the judge, as the video recording continued capturing S.D.'s arrest,

"you hear a man's voice coming from a distance and to the left of the video

saying, 'you want to record me?'" With that the camera "pan[ned] left" and the

video "show[ed] Det. Gonzalez, dressed in plain clothes, walking quickly

toward the brothers, while grabbing his handcuffs from his belt holster, and

again saying 'you want to record me?'" The judge then describes the remainder

of the recording as evidencing "an immediate tussle to the ground" and

"someone say[ing] 'save my phone,'" followed by "a guttural thumping noise"

before the video ends.

      In comparing all this material, the judge concluded that Gonzalez's

affidavit contained contradictions, misstatements and omissions:

            To begin, it is clear that defendant's arrest was sparked
            by the videoing of [S.D.'s] arrest, and not "the duo"
            approaching the officers, as alleged in the affidavit.
            This court also finds that the detective, already having
            retrieved the handcuffs with his left hand, immediately
            grabbed defendant and took him to the ground. At no

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                                        4
              time prior to or during the grabbing and take down of
              defendant, did Det. Gonzalez advise defendant that he
              was under arrest, as set forth in the affidavit. The video
              also contradicts the affiant's explanation of need for the
              "compliance hold while retrieving my handcuffs from
              my belt," since we know the handcuffs are in Det.
              Gonzale[z]'s hand before the take down.

Quoting Franks v. Delaware, 438 U.S. 154, 168 (1978), the judge held that the

probable cause requirement "would be reduced to a nullity if a police officer

was able to use deliberately falsified allegations." The judge found that the

affidavit's "misstatements and omissions" were material and were made either

intentionally or with reckless disregard for the truth. She determined that the

affidavit was untrustworthy and, therefore, concluded the State failed to

establish probable cause. With that determination, the judge entered orders that

both denied detention and dismissed the charges without prejudice.

      The State moved for leave to appeal and filed a notice of appeal. Finding

finality had been achieved, we dismissed the motion for leave to appeal as moot

and accelerated the State's appeal of both the order denying detention and the

order dismissing the charges without prejudice. Our disposition of this appeal

in both respects requires that we focus on the judge's finding that probable cause

was absent.




                                                                           A-0634-19T6
                                          5
      The Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, declares that

"in a pretrial detention proceeding for which there is no indictment" – as here –

"the prosecution shall establish probable cause that the eligible defendant

committed the predicate offense." N.J.S.A. 2A:162-19(e)(2). What constitutes

probable cause remains the same regardless of the setting in which that question

arises. State v. Ingram, 230 N.J. 190, 206 (2017).

      At the detention hearing, the State offered Gonzalez's affidavit to

demonstrate probable cause for the charges and for defendant's detention. The

defense responded with a video. After considering these materials, the judge

found an absence of probable cause to either extend the restraint on defendant's

liberty or for the charges. If that was all there was for us to consider, we would

defer to the judge's weighing of the parties' submissions, even though we too

can read the affidavit and watch the video. See State v. S.S., 229 N.J. 360, 379

(2017) (holding that "a standard of deference to a trial court's factfindings, even

factfindings 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").

      But the record also reveals that the trial judge may have foreclosed the

prosecutor from responding to what the video revealed or to provide other


                                                                              A-0634-19T6
                                          6
evidence in response. After the judge read into the record Gonzalez's affidavit,

she then asked the assistant prosecutor to "enlighten me on that [for] probable

cause purposes," and the following then occurred:

            [THE ASSISTANT PROSECUTOR]: Your Honor, the
            – the charges in this matter are based on the detective's
            observations and – and direct involvement, exchange
            with the – with the defendant. The video we watched
            does not show the full sequence of events nor does it
            really show the detective's –

            THE COURT: Counsel, I'm sorry, I – I'm going to stop
            you. Because I understand your position and I don't
            want to interrupt you and – but I'm going to for
            everybody's sake.

The judge then explained why she found the affidavit untrustworthy in light of

what the video showed. 1

      After the judge explained her ruling, the assistant prosecutor explained

that it was his "first time seeing" the video 2 and began to request a copy when

he was again interrupted:


1
 The judge later amplified her oral decision with a written decision from which
we quoted earlier in this opinion.
2
   As noted, the video was played in the judge's chambers in the presence of
counsel. We recognize that detention hearings are abbreviated matters at which
the rules of evidence are not strictly controlling, but we do suggest that the video
should have been played again in open court when the proceeding was on the
record. The video should also have been marked as an exhibit so there would


                                                                            A-0634-19T6
                                         7
            [ASSISTANT PROSECUTOR]: And I have requested
            a–

            THE COURT: And I'm not going –

            [ASSISTANT PROSECUTOR]: – copy of it.

            THE COURT: – to make you sit here and make an
            argument, because I made the argument. And because
            anything you say really wouldn't change this [c]ourt's
            mind, based on what I saw on that – on that video.

      In appealing, the State chiefly argues that the judge could not make a

credibility finding contrary to the State's interests without a hearing at which

testimony is taken. We reject that position. If the State chooses not to call a

witness in seeking a probable cause finding, then it cannot later complain when

the judge finds that information insufficient or unworthy of belief.

      Our concern is with the State's argument that the judge prevented the

prosecutor from arguing about the admissibility or significance of the video or

presenting whatever it was that he was barred from expressing. Due process

includes the right to be heard, State v. Garthe, 145 N.J. 1, 8 (1996), a right

belonging to all parties with an interest in the proceedings, State v. LaResca,

267 N.J. Super. 411, 420 (App. Div. 1993), including the prosecutor. The record




be no doubt, on appeal, about what it was that the trial judge viewed, although
there is no dispute about that here.
                                                                        A-0634-19T6
                                        8
establishes that the prosecutor was not given a chance to speak but instead was

cut off by the judge each time he attempted to respond to what defendant had

offered. We neither express nor intimate any view of whether probable cause

does or does not exist.

      Simple fairness requires that we vacate the dismissal order and remand for

further proceedings in conformity with this opinion. If, at the conclusion of

those additional proceedings, the court should find probable cause for the

charges, then the court may reconsider the denial of the State's motion to detain

defendant.

      The order of dismissal is vacated and the matter remanded for further

proceedings. We do not retain jurisdiction.




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