                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2371-19T6

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

MALEEK D. DORSEY,

          Defendant-Respondent.


                   Submitted May 6, 2020 – Decided May 18, 2020

                   Before Judges Fisher and Rose.

                   On appeal from an interlocutory order of the Superior
                   Court of New Jersey, Law Division, Ocean County,
                   Complaint No. W-2019-000604-1511.

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for appellant (Samuel J. Marzarella, Chief
                   Appellate Attorney, of counsel and on the brief; Cheryl
                   L. Hammel, Assistant Prosecutor, on the brief).

                   Mark Anthony Bailey, attorney for respondent.

PER CURIAM
      We granted leave to consider the State's interlocutory appeal of a Law

Division order denying pretrial detention of a defendant charged with shooting

offenses. Because we conclude defendant presents a danger to the community,

we vacate the trial court's order granting conditional release, and remand the

matter for entry of an order detaining defendant pretrial.

      Defendant Maleek D. Dorsey was arrested on December 30, 2019, and

charged in a complaint-warrant with two counts of attempted murder, N.J.S.A.

2C:5-1(a)(1) and 2C:11-3(a)(1); second-degree possession of a handgun 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). The State thereafter moved

for defendant's pretrial detention pursuant to the Criminal Justice Reform Act

(CJRA), N.J.S.A. 2A:162-15 to -26. In support of its motion, the State presented

the trial court with the investigating officers' reports and the detective's affidavit

of probable cause.

      According to the record, in the early morning hours of December 29, 2019,

police were called to an active shooting scene in the parking lot of a Ja ckson

Township shopping plaza. Police arrived after the gunfire had stopped and while

the crowd was still dispersing. "Every person [police] attempted to speak to

stated they did not see or hear anything." Police observed a blood trail leading


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to a car with blood on its hood; another car with two bullet holes in the trunk

area; and multiple shell casings from two different caliber guns in the parkin g

lot.   Clifford Holland and Joel Hernandez were hospitalized with gunshot

wounds as a result of the shootout.

        A cooperating witness (CW), who "wishe[d] to remain anonymous for fear

of retaliation," gave a statement to police indicating an "altercation" had begun

among patrons attending a private party in a lounge and "segued out into the

parking lot area." The CW saw defendant – who was known to the CW by his

full name – "retrieve a firearm from the trunk of a black 4-door passenger car

with tinted windows and then discharge same multiple times." 1

        Police obtained surveillance video, which corroborated the CW's account.

According to the detective who viewed the video, 2 defendant was seen "firing

the weapon in the direction of [Hernandez's car.]" Defendant then turned toward

Holland, "firing the weapon, and then again firing, striking Holland in the back

exiting through his chest." Defendant "exchang[ed] more gunfire," then drove

away.



1
   Another witness also told police defendant was the shooter, but apparently
that witness did not provide a sworn statement.
2
    The video was not provided to the trial court at the hearing.
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      At the time of his arrest, defendant was twenty-seven years old, with no

prior criminal history. Accordingly, defendant's scores on the public safety

assessment (PSA) were assessed at "1" – the lowest rung of the six-level ladder

– for risk of failure to appear and risk of new criminal activity. Nor was

defendant "flagged" for an elevated risk of violence. But the PSA recommended

against defendant's release pretrial.3

      On January 17, 2020, the trial court conducted a hearing on the State's

motion. Defendant acknowledged there was probable cause he committed the

charged offenses. The court found probable cause that defendant "did go into

the trunk of a vehicle, that he did have a weapon, he did fire shots at individuals.

Some of them were struck. And so we have the attempted murder." The court

also recognized "that gun might be out there."

      The trial court departed from the PSA recommendation "for a number of

reasons." Most of those reasons reflected defendant's lack of criminal history:

"no red flag denoting an elevated risk of violence"; "he's not on pretrial

monitoring"; "he has no []pending charges"; "he has no disorderly persons

convictions"; "he has no indictable convictions"; "he has no violent


3
  Although the copy of the PSA provided by the State does not indicate whether
release was recommended, the court cited the no-release recommendation and
that fact is not disputed by the parties.
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                                         4
convictions"; "[h]e's never failed to appear [in court] in two years or older";

"[h]e never served fourteen days or more"; and "[h]e's not on probation or

parole."

      Turning to defendant's history and characteristics, the trial court

considered that defendant had retained counsel; he was supported by his mother

and girlfriend, who attended the hearing; he was "a lifelong resident of both

Ocean [County] and also New Jersey"; and he has two children. The court also

recognized defendant was unemployed.

      In reaching its decision, the trial court cited State v. S.N., 231 N.J. 497

(2018), noting the defendant in that case was charged with first-degree

aggravated sexual assault and received the same PSA scores as defendant in the

present matter. The court then reasoned the defendant in S.N. "would have been

a danger to [the victim] and also the community," yet the Supreme Court

remanded the detention order to the trial judge to release the defendant with

conditions.

      Accordingly, the trial court released defendant subject to Level 3+

monitoring, with home detention and electronic monitoring, and precluded

defendant from having contact with the alleged victims. The court memorialized




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                                       5
its decision in an order dated January 17, 2020. We thereafter extended the trial

court's stay of its order pending this appeal.

      On appeal, the State argues the court mistakenly exercised its discretion

by denying its motion for defendant's pretrial detention. We review such orders

under an abuse of discretion standard. S.N., 231 N.J. at 515-16.

      The CJRA permits the State to file a motion for the pretrial detention of a

defendant who is charged with certain offenses. N.J.S.A. 2A:162-19(a). When

the State seeks the pretrial detention of a defendant who has not been indicted,

the trial court first must determine whether there is probable cause the defendant

committed the charged offense. N.J.S.A. 2A:162-19(e)(2). To establish the

grounds for a defendant's pretrial detention, the State must show by clear and

convincing evidence

            that no amount of monetary bail, non-monetary
            conditions or combination of monetary bail and
            conditions will 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(e)(3).]

      The trial court found probable cause defendant committed the charged

offenses. The court further found the State had not established by clear and

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                                         6
convincing evidence that defendant should be detained pretrial and that Level

3+ monitoring would assure defendant's appearance in court and would

sufficiently protect the victims and the community.

      We are convinced, however, that the court's order denying pretrial

detention and releasing defendant subject to non-monetary conditions was a

mistaken exercise of discretion. Although the court recognized the seriousness

of the charges, it failed to give sufficient weight to the charges and the concerns

raised about the safety of the community. Defendant has been charged with two

counts of attempted murder for shooting into a crowd, then leaving the scene

with the gun, which – as the court correctly recognized – still "might be out

there." Those charges are clearly of a serious nature. See State v. Mercedes,

233 N.J. 152, 172 (2018) (noting that judges considering a detention motion may

rely heavily on the seriousness of the pending charge).

      In addition, the court did not give sufficient weight to the strength of the

evidence in support of the charges, noting there were "other issues" in the case.

Although the video recording was not played in court, it was undisputed – at

least for purposes of the detention hearing – that defendant was identified in the

video shooting Holland in the back and shooting at Hernandez's car. And both

Holland and Hernandez were hospitalized with gunshot wounds.


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                                        7
      We also find S.N. readily distinguishable from the present matter. In that

case, the defendant was arrested in 2017 for crimes allegedly committed in 2012.

231 N.J. at 501. The defendant had not lived in the same home as the victim for

two years, and the State based its case on the word of the child victim regarding

events that had occurred five years before. Id. at 501-03. In the case under

review, the offenses occurred hours – not years – before defendant was charged,

and they were captured on video.

      Finally, the court erroneously gave significant weight to defendant's

support system and relied on the fact that defendant would be living with his

family while on pretrial release. Defendant was living with his family when he

allegedly committed the offenses charged here, and that living arrangement did

not deter him from engaging in the alleged conduct in the middle of the night.

Moreover, neither defendant's mother nor his girlfriend testified about what role

they would play in assuring defendant's compliance with the conditions of his

release. Accordingly, the record is devoid of any competent evidence regarding

their support.

      We therefore conclude the trial court mistakenly exercised its discretion

by denying the State's motion for defendant's pretrial detention. The court failed




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                                        8
to take into consideration all relevant factors, and its decision represents a clear

error of judgment. S.N., 231 N.J. at 515-16.

      Reversed and remanded. We do not retain jurisdiction.




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