                       RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1787-16T6

STATE OF NEW JERSEY,                APPROVED FOR PUBLICATION

     Plaintiff-Respondent,               March 1, 2017

v.                                     APPELLATE DIVISION


AMED INGRAM,

     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, Camden County, Docket
         No. W-2017-000005-0408.

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

         Linda A. Shashoua, Assistant Prosecutor,
         argued the cause for respondent (Mary Eva
         Colalillo,    Camden    County    Prosecutor,
         attorney;    Kevin   J.    Hein,    Assistant
         Prosecutor, of counsel and 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).

      The opinion of the court was delivered by

MESSANO, P.J.A.D.

      Defendant     Amed   Ingram     appeals          from   the   Law   Division's

January 5, 2017, order granting the State's motion to detain

defendant pre-trial pursuant to the Bail Reform Act, N.J.S.A.

2A:162-15 to -26 (the Act).           Defendant was arrested in Camden on

January    1,    2017,   and   charged        in   a    complaint-warrant      with:

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

5(b)(1); second-degree possession of a firearm with intent to

use   it    unlawfully,        N.J.S.A.        2C:39-4(a)(1);         second-degree

possession of a firearm by certain persons previously-convicted,

N.J.S.A. 2C:39-7(b)(1); and fourth-degree receipt of a defaced

firearm, N.J.S.A. 2C:39-9(e).             The affidavit of probable cause

supporting the complaint-warrant stated that defendant was found

to be in possession of a defaced handgun and had previously been

convicted   of    possession     of   a       controlled      dangerous    substance

(CDS) on school property, in violation of N.J.S.A. 2C:35-7.1




1
  The record reveals that defendant had two prior convictions for
distributing, dispensing or possessing with intent to distribute
CDS within one-thousand feet of school property.         N.J.S.A.
2C:35-7(a).




                                          2                                 A-1787-16T6
     At the pre-trial detention hearing on January 5, 2017, the

prosecutor    submitted     the   complaint-warrant,      the   affidavit    of

probable     cause,   the    Public    Safety   Assessment       (PSA),2    the

Preliminary     Law   Enforcement      Incident     Report      (PLEIR)3    and

defendant's    criminal     history.       During    an    earlier    hearing

regarding a different defendant, defense counsel had lodged an

objection to the State's proffer of only documentary evidence,

which she renewed and incorporated by reference at defendant's

hearing.4     Judge Edward J. McBride overruled the objection and

admitted the documents in evidence.

     Collectively, the complaint-warrant, affidavit of probable

cause and PLEIR stated defendant was in possession of a defaced

2
  The Act required the Administrative Director of the Courts (the
Director) to "establish and maintain a Statewide Pretrial
Services Program which shall provide pretrial services to
effectuate the [Act's] purposes[.]"       N.J.S.A. 2A:162-25(a).
Among other responsibilities, the Pretrial Services Program
(PSP) must "conduct a risk assessment on [an] eligible defendant
for the purpose of making recommendations to the court
concerning an appropriate pretrial release decision," utilizing
"a risk assessment instrument approved by the . . . Director"
that meets certain criteria.     N.J.S.A. 2A:162-25(b) and (c).
The PSA was the approved risk assessment instrument. See Admin.
Office of the Courts, "New Jersey Judiciary Pretrial Services
Manual," at 16 (Dec. 27, 2016).
3
  Our colleagues described in detail the genesis and intended
purpose of the PLEIR in State v. Robinson, ___ N.J. Super. ___,
___ n.2 (App. Div.) (slip op. at 3), leave to appeal granted,
___ N.J. ___ (2017).
4
  The transcript of the prior proceeding is part of the appellate
record.



                                       3                              A-1787-16T6
Hi-Point model JHP .45 caliber handgun loaded with eight rounds,

the    officer    who   swore       out    the        complaint-warrant          and    another

officer    "personally        observed          the    offense[s],"        the    weapon      had

been    discharged      and    the        gun    and     spent      shell       casings     were

"seized/recovered."           Relying on these documents, Judge McBride

concluded the State established probable cause that defendant

committed the crimes charged in the complaint-warrant.

       In further support of the detention motion, the prosecutor

relied primarily on the PSA, which rated defendant's risk for

both failing to appear (FTA), and new criminal activity (NCA),

as six, the highest score on the PSA.                      The PSA, however, did not

include a "flag" highlighting a risk of new violent criminal

activity (NVCA).         The PSA revealed defendant, who was twenty-

five years old, had an extensive criminal record and a history

of failing to appear.           Defendant had a pending charge of simple

assault,    N.J.S.A.          2C:12-1(a)(1),             as   well         as    five      prior

indictable convictions, some of which resulted in incarceration.

He was on probation and had failed to appear in court five times

in the past.      Release was not recommended, and if defendant were

released,    it   should       be   conditioned           upon      home    detention       with

electronic monitoring.

       Defense    counsel      argued       defendant         was    a     lifelong      county

resident, currently resided with his aunt, had a six-month old




                                                4                                       A-1787-16T6
child whom he saw on a daily basis, was employed for the last

four or five months and had previously been employed elsewhere.

She urged Judge McBride to release defendant with the highest

level of monitoring, including electronic monitoring.

       Judge   McBride       concluded       the       recommendation        of   Pretrial

Services was "prima facie evidence sufficient to overcome by

clear and convincing evidence the presumption of release."                              See

R.     3:4A(b)(5).           He     also     considered:            the      nature     and

circumstances of the offense, noting the weapons offenses were

punishable     under        the    Graves     Act,       N.J.S.A.      2C:43-6(c),      and

conviction of the certain persons offense carried a minimum five

year    period    of    incarceration;             the     weight      of   the    State's

evidence,      including          the      officers'          personal      observations;

defendant's      serious          criminal    record,          including     a    juvenile

delinquency adjudication for a serious offense; and defendant's

current status as a probationer.5                      Judge McBride found by clear

and convincing evidence that "no amount of monetary bail, non-

monetary conditions or combination" of both "would reasonably

assure[] defendant’s appearance in court when required [and/or]

the    protection      of    the     safety       of    any    other     person    or   the

5
  The prosecutor offered a document that detailed defendant's New
Jersey criminal history, which apparently included defendant's
history of juvenile delinquency adjudications. The document is
not in the record, and the PSA does not include juvenile
adjudications.



                                              5                                   A-1787-16T6
community."          See N.J.S.A. 2A:162-19(e)(3).                 The order granting

the   State's        detention      motion      comprehensively        reflects      Judge

McBride's findings and conclusions.

      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.

      As   he    did     before     Judge       McBride,    defendant     argues      that

permitting       the     State      to     establish       probable    cause    at     the

detention       hearing    solely         by    proffer,    without     calling      "live

witnesses" or presenting "live testimony," violates due process

and the Act.            At oral argument before us, defendant further

contended that the witness must have some personal knowledge of

the   case,     so     there   is    an    opportunity       for   meaningful     cross-

examination.         Defendant also argues the State failed to meet its

burden of proof justifying pretrial detention.                        The ACLU submits

that permitting the State to prove probable cause and grounds

for detention solely by proffer violates a defendant's right to

due process.

      To   the       contrary,      the    State    argues     that     proceeding      by

proffer violates neither defendant's due process rights nor the

Act, and that, in this case, Judge McBride properly "exercised

[his] discretion" and found the State met its burden of proof.




                                                6                               A-1787-16T6
The Attorney General submits that proceeding by proffer at pre-

trial       detention          hearings        does    not    violate          the    Act      or    a

defendant's due process rights.

       Having considered these arguments, in light of the record

and applicable legal standards, we affirm.

                                                       I.

       Except as necessary to resolve the issues before us, we

need    not    detail          the   legislative        history      of   the        Act,    or     its

underlying public policy goals, which our colleagues so capably

explained in Robinson, supra, ___ N.J. Super. at ___ (slip op.

at   7-17).             The    Act     permits     a    prosecutor        to    seek        pretrial

detention of a defendant arrested for certain enumerated crimes

or   offenses,           including        Graves       Act   crimes,      N.J.S.A.           2A:162-

19(a)(5),          or    for    "any    other     crime      for   which       the     prosecutor

believes there is a serious risk that" the defendant will "not

appear in court as required," "pose a danger to any other person

or the community," or "obstruct or attempt to obstruct justice,

or   threaten,           injure,     or   intimidate,         or   attempt       to     threaten,

injure        or        intimidate,        a     prospective         witness          or     juror"

(collectively,                grounds      for        detention),         N.J.S.A.           2A:162-

19(a)(7)(a)-(c).

       If     the       court    "finds        probable      cause    that       the        eligible

defendant" committed murder or a crime potentially punishable by




                                                   7                                        A-1787-16T6
life imprisonment, then "there shall be a rebuttable presumption

that the eligible defendant shall be detained pending trial,"

and the defendant can rebut that presumption by a preponderance

of   evidence.      N.J.S.A.      2A:162-19(b)        and    (e)(2).     For     other

crimes, or where a defendant successfully rebuts the presumption

of   detention,     the     prosecutor         must    establish       grounds     for

detention by clear and convincing evidence.                       N.J.S.A. 2A:162-

19(e)(3).

      The Act provides that "[i]n pretrial detention proceedings

for which there is no indictment, the prosecutor shall establish

probable    cause    that       the     eligible      defendant     committed      the

predicate offense."         N.J.S.A. 2A:162-19(e)(2).              Upon a finding

of probable cause, the judge must answer the critical question:

"whether any amount of monetary bail or non-monetary conditions

or   combination      of    monetary          bail     and    conditions"        would

"reasonably assure the eligible defendant's appearance in court

when required, the protection of the safety of any other person

or   the   community,     and    that    the   eligible      defendant    will     not

obstruct or attempt to obstruct the criminal justice process."

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

      At the detention hearing, a defendant has a right to be

represented by counsel and "shall be afforded an opportunity to

testify, to present witnesses, to cross-examine witnesses who




                                          8                                 A-1787-16T6
appear at the hearing, and to present information by proffer or

otherwise."       N.J.S.A. 2A:162-19(e)(1).            The rules of evidence do

not apply, N.J.S.A. 2A:162-19(e)(1), and "[t]he hearing may be

reopened" prior to trial "if the court finds . . . information

exists" that "has a material bearing" on its decision regarding

grounds for detention,           N.J.S.A. 2A:162-19(f).

                                               A.

       Citing     the   United    States       and   New    Jersey    Constitutions,

defendant argues due process "mandates" the State present "a

live    witness    at   the    preventive       detention        hearing."          Relying

largely    on     the    reasoning       of     federal         courts,    which          have

consistently       permitted     the     government        to    proceed       by   proffer

under    the    analogous      federal     statutory        scheme,       and       our    own

jurisprudence predating the Act, we disagree.

       The United States Constitution provides that no State shall

"deprive any person of life, liberty, or property, without due

process of law."          U.S. Const. amend. XIV, § 1.                     Our Supreme

Court has explained, "Article I, paragraph 1 of the New Jersey

Constitution does not enumerate the right to due process, but

protects against injustice and, to that extent, protects 'values

like those encompassed by the principle[] of due process.'"                                Doe

v.   Poritz,      142   N.J.   1,   99    (1995)     (alteration          in    original)

(quoting Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985)).                                "Due




                                           9                                        A-1787-16T6
process is 'a flexible [concept] that depends on the particular

circumstances.'"           H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003)

(alteration in original) (quoting Doe, supra, 142 N.J. at 106).

     In    examining          a    procedural          due    process       claim,    we     first

"assess     whether       a       liberty        or     property       interest       has     been

interfered with by the State," and then determine "whether the

procedures attendant upon that deprivation are constitutionally

sufficient."           Doe,       supra,       142    N.J.    at    99.      Since    pre-trial

detention clearly implicates defendant's liberty interest, we

focus     only    on     whether         the     procedures         defined     or    otherwise

implied by the Act are sufficient.

     In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed.

2d   54    (1975),       the       United       States        Supreme       Court    considered

"whether     a     person         arrested           and     held     for    trial        under    a

prosecutor's       information             is    constitutionally            entitled        to    a

judicial determination of probable cause for pretrial restraint

of liberty."       Id. at 105, 95 S. Ct. at 858, 43 L. Ed. 2d at 60.

Recognizing       that    detention            could       "imperil    the    suspect's       job,

interrupt        his     source          of     income,       and     impair        his     family

relationships," the Court held that "the detached judgment of a

neutral magistrate is essential" if the constitutional guarantee

of   due    process       "is       to        furnish      meaningful        protection       from

unfounded interference with liberty."                          Id. at 114, 95 S. Ct. at




                                                 10                                       A-1787-16T6
863, 43 L. Ed. 2d at 65.            Accordingly, the Court held that due

process "requires a judicial determination of probable cause as

a    prerequisite     to     extended   restraint   of   liberty    following

arrest."    Ibid.

      However, the Gerstein Court rejected the contention that

procedures for determining probable cause "must be accompanied

by   the   full    panoply    of   adversary   safeguards,"   including     the

rights to counsel and to confront, cross-examine, and subpoena

witnesses.        Id. at 119, 95 S. Ct. at 866, 43 L. Ed. 2d at 68.

The Court explained:

            These adversary safeguards are not essential
            for    the   probable   cause    determination
            required by the Fourth Amendment.     The sole
            issue is whether there is probable cause for
            detaining   the   arrested    person   pending
            further proceedings.      This issue can be
            determined reliably without an adversary
            hearing.   The standard is the same as that
            for arrest.   That standard — probable cause
            to believe the suspect has committed a crime
            —   traditionally   has been   decided   by  a
            magistrate in a nonadversary proceeding on
            hearsay and written testimony, and the Court
            has approved these informal modes of proof.

            [Id. at 120, 95 S. Ct. at 866, 43 L. Ed. 2d
            at 69 (emphasis added).]

      Additionally,        the     Gerstein    Court     "recognize[d]      the

desirability of flexibility and experimentation by the States"

in   developing     appropriate     pretrial   procedures,    and   held   that

"[w]hatever procedure a State may adopt, it must provide a fair




                                        11                            A-1787-16T6
and reliable determination of probable cause as a condition for

any     significant        pretrial       restraint     of        liberty,            and     this

determination must be made by a judicial officer either before

or promptly after arrest."               Id. at 124-25, 95 S. Ct. at 868-69,

43 L. Ed. 2d at 71-72.                 "[J]udicial determinations of probable

cause    within     48    hours    of    arrest     will,    as       a   general       matter,

comply with the promptness requirement of Gerstein."                                   Cty. of

Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 1670,

114 L. Ed. 2d 49, 63 (1991).

       Our     jurisprudence           recognizes     that        a       timely       judicial

determination of probable cause must accompany any significant

deprivation of an individual's liberty.                     See State v. Gonzalez,

114 N.J. 592, 604 (1989) (noting where a suspect "is to be

detained for any significant amount of time," a determination of

probable       cause      is    "of      constitutional           dimension"            (citing

Gerstein, supra, 420 U.S. at 114, 95 S. Ct. at 863, 43 L. Ed. 2d

at    65)).      Historically,          our   court    rules          have    delineated         a

process that passes constitutional muster.

       Rule 3:3-1(a)(1) permits the issuance of an arrest warrant

only    upon    a   finding       of    probable     cause    made           by   a    judicial

officer.       When a person is arrested without a warrant, Rule 3:4-

1(b)    requires         that   the      complaint-warrant             (CDR-2)         must     be

presented to a judicial officer within twelve hours to determine




                                              12                                        A-1787-16T6
whether process shall issue in accordance with Rule 3:3-1.                     In

State v. Tucker, 137 N.J. 259, 271 (1994), the Court concluded

prior     iterations    of   these      rules    provided       the   necessary

constitutional guarantees required by Gerstein and McLaughlin,

i.e., a timely judicial determination of probable cause in order

to detain.      See also Pressler & Verniero, Current N.J. Court

Rules, comment on R. 3:4-1 (2017).

    Rule 3:4-2(c)(8) provides that at the first appearance, the

judge must "inform the defendant of his or her right to have a

hearing    as   to   probable   cause     and   of   his   or   her   right   to

indictment by the grand jury and trial by jury."                 Rule 3:4-3(a)

provides, in pertinent part:

            If the defendant does not waive a hearing as
            to probable cause and if before the hearing
            an indictment has not been returned against
            the defendant . . . , after notice to the
            county prosecutor a judge of the Superior
            Court shall hear the evidence offered by the
            State within a reasonable time and the
            defendant    may   cross-examine    witnesses
            offered by the State.         If, from the
            evidence, it appears to the court that there
            is probable cause to believe that an offense
            has been committed and the defendant has
            committed it, the court shall forthwith bind
            the   defendant    over   to   await    final
            determination of the cause; otherwise, the
            court shall discharge the defendant from
            custody if the defendant is detained.

These procedures are "[i]n keeping with" Gerstein's holding that

"a defendant may not be retained in custody in the absence of




                                     13                                A-1787-16T6
probable cause."          Pressler & Verniero, supra, comment on R.

3:4-3.

    There      are    some    obvious     parallels   between      probable     cause

hearings      held    pursuant      to    Rule     3:4-3(a),    and    the      Act's

requirement that, absent specific circumstances not applicable

here, the State         must establish probable cause              at a pretrial

detention hearing.           Both hearings occur after arrest but before

indictment, and the return of an indictment obviates the need

for any judicial determination of probable cause.                       Also, the

rules of evidence do not apply in either proceeding, and the

defendant has the right to representation and cross-examination

in both.       The Act provides the defendant with the additional

opportunity to present evidence.               N.J.S.A. 2A:162-19(e)(1).6

    However,         "[t]he    probable    cause    hearing    provided      for    by

[Rule 3:4-3(a)] is neither a constitutionally guaranteed stage

nor an essential component of the prosecution, and may, in any

case,    be   superseded      by   the   grand    jury's   prior    return     of   an

indictment."         Pressler & Verniero, supra, comment on R. 3:4-3;


6
  Defendants have no right to present evidence at a hearing held
pursuant to Rule 3:4-3(a). In re State ex rel. A.D., 212 N.J.
200, 218-19 (2012).    Because the issue is not before us, we
specifically do not consider the nature and scope of a
defendant's ability at a pretrial detention hearing "to present
witnesses . . . and to present information by proffer or
otherwise." N.J.S.A. 2A:162-19(e)(1).




                                          14                                 A-1787-16T6
see also State v. Smith, 32 N.J. 501, 536 (1960) ("The right [to

a preliminary hearing] was not known at the common law and is

not a constitutional requirement." (citations omitted)), cert.

denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961);

State v. Mitchell, 164 N.J. Super. 198, 201 (App. Div. 1978) ("A

preliminary   hearing   is   not   an   essential   part   of   criminal

procedures.").7


7
  A noted commentator has observed that, as a practical matter, a
probable cause hearing under Rule 3:4-3 "rarely occurs."
Leonard N. Arnold, New Jersey Practice Series, Criminal Practice
and Procedure, Vol. 31, § 9:1 (2016-17 Ed.). Rather, "[i]t has
become common for defendants to waive the probable cause hearing
because defense counsel believe that the expanded rules of pre-
trial discovery provide the defense with the same information
that might be obtained at the probable cause hearing."     Id. at
§ 9:4. Moreover, a probable cause hearing will not occur if an
indictment is returned before the scheduled date. Id. at § 9.2,
§ 9.4; R. 3:4-3(a).

     In 1971, the Supreme Court's Special Committee on Calendar
Control — Criminal, recommended a number of procedural changes,
including elimination of the probable cause hearing provided by
Rule 3:4-3. New Jersey Law Journal, "Report of Supreme Court's
Special Committee on Calendar Control — Criminal," 94 N.J.L.J.
Index Page 185 (1971).

          The experience of judges and prosecutors as
          well as defense counsel indicates that under
          present practice the probable cause hearing
          in the municipal court held pursuant to Rule
          3:4-3 serves principally as a means of
          discovery, for which ample provision is made
          under Rule 3:13-3 . . . .          The small
          percentage [of cases where no probable cause
          is found] hardly warrants perpetuation of a
          practice which in essence duplicates the
          function of the Grand Jury . . . .
                                                     (continued)


                                   15                           A-1787-16T6
    Moreover,       in    implementing        the       Act,       the   Court    adopted    a

comprehensive rule specifically codifying procedures governing

pre-trial    detention        motions     filed         by    the    prosecutor.          Rule

3:4A(b)(2) requires that, at the hearing on the prosecutor's

motion and in the absence of an indictment, "the prosecutor

shall establish probable cause that the defendant committed the

predicate offense."         However, the new Rule does not incorporate

Rule 3:4-3(a) by reference or otherwise.

    Our     court     rules     clearly       permit         the    State   to    establish

probable cause, ex parte before a judicial officer, by merely

presenting     "the      complaint      or        an    accompanying        affidavit       or

deposition."        R.    3:3-1(a);      R.       3:4-1(b).          Our    rules    do    not

specify and neither party has brought to our attention any New

Jersey   precedent       that    holds       how       the   State       must    proceed    in

establishing probable cause, whether at a Rule 3:4-3(a) hearing,

Rule 3:4A hearing or otherwise, in order to satisfy the federal

and State constitutions.             Our case law, however, implies that,

even when significant liberty interests are at stake, the State



(continued)

            [Ibid.]

The committee's recommendation was not adopted, and the Rule,
which has been amended several times since, has remained
essentially unchanged.




                                             16                                     A-1787-16T6
is not required to produce live witnesses to establish probable

cause.

       For example, in      In re J.G., 151 N.J. 565, 592 (1997), the

Court held that, before a court can order HIV testing of a

defendant or juvenile pursuant to N.J.S.A. 2C:43-2.2, it must

find     probable   cause   that   the   victim   was   exposed   to    the

assailant's bodily fluids and there was a possibility that the

AIDS virus had been transmitted.8        The Court explained:

            Evidence sufficient to support a finding of
            probable cause can be gleaned from numerous
            sources, including sworn statements of the
            victim,   the   offender,   law   enforcement
            officers or other witnesses,    the evidence
            presented in seeking an arrest warrant for
            the offender, the findings of the judicial
            officer   who  determined  that   there   was
            probable cause to issue the arrest warrant,
            the evidence presented at a probable cause
            hearing   held   pursuant  to   Rule   3:4-3,
            testimony   before   the  grand   jury,   the
            indictment returned against the offender by
            the grand jury, and any evidence presented
            at the trial of the offender for the alleged
            sexual assault against the victim.         We
            anticipate that in most cases, an order
            requiring testing will issue forthwith upon
            an application from the prosecutor on notice
            to the offender.

                 If the evidence is not sufficient, the
            court may, in its discretion, hold a hearing
            to afford the State the opportunity to
            demonstrate that probable cause exists. The

8
   Importantly, N.J.S.A. 2C:43-2.2 only requires that                   the
defendant or juvenile be "charged" with, not convicted                  of,
specific offenses.



                                    17                            A-1787-16T6
           hearing should be similar to a preliminary
           hearing under Rule 3:4-3 in that both the
           offender and the State must be given notice,
           the offender may cross-examine witnesses
           offered by the State, the rules of evidence
           shall not apply, and the offender shall be
           entitled to counsel.

           [Ibid. (emphasis added) (internal citations
           omitted).]

      We have held that an initial temporary commitment under the

Sexually   Violent    Predator   Act    (SVPA),    N.J.S.A.   30:4-27.24      to

-27.38, must be on notice and subject to a judicial finding of

probable cause.       In re Commitment of M.G., 331 N.J. Super. 365,

383   (App.    Div.    2000).      However,       particularly   since       the

commitment was subject to a later hearing, we held that due

process was satisfied by a "probable cause hearing . . . [which]

shall be limited to an inquiry as to whether the documentation

provided to the judge satisfies the statutory requirements for

commitment."    Id. at 383-84 (emphasis added).

      The Act provides limited guidance regarding the procedures

the court must employ at a pretrial detention hearing.             However,

the   similarity      between    the    Act's     procedures,    and      those

established in the federal Bail Reform Act of 1984, 18 U.S.C.A.




                                       18                              A-1787-16T6
§    3141   to   § 3150   (the   Federal    Act),   suggest   the    New    Jersey

Legislature intended our process to be similar.9

       Indeed, the limited legislative history surrounding passage

of the Act supports this conclusion.            For example, at the Senate

Law and Public Safety Committee (SLPSC) public hearing regarding

Senate Concurrent Resolution 128 (SCR-128), which "[p]ropose[d]

constitutional        amendment      to      authorize,       under        certain

circumstances,       pre-trial     detention    of    persons       in   criminal

cases," Senator Donald Norcross, Chair of the SLPSC, noted that

SCR-128 "makes much needed changes to our State's bail system."

Pub. Hearing Before Senate Law and Pub. Safety Comm., Senate

Concurrent Resol. 128, at 1 (July 24, 2014).10                Senator Norcross

stated:

             It is time that we give our justice system
             the ability to weigh the public risk certain
             offenses pose to keep residents safe when
             considering bail of dangerous criminals.
             More to the point, this measure would bring
             New Jersey in line with the Federal courts,
             which   has   allowed  [sic]   judges   this
             discretion since 1984.

             [Id. at 2 (emphasis added).]

9
  We recognize that in this part of the opinion, we deal with
"constitutional adjudication" and not statutory interpretation,
something we discuss more fully below.   State v. Pomianek, 221
N.J. 66, 88 n.8 (2015).
10
  The hearing transcript may be found at
http://www.njleg.state.nj.us/legislativepub/pubhear/slp07242014.
pdf



                                       19                                  A-1787-16T6
    The Federal Act permits the government to seek pretrial

detention of a defendant arrested for certain enumerated crimes,

or "in a case that involves" either "a serious risk that such

person   will    flee,"       or   "a   serious     risk    that    the    person      will

obstruct or attempt to obstruct justice, or threaten, injure, or

intimidate, or attempt to threaten, injure, or intimidate, a

prospective witness or juror."                   18 U.S.C.A. § 3142(f)(2).                 A

judicial    officer      must       hold   a     hearing     to    determine      whether

conditions      other    than      detention      "will    reasonably      assure        the

appearance of the person as required and the safety of any other

person   and    the     community."            18 U.S.C.A.    § 3142(f).          At     the

pretrial    detention      hearing,        a    defendant     has    a    right     to   be

represented by counsel and "shall be afforded an opportunity to

testify, to present witnesses, to cross-examine witnesses who

appear at the hearing, and to present information by proffer or

otherwise."       Ibid.        The rules of evidence do not apply, and

"[t]he hearing may be reopened" prior to trial "if the court

finds that information exists" that "has a material bearing" on

its decision.         Ibid.        Like the Act, the Federal Act expressly

provides that a defendant may "present information by proffer or

otherwise," but is silent as to whether the government may do

likewise.      18 U.S.C.A. § 3142(f); N.J.S.A. 2A:162-19(e)(1).




                                           20                                     A-1787-16T6
       Both statutes create a rebuttable presumption in favor of

detention     for     certain    enumerated       crimes.          18 U.S.C.A.

§ 3142(e)(3); N.J.S.A. 2A:162-19(b).             However, the Federal Act

applies this rebuttable presumption to a broader range of crimes

than the Act, including certain serious drug crimes, violent

crimes involving a firearm, and many offenses involving a minor

victim.     18 U.S.C.A. § 3142(e)(3).          Also, unlike the Act, the

Federal Act requires the government to establish probable cause

only in those instances when the rebuttable presumption arises.

Ibid.

       In United States v. Salerno, 481 U.S. 739, 751, 107 S. Ct.

2095, 2103, 95 L. Ed. 2d 697, 711 (1987), the United States

Supreme Court upheld the constitutionality of the Federal Act

and concluded that its procedures did not violate a defendant's

due    process    rights.     The   Court     noted   that   the    procedural

protections      provided   "extensive     safeguards"   that      "far    exceed

what we found necessary to effect limited postarrest detention

in [Gerstein]."      Id. at 752, 107 S. Ct. at 2104, 95 L. Ed. 2d at

712.

       In United States v. Gaviria, 828 F.2d 667 (11th Cir. 1987),

the Eleventh Circuit specifically considered whether the Federal

Act allowed the government to proceed by proffer at a pretrial

detention hearing.      Id. at 669.        The court held that even though




                                      21                                  A-1787-16T6
the statute was silent on the issue, the government as well as

the defense could proceed by proffer.                 Ibid.      The Gaviria court

noted that the Federal Act's procedural requirements were based

on   a    District     of   Columbia       statute,     which    was    held    to    be

constitutional in United States v. Edwards, 430 A.2d 1321 (D.C.

1981) (en banc), cert. denied, 455 U.S. 1022, 102 S. Ct. 1721,

72 L. Ed. 2d 141 (1982).           Ibid.

         The Edwards court noted "the same liberty interest of the

individual — to be free from pretrial detention — is involved in

a pretrial detention hearing and a Gerstein hearing on probable

cause."      Edwards, supra, 430 A.2d at 1337.                  Although "pretrial

detention is not punishment, it clearly implicates a liberty

interest that requires a fair hearing within the mandates of

procedural due process."           Id. at 1333-34.

         Considering statutory language that, like the Act and the

Federal     Act,     expressly     permitted      the   defendant       "to    present

witnesses, to cross-examine witnesses who appear at the hearing,

and to present information by proffer or otherwise," but was

silent     as   to   the    nature    of    the   government's         evidence,     the

Edwards     court    held   that     "[t]he     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.'"                          Id. at 1334




                                           22                                  A-1787-16T6
(emphasis added) (quoting D.C. Code 1973, § 23-1322(c)(5)).                            The

court stated "[t]he legislative history of the statute confirms

Congress' intent that the information upon which the judicial

officer makes his finding need not be sworn testimony, and that

the hearing is not designed to afford defendants a discovery

device."       Ibid. (citing H.R. REP. NO. 91-907, 91st Cong., 2d

Sess. 182, 184 (1970)).

       Relying       on   Edwards      and    the    legislative       history   of    the

Federal Act, the Gaviria court held that "the government as well

as the defense may proceed by proffering evidence subject to the

discretion of the judicial officer presiding at the detention

hearing."        Gaviria, supra, 828 F.2d at 669.                       Other circuits

considering the issue have reached the same conclusion.                                See

United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) ("We

join   our   sister        circuits      in   holding     that    the    [Federal]     Act

allows [the government to proceed by proffer]."); United States

v.   Martir,     782      F.2d   1141,    1145      (2d   Cir.   1986)    (noting     that

"Congress      did     not   want      detention     hearings     to    resemble    mini-

trials" and that "the government as well as the defendant should

usually be able to proceed by some type of proffer"); United

States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986) ("As in a

preliminary      hearing         for    probable     cause,      the    government     may

proceed in a detention hearing by proffer or hearsay.").




                                              23                                 A-1787-16T6
       Federal     district     courts   considering         the    issue        have    also

followed the reasoning in Gaviria and permitted the government

to proceed by proffer.             See United States v. Whitman, 514 F.

Supp. 2d 101, 102 n.1 (D. Me. 2007) (rejecting the defendant's

argument that only he had a right to submit evidence at the

detention     hearing      by   proffer);       United        States        v.    Cabrera-

Ortigoza, 196 F.R.D. 571, 574 (S.D. Cal. 2000) (noting "there is

no     requirement    of    live    testimony     by        the    government           at    a

detention hearing" and holding that amendments to the federal

rules requiring the production of witness statements "do not

invalidate the use of proffers at a detention hearing"); United

States v. Ward, 63 F. Supp. 2d 1203, 1210 (C.D. Cal. 1999)

(noting that "both the Government and the defendant may proceed

by proffer or hearsay" at a pretrial detention hearing), aff’d,

237 Fed. Appx. 289 (9th Cir. 2007); United States v. Alston, 899

F. Supp. 1, 3 n.3 (D.D.C. 1995) (judicial officer has discretion

to permit the government to proceed by proffer); United States

v. Alonso, 832 F. Supp. 503, 505 (D. Puerto Rico 1993) (same).

       As    the     overwhelming        amount        of         federal        precedent

demonstrates, pretrial detention is constitutionally permissible

upon    a   prompt    judicial     determination        of        probable       cause       as

required by Gerstein.            Permitting the government to establish




                                         24                                        A-1787-16T6
probable cause by proffer and hearsay is consistent with the

Federal Act and does not violate due process.

      At   oral     argument,   defendant       sought    to    distinguish       these

federal    precedents      by   arguing    the    Federal       Act   requires     the

government to establish probable cause only in those cases where

a   rebuttable      presumption    of   detention        arises.       18    U.S.C.A.

3142(e)(3).       He asserts that in many of the cited cases, the

government    had     already     indicted     the    defendant,      or    the   case

involved a crime for which the rebuttable presumption did not

apply, and therefore probable cause was not at issue.                       In other

words, the courts permitted the government to proceed by proffer

only as to grounds for detention but not as to probable cause.

Defendant cites United States v. Suppa, 799 F.2d 115, 118 (3d

Cir. 1986), in which the court remarked in dicta that it had a

"grave question whether the required finding of probable cause

may be based on a proffer of evidence by the government."

      However, in Suppa, the court specifically never reached the

issue,     ibid.,    and   we   found     no    other    case    expressing       such

reservations.        In United States v. Delker, 757 F.2d 1390, 1396-

98 (3d Cir. 1985), the court expressly rejected the defendant's

argument that "hearsay may not be employed to demonstrate that

appellant     committed     the    crime       with   which     he    is    charged."

Moreover, in Edwards, the seminal case upon which most of the




                                        25                                   A-1787-16T6
circuit and district courts rely, the hearing occurred before

indictment,      and   the   defendant      was   charged     with    crimes    that

required a judicial finding of probable cause.                  Edwards, supra,

430 A.2d at 1324-25.           Yet, the court did not distinguish the

nature of the evidence admitted to prove probable cause from

that admissible to prove other factors supporting detention.

     Defendant     argues     that   our     courts    have   cautioned     against

reliance on hearsay in other proceedings involving deprivation

of liberty interests, for example, commitment hearings under the

SVPA and probation violation hearings.                   In re Commitment of

E.S.T., 371 N.J. Super. 562, 575 (App. Div. 2004) (requiring

examining    doctors    to    testify      at   SVPA   commitment     hearing      if

available); State v. Reyes, 207 N.J. Super. 126, 138-39 (App.

Div.) (permitting use of hearsay at probation revocation hearing

only if "demonstrably reliable"), certif. denied, 103 N.J. 499

(1986).     Defendant also points out that our Supreme Court is

currently     considering      whether       hearsay    testimony      alone      can

justify    the   revocation     of   probation.         See   State    v.   Mosely,

Docket No. A-3212-14T4 (Sept. 7, 2016), certif. granted, ___

N.J. ___    (2016).11        Defendant argues that "there is an even


11
  Similarly, the ACLU cites our decision in State v. Bacome, 440
N.J. Super. 228, 239 n.7 (App. Div.), certif. granted, 223 N.J.
279 (2015), which raised concerns about the use of hearsay at a
suppression hearing.   Since the briefs were filed, the Court
                                                     (continued)


                                        26                                  A-1787-16T6
greater rationale for mandating . . . broader protections at a

hearing   where   the       defendant   has   yet   to   be    convicted   of    any

crime."

      However,    at    a    pretrial   detention    hearing,     the   State     is

required to establish probable cause for defendant's arrest on

the charges contained in the complaint-warrant.                    See State v.

Brown, 205 N.J. 133, 144 (2011) ("[F]or an arrest, 'there must

be probable cause to believe that a crime has been committed and

that the person sought to be arrested committed the offense.'"

(quoting State v. Chippero, 201 N.J. 14, 28 (2009))).                   "Although

it is difficult to define the concept with precision, probable

cause requires 'more than a mere suspicion of guilt' but less

evidence than is needed to convict at trial."                     Ibid. (quoting

State v. Basil, 202 N.J. 570, 585 (2009)).                    Unlike these other

types of hearings cited by defendant, the detention hearing is

not   a   final   adjudication      of    contested      facts    and   does     not

ultimately affect either defendant's trial on the merits or the

punishment resulting if he is found guilty.

      One other point convinces us that allowing the State to

proceed by proffer at the detention hearing does not violate



(continued)
reversed our judgment without addressing the issue.                     State v.
Bacome, ___ N.J. ___ (2017).




                                         27                                A-1787-16T6
defendant's due process.        Defendant concedes that, had a grand

jury returned an indictment before the hearing, the State would

not have needed to demonstrate probable cause for defendant's

arrest.     N.J.S.A. 2A:162-19(e)(2); see also A.D., supra, 212

N.J. at 218 (2012) ("[T]he standard governing a grand jury's

decision whether to indict has also been characterized as one of

probable    cause."   (citing   State    v.   Hogan,   144   N.J.   216,   227

(1996))).    Yet, our courts have long accepted that an indictment

may be returned wholly on hearsay or other testimony that is

neither competent nor legally admissible at trial.                  State v.

Holsten, 223 N.J. Super. 578, 585 (App. Div. 1988) (citations

omitted).

     Moreover, it is beyond peradventure that the grand jury

process accords a defendant none of the procedural safeguards

provided by the Act.        See, e.g., State v. Schmidt, 213 N.J.

Super. 576, 584 (App. Div. 1986) (noting the presentation to a

grand jury is not adversarial, and "consideration of the views

of the defense" is not required),12 rev'd on other grounds, 110

N.J. 258 (1988); State v. Hart, 139 N.J. Super. 565, 567-68

(App. Div. 1976) (noting grand jury proceedings are secret, with

the prosecutor in attendance but without defendant or defense

12
   Although the prosecutor must present evidence that "directly
negate[s] guilt" or is "clearly exculpatory." Hogan, supra, 144
N.J. at 235-37.



                                    28                               A-1787-16T6
counsel present (citing R. 3:6-6(a))).                   No witness, including a

defendant, has the right to have counsel present in grand jury

proceedings.       See In re Essex Cty. Grand Jury Investigation into

Fire at Seton Hall Univ. in S. Orange on Jan. 19, 2000, 368 N.J.

Super. 269, 291 n.9 (Law Div. 2003).                   In other words, probable

cause may be established and a defendant detained without any of

the    procedural       safeguards   we       have    described       as   part   of    a

detention     hearing     under   the     Act.         Yet,   defendant      does    not

contend, nor could he, that a judicial determination of probable

cause based on the return of an indictment before the detention

hearing denies him due process.

       In   sum,   we    reject   the     contention      that    Judge     McBride's

decision to detain defendant without the State calling a witness

to    present   live     testimony      at    the    hearing    violated      his    due

process rights.

                                               B.

       Defendant also argues that the Act's language evinces the

Legislature's      intent    to   require        the    State    to    produce      live

testimony    at    the    hearing.       He    contends       "familiar     canons     of

statutory construction" lead to this conclusion.                      We disagree.

       In construing a statute, our "goal . . . 'is to give effect

to the intent of the Legislature.'"                  State v. Morrison, ___ N.J.

___, ___ (2016) (slip op. at 22) (quoting Maeker v. Ross, 219




                                          29                                  A-1787-16T6
N.J. 565, 575 (2014)).      We first look at the statute's language,

giving the words their plain meaning and enforcing the statute

as written.     State v. Grate, 220 N.J. 317, 330 (2015) (citing

State v. Drury, 190 N.J. 197, 209 (2007)).         However,

             [i]f the language is ambiguous or "admits to
             more than one reasonable interpretation, we
             may look to sources outside the language to
             ascertain the Legislature's intent." Such
             extrinsic sources, in general, may include
             the statute's purpose, to the extent that it
             is known, and the relevant legislative
             history.

             [Drury, supra, 190 N.J. at 209 (quoting
             State v. Reiner, 180 N.J. 307, 311 (2004)).]

    As noted, in several instances, the Federal Act and the Act

are nearly identical.      "[W]hen sections of the federal and state

acts are substantially similar in language, it is appropriate to

conclude that our Legislature's 'intent in enacting the sections

of the . . . Act . . . was simply to follow the federal act.'"

State   v.   Diaz,   308   N.J.   Super.   504,   510   (App.   Div.   1998)

(quoting State v. Fornino, 223 N.J. Super. 531, 544 (App. Div.),

certif. denied, 111 N.J. 570, cert. denied, 488 U.S. 859, 109

S. Ct. 152, 102 L. Ed. 2d 123 (1988)); see also Pub. Hearing

Before Senate Law and Pub. Safety Comm., supra, at 2.            Moreover,

the federal precedent we cited above is both instructive and

persuasive.     See State v. Ball, 141 N.J. 142, 156 (1995) (noting

that state courts "heed federal legislative history and case law




                                     30                            A-1787-16T6
in construing" New Jersey's RICO statute, which was modeled on

the federal RICO statute), cert. denied, 516 U.S. 1075, 116 S.

Ct. 779, 133 L. Ed. 2d 731 (1996).

      Initially, defendant contends the State must call a live

witness to establish probable cause but not to establish grounds

for   detention.13           Indeed,   the       express       language    of    the   Act

supports the proposition that the State may establish grounds

for detention by documentary proffer alone.                         For example, the

Legislature specifically required PSP to generate the PSA for

the   court's    consideration         in    deciding      whether        detention    was

appropriate.          N.J.S.A.    2A:162-25.            Rule    3:4A(b)(5)      expressly

provides that "[t]he court may consider as prima facie evidence

sufficient       to     overcome       the        presumption        of     release       a

recommendation by [PSP] . . . that the defendant's release is

not   recommended        (i.e.,    a    determination            that     'release     not

recommended      or     if     released,         maximum       conditions')."          The

Legislature      permitted       the   judge       to     consider      this    tool    in

evaluating      the    State's    proof      as    it    relates     to    grounds     for

detention.      N.J.S.A. 2A:162-20(f).




13
   As already noted, amicus ACLU submits live testimony is
necessary to establish both probable cause and at least some of
the statutory factors that might support grounds for detention,
such as, for example, "[t]he nature and circumstances of the
offense charged." N.J.S.A. 2A:162-20(a).



                                            31                                   A-1787-16T6
     Additionally, in reaching a decision on the grounds for

detention, the judge may consider evidence that is assuredly

documentary in nature in most instances, such as a defendant's

criminal   history     and   "record      concerning   appearance      at   court

proceedings."      N.J.S.A. 2A:162-20(c)(1).            That the State may

prove grounds for detention by clear and convincing documentary

evidence   alone   militates       against    defendant's    claim     that   the

State may not establish probable cause — requiring a much lesser

burden of proof — without a witness.14

     Defendant     argues    the    Act     only   permits   a    defendant    to

"present information by proffer or otherwise," N.J.S.A. 2A:162-

19(e)(1), implicitly signifying the State may not proceed by

proffer, and had the Legislature intended to permit proof of

probable cause by proffer, it could have explicitly said that.

That reasoning is unpersuasive.

     The Act is not only silent as to whether the State may

proceed by proffer, but it is also silent as to whether the

State   may     call     witnesses,         cross-examine        witnesses,    or

"otherwise" present information to the judge, all of which the

Act expressly permits a defendant to do.               Ibid.       We doubt the

14
   Similarly, the Federal Act requires the government to prove
grounds for detention by clear and convincing evidence.     18
U.S.C.A. § 3142(f)(2). As explained, federal precedent clearly
permits the government to proffer evidence to meet this
heightened burden of proof.



                                       32                               A-1787-16T6
Legislature's silence regarding the State's method of proving

probable    cause       necessarily     signifies       its       intention    to    either

limit the type of evidence the State chooses to introduce, or

require     the        introduction     of        certain     evidence,       i.e.,       the

testimony of a live witness with knowledge of certain events.

    Defendant also argues the Act permits him to "cross-examine

witnesses     who       appear     at   the       hearing,"        thereby     implicitly

compelling the State to produce a witness.                         We again disagree.

Clearly, if the State produces a witness, defendant is free to

cross-examine within the bounds set by the judge.                            However, the

plain language of the Act imposes no such burden on the State.

    We hasten to add that at the detention hearing, the judge

may exercise his or her discretion and require additional proof

before reaching a decision, and the judge retains the authority

to insist that the State produce a witness.                         See, e.g., United

States v. Acevedo-Ramos, 755 F.2d 203, 208 (1st Cir. 1985) ("If

the court is dissatisfied with the nature of the proffer, it can

always,    within       its     discretion,       insist     on    direct     testimony."

(quoting Edwards, supra, 430 A.2d at 1334)); United States v.

Sanchez, 457 F. Supp. 2d 90, 93 (D. Mass. 2006) (noting the

magistrate may "require the Government to produce its percipient

witnesses[]       in    circumstances     in       which    the    'accuracy'       of    the

hearsay     evidence       is    'in    question'"          (quoting    Acevedo-Ramos,




                                             33                                     A-1787-16T6
supra, 755 F.2d at 207)); aff’d, 612 F.3d 1 (1st Cir. 2010),

cert. denied, 562 U.S. 1052, 131 S. Ct. 621, 178 L. Ed. 2d 450

(2010); United States v. Hammond, 44 F. Supp.                           2d 743, 746-47

(D. Md. 1999) (rejecting the government's proffered evidence and

ordering the production of a witness), rev'd on other grounds,

229 F.3d 1144 (4th Cir. 2000).

       In sum, we find no support for defendant's contention that

the    Act    requires     the     State   to    establish         probable    cause      by

producing      a   witness    at    the    hearing        with   sufficient    personal

knowledge to permit meaningful cross-examination.

                                                C.

       Lastly, we address practical considerations that arise if

the    State    must     produce,    as    defendant        urges,     a   witness     with

particularized knowledge at every detention hearing.                               The Act

requires the detention hearing to take place "no later than the

eligible defendant's first appearance," although the State may

seek   a     continuance     of    three   days      if     it   has   filed   a    motion

seeking detention.           N.J.S.A. 2A:162-19(d)(1).                 We take judicial

notice of the filing of hundreds of detention motions throughout

the state since January 1, 2017.

       Before      us,   defendant     argued        that    far    from   serving       the

laudable goals of expediency and judicial economy, permitting

the State to proceed by proffer will make "mini-trials" more




                                           34                                      A-1787-16T6
likely, because defendants will subpoena witnesses or produce

affirmative     evidence     to     contradict        the     State's      proffer,

particularly when the affidavit of probable cause and PLEIR are

extremely terse, as in this case.                   Rather, we rely upon the

judges    conducting     these    hearings     to    provide    fair,    just     and

timely determinations, using all the tools at their command.

    Then-judge, now Justice, Stephen G. Breyer, writing for the

court    of   appeals    noted    that    permitting        proffers    and      other

hearsay under the Federal Act "rests primarily upon the need to

make the bail decision quickly, at a time when neither party may

have fully marshalled all the evidence in its favor."                      Acevedo-

Ramos, supra, 755 F.2d at 206.                 "Often the opposing parties

simply describe to the judicial officer the nature of their

evidence; they do not actually produce it."                    Ibid.       However,

Judge Breyer noted that the "competing demands of speed and

reliability" may be satisfied through the judge's discretionary

power    to   "selectively       insist[]     upon   the    production      of    the

underlying evidence or evidentiary sources where their accuracy

is in question."         Id. at 207.          In that way, the judge can

proceed   "without      unnecessarily       transforming      the   bail   hearing

into a full-fledged trial or defendant's discovery expedition."

Id. at 207-08.




                                         35                                A-1787-16T6
    Additionally, we note that in light of our decision in

Robinson, supra, ___ N.J. ___ (slip op. at 27), the State must

provide a defendant with materials relating to the "facts on

which the State bases its pretrial detention application."                     As a

result, defendants will have a significant amount of information

by which to test the probable cause determination, first made at

issuance of the complaint-warrant, and again put to the test at

the pretrial detention hearing.

    Finally,    recognizing      defendant's           argument    regarding    the

paucity of detail in the documents in this particular case, we

caution   prosecutors    about       reliance    upon     documentary   proffers

that provide the thinnest reeds of support for probable cause.

Doing so may inhibit the State's ability to rely solely upon the

proffered   evidence     at    the    hearing,     thereby    leading    to     the

exercise of the judge's discretion to compel the introduction of

additional evidence or otherwise deny the State's request to

detain.

                                       II.

    Defendant contends the State failed to meet its burden of

proof justifying pretrial detention.                   In a single paragraph,

defendant   argues      releasing       him     with     "strict    conditions,"

including   "electronic       monitoring,"       would    have     satisfied    the

goals of the Act, namely, assuring his appearance, protecting




                                        36                               A-1787-16T6
the   community        and    preventing       him     from    obstructing          justice.

N.J.S.A. 2A:162-15.           We disagree.

      Although        the    Act   provides      for   an     appeal    by     right       of   a

pretrial    detention         order,     N.J.S.A.      2A:162-18(c),          it    does    not

specify the scope of our review.                       See also United States v.

Perry,    788    F.2d       100,   104   (3d     Cir.)      (noting     the    lack       of    a

standard of review in the Federal Act), cert. denied, 479 U.S.

864, 107 S. Ct. 218, 93 L. Ed. 2d 146 (1986).                          There is a split

among the federal circuits concerning the proper standard of

review.     United States v. O'Brien, 895 F.2d 810, 812 (1st Cir.

1990).      Some      circuit      courts   apply      de     novo     review       to   mixed

questions of law and fact and legal conclusions, but review the

factual findings under a clearly erroneous standard.                                     United

States v. English, 629 F.3d 311, 319 (2d Cir. 2011).                                     Others

reject    the    clearly      erroneous     standard        for   pretrial         detention

decisions       and    require     an    independent        review     of     the    release

order, "giving deference to the determination of the district

court."     O'Brien, supra, 895 F.2d at 812-14.

      The   Attorney         General     submits       an    "abuse     of     discretion"

standard is appropriate; at oral argument before us, defendant

acknowledged that was most likely the appropriate standard of

review.     We need not resolve the question, particularly since

neither party briefed the issue.                       We conclude that whatever




                                            37                                       A-1787-16T6
standard applies, for all the reasons stated by Judge McBride

and incorporated in his order, the State proved the grounds for

detention in this case by clear and convincing evidence.

    Affirmed.




                               38                          A-1787-16T6
