                             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                        NOT FOR PUBLICATION WITHOUT THE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-1836-16T6

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAMANTAY GAINES,

     Defendant-Appellant.
___________________________________________

              Argued February 14, 2017 – Decided           March 1, 2017

              Before Judges Messano, Espinosa and Suter.

              On appeal from the Superior Court of New
              Jersey, Law Division, Hudson County, Docket
              No. W-2017-000042-0906.

              Joseph E. Krakora, Public Defender, argued the
              cause for appellant (Joseph E. Krakora, Public
              Defender, attorney; Katie Kronick, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Stephanie Davis Elson, Assistant Prosecutor,
              argued the cause for respondent (Esther
              Suarez, Hudson County Prosecutor, attorney;
              Ms. Elson, on the brief).

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

            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).

PER CURIAM

      Defendant Jamantay Gaines appeals from the Law Division's

January 9, 2017 order that granted the State's motion to detain

him pretrial pursuant to the Bail Reform Act (the Act), N.J.S.A.

2A:162-15 to -26.         Defendant was arrested in Jersey City and

charged in a complaint-warrant with second-degree possession of a

firearm    for   an   unlawful     purpose,    N.J.S.A.   2C:39-4(a)(1),   and

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1).

      At the hearing held before Judge Paul M. DePascale on January

9, 2017, the State sought to introduce the complaint-warrant, the

affidavit of probable cause that supported it, the Preliminary Law

Enforcement Incident Report, the Public Safety Assessment (PSA)

and   defendant's       criminal     history    and   history   of   juvenile

adjudications.        Taken collectively, these documents demonstrated

Police Officer Mike Meade and another officer observed defendant

in possession of a 9mm. handgun and "seized/recovered" the weapon.




                                        2                             A-1836-16T6
        Defendant's score on the PSA's "Failure to Appear" and "New

Criminal Activity" risk scales was four. There was no "New Violent

Criminal Activity" flag.       Defendant, who was nineteen-years old,

faced pending charges for other firearm offenses and criminal

trespass, as well as the disorderly persons offense of obstruction,

from a December 2016 arrest.           He had also failed to appear in

court on one occasion within the past two years.            The PSA also

listed    defendant's   juvenile   record,     which   included   juvenile

delinquency adjudications beginning in 2011 for theft, unlawful

possession of a handgun, possession of a controlled dangerous

substance (CDS), simple assault and violations of probation.1           The

recommendation in the PSA was for defendant's release with bi-

weekly reporting.

        Defense   counsel   objected   to   Judge   DePascale   proceeding

without the State producing a "live witness" to establish probable

cause. Counsel cited Rule 3:4-3(a), which permits a pre-indictment

hearing to determine probable cause at which the judge "shall hear

evidence . . . and the defendant may cross-examine witnesses



1 The PSA does not account for a defendant's juvenile justice
history in assessing the risks for failure to appear or new
criminal   activity.      The   New    Jersey   Courts   website,
http://www.judiciary.state.nj.us/criminal/cjr/PSP.pdf, provides a
link to the "PSA Risk Factors and Formula" webpage of the Laura
and John Arnold Foundation, which lists the nine risk factors
considered by the PSA.

                                       3                           A-1836-16T6
offered by the State." She sought to distinguish federal precedent

decided under the analogous Bail Reform Act of 1984, 18 U.S.C.A.

§ 3141 to § 3150 (the Federal Act), and cited her own personal

experience       appearing   in     the       District   of   Columbia      Court

representing defendants under a statute similar to the Federal

Act.   She noted judges in the District of Columbia "require[] that

a live witness come forward and provide testimony . . . ." Defense

counsel also relied upon a New Hampshire decision, which we discuss

in more detail below.

       After Judge DePascale rejected the argument and admitted the

documents, defense counsel contended the State's proffer failed

to establish probable cause.              The judge partially agreed and

concluded the State had established probable cause only for the

unlawful possession charge.

       Defense    counsel    urged       Judge    DePascale    to   adopt      the

recommendation of Pretrial Services and release defendant with

conditions.      She cited defendant's age, lack of an adult criminal

record, family support and ties to the community, and argued

defendant should be placed on "home arrest" with a "GPS monitor"

to minimize any risk to public safety or of defendant's failure

to appear.

       In   a   comprehensive     oral    opinion,   Judge    DePascale     noted

defendant's "multiple adjudications of delinquency that span over

                                          4                               A-1836-16T6
[five] years," that defendant was unemployed, had a "drug history"

and "a record of failing to appear."          Judge DePascale further

found that although defendant may "have a support system," it had

not "been sufficient to supervise him adequately in the past."

The judge noted defendant's pending charge for firearms offenses

that occurred less than one month before this arrest.            He found

that even with home detention as a condition, pretrial release

"would place the safety of the community at risk" given defendant's

"demonstrated . . . propensity for        the quick acquisition of

handguns and a longstanding disregard for [c]ourt supervision."

     In the order we review, Judge DePascale found the State had

demonstrated by clear and convincing evidence that "no amount of

monetary bail, non-monetary conditions or combination" or both

"would reasonably assure[] the protection of the safety of any

other person or the community."        N.J.S.A. 2A:162-19(e)(3).         He

made specific findings regarding the statutory factors set forth

in the Act.   See N.J.S.A. 2A:162-20(a)–(f).

     Defendant filed this appeal as of right.        N.J.S.A. 2A:162-

18(c); R. 2:9-13(a).   Thereafter, we granted motions filed by the

Attorney General and the American Civil Liberties Union (ACLU) to

appear as amici.

     Defendant   argues   that   permitting   the   State   to    proceed

entirely by proffer violated his right to due process. He contends

                                   5                              A-1836-16T6
that the Act and our Court Rules "require live testimony to

establish probable cause."        Defendant also relies on case law from

other jurisdictions to support this contention.             Additionally,

defendant argues the State failed to establish probable cause or

meet its burden of proof justifying pretrial detention under the

Act. The ACLU submits that permitting the State to proceed without

a live witness violates due process.

     The State counters by arguing due process does not require

the production of a live witness at the detention hearing, a

conclusion     supported     by   significant   precedent    from     other

jurisdictions.    The State further contends it established probable

cause at the hearing and demonstrated, by clear and convincing

evidence,    grounds   for   defendant's    pretrial   detention.        The

Attorney General submits the Act, Court Rules and federal precedent

make clear that the State may proceed by proffer alone.

     Having considered these contentions and the arguments of

counsel, we affirm.

     We have, this day, filed our opinion in State v. Ingram, ___

N.J. Super. ___ (App. Div. 2017), which specifically addresses

defendant's claims that permitting the State to proceed at a

pretrial detention hearing solely by proffer violates due process

and the Act.     We not need repeat our analysis here, but rather



                                      6                             A-1836-16T6
address   only   the     additional       arguments   this   defendant      has

specifically raised.

     Defendant cites case law from Vermont and New Hampshire in

support of his contentions.        In State v. Brooks, 196 Vt. 604, 605

(2002), the court affirmed revocation of the defendant's bail

based upon live testimony and sworn statements. Citing its earlier

decision in State v. Sauve, 621 A.2d 1296 (Vt. 1993), the Supreme

Court of Vermont held that a bail revocation hearing "must be

based on more than affidavits and sworn statements."            Ibid.

     However,    Vermont    law,   permitting     revocation    of   bail    in

certain circumstances, is distinctly different from the Act and

the Federal Act.       The Vermont Constitution guarantees a right to

bail,   except   for    (1) "offenses      punishable   by   death   or   life

imprisonment when the evidence of guilt is great," or (2) for

felonies involving violence "when the evidence of guilt is great"

and release "poses a substantial threat of physical violence" that

conditions would not prevent.           Sauve, supra, 621 A.2d at 1299

(quoting Vt. Const., ch. II, § 40);2 see also State v. Gates, 145


2
  Similarly, our constitution previously provided "[a]ll persons
shall, before conviction, be bailable by sufficient sureties,
except for capital offenses when the proof is evident or
presumption great." N.J. Const., art. I, § 11 (2016). However,
effective January 1, 2017, our constitution was amended to remove
the right to bail and now provides:



                                      7                               A-1836-16T6
A.3d 233, 236 (Vt. 2016) ("[E]xcept in 'very limited and special

circumstances     where    the   State's   interest       is   legitimate    and

compelling,   a   court    may   not   deny   bail   in    the   face   of   the

constitutional right.'" (quoting State v. Blackmer, 631 A.2d 1134,

1137 (Vt. 1993))).        Thus, in order to revoke a defendant's bail

in Vermont, the prosecutor must establish much more than probable

cause; he or she must establish that "the evidence of guilt is

great," and, in some cases, that release poses "a substantial

threat of physical violence."

     Defendant also cites State v. Poulicakos, 559 A.2d 1341 (N.H.

1989).   There, the State sought the defendant's detention on a

murder charge by proffering certain evidence and calling a police



          All persons shall, before conviction, be
          eligible for pretrial release.        Pretrial
          release may be denied to a person if the court
          finds that no amount of monetary bail, non-
          monetary conditions of pretrial release, or
          combination of monetary bail and non-monetary
          conditions   would   reasonably   assure   the
          person’s appearance in court when required,
          or protect the safety of any other person or
          the community, or prevent the person from
          obstructing or attempting to obstruct the
          criminal justice process. It shall be lawful
          for the Legislature to establish by law
          procedures, terms, and conditions applicable
          to pretrial release and the denial thereof
          authorized under this provision.

          [N.J. Const., art. I, § 11.]


                                       8                                A-1836-16T6
captain who led the investigation as a witness.    Id. at 1342.    The

defendant objected, arguing that "permitting the State to present

evidence . . . by offer of proof, without presenting any witnesses,

violated his right of confrontation under the State Constitution."

Ibid.     Interpreting a pretrial detention statute similar to the

Act, the Supreme Court of New Hampshire held that "the State may

proceed by offer of proof so long as it supplies a witness or

witnesses who can make meaningful the defendant's right to cross-

examination."    Id. at 1341.   The Poulicakos court noted, however,

that the Federal Act had "identical language" to the now-repealed

New Hampshire statute, RSA 597:6-a, VII (Supp. 1988), and that

federal courts "have permitted the government to proceed by proffer

and have not required live witnesses."      Id. at 1343.    The court

stated:

            We hold that under RSA 597:6-a, VII (Supp.
            1988), as under the federal law, the
            government may proceed by proffer.     If the
            defendant raises questions about the accuracy
            of the State's proffer, the court can require
            the prosecution to present witnesses to
            buttress its offer of proof.

            [Ibid. (emphasis added).]

The court also stated a defendant's statutory right "to cross-

examine witnesses who appear at the hearing" requires the State

to "supply a witness or witnesses capable of being effectively

cross-examined."    Ibid.

                                   9                          A-1836-16T6
     However, we construe this part of the court's holding as

limited only to those situations in which the State actually

produces a witness at the hearing.   As the court explained at the

conclusion of the decision:

           The defendant's right to cross-examination at
           the detention hearing, guaranteed by statute
           as well as by the due process clause . . .is
           satisfied   by   the  State's   supplying   a
           knowledgeable witness who can be cross-
           examined effectively.

                The right to confront adverse witnesses
           face-to-face, as separate from the right to
           cross-examination, is not absolute in pre-
           trial proceedings. The defendant's right to
           confrontation is satisfied by his opportunity
           for cross-examination and by his opportunity
           to raise questions about the accuracy of the
           State's proffer in his own offer of proof or
           through his own witnesses, inducing the court
           to require the State to produce witnesses
           supporting its proffer.

           [Id. at 1344.]

While the exact contours of the holding in Poulicakos may be

subject to debate, it suffices to say that against the overwhelming

federal precedent we cited in Ingram, supra, slip op. at 21-24,

the New Hampshire decision lacks any persuasive authority.

     Additionally, as noted, defense counsel cited her personal

experience in the District of Columbia courts as indicative of the

State's obligation to call a live witness at every detention

hearing.   On appeal, counsel filed a certification repeating her


                                10                           A-1836-16T6
assertion and arguing the State must produce a live witness.

However, defendant's brief acknowledges case law from the District

of Columbia "does not require a live witness."            See United States

v. Edwards, 430 A.2d 1321, 1337 (D.C. 1981) (en banc) ("The

information    presented   to   the   judicial      officer   by   either   the

government or the defense may be by proffer and 'need not conform

to the rules pertaining to the admissibility of evidence in a

court of law.'" (emphasis added) (citing D.C. Code 1973, § 23-

13322(c))), cert. denied, 455 U.S. 1022, 102 S. Ct. 1721, 72 L.

Ed. 2d 141 (1982).    We find defendant's argument unpersuasive.

     Defendant further argues that the State's proffer failed to

establish probable cause, because the documents failed to state

where defendant possessed the handgun.             Defendant asserted that

possession of the gun in his home or place of business would not

be unlawful.      N.J.S.A. 2C:39-6(e).            However, Judge DePascale

rejected this assertion, noting there was no evidence or proffer

by   the   defense   contradicting         the   documents,   which   charged

defendant with unlawful possession in the presence of the officers.

We reject defendant's claim that in this regard, the judge shifted

the burden of proof from the State.

     Last, defendant argues the State failed to prove by clear and

convincing evidence grounds for his detention.                As we noted in

Ingram, supra, ___ N.J. Super. ____ (slip op. at 36-37), the Act

                                      11                              A-1836-16T6
does not set forth the controlling standard for appellate review

of the Law Division's order, and the federal circuit courts have

seemingly split on the issue.       In this case, the State argues the

appropriate    standard   is     whether      Judge   DePascale    mistakenly

exercised     his   discretion.          At    oral   argument,     defendant

acknowledged that most likely was the appropriate standard.

      We need not resolve the issue.            It suffices to say we are

persuaded that, for all the reasons found by Judge DePascale, as

incorporated in his oral decision and detailed conforming order,

the   State   clearly   and    convincingly     demonstrated      grounds   for

defendant's pretrial detention.

      Affirmed.




                                    12                                 A-1836-16T6
