                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0101-19T6

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

J.A.R.R.,

     Defendant-Respondent.
_____________________________

                   Argued November 12, 2019 – Decided December 11, 2019

                   Before Judges Ostrer, Vernoia and Susswein.

                   On appeal from an interlocutory order of the Superior
                   Court of New Jersey, Law Division, Gloucester
                   County, Complaint No. W-2019-000467-0806.

                   Jonathan E. W. Grekstas, Assistant Prosecutor, argued
                   the cause for appellant (Charles A. Fiore, Gloucester
                   County Prosecutor, attorney; Jonathan E. W. Grekstas,
                   on the briefs).

                   Patricia B. Quelch argued the cause for respondent
                   (Helmer, Conley & Kasselman, PA, attorneys; Patricia
                   B. Quelch, of counsel and on the brief).

PER CURIAM
      On leave granted, the State appeals from the trial court's July 18, 2019

order, entered after an earlier remand, denying the State's motion to detain

defendant J.A.R.R. pretrial. Defendant is charged in a complaint-warrant with

two counts of first-degree aggravated sexual assault of a minor under thirteen,

N.J.S.A. 2C:14-2(a)(1), and one count of second-degree endangering the welfare

of a child by engaging in sexual conduct with the child, N.J.S.A. 2C:24-4(a)(1).

The State contends the court erred by relying on evidence of the child's s exual

conduct, in violation of the Rape Shield Law, N.J.S.A. 2C:14-7. We affirm.

      If true, the crime is a heinous one. Defendant is charged with assaulting

his own daughter, then twelve-plus years old. The child first reported the assault

to her mother. The child said that on one occasion about one year earlier, her

father forcibly committed an act of cunnilingus on her, and digitally penetrated

her vagina. She reported that while he was under the influence of alcohol or

drugs, he entered her bedroom in the evening, and held her to the bed. She said

he also exposed his penis. At the time, and until the report, she resided with her

father and his girlfriend.

      The State sought defendant's detention under the Criminal Justice Reform

Act, N.J.S.A. 2A:162-15 to 26. Although defendant enjoys a presumption of

innocence, see e.g., State v. Johnson, 61 N.J. 351, 360 (1972), he may be denied


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                                        2
pretrial release if, upon the State's motion, the court finds that no amount of

monetary bail, non-monetary conditions, or combination of the two would

reasonably assure: (1) his appearance in court when required; (2) the protection

of the safety of any other person or the community; and (3) he will not obstruct

or attempt to obstruct the criminal justice process. N.J.S.A. 2A:162-18(a)(1);

see also N.J. Const., art. I, ¶ 11. As defendant was charged with a crime that

carries a potential life sentence, see N.J.S.A. 2C:14-2(a), the prerequisites for

detention are presumed, although he may rebut that presumption. N.J.S.A.

2A:162-19(b)(2). If he does so, by a preponderance of the evidence, N.J.S.A.

2A:162-19(e)(2), then the State must establish a prerequisite of detention by

clear and convincing evidence to block defendant's release, N.J.S.A. 2A:162-

19(e)(3).

      In the initial detention hearing, the judge orally found that defendant

failed to rebut the presumption.      Pretrial Services, in its Public Safety

Assessment (PSA), recommended that defendant be detained, noting his

exposure to a life sentence. The PSA cited an "elevated risk of violence" under

its "New Violent Criminal Activity Flag," although it scored defendant 2 out of

6 on the "New Criminal Activity" and "Failure to Appear" scales. The court

ordered defendant detained pretrial. In its written decision, which N.J.S.A.


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                                       3
2A:162-21(a)(1) requires, the court stated that defendant had rebutted the

presumption, but the State proved all three detention prerequisites by clear and

convincing evidence.

      We remanded for amplified findings and a statement of reasons. In

particular, since the court referenced the child's statement in connection with the

"weight of the evidence" factor, see N.J.S.A. 2A:162-20(b), we held that the

court was obliged to consider defendant's proffer that his daughter was

motivated to fabricate. We also noted that the court did not clearly explain the

basis for finding, in the written detention order, that defendant posed a risk of

flight and a threat to the criminal justice process.

      On remand, the court clarified that, contrary to its written decision, it

initially found that defendant had failed to rebut the presumption of detention.

However, upon reconsideration, the court found that defendant had overcome

that threshold, and the State failed to meet its responding burden. Although the

court's subsequent written findings and statement of reasons were sparse, the

court amplified its reasoning in a written opinion.

      The court gave significant weight to the State's proffer of the child's

complaint. However, the court also gave moderate weight to the defense's

proffer that the child had a motive to fabricate, which affected the strength of


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                                         4
the State's case, and in turn affected the safety-to-persons-and-the-community

factor.1 The court noted that the defense proffered that four witnesses (all

related in some way to defendant) were present in court and prepared to testify

the child had a reputation for untruthfulness. The defense also contended that

the child's mother wanted the child to live with defendant, because the mother

feared the child would falsely accuse her step-father of molestation. The court

noted that the child reported the incident after she "got into trouble in school."

The defense asserted that defendant was the child's "only source of discipline,"

and he forbade her to have a boyfriend. The defense argued that the child

complained to avoid discipline, and to move to a less restrictive home.

      Particularly pertinent to the State's appeal, the court also noted the

defense's contention that the child's sexual conduct – including sexting and other

sexual activity with her boyfriend – prompted defendant's discipline. The court

also acknowledged the defense's argument that the child's alleged sexual activity

was relevant "as evidence of her alternative source of sexual knowledge."

However, the court declined to reach the question whether such evidence would


1
   See State v. Carroll, 456 N.J. Super. 520, 523 (App. Div. 2018) (stating that
"if the weight of the evidence is weak, then a court may conclude it is less likely
a defendant actually committed the offense," and "[t]hat would allow a court to
conclude it less likely that the defendant would, if released, pose a danger to the
community").
                                                                           A-0101-19T6
                                        5
be admissible at trial under the Rape Shield Law. The court noted that Rule

3:4A(b)(2) states that "[t]he rules governing admissibility of evidence in

criminal trials shall not apply to the presentation and consideration of

information at the [detention] hearing."

      The court found that defendant posed a "very low risk of failure to

appear." The court noted: the Public Safety Assessment (PSA) scored him 2 out

of 6 for that risk; defendant "challenge[d] . . . the weight of the State's case"; he

denied the child's allegations and asserted he was anxious to defend himself in

court; he had not failed to appear in court before; and he had significant ties to

the community.

      The court also found little threat to the criminal justice process. The court

noted that defendant scored 2 out of 6 for risk of new criminal activity, and his

last contact with the criminal justice system was in 2006 for a disorderly persons

offense. The court found "no other evidence" that defendant would obstruct the

criminal justice process.

      The court ordered defendant released on pretrial monitoring level III,

requiring, among other things, that he not contact the child or create a hostile

environment for her, and he report weekly to Pretrial Services.




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                                         6
      The State's principal point on appeal is that that the trial court erred by

considering "evidence of specific instances of sexual conduct" that is irrelevant

under the Rape Shield Law. The State acknowledged at oral argument on appeal

that defendant had obeyed the conditions of release during the months since the

trial court's order on remand. In light of that, the State conceded that detention

was unlikely, even if we remanded again as the State requested for the trial court

to revisit the State's detention motion without reference to the child's alleged

sexual conduct. The State argues we should address the law's applicability to

detention hearings, even if it would not affect the result in this case, because the

issue may recur. However, the State presented no compelling proof that the

issue has arisen repeatedly.

      We decline the State's invitation to chart boundaries of territory where we

need not tread.2 We are convinced that the references to the child's alleged

sexual conduct were not essential to the court's decision, and another remand

would not change the result.



2
  We also reject the State's argument that the trial court exceeded the scope of
our remand, by reconsidering, instead of providing additional reasons for, its
initial decision. The detention order was interlocutory, and subject to the court's
reconsideration. See State v. Hyppolite, 236 N.J. 154, 171 (2018) (stating that
"[j]udges retain discretion to decide whether to reopen a detention hearing").


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                                         7
      Under the circumstances presented here, the court appropriately

considered that the proffered evidence of the child's alleged sexual conduct

might not be admissible at trial under the Rape Shield Law.          See N.J.S.A.

2A:162-20(b) (stating that, in taking account of the weight of the evidence

against the defendant, "the court may consider the admissibility of any evidence

sought to be excluded"). 3 Notably, the trial judge first identified the issue when

the defense made its proffer at the initial hearing, without objection from the

State. As in State v. J.A.C., even absent detail, the defense presented a motive

to fabricate. 210 N.J. 281 (2012). Here, it was based on the proffer that the

child had run afoul of school and parental authority; her father disciplined her,

in particular, by forbidding her to have a boyfriend; and her complaint was

motivated by a desire to avoid the father's discipline and secure an alternative

residence.

      Putting aside the issue of the Rape Shield Law, we discern no abuse of

discretion in the decision to release defendant. See State v. S.N., 231 N.J. 497,

515 (2018) (establishing standard of appellate review). The trial court, in its

written amplification, adequately set forth the basis for its decision.         See


3
  We understand that this provision may, more typically, come into play when
a defendant contends the weight of the evidence against him or her includes fruit
of an illegal interrogation or search and seizure.
                                                                           A-0101-19T6
                                        8
N.J.S.A. 2A:162-21. The court considered "[t]he nature and circumstances" of

the charged offenses, "the weight of the evidence," and "[t]he history and

characteristics of the eligible defendant," including his family and community

ties, past criminal history, and record of appearing in court.           The court

considered defendant's PSA scores. See N.J.S.A. 2A:162-16(b)(2).

      Relevant to the safety-of-persons-and-the-community factor, the State

presented no evidence that defendant repeated, or tried to repeat, his alleged

criminal conduct in the year since the alleged assault. On the appeal, the State

concedes it has no such evidence in the several months since his release. The

State also presented no evidence that defendant expressly threatened or took any

affirmative steps to intimidate the child or discourage her from disclosing the

alleged assault. We recognize that intimidation may be subtle or implicit.

However, since his release, the State conceded it had no evidence defendant had

attempted, directly or indirectly, to contact or intimidate the child. These factors

all tend to support the trial court's conclusion that release, subject to the

conditions imposed, would reasonably assure that defendant does not obstruct

the criminal justice process. Finally, the court concluded, in light of defendant's

community ties, his intent to fight the charges, and the PSA score, that




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                                         9
conditional release would reasonably assure defendant's appearance in court

when required.

     Affirmed.




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