                       RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2415-16T7

STATE OF NEW JERSEY,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                           March 21, 2017
v.                                       APPELLATE DIVISION

C.W.,1

     Defendant-Respondent.
_____________________________

         Argued March 13, 2017 – Decided March 21, 2017

         Before Judges Sabatino, Nugent and Haas.

         On appeal from Superior Court of New Jersey,
         Law Division, Ocean County, Docket No. W-
         2017-000015-1516.

         Samuel   J.   Marzarella,   Chief   Appellate
         Attorney, argued the cause for appellant
         (Joseph    D.    Coronato,    Ocean    County
         Prosecutor, attorney; Mr. Marzarella, of
         counsel;    John   C.   Tassini,    Assistant
         Prosecutor, on the briefs).

         Laura B. Lasota, Assistant Deputy Public
         Defender, argued the cause for respondent
         (Joseph   E.   Krakora,   Public   Defender,
         attorney; Ms. Lasota, of counsel and on the
         briefs).




1
  We use initials to protect the identity and privacy of the
alleged victim, a minor, who resides in close proximity to
defendant.
            Alexander Shalom argued the cause for amicus
            curiae American Civil Liberties Union of New
            Jersey (American Civil Liberties Union of
            New Jersey, attorneys; Mr. Shalom, Edward L.
            Barocas and Jeanne LoCicero, on the brief).

            Claudia   Joy   Demitro,    Deputy   Attorney
            General, argued the cause for amicus curiae
            Office of Attorney General (Christopher S.
            Porrino, Attorney General, attorney; Ms.
            Demitro, of counsel and on the briefs).

    The opinion of the court was delivered by

SABATINO, P.J.A.D.

    This appeal by the State from a denial of its motion for

defendant      C.W.'s    pretrial   detention        presents      several      legal

issues arising under the new Bail Reform Act, N.J.S.A. 2A:162-15

to -26 ("the Act"), which became effective on January 1, 2017.

    The     novel    issues    posed    to    us    include:     (1)   the    proper

standards    of    appellate   review     for      assessing   a   trial     court's

decision to detain or release a defendant under the Act; (2) the

analytic impact of a defendant's juvenile record, a facet that

is not numerically reflected in a defendant's risk-assessment

scores; (3) the significance to the detention analysis of a

defendant's       tier   classification      under     Megan's     Law;    and     (4)

whether a recommendation by the Judiciary's Pretrial Services

Program   to    detain    a   defendant      creates,    under     the    recently-

enacted     Rule    3:4A(b)(5),     a   rebuttable       presumption         against

release that such a defendant must overcome.




                                        2                                    A-2415-16T7
      For the reasons amplified in this opinion, we construe the

Act and the associated provisions within Rule 3:4A as follows.

      First, we adopt the agreed-upon position of the parties and

the amici that the scope of appellate review of a detention

decision    generally       should    focus    on   whether     the     trial     court

abused its discretion, but de novo review applies with respect

to alleged errors or misapplications of law within that court's

analysis.

      Second, we conclude that a defendant's prior history of

juvenile delinquency and probation violations is a permissible –

and   at   times    especially       significant     –   consideration           in   the

detention       analysis.        Such   consideration         of    a     defendant's

juvenile record is authorized by the Act, as it is logically

subsumed    within    the     factors    set    forth    in     N.J.S.A.      2A:162-

20(c)(1).

      Third, in appropriate cases, a detention analysis under the

Act should afford considerable weight to the tier classification

of a defendant who has previously committed a sexual offense

subject    to    Megan's    Law,     N.J.S.A.   2C:7-1     to      -23,    and    whose

dangerousness and risk of re-offending have been evaluated on a

Registrant Risk Assessment Scale ("RRAS").                    Such a Megan's Law

tier classification falls within the broad terms of N.J.S.A.

2A:162-20(c)(1).           The   Megan's      Law   tiering        is   particularly




                                         3                                   A-2415-16T7
salient   where     a     defendant       has       been   classified     in   "Tier    3"

corresponding to the highest risk of re-offense, and where the

pending charges involve new sexual offenses.

      Fourth, we reject the argument that a Pretrial Services

recommendation       to        detain    a      defendant     creates,     under     Rule

3:4A(b)(5),    a    rebuttable          presumption        against   release     that    a

defendant must overcome.              However, as the Rule expressly states,

such a recommendation to detain may be, but is not required to

be,   relied   upon       by    the     court       as   "prima   facie   evidence"     to

support detention.

      Notably in this regard, the Acting Administrative Director

of the Courts recently announced in a March 2, 2017 guidance

memorandum2        that         the      standard          "two-part"      format       of

recommendation, which had been used by the Pretrial Services

Program for the most serious cases (and which was used in this

case), is being discontinued.                That memorandum further clarified

that the two-part format was not intended by the Judiciary to

convey a recommendation that equally valued the options of (1)

detention or (2) release upon stringent conditions.                            Instead,

the two-part format was meant to convey that detention was the


2
  See Acting Admin. Dir. of the Courts Memorandum, "Criminal
Justice Reform – Amendment of the Decision Making Framework to
Clearly Indicate No Release Recommended for the Highest Level of
Risk Defendant" (March 2, 2017).



                                                4                               A-2415-16T7
preferred option, but if the trial court rejected that primary

recommendation,         then   stringent            conditions    of         release

alternatively should be imposed.

      Lacking     the   guidance   of       the     Administrative     Director's

recent clarifying memorandum, as well as subsequent published

case law on legal issues arising under the new statute 3, the

trial court rejected the State's motion to detain C.W.                      Instead,

the court released him on specified conditions, which it made

more stringent after learning of defendant's close proximity to

the residence of the minor.

      The trial court found that the State had not met its burden

for detention under the Act.         The court reached that conclusion

in   spite   of    defendant's     troubling        prior   record     of    sexual

wrongdoing as a juvenile, his two violations of probation that

caused the Family Part to order him confined for three years in

a    juvenile     detention    facility,          his   highest-level       Tier     3

classification under Megan's Law, and his close proximity to the

minor's residence.




3
  See State v. Ingram, ___ N.J. Super. ___ (App. Div. 2017)
(generally allowing the State to establish probable cause at the
detention hearing through a written proffer rather than through
testimony); State v. Robinson, ___ N.J. Super. ___ (App. Div.
2017)   (clarifying   the  State's   discovery  obligations   in
connection with the detention proceeding), leave to appeal
granted, ___ N.J. ___ (2017).



                                        5                                   A-2415-16T7
     The trial court appears to have afforded significance to

defendant's low numerical risk-assessment scores on the failure-

to-appear and new criminal activity indices.                           However, both of

those scores do not take into account the fact that defendant

has been confined in a juvenile facility for several years.                                 In

addition,     the       trial        court's      decisions           do     not     explain

specifically      why    it     rejected         the     portion      of     the   Pretrial

Services     recommendation           of     detention,          despite       the      Act's

requirement for such a written explanation.

     We further note that there are material informational gaps

in   the    existing     record,       such       as     the    details       relating      to

defendant's two violations of probation and also his Megan's Law

classification.         These    gaps      impede        a     full    and     appropriate

consideration of the issues in this case as well as our own

appellate review.

     For these and other reasons explained in this opinion, we

remand     this     matter      to     the       trial       court     for     expeditious

reconsideration of its ruling.

                                             I.

     We derive the pertinent facts, in part, from the State's

allegations, mindful that this case is only in the pretrial

phase.     Fundamentally, the State contends that defendant C.W.,

who is presently twenty years old, attempted on two different




                                             6                                       A-2415-16T7
dates   in   2016   to   engage   in    sexual   activities   with    a   minor

female.      The minor reportedly lives nearby defendant and his

parents in Ocean County.4

      The Charged Offenses and the State's Investigation

      According to the State, in May 2016, defendant, who was

then age nineteen, approached the minor, who was then eleven

years old.5     He offered to give her a video game system if she

allowed him to touch her and if she would touch his erect penis.

The   girl   declined    defendant's        proposal.   She   ran    home   and

reported the incident to her brother.

      Several months later in November 2016, defendant (who had

turned twenty over the summer) contacted the minor through a

social media message.       He asked her to send him photographs of

her wearing a bikini.      She did not respond to him.

      On November 14, 2016, the minor and her mother reported the

two incidents to the police.           Officers from the Special Victims'

Unit of the Ocean County Prosecutor's Office interviewed the

minor on December 1, 2016.         The police also took tape-recorded


4
  The record supplied to us does not clearly substantiate whether
the minor lives immediately next door to defendant, but it is
uncontested that she resides approximately 100 feet from him.
5
  The minor reported that defendant had approached her after she
got off a school bus, whereas defendant stated to the police
that he had approached her outside of his residence.     We need
not resolve here this discrepancy about the exact location.



                                        7                             A-2415-16T7
statements from the minor's mother and brother, both of whom

provided information consistent with her reported allegations.

     Continuing with the investigation, detectives interviewed

defendant at a local police station on January 19, 2017. 6                In a

video-recorded statement, defendant admitted to the detectives

that he had asked the minor for bikini photos.                     He further

admitted that, on another occasion, after watching pornographic

videos and obtaining an erection, he opened his front door, saw

the minor, and asked her to touch his erect penis.

     The police arrested defendant after his interview.                   In a

complaint-warrant,    the   State    charged    him    with   second-degree

criminal   attempt   to   sexually   assault    a     child   of   less   than

thirteen years of age, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:14-

2(b), as well as third-degree endangering the welfare of a child

by attempting to engage in sexual conduct to impair or debauch

that child's morals, N.J.S.A. 2C:24-4(a)(1).

     The Pretrial Services Risk Assessment and Recommendation

     Using defendant's fingerprints, the police carried out the

Act's new automated pretrial risk-assessment process, pursuant

to   N.J.S.A.   2A:162-25.       See     N.J.   Attorney       General      Law


6
  Defendant does not allege in this interlocutory appeal that his
admissions were coerced or that the police failed to warn him of
his right to remain silent in compliance with Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).



                                     8                                A-2415-16T7
Enforcement Directive No. 2016-6 ("Directive No. 2016-6"), at

15-16 (Oct. 11, 2016) (detailing the process).       The automated

process gathers information about defendants from various law

enforcement and Judiciary databases, including the State Police

criminal   case   history   system,   the   PROMIS/GAVEL   criminal

database, the MACS municipal court database, and other sources.

The information derived from these sources is used to address

the following nine risk factors:

           (1) defendant's age at current arrest;

           (2) current violent offense, or current
           violent offense by a defendant twenty years
           old or younger;

           (3) pending charge(s) at the time of arrest;

           (4) prior misdemeanor7 convictions;

           (5) prior felony convictions or any prior
           convictions (misdemeanor or felony);

           (6) prior violent convictions;

           (7) prior failures to appear in the past two
           years;

           (8) prior failures to appear older than two
           years; and

7
  The risk assessment tool has been developed for the Judiciary
by a private foundation. Variations of the tool have been used
in other jurisdictions, some of which, unlike New Jersey, use
the categorical terms "felony" and "misdemeanor." See Laura &
John Arnold Foundation, PSA Risk Factors and Formula, 2 (2012)
http://www.arnoldfoundation.org/wp-content/uploads/PSA-Risk-
Factors-and-Formula.pdf.




                                 9                         A-2415-16T7
            (9)     prior          sentences           leading       to
            incarceration.

Notably,     the     automated     process      does     not     account    for     a

defendant's juvenile history.             Hence, the numerical scores it

generates    do    not   reflect     adjudications        of     delinquency      for

serious    violent    crimes,     juvenile     violations      of   probation,    or

failures of a juvenile to appear at proceedings.                    Directive No.

2016-6, supra, at 29-30.8

     Using    an     algorithm,    the    automated      process     generates      a

Public Safety Assessment ("PSA"), i.e., a risk profile designed

to inform the trial court of the likelihood, on a scale of one

to six, that defendant, if released before trial, would engage

in a New Criminal Activity ("NCA") or Fail to Appear ("FTA") at

future court events.       Id. at 27.         The PSA has also been designed

to include a "flag" if there is a statistical likelihood that

the defendant would engage in a New Violent Criminal Activity

("NVCA").    Ibid.

     A defendant's NCA and FTA scores are then factored into the

Judiciary's approved Decision-Making Framework ("DMF").                    The DMF

8
   The automated process also does not account for:    (1) facts
pertaining to the present offense indicating that a defendant is
especially dangerous; (2) the strength of the State's case; (3)
pending charges or convictions from another state; or (4) a
defendant's involvement with a violent street gang or organized
crime, drug dependence, or mental illness. See Directive No.
2016-6, supra, at 28-29.



                                         10                                A-2415-16T7
attempts     to     identify       the        recommended        level   and     type    of

conditions    and       intervention      or        monitoring    services     needed    to

manage the risks posed by defendant if he were released.9

      At the time of C.W.'s detention hearing, and prior to the

Acting     Administrative          Director's          March     2,   2017     clarifying

memorandum,       the    six    possible       DMF    recommendations         were:     (1)

release on own recognizance ("ROR"); (2) release with pretrial

monitoring level ("PML") 1; (3) PML 2; (4) PML 3; (5) PML 3 +

EM/HD (Electronic Monitoring/Home Detention); or (6) Release Not

Recommended.            The    "Release        Not    Recommended"       category       also

contained the wording, "If Released, PML3 + EM/HD."10

      Here, the one-page Pretrial Services report reflected that

defendant was twenty years old, and was charged with a violent

offense.     It further indicated that he had no pending charge at

the   time   of    his        arrest;    no    prior     indictable      or    disorderly

persons adult convictions; no prior violent adult convictions;


9
  Other considerations within the DMF include: (1) the presence
or absence of an NVCA flag; (2) whether any of the current
offenses were violent; (3) whether defendant was currently
charged with escape, murder, sexual assault, robbery, or
carjacking; and (4) whether the currently charged offenses
exposed defendant to parole ineligibility under the No Early
Release Act, N.J.S.A. 2C:43-7.2 ("NERA").
10
  According to the March 2, 2017 clarifying memorandum, the DMF
and resulting Pretrial Services recommendation will now simply
read "No release recommended" for the highest-risk defendants.
"Amendment of the Decision Making Framework", supra.



                                               11                                 A-2415-16T7
no   prior   failure   to     appear   pretrial;    and   no       prior   sentence

leading to incarceration.

       Based on this information, defendant was rated by Pretrial

Services with a FTA score of one, (i.e., the lowest possible

risk for failing to appear), and an NCA score of two, (i.e., the

next    lowest     possible     risk   for    engaging        in     new   criminal

activity).    Defendant was not "flagged" for new violent criminal

activity.

       Notwithstanding      defendant's     low   FTA   and    NCA    scores,     the

recommendation Pretrial Services presented to the trial court

was "Release Not Recommended.           If Released, Weekly Reporting +

HD/EM."      The   document    contained     no   elaboration        on    how   that

recommendation was generated.11


11
   Instructional slides created by the developers of the PSA
tool, which have been supplied to us by amicus American Civil
Liberties Union ("the ACLU") counsel without objection, indicate
that the DMF process should determine whether a defendant's
pending charges involve certain offenses "in which the majority
of the time a recommendation of preventative detention would be
appropriate regardless of the risk assessment results."     Those
offenses    are   escape,   murder,   aggravated    manslaughter,
manslaughter,   aggravated   sexual  assault,   sexual   assault,
robbery, or carjacking.    The slides also call for a similar
recommendation if the PSA resulted in an NVCA flag and one of
the current offenses is violent.

Defense counsel and the ACLU argue that these categories, which
would include defendant because of the charge of attempted
sexual assault, routinely produce an "automatic" and computer-
generated Pretrial Services recommendation for detention. We do
not have enough information in this record to evaluate whether
                                                     (continued)


                                       12                                   A-2415-16T7
    As     the   Prosecutor   and    the   Attorney   General   stress,

defendant has a significant prior juvenile record that was not

taken into account numerically in his PSA.            Specifically, in

August 2010, he was adjudicated delinquent for acts that if

committed by an adult would constitute second-degree attempted

sexual assault and third-degree endangering the welfare of a

child, acts which he committed in July 2009.             Other charges

were dismissed.     He was initially ordered to serve three years

of probation, and directed to register as a sex offender under

Megan's Law.     The record does not provide any further details

concerning these prior offenses.

    Thereafter, defendant was charged with violating probation

on two occasions, once in December 2012 and again in February

2013.    The record on this appeal does not disclose the nature of

those separate violations, which were concurrently adjudicated

in the Family Part. However, they apparently were sufficiently

serious to cause the court to sentence him in April 2013 to

three years of confinement at the New Jersey Training School, an



(continued)
that characterization is correct, and neither the Prosecutor nor
the Deputy Attorney General at oral argument knew if it were
true.   In any event, that particular nuance of the DMF process
need not be ascertained or evaluated in this opinion, although
counsel are free to develop the record on the subject on remand
if they so choose.




                                    13                          A-2415-16T7
all-male juvenile detention center in Jamesburg.                 The exact date

of his release is not documented in this record.

     Defendant's        history     also    reflected    that,   at    some    point

after he was adjudicated delinquent, he underwent an evaluation

for Megan's Law purposes because of the sexual nature of his

juvenile offenses.        He was classified as a Tier 3 offender, the

highest tier, corresponding to a "great risk of re-offending,"

as opposed to a low or moderate risk (Tiers 1 and 2).                            See

Attorney    General      Guidelines        for    Law   Enforcement      for    the

Implementation     of     Sex       Offender     Registration    and    Community

Notification Laws 17 (Feb. 2007).12

     The State's Motion for Pretrial Detention

     After defendant was arrested and charged with the present

offenses concerning the minor, the State timely moved for his

pretrial detention under the new law.                   The pretrial detention

hearing    was   held    in   the    Criminal    Part   on   January    25,    2017.

12
   Pursuant to N.J.R.E. 201, we take judicial notice that
defendant, represented by an assistant public defender, appealed
his tier classification in Docket No. A-4495-15. The appeal was
opposed by an assistant prosecutor.       Neither the assistant
public defender nor the assistant prosecutor are counsel
involved in the present pretrial detention appeal. A different
panel of this court issued an order on December 9, 2016,
affirming in part the trial court's June 21, 2016 tier
classification as to certain criteria, but remanding for the
reconsideration of other criteria.   Given the sealed nature of
that separate classification matter, we do not discuss here its
substantive content.




                                           14                             A-2415-16T7
Defendant     appeared         at    the    hearing         with    counsel,    and    two

assistant prosecutors appeared for the State.13                           No witnesses

testified.

      The Prosecutor asserted at the detention hearing that the

State was seeking the detention of defendant because he had been

charged     with     a     second-degree         offense       to    which     NERA     was

applicable; was believed to be a Tier 3 Megan's Law registrant14

who   had   violated       a   condition       of     his    release;   and    otherwise

presented a danger to the community.                    The Prosecutor argued that

probable     cause       had   been    established,          referencing       the    facts

reported to the police as set forth in a supporting affidavit.

The Prosecutor further emphasized that, during an interview with

police,     defendant      had      admitted     to    soliciting       the    minor    for

bikini photographs through social media and asking her to touch

his erect penis.

      Defense counsel argued at the hearing that probable cause

had not been demonstrated.                 He contended that a proffer by an

affidavit was not sufficient and that the State had to present




13
   For ease of discussion, we refer collectively to the                                two
assistant prosecutors as "the Prosecutor."
14
   Neither the Prosecutor nor defense counsel brought to the
trial court's attention at the detention hearing that the Tier 3
classification had been appealed and remanded.




                                            15                                   A-2415-16T7
live    witnesses.15    He   also    contended   that        the    State   had

improperly failed to provide the defense with all discovery in

its possession, including the recorded statements made by the

minor, witnesses, and defendant.16

       The trial court was persuaded that the State should have

provided the defense with the requested discovery, and stated it

was willing to grant an adjournment to allow for that turnover.

However, defense counsel declined an adjournment, as he did not

want to delay matters and have defendant remain in jail for that

reason.     Accordingly, the court ruled that probable cause had

been   preliminarily   established    for   purposes    of    the    detention

hearing, but indicated it would consider defendant's assertions

of alleged deficiencies in the State's presentation in its final

decision.

       Following the court's probable cause ruling, the Prosecutor

announced that the State was relying on defendant's PSA and

criminal case history in support of its motion for detention.




15
   This categorical legal argument was subsequently rejected in
Ingram, supra, ___ N.J. Super. ___ (slip op. at 34).
16
  The following month in Robinson, supra, ___ N.J. Super. ___
(slip op. at 27), we clarified the State's discovery obligations
in relation to the detention hearing. The Supreme Court has
granted the State's motion for leave to appeal in Robinson, and
the case is awaiting argument before the Court.



                                     16                               A-2415-16T7
She   urged    that    defendant     should     not     be   released      under   any

circumstances.

      Although the Prosecutor recognized that defendant had low

scores on the PSA, she asserted "this [was] one of the occasions

where    the   PSA    simply   [did]     not    account      for   the   defendant's

[offense] history and/or the serious nature of the crime."                         She

noted that while defendant has not had the opportunity to amass

an adult criminal record, he does have a significant juvenile

record.       In fact, she asserted he committed as a youth sexual

wrongdoing allegedly similar to the current charges. She also

emphasized      defendant's        probationary        sentence,     his     previous

designation as a Tier 3 Megan's Law offender, his subsequent

violations of probation, and his ultimate commitment to three

years    in    juvenile     detention.         Based    upon   his   history,      the

Prosecutor maintained that there was a high risk that defendant

would not comply with release conditions and would, once again,

re-offend.

      Defense counsel responded that the PSA, on which defendant

had     received     very    low    scores,     was     a    reliable      "sanitized

assessment" of his actual history.               Counsel acknowledged, as an

aside and without any further comment, that defendant did have

"one juvenile conviction [sic]" that was not accounted for by

the PSA scores.




                                         17                                  A-2415-16T7
       Defense counsel further argued that his client not only

must    be     presumed    innocent,    but        also   should      be   given     the

opportunity under the new Act to show the court that he could

comply with release conditions while his charges were pending.

Counsel maintained that defendant was not a flight risk because

he had been residing with his parents "for many years now" in

Ocean County, had a girlfriend who was three months pregnant,

and was about to start a job at a local restaurant.

       With    respect    to   conditions        of    release,      defense   counsel

asserted that defendant was willing to stay away from the minor,

her residence, and school, and also would remain in contact with

counsel and Pretrial Services.                   He represented that defendant

was    presently    on    medication,       receiving     counseling,        and   being

monitored by his parole officer.

       The Trial Court's Rulings

       After     considering      these          arguments     and     the     written

materials, the trial court issued an oral ruling at the end of

the    hearing,     denying    the   State's          motion   for    detention      and

instead releasing defendant on several conditions.

       Among other things, the court observed in its oral decision

that    defendant    has    "roots     in    the      community,"     "prospects      of

employment," and "ties . . . to [the] area."                      The court further

noted that defendant had "no failure to appear in the past two




                                            18                                 A-2415-16T7
years," and "no prior sentence" for an adult crime.                          The court

also   recognized       that   defendant      is    "presumed        innocent       until

proven guilty," and that he had not been charged with murder or

another offense that would make him presumptively inappropriate

for release under the new statutory scheme.

       The trial court did briefly acknowledge that defendant had

a   prior    juvenile      delinquency    adjudication         for    second-degree

sexual assault, had been classified under a Tier 3 pursuant to

Megan's Law, and had apparently "re-offended quickly after he

was released."         Nevertheless, the court concluded that the State

had not met its burden by clear and convincing evidence under

the statute to show that no combination of conditions could

reasonably       assure    defendant's     appearance     in     court        and     the

protection and safety of the community before trial.

       The court denied the State's immediate motion for a stay

for purposes of an emergent appeal.                   The court then agreed,

without defense objection, to impose all of the conditions the

Prosecutor       had    requested   if    release      were    granted.             These

conditions required defendant to:                  (1) avoid all contact with

the minor and her family; (2) appear for all scheduled court

proceedings;      (3)     immediately    notify     Pretrial    Services        of   any

change      of    address,     telephone      number,     or         other     contact

information; (4) avoid the commission of any new offenses; (5)




                                         19                                   A-2415-16T7
report    to    Pretrial         Services     telephonically     once    every    other

week, and in person once every other week; (6) remain on home

detention, with electronic monitoring; and (7) comply with his

Megan's Law obligations.

    Defendant agreed to abide by these conditions, but inquired

if he was still allowed to go to work.                         Without waiving its

right    to    pursue      the    present     appeal,    the   Prosecutor      did   not

object to defendant working, provided that he adhere to a strict

schedule and return home after work immediately.                         It was also

agreed that defendant had to stay at least 500 feet away from

the minor's home.

    After       dismissing         the   parties,    the    court     reconvened     the

proceeding later that same day, upon learning that the minor

actually lived within 100 feet of defendant's home, and also

that defendant would likely come into contact with minors if he

were to work at the local restaurant.                       Given this additional

information,         the   court     modified      its     original     ruling.       It

determined that, because defendant and the child apparently were

neighbors, he would have to remain inside his home at all times,

except    to    go    to    work    or   to    appointments      with    the   advance

permission of Pretrial Services.                    The court further directed

that defendant would have to find employment                          at a different




                                              20                               A-2415-16T7
location where he would not be likely to come into contact with

minors.

    The court issued an order implementing those terms that

same afternoon.       The order did not elaborate further on the

court's reasons, but instead cross-referenced the bench ruling.

Hours later, the State filed an application with this court for

permission to file an emergent motion for leave to appeal.                     We

denied the emergent motion, without prejudice to the State's

right to file a motion for relief in the regular course.                     The

Supreme Court likewise denied emergent relief.

    The State promptly moved for leave to appeal on January 31,

2017.     The same day, we issued a sua sponte interim order,

directing the trial court to furnish, as mandated by N.J.S.A.

2A:162-23(a)(2),      a   written    statement    of   reasons   for   denying

detention contrary to the Pretrial Services recommendation.

    The trial court submitted the written statement of reasons

on February 2, 2017.         In that amplification, the trial court

first   noted   the   parties'      discovery    dispute   and   the   alleged

deficiencies in the State's probable cause presentation.                       It

then summarized the parties' arguments in support of and against

pretrial detention.         The court repeated its conclusion that,

after considering all of the arguments and proofs, the State had

not established its burden to justify detention by clear and




                                       21                              A-2415-16T7
convincing evidence.             The statement of reasons did not refer to

the Pretrial Services recommendation, but it did again reference

defendant's low PSA scores.

       We then granted the State's motion for leave to appeal.

Meanwhile, at our invitation, the Attorney General and the ACLU

each   moved   for     and    were    granted    leave   to     appear   as    amicus

curiae.

       On appeal, the Prosecutor and the Attorney General urge

that    we   reverse       the    trial   court's      denial    of    the    State's

detention motion.          They argue that the trial court abused its

discretion by overlooking or under-valuing important aspects of

this case, including, among other things, defendant's juvenile

history as a sex offender, his violations of probation, his tier

classification under Megan's Law, his very close proximity to

the minor's residence, and the Pretrial Services recommendation

to detain.

       Defendant     and     amicus   ACLU     argue   that   the     trial   court's

decision was reasonable, supported by the record, and consistent

with the terms and objectives of the new law, and should not be

disturbed.

                                          II.

       Before delving into the legal issues raised by this appeal,

we begin with a brief overview of the key elements of the Act




                                          22                                  A-2415-16T7
and the associated Rule 3:4A, the latter which was approved in

August 2016 and became effective with the new statute on January

1, 2017.

       The Act signals a momentous change in our State's criminal

justice    system.       As   our    colleagues    extensively     detailed       in

Robinson, supra, ___ N.J. Super. ___ (slip op. at 8-10), the Act

is the result of a constitutional mandate by New Jersey voters

to    replace   the     former   bail-dependent        system   with   a    system

providing    defendants       with   "a   right   to   pretrial   release,       but

authorizing       pretrial       detention        under     certain        limited

circumstances."         See N.J. Const. art. I, ¶ 11.             The Act also

imposes certain speedy trial requirements.                See N.J.S.A. 2A:162-

22.

       "As codified by the Bail Reform Act, the new system favors

pretrial release and monitoring as the presumptive approach and

limits preventive detention to defendants who actually warrant

it."    Robinson, supra, ___ N.J. Super. ___ (slip op. at 8).                    "By

permitting judges to keep high-risk defendants detained without

bail, and to release with or without conditions those defendants

who pose little risk of flight or of committing another offense,

these constitutional and legislative changes represent a major

reform to criminal justice that will promote public safety and

fairness."      Ibid.




                                          23                               A-2415-16T7
       Nonetheless,     the    trial      court   remains    authorized,        upon

motion   of    a   prosecutor,       to   order   pretrial      detention       of   a

particular     defendant      when   it   finds   by   "clear    and    convincing

evidence, that no condition or combination of conditions can

reasonably assure the effectuation of these goals."                       N.J.S.A.

2A:162-15;     accord   N.J.S.A.       2A:162-18(a)(1);      N.J.S.A.      2A:162-

19(e)(3).

       The State may file an application for pretrial detention

when a defendant is charged with, among other things:                     (1) any

crime of the first or second degree enumerated under NERA17; or

(2) any crime enumerated under N.J.S.A. 2C:7-2(b)(2) (Megan's

Law) or the crime of endangering the welfare of a child under

N.J.S.A. 2C:24-4.       See N.J.S.A. 2A:162-19(a)(1) and (4).                Under

this    same   statutory      section,     the    State   may    also    move    for

pretrial detention when a defendant is charged with any other

crime for which the prosecutor believes there is a serious risk

that the goals set forth in N.J.S.A. 2A:162-15 cannot be met.

N.J.S.A. 2A:162-19(a)(7).

       At the detention hearing required by N.J.S.A. 2A:162-19(c),

if the defendant has not yet been indicted, "the prosecutor

shall    [first]    establish        probable     cause   that    the     eligible


17
  It is undisputed that defendant, who is charged with a second-
degree offense, meets this predicate requirement.



                                          24                              A-2415-16T7
defendant committed the predicate offense."                   N.J.S.A. 2A:162-

19(e)(2).      Probable       cause   consists      of    a   "well   grounded"

suspicion    that    an     offense   has    been   committed.        State      v.

Sullivan, 169 N.J. 204, 211 (2001).            See also Ingram, supra, ___

N.J. Super. ____ (slip op. at 8-9).

     Except for when an eligible defendant is charged with a

crime set forth in N.J.S.A. 2A:162-19(b), i.e., murder or any

crime for which the defendant would be subject to an ordinary or

extended    term    of    life   imprisonment,      the   statute     imposes     a

rebuttable   presumption         against    detention.        N.J.S.A.   2A:162-

18(b).18    Hence, in order to prevail on a detention motion in

other offense categories, the State must rebut the presumption

that some amount of monetary bail, non-monetary conditions, or a

combination thereof would reasonably assure (1) the defendant's

appearance in court when required, (2) the protection of the

safety of any other person or the community, and (3) that the

defendant will not obstruct or attempt to obstruct the criminal

justice process.         N.J.S.A. 2A:162-18(b).


18
    In these other instances, there is a rebuttable presumption
that the eligible defendant "shall be detained."        N.J.S.A.
2A:162-19(b) (emphasis added).    The defendant can rebut this
presumption by the lesser proof standard of preponderance of the
evidence. N.J.S.A. 2A:162-19(e)(2). Under this same statutory
provision, if the defendant successfully rebuts the presumption,
the prosecutor can still establish grounds for detention by
clear and convincing evidence. Ibid.



                                       25                                A-2415-16T7
    The Act further prescribes that the court at a detention

hearing "may take into account" the following information:

         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 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



                               26                          A-2415-16T7
               risk assessment         instrument        under     N.J.S.A.
               2A:162-25.

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

    Notably, although Section 20 of the Act does not place any

special emphasis on the PSA, another provision within the Act,

N.J.S.A. 2A:162-16(b)(1), expressly mandates the court "shall

consider        the     [Pretrial        Services]         risk       assessment         and

recommendations         on    conditions      of     release      before        making   any

pretrial release decision[.]"                (Emphasis added).

    We agree with the State that this quoted language within

Section    16    signifies      that   a     trial      court   may   not       ignore   the

Pretrial       Services      recommendation        in    its    detention        analysis,

although it is not bound to follow it.                      That interpretation is

consistent with Section 23(a)'s requirement that, if the court

issues    an    order     contrary     to    the    recommendations         of    Pretrial

Services,       the   judge     "shall       provide      an    explanation        in    the

document       that   authorizes       the    eligible         defendant's       release."

N.J.S.A.       2A:162-23(a)(2)       (emphasis          added).       As    we    discuss,

infra,    that    did     not   occur       here,     perhaps      due     to    perceived

ambiguities in the two-part format of the recommendation.

    New        Rule   3:4A(b)(5),        which       implements       these      statutory

facets, instructs that the court:

               may   consider    as  prima   facie  evidence
               sufficient to overcome the presumption of
               release   a    recommendation   by  [Pretrial



                                             27                                    A-2415-16T7
            Services] established pursuant to N.J.S.A.
            2A:162-25 that the defendant's release is
            not recommended (i.e., a determination that
            "release not recommended or if released,
            maximum   conditions").       Although  such
            recommendation by [Pretrial Services] may
            constitute sufficient evidence upon which
            the court may order pretrial detention,
            nothing herein shall preclude the court from
            considering other relevant information [in
            reaching its detention determination].

            [(Emphasis added).]

      "After     considering   all     the    circumstances,         the   [Pretrial

Services] risk assessment and recommendations on conditions of

release,    and     any   information        that    may   be    provided      by     a

prosecutor or the eligible defendant, the court shall order that

the   eligible      defendant"    be     either       detained       or    released.

N.J.S.A. 2A:162-16(b)(2).        A defendant may be released on:                    (1)

his   or   her    own   recognizance;    (2)    execution       of    an   unsecured

appearance bond; (3) non-monetary conditions; (4) monetary bail;

or (5) a combination of conditions and monetary bail.                       N.J.S.A.

2A:162-16(b)(2); N.J.S.A. 2A:162-17.                Monetary bail can only be

used to reasonably assure the eligible defendant's appearance.

N.J.S.A. 2A:162-17(c)(1).19


19
   The court-ordered non-monetary conditions, paraphrased, may
require the defendant to:     (1) refrain from committing any
offense during the period of release; (2) avoid all contact with
an alleged victim of the crime; (3) avoid all contact with all
witnesses who may testify concerning the offense; (4) remain in
the custody of a designated person, who agrees to assume
                                                     (continued)


                                        28                                  A-2415-16T7
    With this backdrop in mind, we turn to the discrete issues

presented.

                                       A.

    Our first task is to ascertain the appropriate scope of

appellate review of a trial court's order granting or denying

pretrial detention.     The Act does not specify a scope of review.

Nor have our two published cases resolved it while examining

other important legal issues under the new law.             But see Ingram,

supra, ___ N.J. Super. ___ (slip op. at 37-38) (noting that the

Attorney     General   had   posited        an   abuse-of-discretion    review




(continued)
supervision and to report any violation of a release condition
to the court; (5) maintain employment, or, if unemployed,
actively seek employment; (6) maintain or begin an educational
program; (7) abide by specified restrictions on personal
associations, place of residence, or travel; (8) report on a
regular basis to a designated law enforcement agency, or other
agency, or pretrial services program; (9) comply with a
specified curfew; (10) refrain from possessing a firearm,
destructive device, or other dangerous weapon; (11) refrain from
excessive use of alcohol, or any use of a narcotic drug or other
controlled substance without a prescription by a licensed
medical practitioner; (12) undergo all available medical,
psychological, or psychiatric treatment, including treatment for
drug or alcohol dependency, and remain in a specified
institution if required for that purpose; (13) return to custody
for specified hours following release for employment, schooling,
or other limited purposes; (14) be placed in a pretrial home
supervision capacity with or without the use of an approved
electronic monitoring device; or (15) satisfy any other
condition deemed necessary to reasonably assure the effectuation
of the goals of the Act. N.J.S.A. 2A:162-17(b)(1) and (2).




                                       29                              A-2415-16T7
standard, and that the Public Defender had indicated at oral

argument that such a standard "most likely" applied).

       Our task has been eased because the parties and the amici

essentially        agree       that    the    appropriate        general      standard         of

appellate review is to sustain the trial court's decision unless

it represents an abuse of discretion.                        However, as the parties

also agree, de novo review must be conducted if the trial court

erred in its application of the law, such as by relying on a

legally impermissible reason, by failing to consider a legally

required factor in the detention calculus, or by failing to

provide adequate reasons for its decision.

       Even though we accept counsel's agreement that these are

the appropriate review standards for appeals arising under the

Act,    we        provide       the    following           discussion       for     sake       of

completeness.            We begin with a recognition that the statute

explicitly confers upon defendants a right to appeal an order of

pretrial detention "pursuant to the Rules of Court."                                N.J.S.A.

2A:162-18(c).20          The    appeal       "shall    be    heard     in    an    expedited

manner."          Ibid.        In   addition,        the   defendant    who       was     denied

release      by    the    trial       court    "shall       be   detained     pending         the

disposition of the appeal."                  Ibid.


20
  See R. 2:9-13 (eff. Jan. 1, 2017) (delineating new rules of
appellate practice specifically to guide detention appeals).



                                               30                                       A-2415-16T7
       Although the State has no reciprocal statutory right to

appeal decisions granting a defendant's pretrial release, it can

pursue interlocutory review in this court's discretion.                                  The

State may do so through a motion for leave to appeal filed in

accordance with the general requirements of Rules 2:2-3 and 2:5-

6.      Indeed, that is the jurisdictional path that led to the

present case being heard by this court, having granted leave to

appeal.

       None of the parties or amici support adopting the standards

of    review    that     case   law    from       the   circuit    courts    has    deemed

applicable under the federal Bail Reform Act, 18 U.S.C.A. §§

3141 to 3156 (1984), on which the Act was largely based.                               Like

our     own    law,     the     federal       statute     does     not    identify       the

applicable standard of review.                    United States v. Perry, 788 F.2d

100, 104 (3d Cir.), cert. denied, 479 U.S. 864, 107 S. Ct. 218,

93 L. Ed. 2d 146 (1986).               The circuit courts have been split in

resolving that question.

       Three    circuit       courts    have       adopted   a    "clearly   erroneous"

standard,       i.e.,    a    highly        deferential      standard     much     like     a

traditional abuse of discretion standard, whereby the detention

order    will    be     sustained      if    it    is   supported    by   the    evidence

presented at the hearing.               See, e.g., United States v. English,

629 F.3d 311, 319 (2d Cir. 2011); United States v. Rueben, 974




                                              31                                   A-2415-16T7
F.2d 580, 586 (5th Cir. 1992), cert. denied, 507 U.S. 940, 113

S. Ct. 1336, 122 L. Ed. 2d 720 (1993); United States v. Fortna,

769 F.2d 243, 250 (5th Cir. 1985); United States v. Chimurenga,

760 F.2d 400, 405-06 (2d Cir. 1985); United States v. Williams,

753 F.2d 329, 333 (4th Cir. 1985).

    A majority of the circuit courts, however, independently

review detention decisions affording more limited deference to

the district court's ruling.        United States v. O’Brien, 895 F.2d

810, 813 (1st Cir. 1990).          Under this more stringent standard,

"[i]f upon careful review of all the facts and the trial judge's

reasons    the   appeals   court   concludes   that   a   different    result

should have been reached, the detention decision may be amended

or reversed."     Id. at 814.

    Meanwhile, six circuit courts adhering to the "independent"

standard of review specify that factual findings will only be

reversed    if   they   are   clearly   erroneous.        United   States    v.

Cisneros, 328 F.3d 610, 613 (10th Cir. 2003); United States v.

Portes, 786 F.2d 758, 762 (7th Cir. 1985); United States v.

Hurtado, 779 F.2d 1467, 1470-72 (11th Cir. 1985); United States

v. Maull, 773 F.2d 1479, 1487 (8th Cir. 1985); United State v.

Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985); United States v.

Hazime, 762 F.2d 34, 37 (6th Cir. 1985).




                                     32                               A-2415-16T7
      Two other circuits generally hold that the district court's

determination should simply be given deference.                    United States

v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003); O'Brien,

supra, 895 F.2d at 814; United States v. Delker, 757 F.2d 1390,

1399-1400 (3d Cir. 1985).           However, as explained in O’Brien,

supra, 895 F.2d at 813, as a practical matter, this general

deference   "to    the     determination     of    the    trial    court   in     the

context of an independent review typically will mean giving the

greatest deference to purely factual determinations."

      The parties and amici in this case eschew these varying

federal approaches.        They instead urge that we apply traditional

standards   of    review    that   have   been     used    in   appeals    of   bail

decisions in our State.

      Historically, the purpose of bail was not to protect the

community   from    a    defendant's      future     criminal      or   antisocial

conduct or to inflict punishment, but instead merely to ensure

the   defendant's    appearance     at    court     proceedings.          State    v.

Korecky, 169 N.J. 364, 376 (2001); State v. Steele, 430 N.J.

Super.   24,     35-37     (App.   Div.     2013),       certif.   improvidently

granted, 223 N.J. 284 (2014).               The setting of bail has been

entrusted to the reasonable and sound discretion of the trial

court, and our appellate courts have generally sustained those

rulings in the absence of a proven abuse of discretion. See,




                                       33                                  A-2415-16T7
e.g.,   State      v.   Fajardo-Santos,           199   N.J.   520,   533-34   (2009);

Korecky, supra, 169 N.J. at 373; Steele, supra, 430 N.J. Super.

at 34-35.         The trial court's discretionary decision to impose

non-monetary conditions of release upon a defendant to protect

the public also has been customarily reviewed for an abuse of

that discretion.          See, e.g., State v. Johnson, 61 N.J. 351, 364

(1972); Steele, supra, 430 N.J. Super. at 34.

      While the concept is difficult to define with precision, an

appellate court "may find an abuse of discretion when a decision

'rest[s]     on    an    impermissible        basis'      or   was    'based   upon     a

consideration of irrelevant or inappropriate factors.'"                        Steele,

supra, 430 N.J. Super. at 34-35 (quoting Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002)).                     An appellate court can

also discern an abuse of discretion when the trial court fails

to take into consideration all relevant factors and when its

decision reflects a clear error in judgment.                         State v. Baynes,

148   N.J.   434,       444   (1997).        Likewise,     when      the   trial   court

renders a decision based upon a misconception of the law, that

decision     is    not    entitled      to        any   particular     deference     and

consequently will be reviewed de novo.                         See, e.g., State v.

Stein, 225 N.J. 582, 593 (2016); State v. Williams, 441 N.J.

Super. 266, 272 (App. Div. 2015).




                                             34                                A-2415-16T7
       A reviewing court generally will give no deference to a

trial     court       decision      that        fails     to      "provide     factual

underpinnings        and    legal   bases       supporting       [its]    exercise    of

judicial discretion."            Clark v. Clark, 429 N.J. Super. 61, 72

(App. Div. 2012).           If a trial court has merely catalogued the

evidence and issued an order without sufficiently explaining its

reasoning, such a conclusory approach does not serve the parties

and does not facilitate appellate review.                       It is vital that the

trial court make the necessary findings and explain its reasons.

See generally, R. 1:7-4; see also Barr v. Barr, 418 N.J. Super.

18, 46 (App. Div. 2011); Barnett & Herenchak, Inc. v. State, 276

N.J. Super. 465, 472 (App. Div. 1994); In re Valley Hosp., 240

N.J. Super. 301, 306 (App. Div. 1990), certif. denied, 126 N.J.

318 (1991).

       We concur with counsel that these well-established general

principles      of    appellate     review      are     sensibly    applied    in    the

context of pretrial detention rulings issued under the Act.                          The

statutory    scheme        envisions   that     judges     in     the    Criminal   Part

repeatedly will be called upon to make detention decisions in a

wide    array   of     cases.       Over    time,       those    trial    judges    will

naturally develop considerable expertise in applying the terms

of the Act.          As the First Circuit observed in O'Brien, supra,

895 F.2d at 813, "it would unduly intrude on the ability of




                                           35                                  A-2415-16T7
[trial] courts to render these [pretrial detention] decisions on

a day to day basis if they were subjected to cavalier treatment

by an appellate court with little experience or opportunity to

develop expertise."

      The wording of the Act itself lends support to the adoption

of an abuse of discretion review standard. Section 18 states

that the court "may" order release if the State has met its

burden.      N.J.S.A.      2A:162-18(a).      Furthermore,       Section      20

outlines the factors that the trial court "may" consider in

ruling on detention motions.         N.J.S.A. 2A:162-20.         "The use of

the word 'may' generally conveys that an action is permissive,

not mandatory."     Myers v. Ocean City Zoning Bd., 439 N.J. Super.

96,   101   (App.   Div.   2015)   (citing   Harvey   v.   Bd.    of    Chosen

Freeholders of Essex Cty., 30 N.J. 381, 391 (1959) (stating

that, absent legislative intent to the contrary, use of "may"

indicates that a provision is permissive, and use of "shall" or

"must" reflects that a provision is mandatory)).

      From a policy perspective, the objectives of the new Act in

attaining the expeditious resolution of criminal cases could be

thwarted    if   this   court   routinely   second-guessed   decisions        on

pretrial detention motions simply because we personally would

have reached a different result than the trial judge. We surely

do not wish to encourage dissatisfied parties to file appeals




                                     36                                A-2415-16T7
having little or no merit on such collateral issues, while the

trial court proceedings are possibly stalled in the meantime and

the   parties'      resources        are   diverted        to   appellate            briefing.

Excessive appeals are also bound to interfere with the Act's

speedy trial goals.

      That      said,   we    also    must     remain      vigilant       that       detention

rulings are not simply rubber-stamped, and that the procedural

and   substantive        requirements          of    the     Act        and    other     legal

principles are honored.              In many instances, the pretrial hearing

may entail no witness testimony and no need for credibility

findings by the trial court, to which we ordinarily accord great

deference.       State v. Locurto, 157 N.J. 463, 471 (1999).                            Hence,

we often will be looking at precisely the same paper record

concerning a defendant's risks as the trial court. Even so, our

primary role in appellate correction should be one of assuring

that the law is being followed properly in the trial court.                                 The

traditional standards of review used by our courts in bail cases

will serve that goal.

      When      conducting         appellate        review      under         this     largely

deferential standard, we also must bear in mind the evidentiary

standard     under      the   Act     that     governs       the    detention          ruling.

Where,     as    here,       the     charged      offenses         do    not     trigger       a

presumption of detention pursuant to N.J.S.A. 2A:162-19(b) — as




                                             37                                       A-2415-16T7
it would in murder and life imprisonment cases — the State must

meet   a     heavy    burden    to    establish        the    need    for   detention        by

"clear and convincing evidence."                 N.J.S.A. 2A:162-18(a)(1).                  The

drafters      of    the   Act   presumably       chose       that    high   bar       to   make

detention the appropriate result for only a limited group of the

most     serious       cases,     where     public          safety     is   demonstrably

threatened by a defendant's release, the defendant clearly is

not likely to appear for court, or he or she is likely to

threaten to obstruct the criminal justice process.

       The    State's     burden      of   establishing         clear    and   convincing

evidence in this context falls somewhere between the ordinary

civil standard of preponderance of the evidence and the criminal

standard of beyond a reasonable doubt.                       In re Perskie, 207 N.J.

275, 289 (2011).          This heightened standard is typically applied

where the evidentiary matters are complex, prone to abuse, error

or   injustice,        and     also   where      an    individual’s         interests        in

liberty or personal welfare are at stake.                       Liberty Mut. Ins. Co.

v. Land, 186 N.J. 163, 170 (2006); State v. Michaels, 136 N.J.

299,   321-23        (1994).    The   standard        is     also    frequently       imposed

where,     by      operation     of   common      or       statutory    law,      a    strong

presumption favors a contrary result.                      See Auge v. N.J. Dept. of

Corr., 327 N.J. Super. 256, 263 (App. Div.), certif. denied, 164

N.J. 559 (2000).




                                            38                                        A-2415-16T7
      Clear and convincing evidence should produce in the mind of

the decision-maker "a firm belief or conviction as to the truth

of    the   allegations         sought     to   be    established."            State    v.

Hernandez, 170 N.J. 106, 127 (2001) (quoting In re Samay, 166

N.J. 25, 30 (2001)); State v. Hodge, 95 N.J. 369, 376 (1984).

The   evidence      must   be     "so     clear,     direct    and    weighty          and

convincing as to enable either a judge or jury to come to a

clear conviction, without hesitancy, of the precise facts in

issue."     In re Seaman, 133 N.J. 67, 74 (1993) (quoting Aiello v.

Knoll Gold Club, 64 N.J. Super. 156, 162 (App. Div. 1960));

accord Hernandez, supra, 170 N.J. at 127.                     To meet this test,

the truth of an allegation must be "highly probable."                           Perskie,

supra, 207 N.J. at 290.

      Consequently,        in     exercising         our    role     of        appellate

oversight, we are obligated to bear in mind the challenging

burden under the Act that the State must meet in most cases to

support its detention motion.                If the points in favor of the

detention motion do not heavily weigh in favor of the State in

such instances, the trial court should deny the application, and

we    should   be    loath       to      disturb     that   denial        on     appeal.

Conversely, if the State manifestly has made such a showing, we

must carefully consider whether the trial court has abused its




                                           39                                    A-2415-16T7
discretion or misapplied the law in rejecting the application

and, if so, set aside the determination.

                                         B.

       We next consider the legal significance of a defendant's

prior juvenile record in making a detention decision under the

Act.     This likewise is an issue on which counsel fundamentally

agree.

       As we have noted, the Pretrial Services matrix for the NCA

and FTA scores does not statistically incorporate a defendant's

prior juvenile record.              Nevertheless, Section 20 of the Act

broadly authorizes the trial court to consider a defendant's

"past      conduct"    as    one    of   the   many   permissible    factors     in

evaluating       his    or    her    suitability      for   pretrial     release.

N.J.S.A. 2A:162-20(c)(1).

       A defendant's prior adjudications of delinquency and the

nature of his or her juvenile offenses are logically part of his

or   her    "history    and    characteristics"       and   indicative    of   the

danger he or she poses to the community under N.J.S.A. 2A:162-

20(c) and (d).         Notably, juvenile history is taken into account

in     federal    detention        determinations,     where   the     court    is

directed, under 18 U.S.C.A. § 3142(g), to consider the same

types of information set forth in N.J.S.A. 2A:162-20.                          See,




                                          40                             A-2415-16T7
e.g., United States v. Begay, 315 Fed. Appx. 53, 54-56 (10th

Cir. 2009).

    We appreciate that the objectives of the juvenile justice

system    generally    differ     from    those    for    the   adult     criminal

justice process.          See, e.g., In re Registrant J.G., 169 N.J.

304, 325 (2001) (emphasizing the Juvenile Code's preference for

"supervision, care and rehabilitation" as alternatives, instead

of incarceration for juveniles adjudicated delinquent); State ex

rel. S.S., 367 N.J. Super. 400, 407 (App. Div. 2004), aff'd 183

N.J. 20 (2005) ("Even with respect to a juvenile charged with

conduct that would be a crime if committed by an adult, the

overriding      goal      of    the       juvenile       justice      system     is

rehabilitation, not punishment.").

    Nevertheless, an adult defendant's prior juvenile record

may properly be considered in making sentencing determinations,

particularly     if    the     juvenile       adjudications     are    relatively

recent, voluminous, or severe.            See, e.g., State v. Torres, 313

N.J. Super. 129, 162 (App. Div.) (instructing that a sentencing

court    may   consider    defendant's        juvenile   record,   even    if   the

charges did not result in adjudications), certif. denied, 156

N.J. 425 (1998); State v. Phillips, 176 N.J. Super. 495, 502

(App. Div. 1980) (holding that a sentencing judge may consider

juvenile offenses "so long as they are not given the weight of a




                                         41                               A-2415-16T7
criminal conviction") (citing State v. Marzlof, 79 N.J. 167,

176-77 (1979)).

    Simply stated, a defendant's juvenile offenses may count in

the detention calculus, but should not be weighed as heavily as

prior adult convictions.     None of the parties before us dispute

this principle.

                                C.

    We next consider the relevance of a defendant's prior tier

classification as a sex offender under Megan's Law. As part of

the Megan's Law assessment for such potential registrants, the

State is obligated to demonstrate the propriety of defendant's

tier classification by clear and convincing evidence.       In re

Registrant M.F., 169 N.J. 45, 54 (2001).

    The RRAS was developed by a committee of mental health

experts and members of the law enforcement community convened by

the Attorney General.      See In re Registrant of C.A., 146 N.J.

71, 82 (1996); In re Registrant V.L., 441 N.J. Super. 425, 428-

32 (App. Div. 2015).     The RRAS was created in response to the

Legislature's directive in Megan's Law for the Attorney General

to promulgate guidelines and procedures for notification of a

sex offender's whereabouts, depending upon the offender's degree

of risk of re-offense.     N.J.S.A. 2C:7-8; V.L., supra, 441 N.J.

Super. at 428-29.      The RRAS is divided into four categories




                                 42                       A-2415-16T7
corresponding        to   the     individual's       seriousness          of     offense,

offense      history,      personal         characteristics,         and        community

support.     Id. at 429.         Each category contains at least two of a

total of thirteen criteria, and each such criterion is assigned

a    score   corresponding        to    a    low,    moderate,       or        high    risk

assessment.     Ibid.       The factors are then all assigned weights

with a multiplier, producing an overall score that numerically

classifies     the    offender     in   either      Tier   1   (low    risk       of     re-

offense), Tier 2 (moderate risk of re-offense), or Tier 3 (high

risk of re-offense).            Ibid.    The scoring is to be conducted in

accordance with Guidelines issued by the Attorney General, id.

at 426, and a Registrant Risk Assessment Manual, id. at 429.

      Placement      in   Tier     3    under    Megan's       Law    means       that     a

defendant has been found by clear and convincing evidence to be

in   "the    highest      risk    [of    re-offense]       category        for        sexual

offenders[,]      requiring       Internet       registration        and       the     most

comprehensive degree of community notification."                      Riley v. N.J.

State Parole Bd., 219 N.J. 270, 276 (2014); M.F., supra, 169

N.J. at 52-54.

      Here, when defendant was designated as a Tier 3 Megan's Law

offender, he presumably underwent a comprehensive evaluation in




                                            43                                   A-2415-16T7
order to determine the likelihood that he would re-offend.21                               The

precise     nature        of     his    original        offenses      would     have      been

considered.        Many aspects of his life and character would have

been assessed.           Another trial judge conducted a hearing on that

classification, at which defendant presumably had the right to

counsel.

     It    is     obvious       that    an   assessment         conducted      pursuant     to

Megan's    Law        tier     review    comprises       a    material,       although     not

dispositive,          source     of     information       for    a    trial    court      when

conducting        a      detention       hearing.        The     tier     classification

logically       falls     within       the   broad      ambit    of    N.J.S.A.      2A:162-

20(c)(1),       which        authorizes      the      pretrial    detention      judge       to

consider      a       defendant's        "character,"          "physical       and     mental

condition,"        "past       conduct,"      and     other     personal      history      and

characteristics.

     In fact, many of the risk-related considerations within the

Megan's Law assessment topically correspond to those at issue

under   the       Act,    in    gauging      a     defendant's       likelihood      of    re-

offending while on release. The Megan's Law tier classification

should be particularly instructive where, as here, the defendant

is charged with new sexual offenses.

21
   As we have noted, we do not know the current status of
defendant's tier classification in the wake of the December 2016
remand.



                                                 44                                  A-2415-16T7
                                                       D.

      The        final       legal       issue          before         us   is   whether,         as    the

Prosecutor        argued          in    his     initial          brief,      a   Pretrial        Services

recommendation           to        detain          a        defendant       creates,        under       Rule

3:4A(b)(5),        a     rebuttable             presumption            against      release        that    a

defendant must overcome.                        At oral argument on the appeal, the

Prosecutor withdrew this particular argument.

      To aid the trial bench and bar, we should nevertheless

point      out    that,           as    the     Rule         expressly       states,        a    Pretrial

Services recommendation to detain a defendant may be, but is not

required     to        be,    relied          upon          by   the    court    as    "prima          facie

evidence" to support detention.                              R. 3:4A(b)(5).           Again, the use

of   the    term       "may"           within      the        provision      signals        discretion.

Harvey,     supra,           30    N.J.       at       391.       The       court     may       require    a

prosecutor to rely upon more than the PSA and the recommendation

to carry its burden.                    Cf. Ingram, ___ N.J. Super. ___ (slip op.

at 33) (analogously noting the court's discretion to require a

prosecutor        to     provide         a    more          expansive       proffer    to       establish

probable cause).

                                                       III.

      Having        addressed            these          various        general      points        of    law

implicated by the new Act, we finally turn to the trial court's

rulings in this case.                    We approach our review acutely cognizant




                                                        45                                        A-2415-16T7
that the court's rulings were issued in the first month of the

new Act's implementation.                     That was before any published case

law    construing            the    Act    had    emerged    and     while       prosecutors,

defense lawyers, and court personnel were all adjusting to the

many    operational            challenges        presented      by   the     new    statute.

Indeed, much of the trial court's oral and written analysis

focused      on    discovery         and   proffer     issues      that    had    yet     to    be

addressed in a published opinion, until this court's respective

February 2017 decisions in Robinson and Ingram.

       With that context and timing in mind, and affording all due

deference         to   the     trial      court's     zone   of    discretion,       we      have

several reservations about the court's reasoning, as well as the

sufficiency of the record.

       Despite         the    temporary       remand,    the      trial    court     did       not

explain in writing specifically why it deviated from the portion

of     the    Pretrial             Services      recommendation       advising          against

defendant's release.                 As we have already noted, such a written

explanation is required by the Act in N.J.S.A. 2A:162-23(a)(2).

We suspect that this critical omission may have been caused by

the somewhat confusing two-part format of the PSA, which the

Judiciary has now corrected prospectively since March 2.                                   It is

conceivable that the trial court may have perceived that the

second part of the Pretrial Services recommendation stating, "If




                                                 46                                     A-2415-16T7
released, weekly reporting + HD/EM," meant that detention and

release on conditions were equally recommended for C.W.                       As the

Acting Administrative Director's March 2 memo clarified, such

equivalency was not intended under the prior format.

       We recognize the public defender and the ACLU have argued

that a Pretrial Services recommendation to detain is automatic,

or at least virtually automatic, for any defendant charged with

a sexual assault.          Even if the recommendation to detain in such

cases is, in fact, an automatic, computer-generated certainty in

sexual    assault       cases,   the   statute    nevertheless        obligates    the

trial court to provide written reasons explaining why it is

departing from that recommendation, whatever its genesis.                          That

unfortunately was not done here.

       The trial court did mention in its rulings the two low

scores in defendant's PSA for FTA and NCA, and the absence of a

violence flag.           We cannot tell, however, how much weight the

court actually placed on those low numbers. The numbers are not

particularly     informative           here    since     they   do     not    reflect

defendant's juvenile history, and since he would presumably not

have   skipped      a    court   appearance      while    he    was   confined     for

several years at Jamesburg.

       We are also concerned about the trial court's abbreviated

passing    references       to    defendant's      juvenile      record      and   his




                                          47                                 A-2415-16T7
classification under Megan's Law.                       The court did mention the

existence      of    those    things     in    its      oral    ruling,     but      did    not

explain why they did not make a difference to the outcome.

       The present record on these points is also deficient to

afford meaningful consideration.                   We do not know what conduct

was involved in defendant's two violations of probation in 2012

and    2013.        Apparently,     he    was      not    charged        with    additional

substantive        offenses    stemming       from      those    incidents,          but   that

does   not     necessarily       mean    that      they    were    minor        or   did    not

correlate in some way to defendant's past wrongful behavior.

Similarly, there is no information in this record about the

timing, details, underlying rationale, or current status of the

tier classification under Megan's Law.

       As    an     additional    concern,         we    lack     confidence         that    in

denying detention the trial court sufficiently took into account

several      points    stressed     by    the      State,       including       defendant's

alleged commission of a new sexual offense after his discharge

from Jamesburg, the close proximity of the minor's residence

(which only seemed to come into play in phase two of the January

25 hearing with respect to modifying the conditions of release),

and overall public safety considerations.

       The     Prosecutor     and   the       Attorney         General    urge       that    we

reverse      the     trial    court's     ruling        and     issue    our     own       order




                                              48                                      A-2415-16T7
mandating detention.        Conversely, defense counsel and the ACLU

submit that we affirm the trial court's ruling as is, although

they candidly acknowledge certain shortcomings in the record and

the court's analysis.       They also maintain that the statute only

permits the State or a defendant to reopen a detention hearing

with material information that was "not known" to that party at

the time of the original hearing.            N.J.S.A. 2A:162-19(f).

      We adopt neither advocated course of action. Instead, we

remand the matter for reconsideration by the trial court, which

will now have the benefit of the new case law, as well as the

March 2, 2017 guidance memorandum and this opinion.               The parties

and the court shall develop or clarify the record further, as

may be feasible and fair under the circumstances.

      In issuing this remand, we do not encourage prosecutors in

the   future   to   make    "bare-bones"       presentations     at   detention

hearings   with     an   expectation        that   they   will   automatically

receive a second chance at amplifying their contentions if they

do not prevail.          Nor do we invite defense counsel or trial

judges, despite the busy and rapid-paced nature of this docket,

to cut corners unduly.         Nevertheless, as our system adapts to

the new law, a remand in this case is a fair and instructive

outcome.




                                       49                              A-2415-16T7
    In the meantime, the stringent conditions of defendant's

release set forth in the trial court's January 25, 2017 order

shall remain in place, unless and until the trial court issues a

superseding    order.    The   aggrieved   party    on    the    outcome       of

reconsideration may seek review in a new appeal or motion for

leave to appeal. We do not retain jurisdiction.

    Remanded    for     further   consideration    by    the    trial    court,

consistent with this opinion.




                                    50                                  A-2415-16T7
