STATE OF NEW JERSEY VS. DONOVAN WHITE STATE OF NEW JERSEY VS. LARRY BOSTIC (17-05-1216, ESSEX COUNTY AND STATEWIDE AND W-2017-1470-0614, CUMBERLAND COUNTY AND STATEWIDE)(CONSOLIDATED)(RECORD IMPOUNDED) ( 2017 )


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  •                        RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-4778-16T6
    A-5364-16T6
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    APPROVED FOR PUBLICATION
    v.                                              December 5, 2017
    DONOVAN WHITE,                                 APPELLATE DIVISION
    Defendant-Appellant.
    ______________________________________
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    LARRY BOSTIC,
    Defendant-Appellant.
    _______________________________________
    Argued October 30, 2017 – Decided December 5, 2017
    Before   Judges      Messano,     O'Connor,    and
    Vernoia.
    On appeal from Superior Court of New Jersey,
    Law Division, Essex County, Indictment No.
    17-05-1216 in A-4778-16.
    On appeal from Superior Court of New Jersey,
    Law Division, Cumberland County, Complaint
    No. W-2017-1470-0614 in A-5364-16.
    Laura B.      Lasota, Assistant    Deputy Public
    Defender,     argued the cause     for appellant
    Donovan   White in  A-4778-16  (Joseph E.
    Krakora, Public Defender, attorney; Ms.
    Lasota and Christiane Cannon, Assistant
    Deputy Public Defender, of counsel and on
    the briefs).
    Nathan R. Perry, Assistant Deputy Public
    Defender, argued the cause for appellant
    Larry   Bostic   in  A-5364-16   (Joseph E.
    Krakora, Public Defender, attorney; Mr.
    Perry, of counsel and on the brief).
    Frank J. Ducoat, Special Deputy Attorney
    General/Acting Assistant Prosecutor, argued
    the   cause  for   respondent  in  A-4778-16
    (Robert D. Laurino, Acting Essex County
    Prosecutor, attorney; Mr. Ducoat, of counsel
    and on the briefs).
    Andre   R.  Araujo,   Assistant   Prosecutor,
    argued the cause for respondent in A-5364-16
    (Jennifer   Webb-McRae,   Cumberland   County
    Prosecutor, attorney; Mr. Araujo, of counsel
    and on the brief).
    The opinion of the court was delivered by
    MESSANO, P.J.A.D.
    In these appeals, now consolidated in a single opinion, we
    consider   for   the    first    time    the   procedural   and   substantive
    provisions of the Criminal Justice Reform Act, N.J.S.A. 2A:162-
    15 to -26 (the CJRA), that are applicable when a previously
    released defendant allegedly violates one or more conditions of
    release imposed by the court.           We provide some background.
    As to A-4778-16
    Defendant Donovan White was arrested on January 28, 2017,
    and   charged    with   second-degree       robbery   and   other   offenses.
    2                            A-4778-16T6
    Defendant's score on the public safety assessment (PSA) for both
    failure to appear (FTA) and new criminal activity (NCA) was
    five, the second-highest possible score in each category, and
    Pretrial Services recommended against his release.                         The State,
    however, did not move to detain defendant.                        The judge ordered
    defendant's release with the conditions that he:                         refrain from
    committing         any    new   offense;   avoid    contact       with   the    victim;
    report to Pretrial Services every week, alternately in person
    and by phone; remain on home supervision with an electronic
    monitoring device (EMD); avoid the location where the robbery
    occurred;      appear       for   all    scheduled       court    proceedings;        and
    immediately notify Pretrial Services of any change of address,
    telephone number, or other contact information.                      The grand jury
    indicted defendant on May 9, 2017.
    On    May    25,    Pretrial     Services   filed    a     violation     report,
    indicating that defendant had permitted his EMD to "die" on
    several occasions and to remain dead for several days by failing
    to    keep   it     charged.      Apparently,      the    State    moved   to    revoke
    defendant's release or modify the conditions of release.                                R.
    3:26-2(c).1
    On the return date of June 5, 2017, the prosecutor said
    that in light of his conversation with defense counsel,                               the
    1
    The motion is not in the appellate record.
    3                                   A-4778-16T6
    State would not seek detention or modification.                           The prosecutor
    noted that the EMD had "shorted out," and that defendant had
    been "forced out" of his mother's home after an argument, which
    had "led to the bracelet not being charged."                             Defense counsel
    argued      against        any     change         in      conditions          under      these
    circumstances, and the judge agreed.                      The prosecutor indicated,
    nevertheless,       that     any      further      problems       would       lead    to    the
    State's filing another motion to revoke defendant's release.
    Pretrial Services filed a second violation report on June
    21, 2017.     It alleged that:           defendant's EMD was "dead" on three
    separate dates after the June 5 hearing; defendant failed to
    report "for instruction" on the proper use of the device after
    the hearing and after acknowledging receipt of a message                                     to
    report; numerous "satellites" detected defendant's presence at
    various     hours     at   three      different          locations       in    Hoboken      and
    Newark;     and     defendant      failed         to     update    his    home       address.
    Pretrial Services recommended revocation of defendant's release,
    and the State moved for that relief.
    On   Friday,    July      7,    the    prosecutor          and    defense      counsel
    appeared before the judge; defendant was not present.                            There was
    some     confusion     regarding        the       date     set    for    the     revocation
    hearing, with defense counsel and the prosecutor both indicating
    that the hearing was set for Monday, July 10.                            Defense counsel
    4                                       A-4778-16T6
    indicated that she had been in touch with defendant, and he
    intended to be present on Monday and to produce a witness and
    evidence.     Both attorneys agreed to delay the hearing.
    However,     unbeknownst      to    counsel      or    the    court,   defendant
    reported to Pretrial Services later in the day on July 7, and
    was told to report to court.                   He did so.          Before the judge,
    defense counsel explained that instead of reporting to Pretrial
    Services telephonically as required, defendant had appeared in
    person   because     of   continued        problems         with   his    EMD.        Over
    defendant's     objection,     the       judge    immediately        considered        the
    State's motion to revoke defendant's release.
    Defense      counsel    sought       an     adjournment,           arguing      that
    defendant was not prepared to respond because he had received
    notice that the motion would be heard on July 10.                            Defendant
    intended to call his mother as a witness to confirm that he was
    residing with her and to address "some of the concerns . . .
    about the [EMD] being defective," but she was not available to
    testify until Monday.         Defendant also wanted to present evidence
    from his employer to show that he had been working consistently
    and   that   his   presence    at    the       three   locations         cited   in    the
    violation report had been work-related.                      Counsel stressed that
    in the nearly six months since defendant had been released on
    conditions, he had not been arrested for a new offense, had not
    5                                     A-4778-16T6
    been in contact with the victim, had not been in the area of the
    offense and had not failed to appear for a court date.
    The judge agreed that defendant's conduct did not offend
    "two of the primary goals of pretrial release," which were to
    guard against the commission of a new offense and the failure to
    appear in court.       However, the judge stated, "the conditions of
    release are not limited to that.                There are certain prophylactic
    conditions placed upon the accused to provide . . . reasonable
    assurances that . . . there will be an appearance as required,
    there will be no new offenses, and there will be no obstruction
    of justice."
    The      judge   noted    that    Pretrial          Services     had     initially
    recommended detention based on defendant's PSA score, and that
    the recommendation established a "prima facie case which would
    satisfy the finding by clear and convincing evidence that there
    is [sic] no conditions or combinations of conditions that will
    reasonably assure the defendant's appearance, the protection of
    the safety of the community."
    The     judge    took    note    of    defendant's         prior    record;      his
    subsequent    indictment,     which       established      probable         cause   that
    defendant committed the crimes charged; and the strength of the
    State's    evidence.        The   judge        found    that   after    the    June     5
    hearing,   defendant    continued         to    allow    the   EMD     to    die,   thus
    6                                    A-4778-16T6
    inhibiting      Pretrial      Services     from       monitoring        his    location;
    failed   to    report    to     Pretrial   Services        on    June    14;     and   was
    present at the three locations noted in the violation.                                 The
    judge stated:
    [E]ssential to the proper functioning of the
    criminal justice reform is the ability to
    monitor compliance with release conditions.
    Despite having the opportunity earlier in
    response to the first notice of violation,
    [sic] the information before the Court amply
    demonstrates by a preponderance that there
    has been a violation of the home detention
    provision.    And this Court is no longer
    comfortable with the continued release of
    [defendant].
    And I find by clear and convincing
    evidence through operation of the prima
    facie    case   provision  based    upon  the
    information set forth in the PSA that there
    are   no    conditions  or   combinations  of
    conditions that will reasonably assure the
    defendant's appearance, the protection of
    the safety of the community.
    The judge entered the July 7, 2017 pretrial detention order from
    which defendant now appeals.
    As to A-5364-16
    On June 22, 2017, defendant Larry Bostic was charged with
    five counts of endangering the welfare of children and five
    counts of invasion of privacy.             The State alleged that defendant
    surreptitiously         video     recorded        female        juvenile       employees
    disrobing      and   changing      into        work   uniforms      at        defendant's
    business.      Although defendant's PSA scores were two (FTA) and
    7                                     A-4778-16T6
    one (NCA), and Pretrial Services had recommended his release on
    his own recognizance, the judge ordered defendant detained.
    Defendant appealed, and, on July 24, 2017, a panel of our
    colleagues vacated the detention order and remanded the matter,
    concluding that the judge had failed to provide written factual
    findings in support of the order.             The remand hearing took place
    on August 2.2
    With   little   discussion,      the     judge   ordered   defendant's
    release on "Level 3, monitoring, home detention and a bracelet."
    He advised defendant that except to go to the doctor, shop for
    food or come to court, he could not leave his home.                 The judge
    ordered defendant to appear at Pretrial Services the next day
    upon his release from jail.3          He also:    ordered defendant to have
    no contact with the victims; requested the prosecutor to supply
    the victims' addresses; told defendant that his "bracelet" would
    "set   off    an   alert"   if   he    entered    the   1000-feet   "zone    of
    exclusion" around the victims; and ordered defendant to have no
    contact with anyone under the age of eighteen.
    2
    Although the transcript of the remand hearing indicates it took
    place before a different judge, this is an apparent error. The
    order following remand bears the signature of the same judge who
    issued the detention order, and he referenced our remand order
    during the course of the hearing.
    3
    Even though the charges emanated from Cumberland County,
    defendant was apparently incarcerated in the Camden County jail.
    8                            A-4778-16T6
    The order of release ostensibly detailed these and other
    conditions imposed on defendant.          However, the order erroneously
    provided:    "Defendant shall come within 1000 feet of any victim
    inclusion zones."      Moreover, the addresses of the victims were
    not in the order, and the record fails to reveal that those
    locations were ever provided to defendant prior to his release.
    As instructed, defendant appeared at Pretrial Services on
    August 3, 2017.        He was immediately taken into custody based
    upon   a   violation   report,    which   indicated   that    the   assistant
    criminal    division    manager    had    contacted   local    police    when
    defendant's EMD demonstrated that he had "failed to remain in
    his home," was "roaming the city of Vineland most of the day,"
    and had entered a victim exclusion zone for one minute.               In the
    violation report, Pretrial Services wrote that defendant was
    currently    on   the   highest    level   of
    supervision.    According to the structure
    response grid, entering a victim exclusion
    zone is a major violation as [is] leaving
    your approved home address.     There are no
    conditions that can be placed on the
    defendant that will ensure his compliance.
    The record before us indicates no arrest warrant was issued, and
    defendant never appeared before a judge until August 9, which
    was the return date for the State's motion to revoke defendant's
    release.
    9                              A-4778-16T6
    A   different      judge    presided       over   the    revocation     hearing.
    The   prosecutor     proffered        the   violation     report       from   Pretrial
    Services and a Google map, which she claimed demonstrated that
    defendant    "was       essentially     moving      all       around   the    city    of
    Vineland    in    violation      of   his    conditions."          Defense     counsel
    initially tried to explain that defendant did not know "the
    location    of    the    victim    exclusion       zone."        She   claimed       that
    defendant had gone to the police department a few blocks from
    his home to retrieve his wallet and keys.
    Defendant insisted on speaking, so the judge placed him
    under oath.       Defendant said that he had tried unsuccessfully to
    retrieve his wallet and keys from the local police department, a
    few blocks from his home.             He relied upon an elderly friend to
    drive him from his home in Vineland to Pretrial Services in
    Bridgeton.       Defendant said that he had no control over the route
    his friend had taken, and he had no knowledge where any of the
    five alleged victims lived.
    The prosecutor's retort was that as the "proprietor of the
    business . . . it's assumed that [defendant was] probably going
    to know where these kids are living."                         The record fails to
    demonstrate that the prosecutor had complied with the court's
    earlier request to supply those addresses, or that the pretrial
    release order actually served on defendant included the victims'
    10                                A-4778-16T6
    addresses or described the parameters of the victim exclusion
    zones.
    Referencing   the     violation     report,   the   judge   found   that
    defendant had been in the exclusion zone where two victims lived
    in the same apartment complex, and that defendant had "failed to
    remain in [his] home as required."            He concluded that defendant
    was
    obviously . . . not in compliance and . . .
    there's no manner in which we can keep [him]
    in compliance.
    At this point the State has overcome
    its burden in establishing that there's no
    amount   of  monetary  bail,   non-monetary
    conditions or combinations thereof which
    would ensure that . . . you[ would] appear
    in court[,] . . . not present a danger to
    the community[] and . . . not obstruct
    justice.
    The detention order indicated that the judge made these findings
    by clear and convincing evidence.               The order also cited the
    "nature and circumstances of the offense," including defendant's
    violation of conditions of pretrial release; the weight of the
    evidence, specifically the violation report and Google map; the
    risk     defendant   posed    to   witnesses     and   the   community;     and
    Pretrial Services' recommendation of detention.
    Defendant filed this appeal.
    11                              A-4778-16T6
    I.
    The     CJRA     "'shall    be    liberally     construed'      to    effect     its
    purpose:    to rely primarily on 'pretrial release by non-monetary
    means to reasonably assure' that a defendant will 'appear[] in
    court when required,' will not endanger 'the safety of any other
    person or the community,' and 'will not obstruct or attempt to
    obstruct the criminal justice process.'"                   State v. Robinson, 
    229 N.J. 44
    , 55 (2017) (quoting N.J.S.A. 2A:162-15).                         With certain
    exceptions,     or     unless        the    prosecutor      moves    for       pretrial
    detention, the CJRA requires the court to release a defendant on
    his personal recognizance or unsecured appearance bond following
    arrest.     N.J.S.A. 2A:162-17(a).               Only if those conditions are
    inadequate "to assure a defendant's return to court and protect
    both public safety and the integrity of the criminal justice
    process," may the judge impose "non-monetary conditions that are
    the least restrictive conditions necessary."                    
    Robinson, supra
    ,
    229 N.J. at 55 (citations omitted).
    Compliance        "with    all     conditions     of    release"      is    another
    stated     purpose    of   the       Act.        N.J.S.A.    2A:162-15.           These
    conditions may include requiring a defendant to refrain from
    committing another crime, from contacting the alleged victim of
    the crime, from contacting witnesses named in the release order
    or subsequent court order, and other non-monetary conditions.
    12                                 A-4778-16T6
    N.J.S.A. 2A:162-17(b)(1)(a) to (c) and (b)(2); R. 3:26-2(b)(2)
    and (3).
    When a defendant is released on conditions,
    the court shall, in the document authorizing
    the eligible defendant's release, notify the
    eligible defendant of:
    (a) all the conditions, if any, to which the
    release is subject, in a manner sufficiently
    clear and specific to serve as a guide for
    the eligible defendant's conduct; and
    (b) the penalties for and other consequences
    of violating a condition of release, which
    may include the immediate issuance of a
    warrant for the eligible defendant's arrest.
    [N.J.S.A. 2A:162-23(a)(1)(emphasis added).]
    If the court orders a defendant's release subject to conditions,
    it may subsequently review the conditions on its own motion, or
    on motion by either party, and may modify the conditions or
    impose new conditions upon a showing of a material change in
    circumstances.      R. 3:26-2(c)(2).
    The State may seek revocation of a defendant's release if
    he   or   she    violates   a   restraining   order   or   a   condition    of
    release, "or upon [the court's] finding of probable cause . . .
    that the . . . defendant has committed a new crime while on
    release."       N.J.S.A. 2A:162-24; accord R. 3:26-2(d)(1).         Pending
    disposition of a motion to revoke release, a defendant shall
    remain released and "the court shall issue a notice to appear to
    13                            A-4778-16T6
    compel the appearance of the eligible defendant at the detention
    hearing."     N.J.S.A. 2A:162-19(d)(2).
    At    the     revocation       hearing,    the    defendant     shall     be
    represented by counsel, provided with all discovery, afforded
    the   right    to     testify    and   present     witnesses,    cross-examine
    witnesses     who    appear    and   "present    information    by   proffer   or
    otherwise."       R. 3:26-2(d)(2).       The CJRA does not set forth the
    State's burden of proof at the revocation hearing, but Rule
    3:26-2(d)(1)        provides    that   the   State     need   only   prove     the
    violation of a condition of release by a preponderance of the
    evidence.     However,
    upon a finding that the eligible defendant
    while on release has violated a restraining
    order or condition of release, or upon a
    finding of probable cause to believe that
    the eligible defendant has committed a new
    crime while on release, [the court] may not
    revoke the eligible defendant's release and
    order   that   the  eligible    defendant   be
    detained pending trial unless the court,
    after considering all relevant circumstances
    including but not limited to the nature and
    seriousness of the violation or criminal act
    committed,   finds   clear    and   convincing
    evidence that no monetary bail, non-monetary
    conditions of release 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, or that the eligible
    defendant will not obstruct or attempt to
    obstruct the criminal justice process.
    14                              A-4778-16T6
    [N.J.S.A. 2A:162-24 (emphasis               added);    see
    also R. 3:26-2(d)(1).]
    Thus, N.J.S.A. 2A:162-24 conditions revocation of release and
    pretrial detention on a finding by clear and convincing evidence
    that no conditions of release will reasonably assure the three
    goals of the Act.          In other words, even after the State proves a
    violation,       the   court     must       still   consider    whether      under   all
    relevant        circumstance,         the    clear    and      convincing     evidence
    proffered by the State requires detention.                       The CJRA does not
    allow for detention based solely on a finding that the defendant
    violated the terms of release.
    Although the CJRA and Rule 3:26-2 are silent regarding the
    procedure to be followed at a revocation hearing, we conclude
    that    the     State's   proffer       of    the   Pretrial    Services     violation
    report alone may be sufficient to establish, by a preponderance
    of   the    evidence,     that    a    violation     occurred.        We   reach     this
    conclusion for several reasons.
    In State v. Ingram, 
    230 N.J. 190
    , 213 (2017), the Court
    held that at the initial detention hearing under the CJRA, the
    State may establish probable cause by proffer without producing
    a live witness.           The probable cause standard, which applies to
    initial detention hearings and revocation hearings based upon
    the commission of a new offense, and the preponderance standard,
    which      is   applicable     to     revocations      based     on   violations       of
    15                               A-4778-16T6
    conditions,     are    similar      in    nature     and   precede   the    ultimate
    finding    of   whether       clear      and    convincing     evidence     supports
    detention.      Compare State v. Gibson, 
    218 N.J. 277
    , 292 (2014)
    (explaining     that    probable      cause     is   a   well-grounded     suspicion
    that a crime has been committed), with State v. Williams, 
    93 N.J. 39
    , 78 (1983) (providing:              "Preponderance of evidence . . .
    is evidence sufficient to generate a belief that the conclusion
    advanced is likely.           It has been stated in terms of reasonable
    probability.") (citations omitted).
    Further, the CJRA makes no distinction between a motion to
    detain filed immediately following arrest or at a subsequent
    time.     See N.J.S.A. 2A:162-19(a) (explaining that a motion to
    detain    may   be    filed    at   any    time      before   or   after   release).
    Indeed, a motion for revocation pursuant to N.J.S.A. 2A:162-24
    is simply a motion to detain with the added requirement that (1)
    the State prove probable cause that the defendant committed a
    new crime, or prove by a preponderance of the evidence that the
    defendant violated a release term or restraining order; and (2)
    the nature and severity of the new crime or the violation, in
    addition to all other circumstances, clearly and convincingly
    establishes that detention is appropriate.
    16                               A-4778-16T6
    Under   the    federal   release       revocation   statute,   which   is
    somewhat different from N.J.S.A. 2A:162-24, the court may revoke
    release upon motion by the government if the judge
    (1)   finds that there is —
    (A)    probable cause to believe
    that   the   person  has   committed  a
    Federal, State, or local crime while on
    release; or
    (B) clear and convincing evidence
    that the person has violated any other
    condition of release; and
    (2)   finds that—
    (A)    based on the factors set
    forth in [18 U.S.C.A. § 3142(g)], there
    is no condition or combination of
    conditions of release that will assure
    that the person will not flee or pose a
    danger to the safety of any other
    person or the community; or
    (B)    the person is unlikely to
    abide by any condition or combination
    of conditions of release.[4]
    [18 U.S.C.A. § 3148(b).]
    Federal courts take a similar approach and allow the government
    to prove a release-term violation by proffer. United States v.
    LaFontaine, 
    210 F.3d 125
    , 131 (2nd Cir. 2000); United States v.
    Aron, 
    904 F.2d 221
    , 227 (5th Cir. 1990); United State v. Davis,
    4
    Unlike the federal statute, the CJRA does not authorize
    pretrial detention based upon a finding that the defendant is
    unlikely to abide by any conditions of release.
    17                            A-4778-16T6
    
    845 F.2d 412
    , 415 (2nd Cir. 1988).                  C.f. 
    Ingram, supra
    , 230 N.J.
    at    205   (explaining        that   because     the    CJRA    is     similar    to   its
    federal     counterpart,        New    Jersey     courts       should    "give    careful
    consideration to the federal case law that interprets the Bail
    Reform Act," 18 U.S.C.A. §§ 3141 to 3156).
    Lastly, we reject the argument, explicitly made by White
    and    implicitly      made     by    Bostic,     that   the    State     must    prove    a
    defendant's violation of a condition of release was purposeful
    or intentional.         Nothing in the CJRA or our Court Rules supports
    that claim.         However, evidence that the violation is the result
    of inadvertence, negligence or is otherwise excusable is clearly
    a     "relevant      circumstance[]"         in     weighing      "the     nature       and
    seriousness       of    the     violation,"        and   ultimately        whether      the
    evidence     clearly      and    convincingly        demonstrates         detention       is
    warranted      in      light     of    all      other    relevant        circumstances.
    N.J.S.A. 2A:162-24.5
    5
    In a somewhat analogous circumstance, our Criminal Code
    explicitly provides that the State must either (1) establish
    probable cause that the defendant committed a new crime while on
    probation, or (2) "inexcusably failed to comply with a
    substantial requirement imposed as a condition" of probation at
    a violation of probation (VOP) hearing. N.J.S.A. 2C:45-3(a)(4)
    (emphasis added). If the alleged violation is a failure to pay
    a fine or make restitution, the court must find a willful
    violation.   N.J.S.A. 2C:45-3(a)(4).   We note further that VOP
    hearings must be on written notice to the defendant, who has the
    right "to hear and controvert the evidence against him, to offer
    evidence in his defense, and to be represented by counsel."
    (continued)
    18                                   A-4778-16T6
    We now apply these basic principles to the facts presented
    in these two appeals.
    II.
    As    to    defendant       White,       we     first    address       the    judge's
    reliance in part upon the "no release" recommendation made by
    Pretrial      Services      in    the    PSA       generated       when    defendant      was
    arrested in January.             As noted, the State never sought detention
    at that time, but, in reaching his revocation decision, the
    judge   considered       Pretrial        Services'       recommendation            as   prima
    facie      evidence    sufficient         to       overcome    the        presumption        of
    release.      R. 3:4A(b)(5).
    Before us, defendant argues that the prima facie evidence
    provision only applies to the initial detention decision, and
    the   State      contends    that       the   provision       is    inapplicable        to   a
    release revocation hearing because the presumption of release
    only applies at the initial detention hearing.                        We disagree with
    both parties and conclude that, in the circumstances of this
    case, where the court never made an initial detention decision,
    (continued)
    N.J.S.A. 2C:45-4.    And, the State may rely on a proffer of
    evidence or hearsay to meet its burden.      State v. Reyes, 
    207 N.J. Super. 126
    , 138 (App. Div.), certif. denied, 
    103 N.J. 499
    (1986).    We note, however, that the Court recently heard
    argument as to whether the trial court erred in accepting
    hearsay testimony that the defendant committed a new offense at
    the defendant's violation of probation hearing.    State v. Noah
    Mosley, Docket No. A-24-16 (argued November 28, 2017).
    19                                    A-4778-16T6
    the judge properly considered Pretrial Services' recommendation
    as prima facie proof overcoming the presumption of release.
    Initially, Rule 3:4A(b)(5) codifies the CJRA's presumption
    of a defendant's release, except for those crimes to which a
    presumption    of      detention    applies.     See    N.J.S.A.   2A:162-18(b)
    (presumption      of    release);     N.J.S.A.    2A:162-19(b)(1)       and    (2)
    (rebuttable presumption of detention for certain crimes).                      The
    Rule also permits, but does not require, the judge to consider
    the Pretrial services recommendation against release as prima
    facie    evidence      sufficient    to   overcome     the    presumption.       R.
    3:4A(b)(5); see also See State v. C.W., 
    449 N.J. Super. 231
    , 262
    (App. Div. 2017) (noting consideration of the recommendation as
    prima facie evidence to rebut the presumption of release is
    discretionary).        N.J.S.A. 2A:162-19(a) provides that a motion to
    detain may be filed at any time prior to trial, and the Rule
    does not limit its application to motions filed prior to the
    initial hearing.
    We find further reason to reject the State's position in
    Article 1, paragraph 11, of our Constitution, the amendment that
    preceded enactment of the CJRA, which provides:                    "All persons
    shall,   before     conviction,      be   eligible     for   pretrial   release."
    Furthermore, N.J.S.A. 2A:162-15 requires that the CJRA "shall be
    liberally    construed      to     effectuate    the    purpose    of   primarily
    20                             A-4778-16T6
    relying    upon        pretrial        release       by     non-monetary      means       to
    reasonably assure" its goals.
    We specifically do not address a situation where the court
    initially rejects the PSA recommendation of "no release" and
    releases the defendant on conditions.6                       In such situations, the
    CJRA   requires        the     court    entering       an    order    "contrary     to     a
    recommendation         made"    in     the   PSA     to     explain   in    writing      its
    decision to release.             N.J.S.A. 2A:162-23(a)(2).                 We recognize
    that the court's subsequent invocation of Rule 3:4A(b)(5) to
    surmount   the     presumption          of    release        raises   the    very     real
    possibility       of     inconsistent             decision-making      following         re-
    litigation of the same or similar issues.                       See State v. K.P.S.,
    
    221 N.J. 266
    , 276 (2015) ("The law-of-the-case doctrine 'is a
    non-binding      rule        intended        to     prevent     relitigation        of     a
    previously resolved issue' in the same case.") (citing Lombardi
    v. Masso, 
    207 N.J. 517
    , 538 (2011)).                        Here, however, the State
    never sought defendant's detention so the judge never considered
    6
    We tread carefully because of the Court's pending decision in
    State v. S.N., Docket No. A-60-16 (argued on September 11,
    2017), where the use of Pretrial Services' recommendation of no
    release as prima facie evidence under Rule 3:4A(b)(5) was raised
    during argument before the Court, and State v. Hassan Travis,
    Docket No. A-7-17 (argued on November 29, 2017), where Pretrial
    Services' recommendation in the context of the Rule was squarely
    considered.
    21                                 A-4778-16T6
    the PSA's recommendation of "no release" prior to the revocation
    hearing.
    Defendant White argues that the judge "misapplied the law
    on revocation of pretrial release," essentially contending that
    any     violations       proven         during      the    revocation       hearing      were
    insufficient to establish by clear and convincing evidence that
    detention was required.                 He underscores that the violations did
    not include another arrest for a crime, contact with the victim,
    or    appearance       at    the    location        of    the    crime.      Further,       he
    appeared       at   every    court       proceeding        and   reported    to    Pretrial
    Services as required.               In short, he claims that there was no
    basis    to     find    he    posed       a    risk       to    the   community     or    the
    administration of justice, or that he would fail to appear in
    court when required.               We choose not to address those arguments
    because reversal is required for other reasons that follow, and
    defendant may renew those and other arguments on the record
    produced at the remand hearing we now order.
    As noted, the CJRA requires that a defendant receive proper
    notice    of    the    revocation        hearing.          N.J.S.A.     2A:162-19(d)(2).
    Here,    on     July    7,    both       the     prosecutor       and   defense     counsel
    believed the revocation hearing on the State's motion was to
    take place on Monday, July 10.                      The judge said the "notice of
    violation      and     order"      of    the   court      set    July   7   as    the    date.
    22                                   A-4778-16T6
    However, the notice of violation in the record, filed in support
    of the State's motion, does not set the date; the referenced
    court order is also not in the record.                     Moreover, the State's
    notice of motion, which is in the record, was not served on
    defense   counsel     until      July     6,    making    it    unlikely      that    the
    hearing was set for the next day.
    In    short,     the     record      does    not     reasonably      support      the
    conclusion that defendant was on notice that the hearing was to
    take place on July 7.              This is amply borne out by defense
    counsel's later assertion that defendant mistakenly reported to
    Pretrial Services on July 7 and only appeared in court because
    he was told on that day by Pretrial Services to report to court.
    The     failure     to      provide    proper      notice     was    particularly
    prejudicial in this case because the judge denied defendant's
    reasonable    request      to    delay    the    hearing       until    the   following
    Monday.     The judge did not provide an explanation for denying
    the adjournment request, although we may surmise that he was
    concerned    about    defendant's         alleged    prior      violations     and    the
    second violations report, filed less than one month after the
    earlier June 5 court hearing.
    However,       Rule      3:26-2(d)(2)         clearly        provides      that     a
    defendant has the right to call witnesses and present evidence
    at a release revocation hearing.                    Here, defendant made clear
    23                                  A-4778-16T6
    that he intended to call his mother, who was unavailable on July
    7 but would be available on July 10, to explain the problems he
    continued to have with his EMD and to testify that defendant had
    returned to her home.             He also wished to produce evidence that
    his work required him to be at certain locations outside of his
    home, including those detected by satellite.                       This evidence, if
    believed by the judge, certainly rebutted the State's evidence
    regarding       "the    nature       and     seriousness      of    the    violation."
    N.J.S.A. 2A:162-24.
    We do not suggest that a judge should surrender his or her
    broad discretion to control the revocation hearing and limit the
    testimony       and    evidence      that    is   relevant.        However,    federal
    courts have recognized that the government's sole reliance on a
    proffer at the revocation hearing may affect the probative value
    and weight of the evidence on the ultimate decision of whether
    detention is appropriate.               See 
    LaFontaine, supra
    , 210 F.3d at
    132 (noting that while the government may proceed by proffer, it
    usually does not rely solely on a proffer where its request to
    revoke release is premised upon danger to the community); 
    Aron, supra
    ,    904    F.2d    at    227   ("The     inability     of    the    defendant   to
    cross-examine a declarant is relevant to the probative value of
    the proffered evidence . . . .").                 It follows that a defendant's
    ability    pursuant       to    Rule       3:26(d)(2)   to    call       witnesses    and
    24                                A-4778-16T6
    produce    evidence    to    rebut     the    State's   revocation   proofs   has
    increased significance when the only proof of a violation is the
    report of Pretrial Services, as it was in this case.
    The denial of the adjournment under these circumstances was
    a mistaken exercise of the judge's discretion.7               See 
    C.W., supra
    ,
    449 N.J. Super. at 255 ("An appellate court can also discern an
    abuse of discretion when the trial court fails to take into
    consideration    all        relevant    factors     and   when   its   decision
    reflects a clear error in judgment.") (citing State v. Baynes,
    
    148 N.J. 434
    , 444 (1997)).             We therefore reverse and vacate the
    detention order, and remand the matter to the trial court to
    conduct a new hearing on the State's motion to revoke White's
    release.
    Although the CJRA requires a previously released defendant
    to remain so pending the detention hearing, N.J.S.A. 2A:162-
    19(d)(2), we do not order defendant's immediate release in this
    case.     If the State wishes to proceed on its motion to revoke
    7
    We reject the State's suggestion, made at oral argument, that
    defendant's challenge to the denial of his adjournment request
    was not properly before us because it was contained in a
    footnote in his brief. See Sullivan v. Port Auth. of N.Y. and
    N.J., 
    449 N.J. Super. 276
    , 281 (App. Div. 2017) (explaining that
    arguments raised in a footnote will not be considered on
    appeal).   In arguing that the evidence did not clearly and
    convincingly establish that detention was appropriate, defendant
    repeatedly referenced throughout his brief the contrary evidence
    that may have been produced, but was not, because the
    adjournment request was denied.
    25                             A-4778-16T6
    defendant's    release,       it   shall    notify    the    judge    and   defense
    counsel    forthwith,     and      the    judge    shall    provide    notice     and
    conduct the revocation hearing within ten days of our judgment,
    or   otherwise        release      defendant       subject     to      appropriate
    conditions.    We do not retain jurisdiction.
    III.
    As to defendant Bostic, we initially express grave concerns
    about the procedures employed prior to the actual revocation
    hearing.     Defendant was arrested when he reported to Pretrial
    Services for the first time as ordered.                    He had not committed
    another crime and there was no outstanding arrest warrant, see
    N.J.S.A. 2A:162-23(a)(1)(b) (permitting the "immediate issuance
    of a warrant for the . . . defendant's arrest" for "violating a
    condition of release"), yet defendant was taken into custody
    immediately and not brought before a judge for five days.                          At
    oral argument before us, the prosecutor could not identify what
    authority permitted the State to proceed in such fashion, and we
    can find none ourselves.
    The CJRA requires that a defendant must be provided with
    "all conditions . . . to which the release is subject" "in a
    manner sufficiently clear and specific to serve as a guide for
    . . . defendant's conduct."              N.J.S.A. 2A:162-23(a)(1)(a).           There
    is   no    evidence    that     the      prosecutor   actually       supplied     the
    26                                A-4778-16T6
    addresses of the victims, as the judge asked her to do, and the
    actual   order,   which   mistakenly       stated,    "Defendant      shall    come
    within 1000 feet of any victim inclusion zones[,]" does not
    provide them.     In short, nothing in the record demonstrates that
    Pretrial Services or the State ever supplied defendant with the
    parameters of the victim exclusion zones.
    At the revocation hearing, defendant denied any knowledge
    of the victims' addresses.         The State only argued that defendant
    must have known the victims' home addresses because they worked
    in his business.         Although the judge specifically found that
    defendant had entered the exclusion zone for two of the victims,
    the judge did not find that defendant had actually known where
    or how extensive those zones were.             Under these circumstances,
    the State failed to prove by a preponderance of the evidence
    that defendant had violated that condition of his release.
    The judge also found that defendant had violated another
    condition of his release by "fail[ing] to remain in [his] home
    as   required."     In    fact,    the     first     judge,    on    remand,    had
    specifically ordered defendant to report to Pretrial Services,
    which    was   located    in   a    town     different        from   defendant's
    residence, upon his release from jail or the next day if he were
    released late in the day.          Defendant complied by reporting the
    27                                 A-4778-16T6
    day after the remand hearing and, in doing so, had to leave his
    home.
    The State's proof at the revocation hearing was limited to
    the Pretrial Services' violation report and the Google Map.                 The
    Google map, which is in the record, does not demonstrate that
    defendant was wandering or "roaming the city of Vineland most of
    the day," contrary to the assertion in the violation report.
    Therefore, the State failed to prove by a preponderance of the
    evidence    this      second   purported   violation   of   a   condition   of
    release.
    On Bostic's appeal, we reverse, vacate the detention order
    and     order   his    immediate   release    on   appropriate    conditions
    following a hearing, which the Law Division judge shall conduct
    forthwith.
    Reversed and remanded in both appeals.
    28                             A-4778-16T6