2018 NJSBA Annual Meeting Supreme Court Year in Review

2018 NJSBA Annual Meeting

Supreme Court Year in Review 2018

Moderator/Speaker: Hon. Peter F. Bariso Jr., A.J.S.C., Hudson County

Speakers: Justice Barry T. Albin Supreme Court of New Jersey Justice Anne M. Patterson Supreme Court of New Jersey Justice Lee A. Solomon Supreme Court of New Jersey Hon. Jeanne Covert, P.J.Cr., Burlington County Hon. Deborah J. Venezia, P.J.F.P., Middlesex County

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5047-14T1

JAIME TAORMINA BISBING, APPROVED FOR PUBLICATION Plaintiff-Respondent, April 6, 2016 v. APPELLATE DIVISION

GLENN R. BISBING, III,

Defendant-Appellant. ______

Argued March 2, 2016 — Decided April 6, 2016

Before Judges Fuentes, Koblitz, and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-324-14.

Matheu D. Nunn argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, PC, attorneys; Mr. Nunn, of counsel; Mr. Nunn and Bonnie C. Frost, on the brief).

Paul H. Townsend argued the cause for respondent (Townsend, Tomaio & Newmark, LLC, attorneys; Mr. Townsend, of counsel; Mr. Townsend, Maria A. Giammona, and Valerie R. Wane, on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

In this appeal, we examine the effect of a non-relocation agreement on a subsequent request by the primary custodial parent to relocate to a distant state. Defendant Glenn R.

Bisbing, III1 appeals from the Family Part's April 24, 2015 and

July 14, 2015 orders allowing his former wife, plaintiff Jaime

Taormina Bisbing, to relocate with the parties' then eight-year- old twin girls without first holding a plenary hearing. We reverse and remand for a plenary hearing.

The parties were married in 2005 and the girls were born in

November 2006. Both parties were employed as highly-paid professionals, with Jaime earning more money than Glenn.

In early 2013, Glenn investigated job opportunities in

Colorado and California. The parties separated in August, and in November of that year, Jaime began a long-distance relationship with a resident of Utah who had children from a previous marriage. The Utah resident is the owner of a business in Idaho and also has business interests that require him to travel frequently to California and Louisiana.

On March 8, 2014, the parties entered into a marital settlement agreement (MSA) following the parties' participation, without counsel, in mediation with an attorney-mediator. The parties agreed to joint legal custody. They agreed that Jaime would have primary residential custody, with the condition that she not relocate out of state.

1 We will call the parties by their first names for ease of reference. No disrespect is intended.

2 A-5047-14T1 Pursuant to Article 1.2 of the MSA, Jaime also agreed to

"broad, reasonable and liberal timesharing" of the children with

Glenn. Glenn was provided parenting time with his daughters on

Father's Day, Glenn's birthday, "every other weekend and on one weeknight during the weeks when he does not have parenting time." Glenn had parenting time on two continuous weeks during the summer; and every other Thanksgiving, Christmas Eve,

Christmas Day, New Year's Eve, New Year's Day, and the children's school breaks. Under Article 1.3, both parties were also "entitled to attend all of the Children's sporting and extracurricular activities no matter whose parenting day they might fall on."

Article 1.9 Relocation provides the following terms regarding a change of residence:

The parties agree that each shall inform the other with respect to any change of residence concerning himself or herself or the said minor Children for the period of time wherein any provision contained in this Agreement remains unfulfilled. The parties represent that they both will make every effort to remain in close proximity, within a fifteen (15) minute drive from the other. Neither party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other. Neither parent shall relocate intrastate further than 20 miles from the other party. In the event either party relocates more than 20 miles from the other party, the parties agree to return to mediation to review the custody arrangement. In the event a job would necessitate a move,

3 A-5047-14T1 the parties agree to discuss this together and neither will make a unilateral decision. Neither party shall travel with the minor Children outside of the United States without the prior written consent of the other party.

The parties hereby acknowledge that the Children's quality of life and style of life are provided equally by Husband and Wife.

The parties hereby acknowledge a direct causal connection between the frequency and duration of the Children's contact with both parties and the quality of the relationship of the Children and each party.

The parties hereby acknowledge that any proposed move that relocates the Children any further away from either party may have a detrimental impact upon the frequency and duration of the contact between the Children and the non-moving party.

On April 16, 2014, a final judgment of divorce (JOD) was entered incorporating the MSA. According to Glenn, after the divorce, he was "intricately involved in all aspects of the girls' lives." He coached their soccer team, took them to ski club activities, and attended their school events.

One month after the divorce, Jaime sent an e-mail to Glenn informing him that, although she received no alimony, she was planning to leave her job on July 1, 2014, to become a full-time stay-at-home parent, which she did.

On January 8, 2015, less than nine months after the divorce, Jaime called Glenn to notify him of her intention to get married to the Utah resident and relocate to Utah. Jaime

4 A-5047-14T1 asked for Glenn's permission to move with their daughters to

Utah. Glenn refused, stating, "You can move, just leave the girls with me."

On March 16, eleven months after the divorce, Jaime filed a motion seeking to relocate with the children to Utah without the need for a plenary hearing. The court granted the motion allowing relocation without holding a plenary hearing on the condition that a visitation schedule be established through mediation, signing the order on April 24, 2015. On July 14,

2015, after an unsuccessful mediation, with only Jaime suggesting a parenting plan, the court issued a supplemental order establishing a parenting time and communication schedule using most of Jaime's suggestions.2

Eleven days later, Jaime and the children "left for a vacation to Utah." Three days thereafter, Jaime permanently relocated with the children in Utah.

"Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord

2 We have reviewed the court's May 18, 2015 letter supplementing the reasons placed on the record as well as its written statement of reasons attached to the July 14 order. See R. 2:5- 1(g) (permitting the trial judge to "supplement a filed opinion").

5 A-5047-14T1 deference to family court factfinding." Cesare v. Cesare, 154

N.J. 394, 413 (1998). Unlike findings of fact, "appellate review of legal determinations is plenary." State v. Reece, 222

N.J. 154, 167 (2015) (quoting State v. Handy, 206 N.J. 39, 45

(2011)). Here, the family court did not hold a plenary hearing, nor was it familiar with the parties through extensive motion practice.

We reverse and remand for a plenary hearing to determine first whether Jaime negotiated the MSA in bad faith. If so, a

"best interests of the child" analysis must be conducted.

Second, if bad faith is not demonstrated, the trial court must then consider whether Jaime proved a substantial unanticipated change in circumstances warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a

Baures3 analysis. If the MSA was negotiated in good faith, yet

Jaime fails to satisfy her burden of proving a substantial unanticipated change in circumstances, the court must apply the same "best interests" analysis as required in the first step.

Only if Glenn is unable to demonstrate that Jamie negotiated the

MSA in bad faith and Jamie proves a substantial unanticipated change in circumstances occurred should she be accorded the benefit of the Baures analysis.

3 Baures v. Lewis, 167 N.J. 91, 116-18 (2001).

6 A-5047-14T1 II

The legal authority governing a custodial parent's request for relocation is extensive and well-established. Pursuant to

Title Nine, the children of divorced parents shall not be removed from the Superior Court's jurisdiction "without the consent of both parents, unless the court, upon cause shown, shall otherwise order." N.J.S.A. 9:2-2. One of the underlying purposes of the statute involving removal is to preserve the parent-child relationship of the non-custodial parent and the child. See Cooper v. Cooper, 99 N.J. 42, 52-53, 55 (1984).

After a divorce, a custodial parent's request to relocate with the parties' children presents our courts "with difficult and often heart-wrenching decisions." Morgan v. Morgan, 205

N.J. 50, 54 (2011). "In circumstances where the [non-custodial] parent has a healthy, meaningful relationship and bond with the child[ren], there are few circumstances where the judicial determination [of removal] will not adversely affect the parties and the child." O'Connor v. O'Connor, 349 N.J. Super. 381, 384

(App. Div. 2002). Although relocation was rarely permitted by our courts in the past, our Supreme Court recently discussed a more modern view:

Over time, there has been a shift in relocation law across the country. That shift has resulted from several factors: the mobility of the population, advances in technology, the notion that what is good for

7 A-5047-14T1 the custodial parent is good for the children of the divorce, and a renewed recognition that "[t]he custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent."

[Morgan, supra, 205 N.J. at 62 (alteration in original) (citations omitted) (quoting Cooper, supra, 99 N.J. at 55).]

"[I]n determining the standard to be applied to a parent's removal application, the focus of the inquiry is whether the physical custodial relationship among the parents is one in which one parent is the 'primary caretaker' and the other parent is the 'secondary caretaker.'" O'Connor, supra, 349 N.J. Super. at 385. If the parents truly share both physical and legal custody, "the party seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocation parent." Ibid. If one parent serves as the primary caretaker, the custodial parent's request to relocate a child is governed by the Baures two-part test. Baures, supra, 167 N.J. at 116-19, 122. Pursuant to

Baures's two-pronged inquiry, the moving party has the burden of proving by a preponderance of the credible evidence "that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child's interests." Id. at 118. To

8 A-5047-14T1 determine whether to order removal, a court must assess twelve

"factors relevant to the plaintiff's burden of proving good faith and that the move will not be inimical to the child's interest." Id. at 116-17.

The initial burden on the movant "is not a particularly onerous one." Id. at 118. Once the moving party makes a prima facie showing, the burden shifts to the non-moving party to

"produce evidence opposing the move as either not in good faith or inimical to the child's interest." Id. at 119.

The Baures standard "accords particular respect to the custodial parent's right to seek happiness and fulfillment."

MacKinnon v. MacKinnon, 191 N.J. 240, 257 (quoting Baures, supra, 167 N.J. at 97), stay denied, 551 U.S. 1177, 128 S. Ct.

7, 168 L. Ed. 2d 784 (2007). We note, in the context of this case, the late Justice Schreiber's concurrence, which stated that "[s]ubstantial deference is to be accorded to parents' mutually-agreed-upon decisions with respect to custody and visitation," including "the parents' agreement regarding the physical situs of the children." Cooper, supra, 99 N.J. at 66

(Schreiber, J., concurring).

A plenary hearing is necessary "where a prima facie showing has been made that a genuine issue of fact exists bearing upon a critical question." See Barblock v. Barblock, 383 N.J. Super.

114, 123 (App. Div.) (quoting Pfeiffer v. Ilson, 318 N.J. Super.

9 A-5047-14T1 13, 14 (App. Div. 1999)), certif. denied, 187 N.J. 81 (2006).

Here, Glenn raises the question of whether Jaime negotiated the custody provisions in good faith. In Shea v. Shea, the parties entered into an agreement establishing "joint legal custody, with [the] defendant designated as parent of primary residence."

384 N.J. Super. 266, 270 (Ch. Div. 2005). Four months later, the defendant filed an application seeking permission to relocate with the child. Id. at 268-69. The plaintiff argued that the defendant manipulated the Baures procedures "by first settling the divorce, and immediately thereafter filing for removal, effectively depriving [the plaintiff] of the opportunity to contest custody." Id. at 268. He alleged that he never would have agreed to the settlement "had he known that

[the] defendant was shortly thereafter going to seek an order for out-of-state removal." Ibid. In a published opinion, Judge

Millard determined that the parties were entitled to a plenary hearing. Id. at 273-74. Judge Millard opined:

It seems only fair and equitable, that where a request for removal comes shortly after the settlement of the Final Judgment of Divorce, and the material facts and circumstances forming the good faith reason for the removal request were known at the time of the entry of the final judgment, a party opposing the removal be entitled to contest custody under the best interests analysis, irrespective of whether the parties had a true shared parenting arrangement. In effect, the party opposing removal is restored to the position he or

10 A-5047-14T1 she held prior to the Final Judgment of Divorce. To rule otherwise could potentially encourage disingenuous settlements, encourage a party to use the Baures line of cases as a sword, or alternatively compel a cautious party to exhaustively litigate custody when not truly necessary. The moving party must, of course, initially make out a prima facie case for removal under Baures (good faith reason for removal and not inimical to interests of child) before the court would entertain such a custodial application.

[Id. at 271-72.]

Unlike in Shea, when Jaime entered into the agreement, she may not have definitely known of "the material facts and circumstances forming the good faith reason for the removal request" — that she was going to marry the Utah resident. See id. at 271. The parties here, however, agreed to a non- relocation provision that did not exist in Shea. Thus, for reasons as compelling as those in Shea, Glenn is entitled to a plenary hearing to establish whether Jaime manipulated the situation to obtain favorable Baures removal procedures. See id. at 271-72. If Glenn proves the existence of manipulation,

"fundamental fairness" requires the trial court to apply the

"best interests of the child" standard rather than the Baures standard. See id. at 273-74.

Because Jaime sought to relocate shortly after entering into a non-relocation agreement, we adopt the procedures in Shea and remand to hold a plenary hearing. The parties entered into

11 A-5047-14T1 an MSA in March 2014, which was incorporated into the parties'

JOD in April 2014. At the time of the agreement, Jaime had been dating her current husband for approximately four months. She left her well-paying job to stay home with her children three months after her divorce, and informed Glenn of her impending nuptials and desire to relocate six months after that. Similar to the situation in Shea, the close proximity between the parties' agreement and Jaime's plans to relocate provides evidence of suspicious circumstances requiring a plenary hearing. See id. at 269, 273. If, after holding a hearing, the family court finds that Jaime negotiated in bad faith, it should then analyze the relocation request under a "best interests" analysis.

III

If the family court finds that Jaime negotiated in good faith, without manipulative intent, the court must still consider the impact of the carefully considered non-relocation provision.

"New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v.

Konzelman, 158 N.J. 185, 193 (1999)). "The basic contractual nature of matrimonial agreements has 'long been recognized.'"

12 A-5047-14T1 Sachau v. Sachau, 206 N.J. 1, 5 (2011) (quoting Petersen v.

Petersen, 85 N.J. 638, 642 (1981); Harrington v. Harrington, 281

N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455

(1995); Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div.

1995)). Consensual settlement agreements are subject to the

"changed circumstances" doctrine. Lepis v. Lepis, 83 N.J. 139,

148 (1980). "A party seeking modification of a judgment incorporating a [property settlement agreement] regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child." Abouzahr v. Matera-Abouzahr, 361 N.J.

Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); see Walles v. Walles, 295 N.J. Super. 498, 517 (App. Div. 1996)

(stating that "a party seeking modification of a judgment of divorce must demonstrate a substantial change in circumstances"). When conducting a change in circumstances analysis, the court must address all relevant considerations,

"including the parties' understanding at the time of execution of the [marital settlement agreement]." Glass v. Glass, 366

N.J. Super. 357, 376 (App. Div.) (requiring the court to consider "the reasonable expectations" of the contracting parties), certif. denied, 180 N.J. 354 (2004).

Article 1.9 of the MSA requires the prior written consent of the other party before relocation. The language of the MSA

13 A-5047-14T1 and the parties' conduct evidence an intent for the children to remain in New Jersey. Jaime acknowledged that the relocation provision was negotiated between the parties. See Minkowitz v.

Israeli, 433 N.J. Super. 111, 138 (App. Div. 2013) (stating that an agreement reached voluntarily "should be enforced"). Thus

Jaime, in a written and voluntarily agreed-upon contract, specifically surrendered her "freedom to seek a better life" in another state while obtaining primary custody of the children, and was well aware of that agreement when she chose to remarry and move far away. See Morgan, supra, 205 N.J. at 62 (quoting

Cooper, supra, 99 N.J. at 55).

Two central reasons for moving are for new employment or remarriage. See Baures, supra, 167 N.J. at 96 ("[R]elocation for employment purposes is common. On a personal level, people remarry and move away."); see, e.g., Morgan, supra, 205 N.J. at

56 (remarriage); MacKinnon, supra, 191 N.J. at 244 (employment).

In their agreement, the parties discussed relocation on the basis of new employment. Remarriage, however, was not mentioned in the agreement. Perhaps testimony would reveal whether such an eventuality was considered. See Pacifico v. Pacifico, 190

N.J. 258, 267 (2007) (permitting an evidentiary hearing to determine the parties' intentions when entering into a property settlement agreement).

14 A-5047-14T1 On remand, if Glenn is unable to demonstrate bad faith,

Jaime has the opportunity of proving a substantial unanticipated change in circumstances to trigger the court's consideration of the Baures factors. If the court determines that the Baures procedure is appropriate, then it must gauge as one of the factors, as it failed to do in its decision on the removal motion, the effect on the children of moving away from both parents' extended families. Baures, supra, 167 N.J. at 117

(identifying as one of the factors "the effect of the move on extended family relationships").

If Jaime is unable to demonstrate an unanticipated substantial change in circumstances, even if she negotiated the

MSA in good faith, the family court must apply the "best interests" standard to determine removal. If Jaime's remarriage was anticipated, or should have been anticipated, then Glenn should be able to rely on the non-relocation provision.

Although Baures "accords particular respect to the custodial parent's right to seek happiness and fulfillment," Jaime bargained away this preference and the non-relocation provision should be enforced to the limited extent of modifying the usual, preferential treatment accorded the primary caretaker's good faith desire to relocate. See id. at 97.

15 A-5047-14T1 Reversed and remanded to the Family Part for a plenary hearing to be conducted in an expedited fashion within sixty days. We do not retain jurisdiction.

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« Citation Original Wordprocessor Version Data (NOTE: The status of this decision is .)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC

(A-101/102/103/104-15) (077249)

Argued April 25, 2017 -- Decided September 14, 2017

ALBIN, J., writing for the Court.

Plaintiff, The Palisades at Fort Lee Condominium Association, Inc., filed lawsuits alleging that defendants, the general contractor and three subcontractors, defectively constructed a building complex now under the Condominium Association’s control. The issue is whether plaintiff filed the lawsuits before the expiration of the statute of limitations.

Old Palisade did not relinquish control of the Condominium Association to the unit owners until seventy-five percent of The Palisades’ units had been sold. That occurred in July 2006. The Condominium Association then retained the Falcon Group to inspect The Palisades’ common elements. The Falcon Group issued a report on June 13, 2007 (the Falcon Report), detailing construction-related defects.

Based on the Falcon Report, the Condominium Association filed a series of complaints in the Law Division that generally allege that defendants breached express and implied warranties of good workmanship, habitability, and merchantability and performed their duties negligently. Defendants moved for summary judgment, alleging that plaintiff filed its claims beyond the six-year statute of limitations, N.J.S.A. 2A:14-1.

The trial court granted defendants’ motions and dismissed plaintiff’s complaints as time-barred. The court found that the statute of limitations began to run upon substantial completion of The Palisades—May 1, 2002. In the trial court’s view of the discovery rule, the Condominium Association had sufficient time within the six-year limitations period to bring its claims against defendants.

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A panel of the Appellate Division rejected the trial court’s conception of how the discovery rule operates in construction-defect cases. According to the panel, the “causes of action against defendant contractors did not accrue until June 13, 2007, when the unit-owner- controlled Board received Falcon’s report.” The panel concluded that plaintiff filed its complaints against defendants within the six-year period, which commenced on June 13, 2007.

The Court granted defendants’ petitions for certification. 227 N.J. 154 (2016); 227 N.J. 151 (2016); 227 N.J. 151 (2016); 227 N.J. 145 (2016).

HELD: A construction-defect cause of action accrues at the time that the building's original or subsequent owners first knew or, through the exercise of reasonable diligence, should have known of the basis for a claim. From that point, the plaintiff has six years to file a claim. A subsequent owner stands in no better position than a prior owner in calculating the limitations period. If a prior owner knew or reasonably should have known of a basis for a construction- defect action, the limitations period began at that point. Here, the Court cannot determine when the accrual clock commenced for each defendant based on the record before it and accordingly remands to the trial court.

1. N.J.S.A. 2A:14-1 provides that “[e]very action at law for . . . any tortious injury to real . . . property . . . shall be commenced within 6 years next after the cause of any such action shall have accrued.” In construing accrual statutes, the Court has eschewed “a rigid and automatic adherence to a strict rule of law” that would produce unjust results. Lopez v. Swyer, 62 N.J. 267, 273-74 (1973). Under the discovery rule, “in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.” Id. at 272. (pp. 17-20)

2. In Caravaggio v. D’Agostini, 166 N.J. 237, 246, 248 (2001), the Court gave the plaintiff the benefit of the full two-year limitations period from the date of accrual, even though she had over a year-and-one-half remaining on the statute of limitations if the starting date were fixed at the time of the allegedly negligent operation. Russo Farms v. Vineland Board of Education, 144 N.J. 84, 115 (1996), stands for the proposition that in a construction-defect case, the date on which an architect certifies to the owner that the structure is substantially complete typically will start the running of the six-year property-tort statute of limitations, N.J.S.A. 2A:14-1, unless, despite the exercise of reasonable diligence, the plaintiff is unaware of an actionable claim. Importantly, the Court in Russo Farms gave the plaintiffs the benefit of the full six-year limitations period, notwithstanding that the plaintiffs would have had four years to file their claims if the clock began at the time of substantial completion. Russo Farms and Caravaggio applied the same discovery-rule template to different accrual statutes. The Court therefore rejects defendants’ argument that, so long as plaintiff discovered the basis for an actionable claim within six years from the date of substantial completion, plaintiff had to file within the time remaining in the limitations period. (pp. 20-27)

3. The Court also rejects the approach taken by the Appellate Division—that the six-year statute of limitations could not accrue before plaintiff gained full control of the Condominium Association. The statute-of-limitations clock is not reset every time property changes hands. However, if the original owner was unaware of an actionable claim, despite the exercise of reasonable diligence, then the accrual clock begins when a subsequent owner knew or reasonably should have known of the existence of the claim. A cause of action, for purposes of N.J.S.A. 2A:14-1, accrues when someone in the chain of ownership first knows or reasonably should know of an actionable claim against an identifiable party. A condominium association is not exempted from this long-standing rule. (pp. 27-30)

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4. Based on the record, the Court cannot perform the accrual calculation because it requires findings of fact to determine when A/V Acquisitions, Old Palisade, or the Condominium Association—all entities in the chain of ownership—first knew or, through the exercise of reasonable diligence, should have known of a cause of action against each defendant. Whether the accrual clock began when the Ray Report or the Falcon Report issued or at some time before, after, or in between requires a detailed inquiry. To answer those questions, the trial court must conduct a Lopez hearing and examine the documentary evidence and deposition transcripts presented by the parties and, in its discretion, take testimony from relevant witnesses. (pp 30-32)

5. The Legislature enacted the statute of repose in construction-defect cases, N.J.S.A. 2A:14-1.1(a), to insulate construction professionals from indefinite liability through operation of the discovery rule. The ten-year repose statute begins at the date of a project’s substantial completion and sets the outer limit for the filing of a construction-defect claim. The complaints against all defendants were filed within this ten-year period. Therefore, N.J.S.A. 2A:14-1.1(a) does not stand as a bar to plaintiff’s claims. (pp. 32-34)

6. In summary, the date that a structure is deemed substantially complete oftentimes is when a cause of action accrues. But many construction defects will not be obvious immediately. In such instances, a cause of action does not accrue until the plaintiff knows or, through the exercise of reasonable diligence, should know of a cause of action against an identifiable defendant. A plaintiff who is a successor in ownership takes the property with no greater rights than an earlier owner. If the earlier owner knew or should have known of a cause of action against an identifiable defendant, the accrual clock starts then. The determination of when a claim accrued ordinarily should be made at a Lopez hearing. At the hearing, the plaintiff will bear the burden of proving that the claim accrued at a time after a project’s substantial completion. (pp. 34-35)

The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.

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SUPREME COURT OF NEW JERSEY

A-101/102/103/104

September Term 2015

077249

THE PALISADES AT FORT LEE CONDOMINIUM ASSOCIATION, INC.,

Plaintiff-Respondent,

100 OLD PALISADE, LLC, CRESCENT HEIGHTS OF AMERICA, INC., CRESCENT HEIGHTS ACQUISITIONS, LLC, 100 OLD PALISADE HOLDINGS, LLC, 100 OLD PALISADE HOLDINGS II, LLC, 100 OLD PALISADE HOLDINGS III, LLC, EREZ BASHARI, PEIRU WEN, LENNY WARSHAW, NISSIM LANCIANO, SHARON CHRISTENBURY, JOSEPH ZDON, PABLO DE ALMAGRO, EPHRAIM BASHARI, SONNY KAHN, individually and as Trustee of the SK Business Trust, SK BUSINESS TRUST, RUSSELL W. GALBUT, individually and as Trustee of the RF Business Trust, RF BUSINESS TRUST, BRUCE A. MENIN, individually and as Trustee of the MENIN 1998 FAMILY TRUST, MENIN 1998 FAMILY TRUST, F&G MECHANICAL CORP., MANNIX EXTERIOR WALL SYSTEMS, INC., SOUTH SHORE CONTRACTING, INC., PATWOOD CONTRACTING CO., INC., d/b/a PATWOOD ROOFING, MTA CORP., MAARV WATERPROOFING, B&B IRON WORKS, INC., RAY

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ENGINEERING, INC., STEVEN W. RAY, P.E., METRO GLASS, INC., and ROMITCH CO.,

Defendants-Appellants,

and

AJD CONSTRUCTION CO., INC., LUXURY FLOORS, INC., BENFATTO MASONRY, INC., and FORSA CONSTRUCTION, INC.,

Defendants-Appellants.

Defendants/Third-Party

Plaintiffs,

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APPLIED PROPERTY MANAGEMENT CO., INC., a/k/a APPLIED DEVELOPMENT COMPANY, IRONSTATE DEVELOPMENT COMPANY, a/k/a IRONSTATE DEVELOPMENT, LLC, IRONSTATE HOLDINGS, LLC, COSTAS KONDYLIS & ASSOCIATES, P.C., COSTAS KONDYLIS & PARTNERS, LLP, CONSTANTINE A. KONDYLIS, a/k/a COSTAS KONDYLIS, GOLDSTEIN ASSOCIATES CONSULTING ENGINEERS, P.C.,

Defendants/Third-Party

Defendants.

AJD CONSTRUCTION CO., INC.,

Third-Party Plaintiff,

PATWOOD CONTRACTING CO., INC., d/b/a PATWOOD ROOFING, MTA CORP., MAARV WATERPROOFING, INC., BENFATTO CONSTRUCTION CORP., B&B IRON WORKS, INC.,

Third-Party Defendants.

SOUTHSHORE CONTRACTING, INC.,

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Third-Party Plaintiff,

ARQ PAINTING & CONTRACTING, INC.,

Third-Party Defendant.

APPLIED PROPERTY MANAGEMENT CO., INC., THE PALISADES A/V COMPANY, LLC, APPLIED PALISADES, LLC, APPLIED DEVELOPMENT COMPANY, INC., improperly pleaded as d/b/a APPLIED DEVELOPMENT COMPANY, IRONSTATE DEVELOPMENT, LLC, IRONSTATE HOLDINGS, LLC,

Fourth-Party Plaintiffs,

WENTWORTH PROPERTY MANAGEMENT CORPORATION, WORTHMORE CONSTRUCTION & MAINTENANCE CO., INC.,

Fourth-Party Defendants.

Argued April 25, 2017 – Decided September 14, 2017

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On certification to the Superior Court, Appellate Division.

Eric S. Schlesinger argued the cause for appellant Forsa Construction (Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, attorneys; Eric S. Schlesinger and Russ M. Patane, of counsel and on the briefs, and Francesca E. Cheli, on the briefs).

Stephen C. Cahir argued the cause for appellant Luxury Floors, Inc. (Law Office of William E. Staehle, attorneys; Stephen C. Cahir, on the brief).

Mark D. Shifton argued the cause for appellant Benfatto Construction Corp. (Seiger Gfeller Laurie, attorneys; Mark D. Shifton of counsel and on the briefs, and Chester D. Ostrowski, on the brief).

John H. Osorio argued the cause for appellant AJD Construction Co., Inc. (Marshall Dennehey Warner Coleman & Goggin, attorneys; John H. Osorio, Walter F. Kawalec, III, and Pauline E. Tutelo on the briefs).

Raymond A. Garcia of the Connecticut bar, admitted pro hac vice, argued the cause for respondent (Lum, Drasco & Positan and Garcia & Milas, attorneys; Paul A. Sandars, III, of counsel and on the brief, and Raymond A. Garcia, and Nicole Liguori Micklich, of the Connecticut and Rhode Island bars, on the brief).

Gene Markin argued the cause for amicus curiae Community Association Institute (Stark & Stark, attorneys; Gene Markin and John Randy Sawyer, on the brief).

Michael S. Zicherman submitted a brief on behalf of amicus curiae Associated Construction Contractors of New Jersey (Peckar & Abramson, attorneys; Charles F. Kenny, of counsel, and Michael S. Zicherman, of counsel and on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

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Plaintiff, The Palisades at Fort Lee Condominium Association, Inc., filed lawsuits alleging that defendants, the general contractor and three subcontractors, defectively constructed a building complex that is now under the Condominium Association’s control. The issue before us is whether plaintiff filed the lawsuits before the expiration of the statute of limitations.

N.J.S.A. 2A:14-1 is a statute of limitations generally governing tort-based property-damage claims. Under that statute, a construction-defect action must be commenced within six years “after the cause of any such action shall have accrued.” Ibid. The heart of the controversy in this case is the point at which plaintiff’s causes of action “accrued.”

The trial court determined that the six-year statute of limitations began to run in May 2002, when the building was substantially complete. Applying its conception of the discovery rule, the court found that the building’s owners knew or reasonably should have known of any defects within the six-year period and therefore should have filed the lawsuits by May 2008. Because the Condominium Association did not initiate the first lawsuit until after that date, the court dismissed the actions against all defendants.

The Appellate Division reversed, concluding that the Condominium Association’s claims accrued in June 2007, when it undertook full unit-owner control of the building and became “reasonably aware” of actionable claims of construction defects based on the report of a construction expert it had retained. The Condominium Association filed all complaints against defendants within six years of that date.

We now hold that neither the trial court nor the Appellate Division applied the correct legal standard for determining when the construction-defect actions accrued

pursuant to N.J.S.A. 2A:14-1. Although N.J.S.A. 2A:14-1’s six-year statute of limitations typically commences upon substantial completion of a structure, the discovery rule applies to the accrual of a claim under N.J.S.A. 2A:14-1. Under that rule, the limitations clock does not commence until a plaintiff is able to discover, through the exercise of reasonable diligence, the facts that form the basis for an actionable claim against an identifiable defendant. Caravaggio v. D’Agostini, 166 N.J. 237, 246 (2001).

Over time, as in this case, ownership of a building may change hands. A

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construction-defect lawsuit must be filed within six years from the time that the building’s original or subsequent owners first knew or, through the exercise of reasonable diligence, should have known of the basis for a cause of action. A subsequent owner stands in no better position than a prior owner in calculating the limitations period. If a prior owner knew or reasonably should have known of a basis for a construction-defect action, the limitations period began at that point.

In light of the legal paradigm just articulated, we cannot determine when the accrual clock commenced for each defendant based on the record before us.

Accordingly, we remand to the trial court to conduct a Lopez1 hearing and to make findings of fact to settle that issue.

The Palisades is a residential building complex located in Fort Lee, New Jersey. The centerpiece of The Palisades is a forty-one story high-rise consisting of a thirty-story residential tower set atop an eleven-story parking garage. Within The Palisades complex are mid-rise apartments, townhomes, and various recreational facilities.

Palisades A/V Acquisitions Co., LLC (A/V Acquisitions) developed The Palisades project on property that it had acquired. In December 1999, A/V Acquisitions retained AJD Construction Co., Inc. (AJD) to serve as the general contractor on the project. AJD then hired various subcontractors, including Forsa Construction, Inc., Benfatto Masonry, Inc., and Luxury Floors, Inc., to perform specialized work on the project. Forsa Construction built the high-rise tower and garage, Benfatto Masonry constructed the exterior walls, and Luxury Floors installed flooring throughout the common areas. The chief architect on the project certified that The Palisades was “substantially complete” as of May 1, 2002, the date on which certificates of occupancy had been issued for various floors and units.

For the next two years, A/V Acquisitions rented apartments and units in The Palisades complex. In June 2004, A/V Acquisitions sold The Palisades to 100 Old

Palisade, LLC (Old Palisade),2 which converted the rental apartments and units into condominiums pursuant to the Condominium Act, N.J.S.A. 46:8B-1 to -38. As part of the condominium conversion process, Old Palisade retained Ray Engineering, Inc. to

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inspect the common elements of the property. Ray Engineering issued a report dated October 1, 2004 (the Ray Report), stating: “Generally, the structure of the building, townhomes and parking deck appeared to be in good condition.” The report noted the presence of “some spalling of concrete” and “some sporadic cracking of the concrete” in the parking deck. The spalling and cracking, however, did “not appear to be a structural concern at the present time.”

In converting The Palisades to a condominium form of ownership, Old Palisade attached the Ray Report to its public offering statement on January 27, 2005, and to the master deed. According to the master deed, the condominium association would be responsible for the administration and maintenance of the building’s common areas and facilities.

Although The Palisades at Fort Lee Condominium Association, Inc. (the Condominium Association or plaintiff) was incorporated on February 23, 2005, Old Palisade did not relinquish control of the Condominium Association until seventy-five

percent of The Palisades’ units had been sold. See N.J.S.A. 46:8B-12.1(a) (“Unit owners . . . shall be entitled to elect all of the members of the governing board . . . upon the conveyance of 75% of the units in a condominium.”). That occurred in July 2006. At that point, the unit owners took full control of the Condominium Association.

The unit-owner-controlled Condominium Association then retained the Falcon Group, an engineering and architectural services firm, to inspect The Palisades’ common elements for any construction defects. The Falcon Group issued a report on June 13, 2007 (the Falcon Report), detailing construction-related defects in the building’s exterior walls, roofing, concrete flooring, and plumbing, and in other areas, such as the parking garage and landscaping.

Based on the Falcon Report, the Condominium Association filed a series of complaints in the Superior Court, Law Division, including one against defendants AJD and Luxury Floors on March 12, 2009, one against Benfatto Masonry on April 16,

2009, and another against Forsa Construction on September 7, 2010.3 The complaints generally allege that defendants breached express and implied warranties of good workmanship, habitability, and merchantability and performed their duties negligently.

At the completion of discovery, AJD, Luxury, Benfatto, and Forsa

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(collectively defendants) moved for summary judgment, alleging that plaintiff filed its claims beyond the six-year statute of limitations, N.J.S.A. 2A:14-1.

The trial court granted defendants’ motions and dismissed plaintiff’s complaints as time-barred. The court found that the six-year statute of limitations

governing construction-defect claims, N.J.S.A. 2A:14-1, began to run upon substantial completion of The Palisades complex -- May 1, 2002. The court recognized that, under the discovery rule, “a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim,” quoting Belmont Condominium Ass’n, Inc. v. Geiberl, 432 N.J. Super. 52, 83 (App. Div.), certif. denied,

216 N.J. 366 (2013). The court, however, held that so long as “the plaintiff has sufficient knowledge of its claim and there remains a reasonable time under the applicable limitations period to commence a cause of action, the action will be time barred if not filed within that remaining time,” citing Torcon, Inc. v. Alexian Brothers Hospital, 205 N.J. Super. 428, 437 (Ch. Div. 1985).

The court noted that the October 2004 Ray Report, appended to Old Palisade’s public offering statement, “outlined a number of [construction] deficiencies” and that, “[e]ven assuming that the [Condominium] Association was not reasonably aware of the defects until [the issuance of the Falcon Report in June 2007], there was still an entire year left in the statute of limitations for the Association to bring a claim.” In short, in the trial court’s view of the discovery rule, the Condominium Association had sufficient time within the six-year limitations period to bring its claims against defendants.

The court also rejected plaintiff’s argument that its causes of action did not accrue until the formation of the Condominium Association. The court concluded that defendants “could not have reasonably anticipated that they would be liable in perpetuity . . . for alleged construction defects that were previously known or should have been known” to The Palisades’ prior owners.

The court denied plaintiff’s motion for reconsideration.

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In an unpublished per curiam opinion, a panel of the Appellate Division reversed the trial court’s order dismissing plaintiff’s claims on statute-of-limitations grounds. The panel rejected the trial court’s conception of how the discovery rule operates in construction-defect cases, asserting that “by its plain terms, [N.J.S.A. 2A:14-1] indicates that a claimant would have the benefit of the full limitations period to file its complaint after the cause of action has accrued.” The panel found that “it would be unreasonable for the statute of limitations to run on the claim of a condominium association, unless a unit owner, or group of unit owners, took on that responsibility.” The panel therefore determined that the Condominium Association’s “causes of action did not accrue until the unit owners took full control of the Association’s governing Board, and the Board had sufficient facts upon which to assert actionable claims against defendant contractors.”

According to the panel, the Condominium Association did not have sufficient facts to assert actionable claims against defendants until its receipt of the Falcon Report, which identified, in greater detail than the Ray Report, construction defects in The Palisades. Therefore, the “causes of action against defendant contractors did not accrue until June 13, 2007, when the unit-owner-controlled Board received Falcon’s report.” The panel concluded that plaintiff filed its complaints against defendants within the six-year limitations period, which commenced on June 13, 2007.

Last, the panel dismissed defendants’ assertions that such an outcome would

render contractors “forever liable.” It observed that N.J.S.A. 2A:14-1.1(a), the statute of repose, limits to a ten-year period, starting at a project’s substantial completion, the liability of contractors and therefore restricts “an expansive application of the discovery rule.”

This Court granted defendants’ petitions for certification. Palisades at Fort Lee

Condo. Ass’n v. 100 Old Palisade, LLC, 227 N.J. 154 (2016); Palisades at Fort Lee Condo. Ass’n v. 100 Old Palisade, LLC, 227 N.J. 151 (2016); Palisades at Fort Lee Condo. Ass’n v. 100 Old Palisade, LLC, 227 N.J. 151 (2016); Palisades at Fort Lee Condo. Ass’n v. 100 Old Palisade, LLC, 227 N.J. 145 (2016). This Court also granted the motions of Associated Construction Contractors and Community Association Institute to participate as amici curiae.

II.

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Defendants, collectively or individually, submit that the Appellate Division erred in concluding that the statute of limitations did not begin to run until after The Palisades’ unit owners took full control of the Condominium Association. Defendants assert that, for purposes of determining the accrual date of a construction-defect case, the purchaser of a building stands in the shoes of the prior building owners. Under defendants’ construct, the original owner, A/V Acquisitions, which knew or reasonably should have known of alleged defects by the time of the Ray Report, conveyed the rights it possessed -- and no greater rights -- to subsequent owners in the chain of ownership. Defendants thus argue that the Condominium Association is not entitled to a reset of the statute of limitations based on when it took ownership responsibility of The Palisades.

Defendants also agree with the trial court that the discovery rule -- as a rule of equity -- does not apply if a plaintiff knows or has reason to know of a cause of action against an identifiable defendant within the limitations period. From this perspective, the discovery rule is not applicable “until after the normal period of limitations runs.” Thus, defendants argue that plaintiff had a year left to file its claims after receipt of the Falcon Report and no excuse for not taking action until almost two years afterwards.

Last, defendants contend that the Appellate Division wrongly held that the ten-

year statute of repose, N.J.S.A. 2A:14-1.1(a), sets the outer limit for all construction- defect actions. Defendants point out that the repose statute only bars construction claims “arising out of the defective and unsafe condition of an improvement to real property.” N.J.S.A. 2A:14-1.1(a) (emphasis added). Defendants reason that under the Appellate Division’s construct, architects and contractors have limitless liability for construction defects that do not raise safety concerns.

Amicus curiae Associated Construction Contractors advances similar arguments.

Plaintiff submits that the statute of limitations did not begin to run on the Condominium Association’s claims until the unit owners took control of the governing board. Plaintiff insists that the prior owners’ knowledge of construction defects on the property, or their failure to exercise reasonable diligence in discovering those defects, did not trigger the limitations period against the Condominium Association. Plaintiff

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contends that it did not have sufficient knowledge to assert adequate claims against defendants until June 13, 2007 -- the day it received the Falcon Report, which identified construction defects not mentioned in the earlier Ray Report. From that point, plaintiff reasons, its causes of action accrued and the six-year limitations period commenced. Last, plaintiff asserts that the ten-year statute of repose protects contractors from potential liability in perpetuity.

Amicus curiae Community Association Institute echoes many of these arguments.

III.

Our primary task is to determine whether plaintiff filed its construction-defect

claims within the six-year limitations period allowed by N.J.S.A. 2A:14-1. To resolve that issue, we must decide when plaintiff’s causes of action “accrued” for purposes of N.J.S.A. 2A:14-1. Accrual of an action is the trigger that commences the statute-of- limitations clock.

We are not writing on a blank slate in construing the statutory term “accrued.” Although we have developed a body of jurisprudence on this subject, the differing viewpoints of the Appellate Division, trial court, and parties illustrate that the legal principles set forth in our jurisprudence are still susceptible to varying interpretations.

Determining the meaning of the statutory word “accrued” as well as the metes

and bounds of the discovery rule are matters of law. We review issues of law de novo, according no deference to the interpretative analysis of either the Appellate Division or trial court, except as we are persuaded by the reasoning of those courts. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009); see also Manalapan Realty, L.P. v. Twp. Comm. of Township of Manalapan, 140 N.J. 366, 378 (1995) (“A trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.”).

We begin our analysis with the statute of limitations that generally governs tort-based property-damage claims, including plaintiff’s construction-defect lawsuits.

N.J.S.A. 2A:14-1 provides:

Every action at law for trespass to real property, for any tortious injury to real or personal property,

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for taking, detaining, or converting personal property, for replevin of goods or chattels . . . shall be commenced within 6 years next after the cause of any such action shall have accrued.

[(emphasis added).]

The Legislature did not define “accrued” in N.J.S.A. 2A:14-1 or other similar statutes of limitations and therefore left to the judiciary the role of infusing this term

with meaning. See Rosenau v. City of New Brunswick, 51 N.J. 130, 137 (1968).4

Statutes of limitations, by their nature, are intended to compel plaintiffs to file their lawsuits within a prescribed time to allow defendants a fair opportunity to respond

and safeguard their interests. Gantes v. Kason Corp., 145 N.J. 478, 486 (1996). Such statutes encourage diligence and penalize dilatoriness by allowing the dismissal of stale claims. Ibid. In construing accrual statutes, however, we have eschewed “a rigid and automatic adherence to a strict rule of law” that would produce unjust results. Lopez, supra, 62 N.J. at 273-74. That is because, in the realm of tort law, a plaintiff may not realize immediately that he suffered a personal injury or property damage or know that he has a cause of action against an identifiable wrongdoer. See Kendall v. Hoffman-La Roche, Inc., 209 N.J. 173, 192 (2012); see also Beauchamp v. Amedio, 164 N.J. 111, 117 (2000); Baird v. Am. Med. Optics, 155 N.J. 54, 65-66 (1998).

Equitable principles -- principles that comport with notions of fundamental

fairness -- govern the accrual date of a legal claim. See Caravaggio, supra, 166 N.J. at 245. The trigger point for the start of a cause of action under an accrual statute is when “the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another.” Id. at 246. This simple elucidation of our law has been the product of decades of evolving jurisprudence.

More than fifty years ago, in Fernandi v. Strully, we recognized that equitable principles applied to the accrual of a personal-injury claim governed by a two-year statute of limitations. 35 N.J. 434, 439 (1961). In that case, based on an x-ray examination, the plaintiff discovered that the physicians, who had operated on her three years earlier, had left a wing nut in her abdomen during surgery. Id. at 435-36. The plaintiff filed her negligence claim one year later -- four years after the operation. Id. at 436. We held that because the plaintiff’s “cause of action was unknown and

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unknowable to her” until discovery of the wing nut on the x-ray, her claim did not accrue until that point. Id. at 451.

In Lopez, supra, we called the equitable approach taken in Fernandi the “discovery rule.” 62 N.J. at 273. Under that rule, “in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.” Id. at 272. The qualifier to the discovery rule was how to determine the “appropriate case” for its application. The Court listed a number of non- exhaustive factors, such as “the nature of the alleged injury, the availability of witnesses and written evidence, the length of time that has elapsed since the alleged wrongdoing, whether the delay has been to any extent deliberate or intentional, [and] whether the delay may be said to have peculiarly or unusually prejudiced the defendant.” Id. at 276.

Later, in Fox v. Passaic General Hospital, the Court refined Lopez’s language qualifying the discovery rule, stating that the “rule should be as simple and uncomplicated as is consistent with the achievement of justice.” 71 N.J. 122, 125 (1976). The Court expressed concerns about the difficulties that trial judges would face in deciding the “reasonableness” of time left for a plaintiff to file a claim when the discovery occurred within the two-year limitations period. Id. at 126. To eliminate uncertainty in calculating the limitations period, the Court maintained that “the plaintiff should normally have the benefit of the legislative policy determination that he may institute his action at any time within two years from the date of such accrual.” Ibid. (emphasis added). The rationale for that approach “is that the cause of action does not ‘accrue’ until discovery.” Id. at 127. Thus, Fox made clear that the accrual clock generally does not begin to tick until, through the exercise of reasonable diligence, the plaintiff discovers -- whether inside or outside the typical two-year limitations period -- the basis for an actionable claim. See id. at 126-27.

Having set forth that straightforward standard, the Fox Court added some equitable qualifiers:

[I]f a defendant can establish (a) that the lapse of time between the expiration of two years after the actionable event and the date of institution of the suit “peculiarly or unusually prejudiced the defendant[,]” and (b) that there was a reasonable time for plaintiff to institute his action between discovery of the cause of action and expiration of said two years after the actionable event, the cause of action may be

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dismissed on limitations grounds.

[Id. at 128 (citation omitted).]

Those added conditions, like the earlier qualifying language in Lopez, apparently confounded Fox’s goal of adopting “a simple and uncomplicated” formulation of when a cause of action accrued. See id. at 125. Fox’s foremost principle -- that the plaintiff is normally entitled to the full limitations period upon discovery of an actionable claim, id. at 126 -- becomes a common theme in our jurisprudence, see, e.g., Caravaggio, supra, 166 N.J. at 250 (quoting Moran v. Napolitano, 71 N.J. 133, 134 (1976)). However, Fox’s qualifying language fell into disuse by 1980 and has not been employed again in an opinion of our Court.

Twenty-five years after Fox, our discovery-rule jurisprudence was still far from a model of clarity, leading Justice Long to comment: “The discovery rule, incorporating as it does a notion of simple justice, has been anything but simple in application . . . . Decades after its enunciation, lawyers and judges are still grappling with its application.” Caravaggio, supra, 166 N.J. at 240. In Caravaggio, we set out to bring greater certainty and predictability to the calculation of the limitations period under the discovery rule.

Caravaggio involved a medical-malpractice claim governed by a two-year statute of limitations. Id. at 240-41, 243. On May 23, 1993, the defendant surgeon operated on plaintiff’s fractured femur, inserting a rod through it to stabilize the fracture. Id. at 240-41. Two months later, the plaintiff “felt a ‘snap’ in her leg,” and a week afterwards, an x-ray “revealed that the rod had broken.” Id. at 241. On October 21, 1993, the surgeon removed and replaced the broken rod and informed the plaintiff “that there was something wrong with the rod and that she should take it to [her] lawyer.” Id. at 242. An analysis of the rod revealed that it was not defective. Id. at 243. On September 15, 1995, the plaintiff filed a medical malpractice claim, alleging that the surgeon negligently inserted the rod. Ibid.

The Court determined that the two-year limitations period accrued on October 21, 1993, when the plaintiff had an objectively reasonable basis to know that the surgeon injured her through his alleged negligence. Id. at 250-51, 253. The Court gave the plaintiff the benefit of the full two-year limitations period from the date of accrual,

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even though she had over a year-and-one-half remaining on the statute of limitations if the starting date were fixed at the time of the allegedly negligent operation. See ibid. The Court did not hold that, after discovering her cause of action, the plaintiff had to file her malpractice claim within a reasonable period in the time remaining on the two- year limitation clock. See ibid.

In distilling our discovery-rule jurisprudence, the Court reached the following holding: “[W]hen a plaintiff knows of an injury, and knows that it is the fault of another, but is reasonably unaware that a third party may also be responsible, the accrual clock does not begin ticking against the third party until the plaintiff has evidence that reveals his or her possible complicity.” Id. at 250. The Court emphasized that this rule does not require that a plaintiff have perfect knowledge to support a claim against an identifiable defendant before an action will accrue. See id. at 246. Under this

construct, a plaintiff’s cause of action may accrue at different times against different defendants, depending on when the plaintiff knew or reasonably should have known he had an actionable claim against each defendant. Id. at 248.

Absent from the discussion in Caravaggio is any of the qualifying language in Fox, i.e., peculiar or unusual prejudice to a defendant. See Fox, supra, 71 N.J. at 128. The qualifying language in Fox created two different standards for when a cause of action accrues -- one for when discovery occurs within two years of a personal injury and another for when discovery occurs more than two years after the injury. Under the Fox framework, a court does not inquire whether a defendant was peculiarly prejudiced if the plaintiff discovered his personal-injury cause of action eight years after the injury was inflicted. The plaintiff is simply entitled to the full two-year limitations period upon discovery. Yet, under that same framework, a defendant could argue that he was peculiarly prejudiced if the plaintiff discovered his cause of action one-and-one-half years after the injury but did not file within the six months’ time remaining under the two-year limitations statute.

That approach obviously lacks symmetry. In those two examples, there is no satisfactory reason why, once accrual is triggered, the limitations period is not the same two-year period.

Caravaggio provided the template for when a cause of action commences in accrual statutes of limitations: accrual occurs when a plaintiff knows or, through the exercise of reasonable diligence, should know of the basis for a cause of action against

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an identifiable defendant.

Our discovery-rule jurisprudence has evolved mostly in construing the personal-injury statute of limitations. We have applied the discovery rule, however, to other similarly worded accrual statutes, including the notice requirement in the New

Jersey Tort Claims Act, N.J.S.A. 59:8-8, see Elazar v. Macrietta Cleaners, Inc., ___ N.J. ___, ___ (2017) (slip op. at 11-14), and the tort-based property-damage statute of limitations, N.J.S.A. 2A:14-1, see Russo Farms v. Vineland Bd. of Educ., 144 N.J. 84, 115 (1996). Importantly, the discovery rule applies to property-tort lawsuits arising from construction defects, as illustrated in Russo Farms, supra. See 144 N.J. at 115.

In that case, a board of education constructed a school on property located

across the street from the plaintiffs’ farmland. Id. at 91-92. Construction on the school was substantially complete on September 5, 1979. Id. at 92-93. Shortly after the school’s completion, rainwater began to flood plaintiffs’ farmland, causing soil erosion, poor crop yield, and diminution of the property’s value. Id. at 93-94. Not until 1981, however, did the plaintiffs become reasonably aware that faulty construction of the school’s drainage system was causing the runoff onto their property. Id. at 98-99, 115. At this point, the plaintiffs were “on notice of a potential claim” against the architect and contractor who constructed the school. Id. at 115. Applying the discovery rule, the Court calculated the six-year limitations period from the point of accrual in 1981 and determined that the plaintiffs were required to file suit by 1987. See ibid. Because the plaintiffs did not file their claims against the architect and contractor until 1990, those late claims were dismissed. Id. at 115, 119.

Russo Farms stands for the proposition that in a construction-defect case, the date on which an architect certifies to the owner that the structure is substantially complete typically will start the running of the six-year property-tort statute of limitations, N.J.S.A. 2A:14-1, unless, despite the exercise of reasonable diligence, the plaintiff is unaware of an actionable claim. See id. at 115-16. Importantly, the Court in Russo Farms gave the plaintiffs the benefit of the full six-year limitations period, notwithstanding that the plaintiffs would have had four years to file their claims if the clock began at the time of substantial completion. See id. at 115. Russo Farms and Caravaggio applied the same discovery-rule template to different accrual statutes of limitations.

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We therefore reject defendants’ argument that, so long as plaintiff discovered the basis for an actionable claim within six years from the date of substantial completion, plaintiff had to file within the time remaining in the limitations period. Under defendants’ interpretation of the discovery rule, on one hand, plaintiff had six years from substantial completion of The Palisades -- until May 1, 2008 -- to file its claims because the Falcon Report issued on June 13, 2007, which allowed plaintiff nine months to file. On the other hand, defendants apparently concede that plaintiff would have had a full six years to file if discovery of the construction defects occurred on May 2, 2008, one day after the limitations period ended. That construct yields an absurd result. Clearly, defendants are no worse off in presenting a defense if the six- year limitations period commenced on June 13, 2007, rather than on May 2, 2008.

Moreover, if the date of accrual -- the date that the plaintiff knows or reasonably should know of an actionable claim against an identifiable defendant -- signals the beginning of the limitations period, then consistency and predictability will be advanced when all parties can calculate the precise time for the filing of claims.

We also reject the approach taken by the Appellate Division -- and advanced by plaintiff -- that the six-year statute of limitations could not accrue before plaintiff gained full control of the Condominium Association. An owner of a building cannot convey greater property rights to a purchaser than the owner possessed. If the building’s owner knew or reasonably should have known of construction defects at the time of the sale of the property, the purchaser takes title subject to the original owner’s right -- and any limitation on that right -- to file a claim against the architect and

contractors. See O’Keeffe v. Snyder, 83 N.J. 478, 502 (1980); see also Byrne v. Autohaus on Edens, Inc., 488 F. Supp. 276, 280-81 (N.D. Ill. 1980) (noting that when owner knows or has reason to know of injury, limitations statute begins to run for all potential future plaintiffs in chain of title). Thus, a subsequent owner will stand in the shoes of a prior owner for statute-of-limitations purposes. See CAMSI IV v. Hunter Tech. Corp., 282 Cal. Rptr. 80, 85 (Ct. App. 1991) (noting that if owner does not file claim within statutory period, “claim will be barred for that and all subsequent owners”).

For example, if the building’s original owner does not file a construction- defect lawsuit within the six-year limitations period from accrual of an actionable claim,

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the purchaser taking title has no right to revive a lapsed claim. In certain circumstances, the purchaser may have a claim against the seller for fraudulent concealment or some other cause of action. See, e.g., Dep’t of Envt’l Prot. v. Ventron Corp., 94 N.J. 473, 503 (1983).

The statute-of-limitations clock is not reset every time property changes hands. However, if the original owner was unaware of an actionable claim, despite the exercise of reasonable diligence, then the accrual clock begins when a subsequent owner knew or reasonably should have known of the existence of the claim. A cause of

action, for purposes of N.J.S.A. 2A:14-1, accrues when someone in the chain of ownership first knows or reasonably should know of an actionable claim against an identifiable party. See O’Keeffe, supra, 83 N.J. at 502.

A condominium association does not enjoy a preferred status exempting it from this long-standing rule. If the owner of an apartment building does not file a timely construction-defect lawsuit and then sells the building to a new owner, who has no right to revive the claim, a construction-defect lawsuit does not spring to life when the new owner converts the apartments into condominiums.

Here, A/V Acquisitions retained defendant AJD as the general contractor, which in turn hired the defendant subcontractors, to construct the project known as The Palisades. A/V Acquisitions then sold The Palisades to Old Palisade, which converted the building’s units from rental to condominium ownership. Old Palisade controlled the condominium association until seventy-five percent of the units were sold. With respect to the right to file a construction-defect lawsuit against defendants, Old Palisade took title subject to the rights of A/V Acquisitions, and the plaintiff Condominium Association took title subject to any limitation on the rights of the two predecessor owners.

We now assess how those principles apply to determining the accrual of plaintiff’s claims against defendants.

A/V Acquisitions arranged for the construction of The Palisades. Defendants AJD, Forsa Construction, Benfatto Masonry, and Luxury Floors worked on the construction of The Palisades, which was “substantially complete” as of May 1, 2002. Thereafter, A/V Acquisitions rented apartment units from The Palisades. In June 2004, Old

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Palisade purchased the property, converting the rental units into condominiums. As part of the condominium-conversion process, Old Palisade retained Ray Engineering to inspect the property. On October 1, 2004, Ray Engineering issued a report stating that the buildings and parking deck “appeared to be in good condition,” although the deck had some spalling and cracking, which was not of structural concern at the time. Old Palisade attached the report to its public offering statement and the master deed.

After selling seventy-five percent of the condominium units, Old Palisade relinquished control of the Condominium Association to the unit owners in July 2006. The Condominium Association then retained the Falcon Group to inspect The Palisades complex. That inspection led to a report issued on June 13, 2007, detailing defects in the exterior walls, roofing, concrete flooring, plumbing, and other areas.

The trial court determined that the accrual of the six-year limitations period

under N.J.S.A. 2A:14-1 commenced on May 1, 2002, the date of substantial completion, and that the timing of the Ray and Falcon Reports allowed plaintiff sufficient time to file its claims before May 1, 2008. Because plaintiff did not file its initial and amended complaints until after that date, the court dismissed plaintiff’s actions. As we have explained, the trial court erroneously calculated the accrual date.

Based on the record before us, we cannot perform that calculation because it requires findings of fact to determine when A/V Acquisitions, Old Palisade, or the Condominium Association -- all entities in the chain of ownership -- first knew or, through the exercise of reasonable diligence, should have known of a cause of action against each defendant. Whether the accrual clock began when the Ray Report or the Falcon Report issued or at some time before, after, or in between requires a detailed

inquiry. To answer those questions, the trial court must conduct a Lopez hearing and examine the documentary evidence and deposition transcripts presented by the parties and, in its discretion, take testimony from relevant witnesses.

We cannot end our analysis without noting the distinction between an accrual statute of limitations and a statute of repose, which has some bearing on this case. As discussed, an accrual statute generally has no certain end date, given that the trigger of the limitations period may depend on when a plaintiff discovers the basis for his cause of action. In contrast, a repose statute has fixed beginning and ending dates, thus

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providing certainty to defendants when their exposure to liability concludes. See Town of Kearny v. Brandt, 214 N.J. 76, 93 (2013); Daidone v. Buterick Bulkheading, 191 N.J. 557, 567 (2007).

The Legislature enacted the statute of repose in construction-defect cases,

N.J.S.A. 2A:14-1.1(a), to insulate construction professionals -- such as architects, planners, designers, builders, and contractors -- from indefinite liability through operation of the discovery rule. Town of Kearny, supra, 214 N.J. at 93; see Russo Farms, supra, 144 N.J. at 116. N.J.S.A. 2A:14-1.1(a) provides that:

No action . . . to recover damages for any deficiency in the design, planning, surveying, supervision or construction of an improvement to real property . . . shall be brought against any person performing or furnishing the . . . construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall serve as a bar to all such actions . . . at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.

[(emphasis added).]

The ten-year repose statute begins at the date of a project’s substantial completion.

Town of Kearny, supra, 214 N.J. at 93-94; Russo Farms, supra, 144 N.J. at 117-18. The statute of repose sets the outer limit for the filing of a construction-defect claim. For example, if for purposes of the property-damage statute of limitations, N.J.S.A. 2A:14- 1, a construction-defect action accrues eight years after a project’s substantial completion, a plaintiff will only have two years to file a claim before it is barred by the repose statute. The parties in this case agree that the date of substantial completion of The Palisades was May 1, 2002. The complaints against all defendants were filed within this ten-year period. Therefore, N.J.S.A. 2A:14-1.1(a) does not stand as a bar to plaintiff’s claims.

Defendants’ critique of N.J.S.A. 2A:14-1.1(a) does bear mentioning. Because the repose statute appears to bar only claims involving “defective and unsafe” conditions arising from construction, defendants posit that this statute will not apply to a defective condition that does not raise safety concerns. Our charge here is not to rewrite the repose statute. See DiProspero v. Penn, 183 N.J. 477, 492 (2005). If the

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wording in this statute, as defendants believe, has the effect they suggest and does not represent good public policy, defendants’ appeal on this issue must be to the Legislature.

IV.

In summary, the following principles guide application of the property-tort statute of limitations in construction-defect cases. The date that a structure is deemed substantially complete oftentimes is when a cause of action accrues because some construction defects will be readily apparent on inspection and therefore the plaintiff will have a reasonable basis for filing a claim. But many construction defects will not be obvious immediately. In such instances, a cause of action does not accrue until the plaintiff knows or, through the exercise of reasonable diligence, should know of a

cause of action against an identifiable defendant. A plaintiff who is a successor in ownership takes the property with no greater rights than an earlier owner. If the earlier owner knew or should have known of a cause of action against an identifiable defendant, the accrual clock starts then.

The determination of when a claim accrued ordinarily should be made at a Lopez

hearing. At the hearing, the plaintiff will bear the burden of proving that the claim accrued at a time after a project’s substantial completion. See Lopez, supra, 62 N.J. at 276. The plaintiff is in the best position to establish when he first knew or reasonably should have known of his cause of action. The court’s decision must be based on objective evidence. See Caravaggio, supra, 166 N.J. at 246. The court may consider documentary evidence, deposition transcripts, and, in its discretion, take testimony. Last, the court must state its reasons for its findings of facts.

The test set forth above is not novel. It has evolved from our jurisprudence and

should result in ease of application and predictable outcomes. Caravaggio articulated this approach for the statute of limitations governing personal injury cases, id. at 249- 50, and this Court applied that test recently in a case involving the accrual date of a cause of action under the Tort Claims Act, Elazar, supra, ___ N.J. at ___ (slip op. at 11-14).

For the reasons expressed, we reverse the judgment of the Appellate Division

and remand to the trial court to conduct a Lopez hearing to determine when plaintiff’s

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causes of action accrued against each defendant.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.

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4 The personal-injury statute of limitations is also an accrual statute and has been the subject of repeated judicial interpretation. N.J.S.A. 2A:14-2(a) provides: “Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person . . . shall be commenced within two years next after the cause of any such action shall have accrued.” (emphasis added).

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« Citation Original Wordprocessor Version Data (NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PETRO-LUBRICANT TESTING

LABORATORIES, INC., and

APPROVED FOR PUBLICATION

October 19, 2016

APPELLATE DIVISION JOHN WINTERMUTE,

Plaintiffs-Appellants/

Cross-Respondents,

ASHER ADELMAN, d/b/a

eBossWatch.com,

Defendant-Respondent/

Cross-Appellant.

______

October 19, 2016

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Argued September 19, 2016 – Decided

Before Judges Sabatino, Haas, and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0406-12.

Mark G. Clark (Traverse Legal) of the Michigan bar, admitted pro hac vice, argued the cause for appellants/cross-respondents (Trimboli & Prusinowski, LLC, and Mr. Clark, attorneys; James Prusinowski, of counsel; Mr. Clark, Mr. Prusinowski, Jinkal Pujara, and John P. Harrington, on the briefs).

Garen Meguerian argued the cause for respondent/cross-appellant.

Eugene Volokh (First Amendment Clinic) of the California bar, admitted pro hac vice, argued the cause for amicus curiae Reporters Committee for Freedom of the Press (Hartman & Winnicki, P.C., and Mr. Volokh, attorneys; Mr. Volokh and Daniel L. Schmutter, on the brief).

The opinion of the court was delivered by

CURRIER, J.A.D.

In this defamation case, we are asked to decide whether a second posting of an article on a website with minor changes from the original posting was sufficient to categorize it as a separate publication, and therefore subject to a new statute of limitations. We find the minor changes between the two articles to be immaterial and not sufficient to render them two separate publications. In addition, to the extent that any of the changes could be regarded as material, on the whole they lessened the "sting" of the publication. Therefore, the single publication rule is applicable and the complaint was properly dismissed as untimely under the one-year statute of limitations.

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We also uphold the dismissal of defendant's counterclaim, rejecting the novel theory that defendant has standing as a publisher to assert a claim of retaliation under the New Jersey Law Against Discrimination (NJLAD).

The website eBossWatch.com was created by defendant Asher Adelman for people to rate their employers and bosses so that job seekers might search workplaces and "access inside information about what it's really like to work

there." After viewing an article on the Courthouse News Service1 that detailed allegations of gender discrimination and a hostile workplace environment in a complaint filed by an employee against plaintiffs Petro-Lubricant Testing Laboratories, Inc. (PTL) and John Wintermute, defendant published an article on his website reporting on the same complaint.

The article, entitled "'Bizarre' and Hostile Work Environment Leads to Lawsuit," was posted on August 3, 2010. It repeated the allegations contained in the complaint which described Wintermute as a "violent bully, a racist, and a womanizer who regularly brought guns to the workplace." Allegations of Wintermute's explosive temper, his sexual affairs with female employees, and his retaliation by firing the employee when she refused to lie for the company in another employment-related lawsuit were also described.

In 2010, defendant also posted a webpage entitled "America's Worst Bosses 2010," a list that ranked bosses and named their employers. Wintermute was named in the list and a hyperlink led to the eBossWatch article.

In December 2011, an attorney representing plaintiffs wrote to defendant stating:

It has recently come to our attention that you have published false and defamatory statements concerning our client in an article. This letter serves as your final notice to remove this article from your website or face liability under New Jersey law for defamation, defamation per se, and false light invasion of privacy.

The letter advised that defendant "may be held liable for significant monetary damages," and demanded defendant remove the article, related links, and metatags.

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The letter stated that the employee "was fired from Petro-Lubricant for reasons unrelated to anything contained in her complaint" and that her "retaliatory lawsuit containing these baseless allegations" had been settled.

Defendant responded to plaintiffs' counsel that the "article is clearly a reporting of the complaint that was filed by [the employee] against [plaintiffs]. [O]ur article contains only factual statements about the abovementioned complaint and its allegations." Defendant stated further that "to make it even more clear that our article is a factual reporting of the [employee's] complaint, we have made some minor changes to the wording and to the article's title." The email provided counsel with a link to the updated article published in December 2011. The article was also linked to the "America's Worst Bosses 2010" list.

A reading of the December 2011 article reveals that defendant changed the title to "Hostile Work Environment Lawsuit Filed Against Petro-Lubricant Testing Laboratories." He also removed a picture of the laboratory which had accompanied the first article. Although there was some rewording in the paragraphs, the content reported and the construction of the article remained the same.

In reporting the employee's claims, the earlier article stated: " [Wintermute] also allegedly forced workers to listen to and read white supremacist materials." The second posting deleted that wording and stated: "John Wintermute also allegedly regularly subjected his employees to 'anti- religion, anti-minority, anti-Jewish, anti-catholic, anti-gay rants.'"

In June 2012, plaintiffs filed a complaint against defendant alleging defamation, false light publicity, and intentional infliction of emotional distress as a result of the false and defamatory statements contained in the August 2010 eBossWatch article and the "America's Worst Bosses 2010" list. The complaint was amended in September 2012 to include defamation claims arising from the December 2011 posting.

In lieu of filing an answer, defendant moved for summary judgment. Noting

the one-year statute of limitations for a libel or slander action, N.J.S.A. 2A:14- 3, the motion judge found the August 2010 article and the December 2010

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publication of the worst bosses list to be time-barred. He further concluded in his opinion and order of December 10, 2012 that issues of fact prevented the grant of summary judgment regarding the December 2011 re-posted article.

At the close of discovery both parties presented summary judgment motions. Defendant also moved to amend his answer and add a counterclaim for

retaliation under the NJLAD, N.J.S.A. 10:5-12(d), as well as a motion seeking sanctions for plaintiffs' alleged discovery violations.

Following oral argument on May 21, 2015, the second motion judge2 rendered an oral decision, with only a brief reference to the statute of limitations argument posited by defendant. He stated: "I'm satisfied that the Single Publication rule does not apply to the December 2011 article as that rule applies to a mass distribution of the same material." Therefore, he concluded the statute of limitations on the second article had not expired. Summary judgment, however, was granted to defendant on other grounds as the judge found the article was a "full, fair and accurate account of the [employee's complaint]" and therefore privileged as plaintiffs had failed to prove it had been published with actual malice. On the same date, the judge issued a written statement of reasons granting summary judgment to defendant and denying summary judgment to plaintiffs. Although the judge granted defendant's motion to amend the answer with a counterclaim, he denied the counterclaim as moot and denied defendant's sanction request.

On appeal, plaintiffs argue that the December 2011 article is "a separate and distinct publication from the August 2010 post" and therefore, the complaint was timely filed within the one-year statute of limitations. Plaintiffs contend the single publication rule does not apply to the second posting as the December 2011 article contained significant changes in its content, substance, and form from the earlier post. Plaintiffs also argue that the judge erred in deeming the article privileged. In his cross-appeal, defendant contends the judge's dismissal of his retaliation counterclaim and discovery sanction motion was error.

Amicus curiae, the Reporters Committee for Freedom of the Press, asserts that the "minor changes" made in the December 2011 article did not broaden any of the claims or allegations set forth in the original posting, and therefore,

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under the single publication rule, the one-year statute of limitations applied and had expired prior to the filing of the complaint.

We review a grant of summary judgment under the same standard as the

motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)) (internal quotation marks omitted). "[T]he legal conclusions undergirding the summary judgment motion itself [are reviewed] on a plenary de novo basis," Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010); including whether the statute of limitations applies, Churchill v. State, 378 N.J. Super. 471, 478 (App. Div. 2005).

The single publication rule was applied traditionally to "mass publications under which a plaintiff alleging defamation has a single cause of action, which arises at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold." Ibid.

In Churchill, we addressed the application of the single publication rule to an Internet publication of a document. Concluding that the "Internet appears to be particularly suited to application of the single publication rule," we found no basis to treat the Internet differently than other forms of mass media, and held the single publication rule applied to Internet publications. Id. at 483.

The plaintiffs in Churchill also argued that the updates made to the website constituted republications of the allegedly defamatory report, thus triggering a new statute of limitations upon each update. Id. at 477. We rejected that argument, finding that the updates "were merely technical changes to the website. . . . [T]hey in no way altered the substance or form of the report." Id. at 483. We concluded that "to treat the changes as republications would be inappropriate and defeat the beneficial purposes of the single publication rule." Id. at 483-84.

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Mindful of that benchmark, we turn to an analysis of the two articles. Both posts are constructed similarly, each containing six paragraphs. As noted earlier, the title was changed between posts but the subject matter remained the same; both articles report on a hostile work environment lawsuit. Although the wording used in the first two paragraphs is slightly different, the substance remains the same. The fourth, fifth, and sixth paragraphs are unchanged.

We look then at the third paragraph in the articles. The August post reads:

[The employee] claims that John Wintermute is a violent bully, a racist, and a womanizer who regularly brought guns to the workplace and target practiced, hunted and gutted birds, which he then fed to his guard dogs, on company property. He also allegedly forced workers to listen to and read white supremacist materials, drank alcohol regularly throughout the workday, and was a violent, raging drunk.

The third paragraph of the December 2011 article states:

[the employee] claims that John Wintermute is a "dangerous and violent alcoholic" who allegedly regularly brought guns to the workplace and target practiced, hunted and gutted birds, which he then fed to his dogs, on company property. John Wintermute also allegedly regularly subjected his employees to "anti-religion, anti-minority, anti-Jewish, anti- catholic, anti-gay rants."

The only substantive difference in the actual text of these articles is the elimination of the reference to Wintermute requiring his employees to listen to and read white supremacist materials; the later post instead quotes the employee's allegations that Wintermute subjected his employees to "anti- religion, anti-minority, anti-Jewish, anti-catholic and anti-gay rants."

Communications posted on websites are viewed on a far wider scale than traditional mass media. Web postings are available for an indefinite period of time. If immaterial changes to an Internet post were to result in a retriggering of the statute of limitations on each occasion, the legislative

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purpose of favoring a short statute of limitations for defamation would be defeated. Therefore, the statute of limitations will only be triggered if a modification to an Internet post materially and substantially alters the content and substance of the article.

We note that the modifications in the second posting were intended by defendant to diminish the defamatory sting of the previously reported allegations after his receipt of plaintiffs' counsel's antagonistic correspondence. We find it a logical extension of our decision today to also conclude that a softening of prior material in a subsequent posting should not result in the commencement of a new statute of limitations. Therefore, if a minor modification diminishes the defamatory sting of an article, it should not trigger a new statute of limitations.

We reject the argument that the second post was altered in substance or form from the earlier posting as the differences between the articles are immaterial. The allegedly defamatory information is the same in both articles. Paragraph three of the second posting was minimally altered to quote specific phrases contained in the complaint. The disseminated information stayed constant.

Therefore, we find the December 2011 article was not a republication and instead falls under the single publication rule. The one-year statute of limitations commenced with the posting of the original article in August 2010; therefore, the complaint filed in June 2012 is barred as untimely and defendants were entitled to summary judgment and a dismissal of plaintiffs' claims. As a result, we do not consider the remainder of plaintiffs' contentions.

We turn to defendant's cross-appeal. Defendant sought to assert a

counterclaim on the grounds of retaliation under NJLAD, N.J.S.A. 10:5-12(d).3 The facts presented in the summary judgment record are not sufficient to accord standing to defendant under the statute. There were no proofs that defendant had any relationship with the aggrieved employee or that he aided or encouraged her in asserting her rights in her NJLAD claim so as to confer him standing under the statute. See Craig v. Suburban Cablevision Inc., 140 N.J. 623, 630 (1995).

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Moreover, defendant may be granted certain rights and protections under the First Amendment and the common law as a result of his claimed status as a journalist objectively reporting on employment litigation. He would not be entitled to those same safeguards if he were to be considered an advocate for the rights of the employee under the NJLAD. Although we disagree with the judge's determination that mootness required the dismissal of the counterclaim, we nevertheless find the dismissal to have been properly entered, as defendant lacked standing to assert the claim. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) ("[I]f the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance.").

Finally, we find the judge did not abuse his discretion in denying defendant sanctions for alleged discovery abuses.

Affirmed.

certify

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3 "It shall be an unlawful employment practice . . . [f]or any person to take reprisals against any person because that person has . . . aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act."

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« Citation Original Wordprocessor Version Data (NOTE: The status of this decision is Unpublished.)

SYLLABUS (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.) State v. Melvin T. Dickerson (A-1-17) (079769) Argued November 8, 2017 -- Decided February 5, 2018 SOLOMON, J., writing for the Court. This appeal raises the question whether, in cases involving a search warrant, Rule 3:4-2(c) (1)(B) obliges the State to produce the affidavit underlying the warrant prior to a pretrial detention hearing pursuant to the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. Police officers with the Asbury Park Police Department (APPD) applied for a warrant to search Welcome Back Unisex Hair Cuts, a barbershop/hair salon in Asbury Park (the salon). A Superior Court judge issued the warrant, which did not name any individuals as targets of the search but simply stated that the requesting officer had â€œprobable cause to believeâ€ that within the salon â€œ[t]here has been and now is located certainâ€ contraband. Upon execution of the search warrant, the APPD officers found four men inside the salon, including defendant Melvin Dickerson and co-defendant Julius Franklin (Franklin). Defendant was observed to be at the rear of the salon when the police entered, near where drugs and guns were later found. When questioned, Franklin told the officers he worked at the salon. Defendant, however, was â€œuncooperative.â€ One of the two other men present told the officers that he was at the salon waiting for a haircut; the other stated he had just â €œstopped in . . . briefly and was not employed [at the salon].â€ The officers then conducted a search of the salon. The search revealed thirty-one pieces of evidence including suspected marijuana, weapons, and several documents addressed to defendant at the salon. After the search, officers arrested Franklin and defendant. That same day, a complaint warrant was issued charging defendant with ten crimes. The complaint warrant was based upon an affidavit of probable cause that stated â€œpursuant to the execution of a search warrant . . . [defendant] was arrested after being found to be in possession of suspected CDS, weapons, and contraband.â€ At defendantâ€™s pretrial detention hearing, the State moved to detain defendant and disclosed the Preliminary Law Enforcement Incident Report (PLEIR), the complaint, the supporting affidavit of probable cause, the Public Safety Assessment (PSA), and the incident and arrest reports. Defendantâ€™s PSA rated both his risk of failure to appear and his risk of new criminal activity as a three out of six. No violence flag was indicated. The PSA recommended that defendant be released pretrial with conditions and monthly reporting. When asked whether the State had the affidavit to support the search warrant in its possession, the State responded that it did not have the affidavit and that it was â€œnot relying upon the affidavit.â€ The judge found that the affidavit must be produced and, as a sanction, released defendant with conditions. The State moved for reconsideration, which was denied. The Appellate Division granted the Stateâ€™s request for leave to file an interlocutory appeal and affirmed the trial courtâ€™s ruling that the State was required to produce the search warrant affidavit. However, the Appellate Division reversed the trial courtâ€™s decision to release defendant and remanded for a pretrial detention hearingâ€”both to determine whether defendant should be detained and to determine the appropriate sanctions, if any, for the Stateâ€™s failure to provide the search warrant affidavit. The Court granted leave to appeal. 230 N.J. 544 (2017). HELD: The affidavit supporting a search warrant disclosed in discovery need not be disclosed as a matter of course, and no particular circumstances necessitated disclosure of that affidavit here. To the extent that the trial courtâ€™s order of

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release served as a â€œsanctionâ€ for the Stateâ€™s failure to meet what the court viewed to be the Stateâ€™s discovery requirements, that release order was improper. 1. In State v. Robinson, the Court underscored that the State must carry a twofold burden at pretrial detention hearingsâ€”to demonstrate probable cause and to overcome the presumption of pretrial releaseâ €”and noted that â€œdiscovery should likewise be keyed to both areas.â€ 229 N.J. 44, 69 (2017). The Court accordingly clarified and 1 amplified the meaning of Rule 3:4-2(c)(1)(B). Rule 3:4-2(c)â€™s pretrial discovery requirements must â€œbe read in conjunction with Rule 3:13-3, which obligates the State to provide full discovery when it makes a pre-indictment plea offer or when an indictment is returned or unsealed.â€ Id. at 72. That does not mean that the requirements of the two rules are identical. Rather, the instruction mandates the adoption of â€œa workable standard.â€ Id. at 68. (pp. 15-21) 2. Together, Rules 3:5-4 and 3:5-6(c) establish strong confidentiality protections for warrants and their supporting materials. Rule 3:5-6(c) provides: â€œthe warrant and accompanying papers shall be provided to the defendant in discovery pursuant to R. 3:13-3,â€ which provides for â€œopen fileâ€ discovery upon indictment or in the event of a plea offer. It is thus not until further along in the process that the confidentiality concerns protected by Rule 3:5â€“6(c) bow to discovery requirements, whereas the discovery provided for in Rule 3:4-2 is to be turned over pretrial. (pp. 21-23) 3. Discovery is limited by the nature of the pretrial detention hearing, at which the State is required only to establish probable cause and to refute the presumption of release. Whether a search warrant affidavit is discoverable at a detention hearing will turn on whether it relates to the affidavit of probable cause or the Stateâ €™s presentation on the risk factors in the specific case. When charged offenses include an element of possession, trial courts must determine whether the State has established a sufficient nexus between contraband and a defendant to support a finding of probable cause based on the discovery it provides pursuant to Rule 3:4-2(c). If the court concludes that additional related evidence is required to establish the nexus, the court may require production of additional discovery, including the search warrant affidavit. If the State is then unable or unwilling to produce the evidence needed, it will fail to carry its burden of proof, and the trial court must order release. The Court leaves it to the trial courts to apply Rule 3:4â€“2(c) as clarified to resolve such disclosure issues. That approach is a natural application of existing principles of law. Going far back in time, judges have made probable cause determinations without either the judge or the defendant having the benefit of a search warrant affidavit. Likewise, judges have made bail decisions that affected a defendantâ€™s liberty without a search warrant affidavit. There is no basis under the CJRA or the Rules to require disclosure of search warrant affidavits that do not relate to probable cause or detentionâ€”the only issues before the court. (pp. 23-29) 4. In the present case, the affidavit of probable cause did not refer to the search warrant affidavit, nor did the State rely on the search warrant affidavit at the detention hearing. The search warrant affidavit did not â €œrelate toâ€ the affidavit of probable cause. It is true that, where a defendant is one of several persons found on premises where contraband is discovered, it may not be inferred that he knew of the presence or had control of the contraband unless there are other circumstances tending to permit such an inference to be drawn. Defendant was in the area of the salon where drugs and guns were found, and officers found mail addressed to defendant at the salon, a State of New Jersey Certificate of Authority addressed to defendant, and an expired City of Asbury Park Barbershop/Salon License addressed to a Barbara Dickerson. It is clear that defendant was not a customer. The State established a nexus sufficient to support probable cause here. The Court reverses the affirmance of the order that compelled production of that document. (pp. 29-31) 5. The issue of discovery sanctions must be distinguished from a failure by the State to carry its burden as to probable cause or as to the need for detention. When the State fails to carry its burden in either of those areas, then the presumption of release under the CJRA carries the day. When the State withholds requisite discovery, there are sanctions available under our court rules to penalize gamesmanship. Such sanctions cannot include release of a defendant. As to whether any sanction was warranted, there is no allegation that the State was guilty of any misbehavior here. No sanction was warranted and the pretrial detention hearing should have been allowed to proceed as scheduled while interlocutory review of the legal dispute was pursued. The Court accordingly affirms the Appellate Divisionâ€™s determination to remand to the trial court for a detention hearing. (pp. 31-33) The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN

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2 SUPREME COURT OF NEW JERSEY A- 1 September Term 2017 079769 STATE OF NEW JERSEY, Plaintiff-Appellant, v. MELVIN T. DICKERSON, Defendant-Respondent. Argued November 8, 2017 â€“ Decided February 5, 2018 On appeal from the Superior Court, Appellate Division. Sarah Lichter, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Sarah Lichter, of counsel and on the briefs). Cody T. Mason, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Cody T. Mason, of counsel and on the briefs). Jeffrey L. Weinstein, Assistant Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Richard T. Burke, President, attorney; Jeffrey L. Weinstein, of counsel and on the brief). Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Alexander R. Shalom, Edward L. Barocas and Jeanne M. LoCicero, on the brief).

1 JUSTICE SOLOMON delivered the opinion of the Court. This appeal raises the question whether, in cases involving a search warrant, Rule 3:4-2(c)(1)(B) obliges the State to produce the affidavit underlying the warrant prior to a pretrial detention hearing pursuant to the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. During defendant Melvin Dickersonâ€™s pretrial detention hearing, the court denied the Stateâ€™s motion for pretrial detention. Relying on Rule 3:4-2(c)(1)(B), the court ordered defendant released subject to conditions as a discovery sanction for the Stateâ€™s failure to produce the search warrant affidavit. On interlocutory appeal, the Appellate Division agreed that the State was obliged to produce the affidavit but held that the trial court erred by releasing defendant as a discovery sanction. Therefore, the Appellate Division directed the State to produce the affidavit and remanded for a full pretrial detention hearing.

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We now reverse the Appellate Divisionâ€™s judgment ordering production of the search warrant affidavit. We further find no evidence or allegation of misconduct on the part of the State justifying discovery sanctions for failure to produce the search warrant affidavit. Thus, we agree with the Appellate Division that the pretrial release of defendant was in error and that the case should be remanded for a full pretrial detention hearing. 2 I. The following facts are elicited from record documents, including the search warrant, the incident report prepared by police, and the complaint-warrant. A. After multiple meetings with a confidential informant discussing the sales of controlled dangerous substances (CDS), police officers with the Asbury Park Police Department (APPD) applied for a warrant to search Welcome Back Unisex Hair Cuts, a barbershop/hair salon in Asbury Park (the salon). A Superior Court judge reviewed the application and issued the warrant. The warrant did not name any individuals as targets of the search but simply stated that the requesting officer had â€œprobable cause to believeâ€ that within the salon â€œ[t]here has been and now is located certainâ€ contraband. Upon execution of the search warrant, the APPD officers found four men inside the salon, including defendant and co- defendant Julius Franklin (Franklin). Defendant was observed to be at the rear of the salon when the police entered, near where drugs and guns were later found. When questioned, Franklin told the officers he worked at the salon. Defendant, however, was â€œuncooperative.â€ One of the two other men present told the officers that he was at the salon waiting for a haircut; the

3 other stated he had just â€œstopped in . . . briefly and was not employed [at the salon].â€ The officers then conducted a search of the salon. The search revealed thirty-one pieces of evidence including two plastic bags of suspected marijuana, a 9mm sub-machine gun, a .38 caliber semi-automatic handgun, a stun gun, ammunition, two digital scales, a heat-seal vacuum, a box of Ziploc vacuum sealer gallon bags, a suspected police scanner, a cell phone, a State of New Jersey Certificate of Authority addressed to defendant, an expired City of Asbury Park Barbershop/Salon License addressed to a Barbara Dickerson, and several more documents addressed to defendant at the salon. After the search, officers arrested Franklin and defendant. That same day, a complaint warrant was issued charging defendant with ten crimes: 1) fourth-degree possession of over one-half ounce of marijuana, N.J.S.A. 2C:35-10(a)(3); 2) third-

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degree possession of marijuana with intent to distribute,

N.J.S.A. 2C:35-5(b)(11); 3) third-degree possession of marijuana with intent to distribute in a school zone, N.J.S.A. 2C:35-7(a); 4) fourth-degree unlawful interception or use of official communications, N.J.S.A. 2C:33-21; 5) two counts of second- degree possession of a firearm while in the course of committing a narcotics offense, N.J.S.A. 2C:39-4.1(a); 6) fourth-degree possession of a defaced handgun, N.J.S.A. 2C:39-3(d); 7) second- 4 degree unlawful possession of a machine gun, N.J.S.A. 2C:39- 5(a); 8) second-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b)(1); and 9) fourth-degree unlawful possession of a stun gun, N.J.S.A. 2C:39-3(h). The complaint warrant was based upon an affidavit of probable cause that stated â€œpursuant to the execution of a search warrant . . . [defendant] was arrested after being found to be in possession of suspected CDS, weapons, and contraband.â€ At defendantâ€™s pretrial detention hearing, the State moved to detain defendant. In connection with the hearing, the State disclosed the Preliminary Law Enforcement Incident Report (PLEIR), 1 the complaint, the supporting affidavit of probable cause, the Public Safety Assessment (PSA), and the incident and arrest reports. Defendantâ€™s PSA rated both his risk of failure to appear and his risk of new criminal activity as a three out of six. No violence flag was indicated. The PSA recommended that defendant be released pretrial with conditions and monthly reporting.

1 The PLEIR â€œis â€˜an electronic document that succinctly describes the relevant factual circumstancesâ€™ relating to a defendantâ€™s arrest.â€ State v. Robinson, 229 N.J. 44, 61 (2017) (quoting Office of the Attorney General, Directive Establishing Interim Policies, Practices and Procedures to Implement Criminal Justice Reform Pursuant to P.L. 2014, c. 31 Â§ 5.2, at 48 (Oct. 11, 2016)). 5 During defendantâ€™s pretrial detention hearing, the judge explained to defendant that he had â€œthe right to be provided with all statements or reports in the prosecutorâ€™s possession relating to the pretrial detention application.â€ At that point, defense counsel claimed that he had received â€œlimited discovery,â€ because â€œthe affidavit to support the search warrant is absent.â€ When asked whether the State had the affidavit in its possession, the State responded that it did not have the affidavit and that it was â€œnot relying upon the affidavit.â€ The judge found that the affidavit must be produced, stating: It doesnâ€™t matter what youâ€™re relying on. If it relates to the motion, it must be produced. The Rule does not speak to what information

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the State intends to rely upon. That is not the litmus test for what must be produced. It is anything that relates to the application. The defendant is entitled to have all of that information. The State further argued that â€œ[t]he affidavit is not referenced in the PLEIRâ€ and â€œhas nothing to do with the probable cause that is related to this offense.â€ The court, however, found that the affidavit â€œshould be produced . . . . whether the State is intending to rely on it or notâ€ and, as a sanction, released defendant with conditions. A day after defendant was released, the Appellate Division decided State v. Robinson, 448 N.J. Super. 501, affâ€™d and modified, 229 N.J. 44 (2017), and the State moved for

6 reconsideration based on the holding in that case. At the reconsideration hearing, the State argued that â€œthe only basis for which the Defense would be able to use the affidavit in support of the search warrant would be to attack the probable causeâ€ for the search itself -- a question not at issue at the pretrial detention stage. The State also argued that â€œthe appropriate remedy here would not be simply to release the defendant, but for the Court to issue an order . . . specifying what documents that the State is to produce.â€ The Stateâ€™s motion for reconsideration was denied, and the Appellate Division granted the Stateâ€™s request for leave to file an interlocutory appeal. B. The Appellate Division affirmed the trial courtâ€™s ruling that the State was required to produce the search warrant affidavit. However, the Appellate Division reversed the trial courtâ€™s decision to release defendant and remanded for a pretrial detention hearing -- both to determine whether defendant should be detained and to determine the appropriate sanctions, if any, for the Stateâ€™s failure to provide the search warrant affidavit. Specifically, the appellate panel held that, when the Stateâ€™s evidence in support of pretrial detention is largely dependent on items seized under a search warrant, the affidavits 7 underlying that warrant are relevant evidence relating to probable cause. The appellate panel relied on the text of Rule 3:4-2(c)(1)(B), as well as the sixth, seventh, and tenth principles in State v. Robinson that this Court stated â€œshould govern the disclosure of evidence at a detention hearingâ€ : (6) â€œAll statements and reports relating to the affidavit of probable cause should be disclosedâ€ ; (7) â€œAll statements or reports that relate to any additional evidence the State relies on to establish probable cause at the detention hearing should be disclosedâ€ ; and (10) â€œThe phrase â€˜statements and reportsâ€™

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refers to items that exist at the time of the hearing. The terms plainly include relevant police reports.â€ 229 N.J. 44, 70â€“71 (2017). The appellate panel rejected the Stateâ€™s contention that warrant-related materials need only be produced post-indictment, holding that the first exception to Rule 3:5-6(c) applied -- â€œthe warrant and accompanying papers shall be provided to the defendant in discovery pursuant to R. 3:13-3â€ -- and that Rule 3:4-2(c) controls the timing of disclosure. The Appellate Division also held that any confidentiality concerns regarding production could be remedied by a protective order, which the State did not seek. The appellate panel affirmed the trial courtâ€™s ruling compelling the State to produce the search warrant affidavit but 8 vacated the portion of the trial courtâ€™s order that denied pretrial detention without a hearing. The appellate panel found that the trial court never explained the reasons for imposing the â€œsanctionâ€ of releasing defendant or why the sanction was justified under the circumstances. Hence, the appellate panel remanded for a pretrial detention hearing to evaluate whether the State acted in good faith when it did not produce the underlying affidavit, as well as whether the trial court considered sanctions other than summary denial of the Stateâ€™s pretrial detention application. We granted the Stateâ€™s motion for leave to appeal. 230 N.J. 544 (2017). We also granted the motions of the American Civil Liberties Union of New Jersey (ACLU) and the County Prosecutors Association of New Jersey (CPANJ) to participate as amici curiae. II. A. The State asserts that, at the pretrial detention stage, its burden is only to establish probable cause and the defendantâ€™s risk of danger, flight, and obstruction. According to the State, an expansive discovery obligation at the pretrial detention stage would strain the judicial system. Further, the State argues that search warrant affidavits are not relevant at the pretrial detention stage. 9 The State contends that defendant was not charged with any crimes predicated upon activity that occurred before the search of the salon -- only upon what police found there. Thus, the search warrant and related affidavit do not establish either probable cause for any charged offense or defendantâ€™s risk of danger, flight, or obstruction. The State claims that the twelve principles governing disclosure of evidence at pretrial detention hearings set forth in Robinson all provide that discovery must be â€œkeyedâ€ to the

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Stateâ€™s two tasks at the pretrial detention stage -- establishing probable cause and risk of danger, flight, or obstruction. Thus, in the Stateâ€™s view, because defendantâ€™s charges stem only from evidence seized upon execution of the search warrant, and not from the search warrant application, the warrant application materials are not â€œkeyedâ€ to the Stateâ€™s dual burdens. 2 The State points out that Rule 3:5-6(c), which governs the confidentiality of warrants and ancillary materials, allows for an exception under Rule 3:13-3 but not pursuant to Rule 3:4- 2(c)(1)(B). Furthermore, the State notes that this Court

2 We do not consider the arguments raised by the State or the other parties inferencing an unpublished Appellate Division decision reversing a trial courtâ€™s order compelling discovery of a search warrant affidavit. That unpublished decision does not fall within the narrow exceptions set forth in Rule 1:36-3. 10 adopted a version of Rule 3:4-2 that did not include a proposed reference to Rule 3:13-3 in order to mark the difference between pretrial detention discovery and post-indictment discovery. The State stresses that search warrants often incorporate information gleaned from the undercover work of confidential informants. Given the short arrest-to-detention-hearing schedule the CJRA imposes, the State argues that production of search warrant affidavits would often endanger confidential informants by making their identity easily discernable. The State acknowledges that the materials it relies on to establish probable cause may be a subset of the materials that are relevant to probable cause. The State argues, however, that if it chooses to rely on less than all the relevant materials, it â€œruns the risk that the court will deny its pretrial detention application.â€ B. Defendant argues for affirmance of the Appellate Divisionâ€™s decision. Defendant claims that the Stateâ€™s production obligation is â€œâ€˜not limited to documents upon which the State claims to relyâ€™ . . . and instead extends to all materials related to â€˜the factual assertions contained in the probable cause affidavitâ€™ . . . or that â€˜can be expected to provide the basic background factsâ€™ concerning the crime and charges.â€ (quoting Robinson, 448 N.J. Super. at 517, 520). Defendant also 11 urges that â€œdiscovery â€˜must reflectâ€™ the fact that defendants face a complete loss of liberty and must be able to challenge the Stateâ€™s detention application.â€ (quoting Robinson, 229 N.J. at 68). Hence, in defendantâ€™s view, production of the affidavit in this case was necessary to establish the connection between himself and the contraband he was alleged to possess. Without the affidavit, defendant argues, the State can establish only

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that defendant -- like multiple other individuals -- was present at the salon where contraband was found. â€œAs a result,â€ defendant argues, his â€œonly established connection to the contraband is that he, like two uncharged individuals, was present during the search, and that he may have worked at [the salon].â€ â€œAny additional information concerning [his] connection to the contraband, or lack thereof, would therefore relate to the Stateâ€™s [pretrial detention] application as much as anything previously disclosed in discovery.â€ Defendant further argues that his approach harmonizes Rule 3:5-6 and Rule 3:4-2. According to defendant, the Stateâ€™s interpretation â€œwould render Rule 3:4-2(c)(1)(B) moot whenever a case involves a search warrant.â€ Finally, defendant argues that the State has â€œmade clearâ€ that concerns preventing disclosure, and justifying a protective order, are not present here because the State did not seek a protective order. 12 C. Amicus ACLU does not argue that the State must produce search warrant affidavits in every case but claims that such production is required when: 1) the defendant is arrested in a place other than his home; and 2) there is no evidence of the defendantâ€™s control over contraband found at the time of arrest. In the ACLUâ€™s view, the Appellate Divisionâ€™s holding â€œneed only apply where the seizure of contraband serves as a basis for pretrial detention and the location of the seizure alone is insufficient to show a nexus between the defendant and the contraband.â€ The ACLU argues that no production is required where the contraband is found in a room owned or rented by the defendant, or on the defendantâ€™s person, because the nexus between the defendant and the contraband in such situations is already clear. Lastly, the ACLU argues that the State can avoid otherwise- compulsory production by obtaining a protective order where merited -- that is, on a case-by-case basis and on a showing of â€œlegitimate, specific security concerns.â€ The ACLU points out that, in this case, the State was aware it could move for a protective order and explicitly chose not to seek one. D. The CPANJ agrees with the State. The CPANJ argues that because warrant confidentiality is paramount, this Courtâ€™s rules 13 permit post-execution disclosure in only two scenarios: 1) post-indictment discovery; and 2) disclosure to any person claiming to be aggrieved by an unlawful search and seizure. Similarly, the CPANJ notes, this Court has made search warrants an exception to the general public availability of criminal case records.

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In that vein, the CPANJ asserts a broad public policy interest in warrant confidentiality, emphasizing that warrants may describe ongoing investigations, active wiretaps, identities of confidential informants, identities of uncharged but implicated individuals, and witnesses. Therefore, the CPANJ asserts that the rule for which defendant advocates would force the State to move for a protective order in an inordinate number of cases, transforming protective orders from the exception to the rule and unduly burdening prosecutors. The CPANJ also argues that, given how quickly law enforcement must act on warrants to forestall a staleness defense and how soon detention hearings must follow arrest, requiring warrant affidavit production would increase the probability that confidential informants would be identified and potentially subjected to retaliation. In the CPANJâ€™s view, the Appellate Division did not read Rule 3:5-6(c) â€œin harmonyâ€ with Rule 3:4-2(c), but rather read Rule 3:4-2(c) to entirely trump the warrant confidentiality rule. 14 The CPANJ notes that law enforcement typically does not rely on information in search warrant affidavits in preparing affidavits of probable cause and adds that the warrant materials in this case did not relate to probable cause or pretrial detention. Thus, the warrant affidavit here did not fall within the Stateâ€™s production obligation, according to the CPANJ. III. This case presents a narrow question regarding the Stateâ€™s discovery obligation at the pretrial detention stage left unanswered in Robinson -- whether Rule 3:4-2(c)(1)(B) obliges the State to produce the affidavit underlying a search warrant in a pretrial detention hearing. Appellate review of the meaning of the New Jersey Court Rules is de novo. Robinson, 229 N.J. at 66; State v. Hernandez,

225 N.J. 451, 461 (2016). â€œWe apply ordinary principles of statutory construction to interpret the court rules and start with the plain language of the Rule.â€ Robinson, 229 N.J. at 67. A. The CJRA â€œallows for pretrial detention of defendants who present such a serious risk of danger, flight, or obstruction that no combination of release conditions would be adequate.â€ Id. at 54. â€œAfter a complaint-warrant is issued, eligible defendants â€˜shall be temporarily detained to allow the Pretrial Services Program to prepare a risk assessmentâ€™ and recommend 15 conditions of release.â€ Id. at 55 (quoting N.J.S.A. 2A:162- 16(a)). â€œWhen a prosecutor applies for pretrial detention, the

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defendant is held pending a hearing.â€ Id. at 57. â€œAt the hearing, the defendant has the right to counsel and . . . the right to testify, to call witnesses, to cross-examine witnesses who appear, and to present information by proffer or otherwise.â€ Id. at 58 (citation omitted). â€œIn the end, if a court orders detention, its decision must be supported by clear and convincing evidence.â€ Ibid. â€œ[T]he [CJRA] calls for a determination of probable cause and an assessment of the risk of danger, flight, and obstruction, which may include consideration of the nature and circumstances of the offense and the weight of the evidence . . . .â€ Id. at 69; see also N.J.S.A. 2A:162-18(a)(1); -19(e)(2); -20(a), (b). The statute does not, however, specify what discovery must be turned over to defendants as to those proofs. We addressed the issue of discovery in crafting rules to guide the implementation of the CJRA. This Courtâ€™s Criminal Practice Committee issued a report, which became part of the legislative history of the rules eventually adopted. See Robinson, 229 N.J. at 59; see also Report of the Supreme Court Committee on Criminal Practice on Recommended Court Rules to 16 Implement the Bail Reform Law, Part I: Pretrial Release (May 9, 2016); Report of the Supreme Court Committee on Criminal Practice on Recommended Court Rules to Implement the Bail Reform Law, Part II: Pretrial Detention & Speedy Trial (May 12, 2016). The report indicated that â€œ[t]he Committee divided sharply about the amount and type of discovery that should be required for pretrial detention hearings.â€ Robinson, 229 N.J. at 59. Ultimately, the Court amended Rule 3:4-2 to set parameters for that discovery. See R. 3:4-2 (as amended Dec. 6, 2016). In Robinson, one of the earliest CJRA cases, this Court revisited those parameters in connection with a discovery dispute. We underscored that the State must carry a twofold burden at pretrial detention hearings -- to demonstrate probable cause and to overcome the presumption of pretrial release -- and noted that â€œdiscovery should likewise be keyed to both areas.â€

229 N.J. at 69. We accordingly clarified and amplified the meaning of Rule 3:4-2(c)(1)(B). Id. at 71â€“72. In so doing, we identified twelve â€œprinciplesâ€ that â€œgovernâ€ the disclosure of evidence at a detention hearing, id. at 69â€“71, many of which are relevant here. â€œAll exculpatory evidence must be disclosed.â€ Id. at 71. Further, there are specific documents that the State must turn over: the complaint, the PSA, the PLEIR, and the affidavit of probable cause. Id. at 69. We specified that, â€œ[i]f a similar document 17

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with a different name is used [instead of an affidavit] to establish probable cause, that document must be disclosed.â€ Ibid. We also required the State to provide the defendant with â€œ[a]ll statements and reports relating to the affidavit of probable cause. In other words, if an affidavit of probable cause describes what a police officer or witness observed, an initial police report or witness statement that relates to those factual assertions must be disclosed.â€ Id. at 70. Disclosure is also required for â€œstatements or reports that relate to any additional evidence the State relies on to establish probable cause at the detention hearing.â€ Ibid. â€œFor example, if the State, at the detention hearing, refers to a witness whose observations are not discussed in the affidavit of probable cause, all statements and reports relating to the additional witness should be disclosed.â€ Ibid. In addition to those requirements, we offered two important definitions in Robinson. First, we noted â€œ[t]he phrase â€˜statements and reportsâ€™ refers to items that exist at the time of the hearing. The terms plainly include relevant police reports.â€ Id. at 70â€“71. Second, we stressed that, although the phrase â€œrelate toâ€ can be construed broadly, see Websterâ€™s Second New College Dictionary 935 (2d ed. 2001) (defining â€œrelateâ€ as â€œ[t]o have a connection, relation, or referenceâ€ ), it must be given a workable meaning in New Jersey jurisprudence, 18 see Robinson, 229 N.J. at 72 (â€œJudges must also be mindful of practical concerns . . . there may be dozens of police reports at the time of arrest that arguably relate to the affidavit of probable cause.â€ ). To implement the principles we identified, this Court exercised its Article VI rulemaking power to bypass the committee process and directly revise Rule 3:4-2(c) in the text of Robinson. Id. at 72, 74; see also N.J. Const. art. VI, Â§ 2, Â¶ 3. Under Rule 3:4-2(c), as modified by Robinson, a prosecutor seeking pretrial detention must now provide defense counsel with five categories of materials: [1] the discovery listed in subsection (A) above [(i.e., â€œa copy of any available preliminary law enforcement incident report concerning the offense and the affidavit of probable causeâ€ )], [2] all statements or reports relating to the affidavit of probable cause, [3] all statements or reports relating to additional evidence the State relies on to establish probable cause at the hearing, [4] all statements or reports relating to the factors listed in N.J.S.A. 2A:162-18(a)(1) that the State advances at the hearing,[ 3] and 3 The factors the State may advance are applicable to show that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and conditions would reasonably assure 1) defendantâ€™s appearance in court when required, 2) the protection of the safety of any other person or the community, and 3) that defendant will not obstruct or

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attempt to obstruct the criminal justice process. N.J.S.A. 2A:162-18(a)(1). 19 [5] all exculpatory evidence. [Robinson, 229 N.J. at 71â€“72; R. 3:4- 2(c)(1)(B).] The revised Rule 3:4-2(c) provides defendants with â€œfar broader discoveryâ€ than they are entitled to at the pretrial detention stage in the federal system, Robinson, 229 N.J. at 61, and represents this Courtâ€™s carefully considered attempt to strike a balance between the significant competing interests at stake, see id. at 76. We noted in Robinson that making the Stateâ€™s discovery obligation at the pretrial detention stage any â€œbroaderâ€ would â€œimpose a greater administrative burden on the Stateâ€ and thereby risk â€œfrustrat[ing] the purpose of the [CJRA].â€ Id. at 76. After all, â€œin light of the [CJRAâ€™s] very tight time constraints,â€ under a broader discovery obligation, â€œthe State might be forced to limit detention motions based on the resources it can devote to discovery in the days after an arrest, and not its assessment of the risk of danger, flight, or obstruction that a defendant poses.â€ Ibid. We further stressed the need for balance by instructing that Rule 3:4-2(c)â€™s pretrial discovery requirements must â€œbe read in conjunction with Rule 3:13-3, which obligates the State to provide full discovery when it makes a pre-indictment plea offer or when an indictment is returned or unsealed.â€ Id. at 72. That does not mean that the requirements of the two rules 20 are identical; on the contrary, the Court declined to adopt during the rulemaking process a proposal that would have collapsed the distinctions between the two. See id. at 60-61. Rather, the instruction mandates the adoption of â€œa workable standard,â€ id. at 68 -- one that does â€œnot impose impractical demands on law enforcementâ€ and that balances both â€œthe lawâ€™s tight timeframe,â€ ibid., and the limited purpose of detention hearings, which â€œare not full-scale trials designed to assess guilt,â€ id. at 73, against â€œthe defendantsâ€™ liberty interests,â€ id. at 68, and the fact that â€œ[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,â€ ibid. (quoting United States v. Salerno, 481 U.S. 739, 755 (1987)). That mandate is not self-executing, however. And although Robinson provides a great deal of guidance as to discovery requirements in pretrial detention proceedings, it does not discuss search warrant affidavits. Nor did the report by the Criminal Practice Committee refer to the discoverability of search warrant affidavits at the pretrial detention stage. We therefore turn to the rules that address search-warrant discovery in general for guidance.

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B. The court rules regarding warrants and supporting documents predate the CJRA. â€œA search warrant shall be issued with all 21 practicable secrecy and the affidavit or testimony upon which it is based shall not be . . . made public in any way prior to execution,â€ with disclosure punishable by contempt. R. 3:5-4. After the warrantâ€™s execution, the warrant itself â€œand the papers accompanying [it], including the affidavits, transcript or summary of any oral testimony, duplicate original search warrant, return and inventory, and any original tape or stenographic recording shall be confidential.â€ R. 3:5-6(c). Together, Rules 3:5-4 and 3:5-6(c) establish strong confidentiality protections for warrants and their supporting materials. The reason for warrant confidentiality is, in part, that warrants may describe ongoing investigations, active wiretaps, identities of confidential informants, identities of uncharged but implicated individuals, and witnesses. See State in Interest of N.H., 226 N.J. 242, 256 (2016) (explaining a protective order, in the pretrial detention context, is used â€œto redact, delay, or withhold the disclosure of materials that would expose witnesses and others to harm, hinder or jeopardize ongoing investigations or prosecutions, undermine the secrecy of informants and confidential information which the law recognizes, or compromise some other legitimate interestâ€ ); R. 3:13â€“3(a)(1), (e)(1). Despite those concerns for warrant confidentiality, Rule 3:5-6(c) provides two exceptions. First, â€œthe warrant and 22 accompanying papers shall be provided to the defendant in discovery pursuant to R. 3:13-3â€ ; and second, the warrant and accompanying papers shall be â€œavailable for inspection and copying by any person claiming to be aggrieved by an unlawful search and seizure upon notice to the county prosecutor for good cause shown.â€ R. 3:5â€“6(c). The first of those exceptions is relevant here. That exception is tethered to Rule 3:13-3, which provides for the defendantâ€™s receipt of â€œopen fileâ€ discovery upon indictment or in the event the prosecutor makes a pre-indictment plea offer. It is thus not until further along in the process that the confidentiality concerns protected by Rule 3:5â€“6(c) bow to discovery requirements, whereas the discovery provided for in Rule 3:4-2 is to be turned over pretrial. In order to read the pretrial discovery rule â€œin conjunction with Rule 3:13-3,â€ therefore, we must determine whether the confidentiality interests described above militate against imposing the full- disclosure requirements of Rule 3:13-3 at the earlier proceeding governed by Rule 3:4-2(c). IV.

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A. We first determine whether, as a matter of course, the State is required to produce the affidavit of probable cause supporting a search warrant before a pre-detention hearing under 23 the CJRA. Applying the principles set forth in Robinson and considering the confidentiality concerns raised by search warrants, we decline to establish such a blanket rule. Discovery is limited by the nature of the pretrial detention hearing, at which the State need not prove guilt, but rather is required only to establish probable cause and to rebut the presumption of release. See N.J.S.A. 2A:162â€“19(e)(2). Defendants are entitled, in addition to â€œall exculpatory evidence and a copy of the charging document,â€ to â€œstatements or reports that relate to (1) the affidavit of probable cause and (2) additional evidence the prosecution relies on at the detention hearing -- both to establish probable cause and to advance any relevant risk factors.â€ Robinson, 229 N.J. at 76. Therefore, as to probable cause, the evidence to be produced is circumscribed by what the State chooses to include in its affidavit of probable cause or equivalent document and what it explicitly relies on during a detention hearing. See ibid. If, through the manner in which it frames its presentation, the State does not meet its burden of showing probable cause, the defendant must be released. Ibid. Whether a search warrant affidavit is discoverable at a detention hearing, therefore, will turn on whether it relates to the affidavit of probable cause or the Stateâ€™s presentation on the risk factors in the specific case. For example, if an 24 affidavit of probable cause alleged that defendant conducted a series of drug transactions, and the search warrant affidavit outlined those transactions, the State would have to disclose the warrant affidavit in connection with the detention hearing. On the other hand, if the affidavit of probable cause relied on items found during a search but not a defendantâ€™s prior history of drug dealing, the warrant affidavit would not have to be disclosed until the time of indictment. The State may choose to include in its affidavit or discuss at the detention hearing only a portion of the evidence in its possession. In such circumstances, Rule 3:4-2(c) mandates only that the State produce discovery related to its presentation. That is true even if production of additional discovery would better describe the strength of the Stateâ€™s case. At the pretrial detention hearing, the court will consider the Stateâ€™s application to â€œdetermine probable cause -- whether an officer has a â€˜well grounded suspicion that a crime has beenâ€™ committed and that defendant committed the offense.â€ Id. at 68- 69 (quoting State v. Gibson,

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218 N.J. 277, 292 (2014)). As we stressed in Robinson, that determination â€œcalls for â€˜less evidence than is needed to convict at trial.â€™â€ Id. at 69 (quoting State v. Brown, 205 N.J. 133, 144 (2011)). Nevertheless, when charged offenses include an element of possession, a showing of probable cause that defendant committed 25 the offense requires the State to establish a nexus between the defendant and the contraband sufficient to support a well- grounded suspicion that the contraband was in defendantâ€™s possession within the meaning of the charged offenses. Thus, at pretrial detention hearings, trial courts must determine whether the State has established a sufficient nexus between contraband and a defendant to support a finding of probable cause based on the Stateâ€™s presentation and the discovery it provides pursuant to Rule 3:4-2(c). Moreover, if â€œnexusâ€ is rightly an issue, a defendant is free to challenge probable cause on that basis. The ACLU argues that search warrant affidavits should be disclosed whenever the nexus between the defendant and the contraband is the basis â€œfor pretrial detention and the location of the seizure alone is insufficient to show a nexus between the defendant and the contraband.â€ We decline to adopt that approach. Rule 3:4-2(c) instead calls for disclosure of materials that relate to the Stateâ€™s presentation at the detention hearing. Thus, if the affidavit establishes the particular nexus between the defendant and the contraband found, the warrant should be disclosed. That will not be the case with all search warrant affidavits, however. Judges, of course, have discretion to require production of additional discovery, including the search warrant affidavit, 26 when appropriate. State v. Ingram, 230 N.J. 190, 213 (2017). Thus, if the trial court concludes that additional related evidence is required to establish the nexus between a defendant and the contraband, the court may require production of additional discovery, including the search warrant affidavit. Cf. ibid. (â€œWe find that the State is not obligated to call a live witness at each detention hearing. To be clear, though, we repeat that the trial court has discretion to require direct testimony if it is dissatisfied with the Stateâ€™s proffer. In those instances, the State must proceed reasonably promptly to avoid unduly prolonging a defendantâ€™s detention while the hearing is pending.â€ (citation omitted)). In this way the trial court, not the State as is claimed by our dissenting colleague, â€œcontrol[s] the information that flows through the discovery spigot.â€ If the State is then unable or unwilling to produce the evidence needed to establish probable

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cause, it will fail to carry its burden of proof, and the trial court must order release. See N.J.S.A. 2A:162-19(e)(2); Robinson, 229 N.J. at 58. In sum, we leave it to our trial courts to apply Rule 3:4â€“2(c) as clarified by this Court to resolve such disclosure issues. Our approach is a natural application of existing principles of law. Going far back in time, judges have made probable cause determinations without either the judge or 27 the defendant having the benefit of a search warrant affidavit in hand. Likewise, judges have made bail decisions that affected a defendant's liberty without a search warrant affidavit. Today, they are called upon to make both types of decisions -- probable cause and detention -- at the same time, with far more discovery than has been available previously at this early stage under state law, and far more than is available under comparable federal law. There is no basis under the CJRA or the Rules to go further and require disclosure of search warrant affidavits that do not relate to probable cause or detention -- the only issues before the court. There will be ample later to litigate the merits of the search warrant affidavit. Our holding also allows courts to maintain the confidentiality of search warrants in many cases, in keeping with Rules 3:5-4 and 3:5-6(c), and will promote efficiency in pretrial proceedings. See ibid.; Robinson, 229 N.J. at 68. At the same time, that approach respects the evidentiary burdens established by the Legislature in the CJRA. See N.J.S.A. 2A:162-19(e)(2). We note that, to the extent a search warrant affidavit contains exculpatory information, its discovery is already explicitly required by Rule 3:4-2(c)(1)(B)(v). We stress that, if the circumstances of the case so warrant, the State may seek a protective order if the trial court requires 28 discovery of a search warrant affidavit. See Robinson, 229 N.J. at 72; N.H., 226 N.J. at 256. This approach also recognizes that detention hearings differ from trials and suppression hearings. At the detention hearing, the court only determines probable cause and assesses the statutory risk factors. Challenges to the sufficiency of the search warrant affidavit and the admissibility of evidence come later in the judicial process, by which time the State will have been required to comply with its discovery obligation under Rule 3:13 and disclose any search warrant affidavits. B. Having determined that automatic disclosure of search

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warrant affidavits is not mandatory but that trial courts may require such disclosure, we consider whether disclosure was required in the present case. As a part of discovery, the State provided, as required by Robinson, the PLEIR, the complaint, the supporting affidavit of probable cause, the PSA, and the incident and arrest reports, which were, in this case, commendably detailed. Further, unlike the â€œbarebones affidavitâ€ cautioned against in Robinson and criticized in Ingram, the affidavit of probable cause that the State provided stated in part: â€œPursuant to the execution of a search warrant on 02/01/2017 the accused was arrested after being found to be in possession of suspected CDS, weapons, and 29 contraband.â€ Also, the State turned over the search warrant referenced in that portion of the affidavit as required by Robinson. See 229 N.J. at 70. The affidavit of probable cause did not refer to the search warrant affidavit, nor did the State rely on the search warrant affidavit at the detention hearing. The search warrant affidavit in this case simply did not â€œrelate toâ€ the affidavit of probable cause. It is clear in this case that the evidence relied upon by the State was obtained when the search warrant was executed, not before. Amicus ACLU asserts that that such production is required when the defendant is arrested in a place other than his home and that, here, there is no evidence of the defendantâ€™s control over contraband found at the time of arrest. Defendant claims that additional information was required to establish a nexus between him and the contraband. We disagree. It is true that, â€œ[w]here . . . a defendant is one of several persons found on premises where [contraband is] discovered, it may not be inferred that he knew of the presence or had control of the [contraband] unless there are other circumstances . . . tending to permit such an inference to be drawn.â€ State v. Brown, 80 N.J. 587, 593 (1979) (first ellipsis in original) (quoting State v. Sapp, 144 N.J. Super. 455, 461 (1975), revâ€™d on other grounds, 71 N.J. 476 (1976)). In this 30 case, such additional circumstances were present. First, defendant was in the area of the salon where drugs and guns were found. Second, officers found mail addressed to defendant at the salon, a State of New Jersey Certificate of Authority addressed to defendant, and an expired City of Asbury Park Barbershop/Salon License addressed to a Barbara Dickerson. It is clear that, unlike others present, defendant was not a customer. The State established a nexus sufficient to support probable cause here.

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Because we find, first, that the affidavit supporting a search warrant disclosed in discovery need not be disclosed as a matter of course and, second, that no particular circumstances necessitated disclosure of that affidavit here, we reverse the Appellate Divisionâ€™s affirmance of the trial court order that compelled production of that document. V. We turn now to the issue of the appropriate remedy for failure to comply with the discovery requirements set forth in Rule 3:4-2(c)(1)(B) and explained in greater detail here and in Robinson. Although there was no such failure here -- inasmuch as it was not necessary to turn over the search warrant affidavit in this case -- we offer the following guidance. The issue of discovery sanctions must be distinguished, first and foremost, from a failure by the State to carry its 31 burden as to probable cause or as to the need for detention. When the State fails to carry its burden in either of those areas, then the presumption of release under the CJRA carries the day. See N.J.S.A. 2A:162-15, -19. When the State withholds requisite discovery, there are sanctions available under our court rules to penalize gamesmanship. See R. 3:13â€“3(f). Such sanctions cannot include release of a defendant. Only the failure of the State to establish probable cause or to overcome the presumption of release justifies release. N.J.S.A. 2A:162â€“19(e)(2). Detention is required under the CJRA when necessary to protect the public, prevent obstruction, or ensure a defendantâ€™s appearance. N.J.S.A. 2A:162â€“18(a)(1). The court must not eschew those interests to punish what it perceives to be bad conduct. The public cannot be imperiled, nor the integrity of the judicial system compromised, due to a failure to comply with a discovery order. Thus, to the extent that the trial courtâ€™s order of release served as a â€œsanctionâ€ for the Stateâ€™s failure to meet what the court viewed to be the Stateâ€™s discovery requirements, that release order was improper. As to whether any sanction was warranted, we note that there is no allegation that the State was guilty of any misbehavior. Indeed, the question of whether the search warrant affidavit was related to the issues of probable cause or detention was substantial and genuine. There was no 32 inappropriate conduct here â€“- only an honest legal dispute as to the discovery requirements of Rule 3:4â€“2(c). We therefore find that no sanction was warranted and that the pretrial detention hearing should have been allowed to proceed as scheduled while interlocutory review of the legal dispute was pursued. We accordingly affirm the Appellate Divisionâ€™s determination to remand to the trial court for a detention hearing. VI.

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For the reasons set forth above, we reverse the judgment of the Appellate Division requiring the State to produce the affidavit in support of the search warrant issued here in pre- detention hearing discovery. We affirm the judgment of the Appellate Division remanding the matter to the trial court to conduct a detention hearing.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ- VINA, and TIMPONE join in JUSTICE SOLOMONâ€™s opinion. JUSTICE ALBIN filed a separate, dissenting opinion, in which JUSTICE LaVECCHIA joins.

33 SUPREME COURT OF NEW JERSEY A- 1 September Term 2017 079769 STATE OF NEW JERSEY, Plaintiff-Appellant, v. MELVIN T. DICKERSON, Defendant-Respondent.

JUSTICE ALBIN, dissenting. The purpose of the discovery rule in a pretrial detention hearing is to give the defendant a fair opportunity to challenge the Stateâ€™s assertion that probable cause supports the charged offense and that detention is the only means of assuring public safety. The majorityâ€™s crabbed interpretation of Rule 3:4-2(c) empowers and encourages the State to present the trial court with as little evidence as possible to avoid giving the defendant readily available information to contest the Stateâ€™s presentation. That approach not only disserves principles of fair play, but also ultimately deprives the court of vital evidence necessary to carry out its statutory obligation of determining whether detention is appropriate under the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. In this case, the State charged defendant Melvin Dickerson with unlawful possession of drugs with intent to distribute, 1 unlawful possession of firearms, and related offenses. The police -- armed with a search warrant -- seized drugs, drug paraphernalia, and firearms from a hair salon in Asbury Park where defendant allegedly worked. Defendant requested in discovery the search warrant affidavit, which presumably would show whether defendant had a true connection to the salon. The State categorically denied the request. It did not claim that disclosure of the search warrant affidavit would place in jeopardy a confidential informant or a witness. Nor did it ask for a protective order. The trial court ordered the State to disclose the affidavit to the defense, and the Appellate Division affirmed, holding

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â€œthat Rule 3:4-2(c)(1)(B) required the State to produce to defendant the search warrant information before the detention hearing.â€ In reversing both the trial court and Appellate Division, the majority announces that discovery is limited to the evidence the State presents at the detention hearing. Because the State relied on the search warrant but did not utter the words â€œsearch warrant affidavit,â€ the majority finds that all relevant information in that affidavit is rendered non- discoverable. In effect, the majority provides a guidebook to the State on how to scrimp on its discovery obligations. The majority decision also places our court rule at odds with the CJRA, which requires that trial courts consider, in

2 determining whether detention is warranted, the â€œnature and circumstances of the offense chargedâ€ and the â€œweight of the evidence against the eligible defendant.â€ See N.J.S.A. 2A:162- 20(a) to (b). That statutory obligation cannot be fulfilled when the State parcels out only the evidence it wishes to present to the trial court. For those reasons, and more, I respectfully dissent. I. After passage of the CJRA, this Court received input from all stakeholders in the criminal justice system -- prosecutors, defense attorneys, and judges -- and then adopted a discovery rule detailing what the State must produce when it seeks pretrial detention. See Report of the Supreme Court Committee on Criminal Practice on Recommended Court Rules to Implement Bail Reform Law, Part I: Pretrial Release (May 9, 2016); Report of the Supreme Court Committee on Criminal Practice on Recommended Court Rules to Implement Bail Reform Law, Part II: Pretrial Detention & Speedy Trial (May 12, 2016). The court rule required the prosecutor to â€œprovide the defendant with all statements or reports in its possession relating to the pretrial detention application[,]â€ including â€œall exculpatory evidence.â€ R. 3:4-2(c)(1)(B). The rule corresponded to the trial courtâ€™s statutory duty in making pre-trial detention determinations. N.J.S.A. 2A:162-

3 20(a) to (f) permits the trial court to consider such factors as: â€œ[t]he nature and circumstances of the offense chargedâ€ ; â€œ[t]he weight of the evidence against the eligible defendantâ€ ; â€œ[t]he history and characteristics of the eligible defendantâ€ ; the danger posed to any person or the community if defendant were released; the risk of obstruction of justice if defendant were released; and the recommendation of the pretrial services program. To take account of those factors, the trial court needs access to the Stateâ€™s â€œdiscovery.â€

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In State v. Robinson, 229 N.J. 44 (2017), the majority dispensed with the rulemaking process and redrafted the discovery rule in pretrial detention hearings. The rule now provides that when the prosecutor seeks pretrial detention, the prosecutor shall provide the defendant with (i) [a copy of any available preliminary law enforcement incident report concerning the offense and the affidavit of probable cause], (ii) all statements or reports relating to the affidavit of probable cause, (iii) all statements or reports relating to additional evidence the State relies on to establish probable cause at the hearing, (iv) all statements or reports relating to the factors listed in N.J.S.A. 2A:162-18(a)(1) that the State advances at the hearing, and

4 (v) all exculpatory evidence.1 [R. 3:4-2(c)(1)(B) (amended May 10, 2017 to be effective immediately).] Robinson does not alter the trial courtâ€™s right to consider the factors set forth in N.J.S.A. 2A:162-20(a) to (f) pursuant to the CJRA. The trial court, however, will not know the nature and circumstances of an offense or the weight of the evidence if it is given only a partial account by the State. The question here is whether the State was required to disclose the search warrant affidavit to defendant and the trial court. In light of Robinson and the revised discovery rule, the Appellate Division answered in the affirmative. It held â€œthat when the Stateâ€™s evidence is largely dependent on items seized under a search warrant, the affidavits submitted in support of the application for the search warrant and related police reports are relevant evidence relating to the issue of probable cause in a pretrial detention hearing.â€

1 N.J.S.A. 2A:162-18(a)(1) provides that pretrial detention may be ordered if the court finds clear and convincing evidence that no amount of monetary bail, non-monetary conditions of pretrial release or combination of monetary bail and conditions would reasonably assure the eligible defendantâ€™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. 5 The majority, however, has determined otherwise, concluding that the State can control the information that flows through the discovery spigot. In that vein, the majority states, â€œthe evidence to be produced is circumscribed by what the State chooses to include in its affidavit of probable cause or equivalent document and what it explicitly relies on during a detention hearing.â€ Ante at ___ (slip op. at 24). According to

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the majority, â€œRule 3:4-2(c) mandates only that the State produce discovery related to its presentation,â€ and thus the State can limit the scope of discovery by discussing â€œat the detention hearing only a portion of the evidence in its possession.â€ Ante at ___ (slip op. at 25). Because the State made the strategic decision not to mention the search warrant affidavit in its affidavit of probable cause, the search warrant affidavit remains sealed in the vault, regardless of its relevance. But still the majority builds in a fail-safe mechanism in case the State, in doling out the minimum amount of discovery, falls short in its probable-cause presentation. â€œThus, if the trial court concludes that additional related evidence is required to establish the nexus between a defendant and the contraband, the court may require production of additional discovery, including the search warrant affidavit.â€ Ante at ___ (slip op. at 27) (emphasis added). In contrast, the majority

6 does not require disclosure of the search warrant affidavit when it may instead show that there is no clear nexus between a defendant and the contraband. I do not read Rule 3:4-2(c) to permit such gamesmanship. A fair reading of the rule would let the trial court assess -- after reviewing the search warrant affidavit -- whether there is a strong or weak nexus between the defendant and the contraband. II. A. In my view, Rule 3:4-2(c)(1)(B) allows for the disclosure of the search warrant affidavit, in the absence of a claim of danger to a witness or a confidential informant. That rule requires that the State provide â€œall statements or reports relating toâ€ : (1) â€œthe affidavit of probable cause,â€ Rule 3:4- 2(c)(1)(B)(ii) (emphasis added), (2) â€œadditional evidence the State relies on to establish probable cause at the hearing,â€ Rule 3:4-2(c)(1)(B)(iii), and (3) â€œthe factors listed in

N.J.S.A. 2A:162-18(a)(1) that the State advances at the hearing,â€ Rule 3:4-2(c)(1)(B)(iv). The search warrant affidavit relates to all three categories because it undoubtedly provides evidence of the connection, if any, between defendant and the contraband that he is charged with possessing. The search warrant affidavit directly relates both to the confiscated drugs and weapons relied on by the State at the detention hearing and

7 to the factors relevant to detention, which include the nature and circumstances of the offense and the weight of the evidence. Last, it relates to the search warrant itself. Discovery rules are intended to illuminate not obscure, to eliminate surprise, and to advance the integrity of the truth-

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seeking process. The majorityâ€™s paradigm permits the State to disclose the search warrant affidavit only when it is to the Stateâ€™s advantage. Why would we construe our discovery rule to allow the State to hide a search warrant affidavit that weakens its case? That surely will not enhance a courtâ€™s ability to make a just determination at a pretrial detention hearing. I do not believe our rules permit the State to satisfy its discovery obligations by dispensing morsels of information. B. The Stateâ€™s legitimate confidentiality concerns can be met without eviscerating our discovery rule. I would hold that when contraband is seized pursuant to a search warrant, the search warrant affidavit should be disclosed in discovery pursuant to Rule 3:4-2(c) in the absence of extenuating circumstances. For example, if disclosure of the search warrant affidavit would endanger or place at risk a witness or confidential informant, or jeopardize an ongoing investigation, the State could apply for a protective order. Because the pretrial detention hearing occurs shortly after an arrest, when the State may not be in a

8 position to make a sound assessment concerning the risk to its witnesses or investigation, I would give the State the benefit of the doubt. If the State makes a good-faith representation that a confidential informant or other witness, or the ongoing investigation, would be placed at risk without a redaction of the affidavit, then such a redaction should be made. If the State makes a good-faith representation that a disclosure, with or without a redaction, would imperil either the informant or witness, or the ongoing investigation, then no disclosure would be warranted. At oral argument, we received representations that, in a number of counties, the State releases search warrant affidavits as part of the pretrial detention discovery obligations. That commendable practice will likely come to an end with this case. III. For the reasons expressed, I respectfully dissent.

This archive is a service of Rutgers School of Law.

State v Melvin Dickerson.html[5/8/2018 4:27:19 PM] State v. S.N. (A-60-16) (079320)

Argued September 11, 2017 -- Decided January 30, 2018

SOLOMON, J., writing for the Court.

In this appeal, the Court determines the proper standard for appellate review of pretrial detention decisions under the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26.

In March 2017, law enforcement obtained an arrest warrant for defendant S.N. for acts alleged to have been committed against his stepdaughter in 2012. In a complaint-warrant, the State charged defendant with first-degree aggravated sexual assault on a person under the age of thirteen; fourth- degree lewdness; and second-degree child endangerment. The affidavit of probable cause in support of the complaint- warrant stated that the victim told a staff member at her school that defendant came into her bedroom and sexually assaulted her approximately fifty times while she was in the sixth and seventh grades. In addition, the State prepared a preliminary law enforcement incident report (PLEIR), which stated that “defendant was known to the victim as [f]amily.”

Following defendant’s arrest, a pretrial services officer prepared a Public Safety Assessment (PSA) that rated defendant a 1 out of 6—the lowest possible risk score—for both failure to appear and new criminal activity. Despite the low risk scores, the PSA concluded “No Release Recommended.”

The State moved for pretrial detention. The prosecution certified that there is a “serious risk” that “defendant will not appear in court,” and “defendant will pose a danger to any other person or the community.” In addition, the certification stated, “[d]efendant’s victim is his stepdaughter. Defendant is a risk to harm and intimidate his victim and her mother and to obstruct justice by interfering with the investigation and witnesses. Defendant is a risk of flight because his biological mother and sister live in Canada.”

Defense counsel countered that the State did not present clear and convincing evidence to support its detention motion, and that the State’s arguments were based on “mere speculation.” Defense counsel noted that defendant had no prior record, including no disorderly persons offenses, had no failures to appear, was gainfully employed, and had the support of his adoptive parents, who live in New Jersey. Regarding defendant’s biological mother in Canada, counsel stated defendant has not had “telephonic or face- to-face contact with her” and defendant “doesn’t even know where she lives.” Further, defense counsel claimed that defendant lived in the same home as the victim “until a couple of years ago” and that “no further problems apparently . . . have been even alleged.”

The trial court found that the State had established probable cause that defendant committed the charged offenses. In making the pretrial detention determination, the judge reviewed the circumstances of the charged offenses, the potential sentence if convicted, defendant’s risk of flight in light of his dual U.S. and Canadian citizenship, and the potential for defendant’s obstruction of the criminal justice process. The court specifically found that defendant is eligible for detention under the statute “because this is a first degree [offense] with No Early Release attaching to it pursuant to N.J.S.A. 2A:162-19(a)(1).” The court gave “great weight to NERA, the fact that this is a NERA offense and first degree, the dual citizenship, due to the extensi[ve] exposure of incarceration if convicted, the fact that release was not recommended, and the fact that this is considered a violent offense.”

The Appellate Division reversed and released defendant with conditions. The panel, citing State v. C.W.,

449 N.J. Super. 231 (App. Div. 2017), found that “[t]he trial court abused its discretion by not considering defendant’s age, level of prior criminal involvement and ties to the community.” The Appellate Division required as part of defendant’s release that “defendant must report to pretrial detention as frequently as necessary to determine his compliance with restraining orders prohibiting him from having any contact with the victim or her family . . . . [and] must surrender his passport.” The Court granted leave to appeal. 230 N.J. 349, 350 (2017).

1 HELD: The proper standard of appellate review of pretrial detention decisions is whether the trial court abused its discretion by relying on an impermissible basis, by relying upon irrelevant or inappropriate factors, by failing to consider all relevant factors, or by making a clear error in judgment. Here, the trial court abused its discretion.

1. To determine the appropriate standard of appellate review in the absence of an “explicit statutory command,” a court first must “ask whether the 'history of appellate practice’ yields an answer. Second, at least where 'neither a clear statutory prescription nor a historical tradition exists,’ [a court asks] whether, 'as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.’” McLane Co. v. EEOC, 581 U.S. ___, 137 S. Ct. 1159, 1166-67 (2017). Although the CJRA does not explicitly set forth the appropriate scope of appellate review of trial court detention decisions, the pointed use of the permissive “may” in those provisions establishes the trial court’s significant discretion in making pretrial detention decisions and suggests that deferential review is appropriate. (pp. 14-20)

2. Turning to the first inquiry under the McLane test, there is further support for the abuse of discretion standard in the history of appellate practice. Since the 1800s, appellate courts have acknowledged that bail determinations were discretionary. Over many decades, appellate courts have reviewed many bail determinations for abuse of discretion. There is no indication that the Legislature intended to change that practice under the new system. As to the second part of the test in McLane, courts have long deferred to trial courts’ factual determinations because they hear and see the witnesses and have the “feel” of the case. With respect to detention determinations, trial courts regularly handle detention motions under the CJRA and will continue to develop expertise in the CJRA’s application. In C.W., the panel concluded that an abuse of discretion standard should apply to detention determinations under the CJRA, and correctly enunciated the standard. 449 N.J. Super. at 235, 252–55. To determine whether the trial court abused its discretion in ordering defendant’s detention, the Court reviews whether the decision “rest[s] on an impermissible basis,” “was based upon a consideration of irrelevant or inappropriate factors,” “fail[ed] to take into consideration all relevant factors and whe[ther] [the] decision reflects a clear error in judgment.” Id. at 255. (pp. 20-25)

3. The State’s burden to overcome the statutory presumption of release is substantial because “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” State v. Robinson, 229 N.J. 44, 68 (2017). The CJRA specifically delineates the kind of evidence that the court may consider in making a detention decision. Defendant’s characteristics as he stood before the court, pursuant to N.J.S.A. 2A:162-20, were as follows: he was fifty years of age; he had a PSA score of 1/6—the lowest score—for both “[f]ailure to appear” and “[n]ew criminal activity”—he was gainfully employed, had no criminal history, had no violence flags, and had strong ties to the community including the support of his adoptive parents and his relationship with his biological children; he was born in Canada, but adopted shortly thereafter; defendant has dual U.S.-Canadian citizenship. (pp. 25-28)

4. The nature and circumstances of the offense are pertinent to whether the statutory presumption of release has been overcome. However, the court based its detention decision almost entirely upon the offense charged, even though that charge does not carry a presumption of detention. See N.J.S.A. 2A:162-18(b). The court also relied on unsupported conclusory statements by the prosecutor to establish risk of obstruction even though there was no evidence of defendant’s obstructive conduct. As defense counsel noted, defendant lived in the same home as the victim “until a couple of years ago” and “no further problems apparently . . . have been alleged.” The court based defendant’s risk of flight upon his dual U.S.-Canadian citizenship even though the evidence presented at the detention hearing was that defendant had “lived in New Jersey [for] almost his entire life” and that defendant has no ties to Canada because he has no contact with his biological mother and does not know where she lives. In summary, the trial court, in ordering defendant detained, failed to properly consider defendant’s characteristics as he stood before the court. Furthermore, the trial court relied upon general, conclusory statements put forward by the prosecutor at the detention hearing. Because the court’s detention decision does not set forth articulable facts supporting its exercise of judicial discretion, it is not entitled to deference. The trial court’s detention decision constituted an abuse of discretion. Remand is required because trial courts are better positioned to determine conditions of release. (pp. 28-31)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED to the trial court for a hearing to determine the appropriate conditions of release.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ- VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.

2 SUPREME COURT OF NEW JERSEY A- 60 September Term 2016 079320

STATE OF NEW JERSEY,

Plaintiff-Appellant,

S.N.,

Defendant-Respondent.

Argued September 11, 2017 – Decided January 30, 2018

On appeal from the Superior Court, Appellate Division.

Sarah Lichter, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Sarah Lichter, of counsel and on the brief; Jeffrey L. Weinstein, Hunterdon County Assistant Prosecutor, on the brief).

Philip De Vencentes argued the cause for respondent (Galantucci, Patuto, De Vencentes, Potter & Doyle, attorneys; Philip De Vencentes, on the briefs; Richard G. Potter, of counsel and on the briefs).

Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor Director, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Richard T. Burke, President, attorney; Frank J. Ducoat, of counsel and on the brief; Kayla Elizabeth Rowe, on the brief).

Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Alexander R. Shalom,

1 Edward L. Barocas, and Jeanne M. LoCicero, on the brief).

Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Elizabeth C. Jarit, of counsel and on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

In this appeal, we determine the proper standard for appellate review of pretrial detention decisions under the

Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26.

After doing so, we must apply that standard to the facts of the present appeal.

We conclude that the proper standard of appellate review is whether the trial court abused its discretion by relying on an impermissible basis, by relying upon irrelevant or inappropriate factors, by failing to consider all relevant factors, or by making a clear error in judgment.

Here, we affirm the Appellate Division’s judgment reversing the trial court’s decision to detain defendant. We do so because the trial court relied on inappropriate factors and failed to consider all relevant factors in finding that there was sufficient evidence before the court to overcome the presumption of defendant’s release.

2 The facts and procedural history are culled from the record of defendant’s detention hearing.

In March 2017, law enforcement obtained an arrest warrant for defendant S.N.1 for acts alleged to have been committed against his stepdaughter2 in 2012. In a complaint-warrant, the

State charged defendant with first-degree aggravated sexual assault on a person under the age of thirteen, N.J.S.A. 2C:14-

2(a)(1); fourth-degree lewdness, 2C:14-4(b)(1); and second- degree child endangerment, N.J.S.A. 2C:24-4(a).3 The affidavit of probable cause in support of the complaint-warrant stated that the victim told a staff member at her school that defendant came into her bedroom and sexually assaulted her approximately fifty times while she was in the sixth and seventh grades. The affidavit also disclosed that, in 2015, the victim told a friend that defendant had “touched her in a sexual manner.” In addition, the State prepared a preliminary law enforcement

1 As per Rule 1:38-3(c)(12), initials will be used to preserve the confidentiality of the victim in this case.

2 Defendant and the victim’s mother were never married and defendant is not the victim’s biological father.

3 Two months after defendant’s arrest on the complaint-warrant, he was indicted for first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a)(1); and fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1).

3 incident report (PLEIR), which stated that “defendant was known to the victim as [f]amily.”

Following defendant’s arrest, a pretrial services officer prepared a Public Safety Assessment (PSA)4 that rated defendant a

1 out of 6 -- the lowest possible risk score -- for both failure to appear and new criminal activity. The PSA noted that defendant did not have any prior criminal history or failures to appear, but the current charges pending against defendant stemmed from a violent offense. Despite the low risk scores, the PSA concluded “No Release Recommended.”

The State moved for pretrial detention, pursuant to

N.J.S.A. 2A:162-19. In support of its pretrial detention motion, the prosecution certified that the charged crime could subject defendant to “an ordinary or extended term of life imprisonment,”5 there is a “serious risk” that “defendant will not appear in court,” and “defendant will pose a danger to any

4 The PSA is a tool that “assesses the level of risk for failure to appear and for new criminal activity on a scale of 1 to 6, with 6 being the highest, and may include a flag to denote new violent criminal activity.” State v. Robinson, 229 N.J. 44, 62 (2017). In addition, “[t]he PSA . . . recommends whether to release a defendant and what, if any, conditions of release to impose.” Ibid.

5 The State had not, in fact, charged defendant with an offense that carried an ordinary or extended term of life imprisonment. The prosecutor corrected this assertion on the record at the pretrial detention hearing.

4 other person or the community.” In addition, the certification stated, “[d]efendant’s victim is his step-daughter. Defendant is a risk to harm and intimidate his victim and her mother and to obstruct justice by interfering with the investigation and witnesses. Defendant is a risk of flight because his biological mother and sister live in Canada.”

At the detention hearing, the State submitted the affidavit of probable cause in support of the complaint-warrant, the

PLEIR,6 and the PSA. The prosecutor claimed that the PSA did not take into account defendant’s dual citizenship or the risk to the victim because “[defendant] knows where she lives. He knows where her mother lives. And the fear is that if he’s released, he will harm them physically.” Regarding the potential for obstruction, the prosecutor stated that

[t]hese sorts of cases are sensitive in the sense that if a defendant has access to the victim or other family members, we know -- and it’s common sense -- that the defendant often tries to obstruct justice by trying to convince family members and other people in the family to say it didn’t happen, or put pressure on the victim.

6 It is not clear from the transcript that the PLEIR was offered or admitted into evidence. However, probable cause is not disputed and, therefore, it does not affect the ultimate outcome of this case. 5 The State also sought a restraining order to prohibit defendant from having contact with the victim, her mother, and his three biological children (the victim’s half-siblings).

Defense counsel countered that the State did not present clear and convincing evidence to support its detention motion, and that the State’s arguments were based on “mere speculation.”

Defense counsel further noted that defendant had no prior record, including no disorderly persons offenses, had no failures to appear, was gainfully employed, and had the support of his adoptive parents, who live in New Jersey. Regarding defendant’s biological mother in Canada, defense counsel stated defendant has not had “telephonic or face-to-face contact with her” and defendant “doesn’t even know where she lives.” Counsel noted that defendant’s biological mother had visited New Jersey

“more than a decade ago,” but it “ended in [defendant’s] getting a restraining order against her, [and] her being physically removed from his house by the police.”

Further, defense counsel claimed that defendant lived in the same home as the victim “until a couple of years ago” and that “no further problems apparently . . . have been even alleged.” Defense counsel also asserted that defendant is involved in the lives of his three biological children and has had “constant contact” with them despite no longer living in the same household.

6 The trial court issued an oral ruling at the end of the detention hearing granting the State’s motion for pretrial detention and the restraining order. The court found that the

State had established probable cause that defendant committed the charged offenses. In making the pretrial detention determination, the judge reviewed the circumstances of the charged offenses, the potential sentence if convicted, defendant’s risk of flight in light of his dual U.S. and

Canadian citizenship, and the potential for defendant’s obstruction of the criminal justice process “[b]ased on the fact that this is essentially a he said, she said situation.”

The court gave great weight to “the nature and seriousness of the danger to any other person or community that would be posed by the defendant’s release.” Also, the court specifically found that defendant is eligible for detention under the statute

“because this is a first degree [offense] with No Early Release attaching to it pursuant to N.J.S.A. 2A:162-19(a)(1).” The court summarized its detention decision as follows:

Based on the factors I’ve outlined, the Court does find that the nature and circumstances should be given great weight, as well as the flight risk due to dual citizenship. Also, the protection of the safety of any other person or the community, as well as the fact that -- and/or the defendant will not obstruct or attempt to obstruct the criminal justice process.

7 In making my decision today I’ve given great weight to NERA,7 the fact that this is a NERA offense and first degree, the dual citizenship, due to the extensi[ve] exposure of incarceration if convicted, the fact that release was not recommended, and the fact that this is considered a violent offense. Therefore, based on all of the above the Court will grant the State’s motion and pretrial detention will occur.

In “[t]he history and characteristics of the defendant” section of the pretrial detention order, the court wrote,

“[r]isk of flight –- family in Canada, no prior record, dual citizenship, employed. Resident of NJ.” Under “[t]he nature and seriousness of the danger to any other person or the community that would be posed by the defendant’s release,” the court wrote that the alleged crime was a first-degree aggravated sexual assault and further noted “NERA.” Regarding the risk of obstruction, the court wrote “potential to intimidate.” The court also listed “Further Reasons for Pretrial Detention”:

- NERA offense –- [first degree]

- [D]ual citizenship creates a high risk of flight due to the extensive exposure to incarceration

- Release not recommended

- Violent offense

7 “NERA” refers to the “No Early Release Act,” N.J.S.A. 2C:43– 7.2. 8 Pursuant to Rule 2:9-13, defendant appealed from the trial court’s pretrial detention order, and the Appellate Division reversed and released defendant with conditions. The panel, citing State v. C.W., 449 N.J. Super. 231 (App. Div. 2017), found that “[t]he trial court abused its discretion by not considering defendant’s age, level of prior criminal involvement and ties to the community.” The Appellate Division required as part of defendant’s release that “defendant must report to pretrial detention as frequently as necessary to determine his compliance with restraining orders prohibiting him from having any contact with the victim or her family . . . . [and] must surrender his passport.”

This Court granted the State’s emergent motion for leave to appeal and for a stay of the Appellate Division’s order to release defendant on conditions. 230 N.J. 349, 350 (2017). We granted leave to appear as amicus curiae to the American Civil

Liberties Union of New Jersey (ACLU), the Office of the Public

Defender (OPD), and the County Prosecutors Association of New

Jersey (CPANJ). Following oral argument, we lifted the stay, allowed defendant’s release, and directed that “the trial court may enforce the Appellate Division’s order reversing the order for defendant’s pretrial detention, including establishing the schedule for defendant to report 'as necessary to determine his compliance with restraining orders.’” 230 N.J. 585 (2017).

9 II.

We summarize the parties’ arguments on appeal as follows.

The State urges this Court to adopt an abuse of discretion standard and claims that the appellate panel essentially reviewed the detention decision de novo, substituting its own judgment for that of the trial court. The State further contends that the Appellate Division compounded its error by imposing conditions of release without a remand to the trial court.

The State asserts that, in its detention order, the trial judge highlighted facts that pertain “to every subcategory of

N.J.S.A. 2A:162-20, which is merely a permissive list of factors a court may consider” and, therefore, the trial court did not fail to consider any relevant factors, and did not err in ordering pretrial detention. The State posits that “[t]he PSA is only a starting point” and that the court “properly gave great weight to the nature and circumstances of the offense charged” and properly “considered the risk that defendant would contact the victim . . . and that defendant knows how to contact the victim as she is [his] stepdaughter.” The State also notes that the court was permitted to consider defendant’s dual citizenship as an indication of an enhanced flight risk.

10 Lastly, the State, citing C.W., 449 N.J. Super. at 231, asserts that the panel was required to identify factors that the trial court should have considered and then remand to the trial court.

Noting that a majority of circuit courts have adopted a standard of independent review, defendant urges the Court to reject a more deferential standard and to adopt a standard that

“calls for independent review, while according deference to the trial judge’s factual findings that are clearly and convincingly supported by the evidence presented by the prosecutor.”

Defendant asserts that “[t]here is a significant difference between the nature of the liberty interest involved for a defendant between seeking a review of an order setting unreasonable release conditions . . . and an order denying release under any conditions.” The latter type of review is at issue in this case; it “necessarily requires an independent review” of the evidence to determine whether that evidence clearly and convincingly supports the State’s motion for pretrial detention.

Regardless of which standard the Court adopts -- abuse of discretion or independent review with deference -- defendant argues that the panel was correct to reverse the trial court’s order of detention because the State failed to produce clear and

11 convincing evidence to rebut the presumption of pretrial release. Defendant claims the State offered “little more than its boilerplate recitation” that defendant posed a risk of flight and of obstruction.

The amici all urge the Court to adopt an abuse of discretion standard. The ACLU and the OPD assert that the trial court abused its discretion in ordering detention. Conversely, the CPANJ asserts that the trial court did not abuse its discretion.

The ACLU argues that “the trial court abused its discretion by considering inappropriate factors, by failing to consider necessary factors and by engaging in a clear error of judgment.”

The ACLU notes that defendant is an United States citizen, that his dual citizenship alone is not probative of risk of flight, and that “there is no evidence, other than [d]efendant’s relationship to the complaining witness, to suggest he would interfere in the investigation or prosecution of the case.”

The ACLU asserts that the court incorrectly held the fact that the case “is essentially a he said, she said situation” against defendant because “a defendant should not be deemed to be higher risk because there is less evidence.”

The ACLU also claims that the trial court failed to consider necessary factors such as defendant’s employment, ties

12 to the State of New Jersey, age, and lack of a criminal record.

The ACLU therefore contends that the court abused its discretion by failing to consider factors that would make it more likely that defendant would appear in court when required.

The OPD makes similar arguments. It contends that the trial court failed to make an individualized risk assessment by failing to consider defendant’s age, employment, residence, and lack of criminal record. The OPD further argues defendant

“received the lowest PSA scores, had no violence flag,8 was gainfully employed, had absolutely no criminal history, and had strong family ties in New Jersey.” According to the OPD, the court also “inappropriately considered the defendant’s dual citizenship and familiarity with the complaining witness as evidence of risk of flight and obstruction when neither fact establishes an actual risk that the defendant would engage in such future conduct.” Additionally, the OPD argues that the court did not provide any statement to support its finding that defendant posed a danger to the community.

The OPD claims that the trial court ordered defendant detained pretrial based solely on the charged crime, even though first-degree sexual assault is not one of the enumerated

8 Violence flags are generated as part of a PSA “if there is a statistical likelihood that the defendant would engage in a New Violent Criminal Activity.” State v. C.W., 449 N.J. Super. 231, 240 (App. Div. 2017). 13 offenses that the Legislature identified in the CJRA. The OPD reaches this conclusion “[b]ecause the only other reasons put forward -- that [defendant] has dual citizenship and knows the victim -- even if properly considered, could not be sufficient to overcome a presumption of release.”

The CPANJ similarly asks this Court to confirm “that the appropriate appellate standard of review in pretrial detention cases is abuse of discretion, with de novo review only appropriate when the pretrial detention hearing court has misapplied the law.” According to the CPANJ, this standard comports with the purpose of the CJRA and “the historical standards of review for pretrial and post-conviction decisions.”

The CPANJ claims that, before the CJRA, appellate courts reviewed bail determinations for abuse of discretion, and

“[t]here is no legal or public policy reason to disturb a legal standard that advances the efficient administration of pretrial justice and appropriate risk management.”

Finally, according to the CPANJ, assuming the judge abused her discretion, the panel should have remanded the case “for consideration in light of the appellate court’s ruling.”

III.

Our initial task is to determine the scope of appellate review of pretrial detention decisions made by the trial court

14 under the CJRA. Although this is the first time this Court has confronted the issue, guidance is provided by the United States

Supreme Court’s decision in McLane Co. v. EEOC, 581 U.S. ___,

137 S. Ct. 1159 (2017).

In McLane, the Supreme Court employed a two-part test to determine the appropriate standard of appellate review in the absence of an “explicit statutory command.” 137 S. Ct. at 1166-

67. In Pierce v. Underwood, a case involving the award of counsel fees under the Equal Access to Justice Act, 28 U.S.C. §

2412(d), the Court provided an example of what would qualify as a “relatively explicit statutory command” that would reveal “the standard of appellate review”: “[T]he court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee.” 487 U.S. 552, 558 (1988) (alterations in original)

(quoting 42 U.S.C. § 1988). Absent such a command, a court first must “ask whether the 'history of appellate practice’ yields an answer. Second, at least where 'neither a clear statutory prescription nor a historical tradition exists,’ we ask whether, 'as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.’” McLane, 137 S. Ct. at 1166-67

(quoting Pierce, 487 U.S. at 558-60).

15 To determine whether there is a “clear statutory prescription” in favor of a particular review standard, we look to the text of the CJRA. We note that the CJRA does not specify a standard of review, unlike the example furnished in Pierce.

That does not mean, however, that the statute cannot provide guidance as to the appropriate level of review. Indeed, although the United States Supreme Court did not find an

“explicit statutory command” in the legislation at issue in

Pierce, it found the use of permissive language highly significant:

We turn first to the language and structure of the governing statute. It provides that attorney’s fees shall be awarded “unless the court finds that the position of the United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A) (emphasis added). This formulation, as opposed to simply “unless the position of the United States was substantially justified,” emphasizes the fact that the determination is for the district court to make, and thus suggests some deference to the district court upon appeal. That inference is not compelled, but certainly available.

[Pierce, 487 U.S. at 559.]

We therefore review the applicable provisions of the CJRA.

We do so in the context of the statutory requirement that the

CJRA “shall be liberally construed to effectuate the purpose of primarily relying upon pretrial release by non-monetary means to reasonably assure” that a defendant will “appear[] in court when

16 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.” N.J.S.A. 2A:162-15.

The CJRA provides that, “following the issuance of a complaint-warrant,” as occurred in this case, a defendant “shall be temporarily detained to allow the Pretrial Services Program to prepare a risk assessment with recommendations on conditions of release.” N.J.S.A. 2A:162-16(a); see also N.J.S.A. 2A:162-

25. Thereafter, the CJRA authorizes trial courts, “upon motion of a prosecutor,” to order a defendant detained pretrial “when it finds clear and convincing evidence that no condition or combination of conditions can reasonably assure the effectuation of [the] goals” of safeguarding against danger, flight, and obstruction. N.J.S.A. 2A:162-15.

When considering a prosecutor’s detention motion, trial courts must consider the risk assessment and recommendations and

“shall make a pretrial release decision” within forty-eight hours of the “defendant’s commitment to jail.” N.J.S.A. 2A:162-

16(b)(1). To make that decision, the “court shall hold a hearing to determine whether any amount of monetary bail or non- monetary conditions or combination of monetary bail and conditions . . . will reasonably assure” that the three goals set forth above are met. N.J.S.A. 2A:162-19(c). If, as in this case, the prosecutor moves for detention where there is no

17 indictment, the prosecutor must first establish at the hearing that probable cause exists that the defendant committed the charged offense. N.J.S.A. 2A:162-19(e)(2). Unless the defendant is charged with murder or a crime for which he would be subject to an ordinary or extended life term, N.J.S.A.

2A:162-19(b), the CJRA imposes a presumption against pretrial detention, N.J.S.A. 2A:162-18(b); R. 3:4A(b)(5). The State can rebut that presumption of release only by presenting “clear and convincing evidence.” N.J.S.A. 2A:162-18(a)(1); see also R.

3:4A(b)(5).

At a pretrial detention hearing, the defendant has the right “to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.” N.J.S.A. 2A:162-19(e)(1). The State need not present a live witness at a detention hearing, State v.

Ingram, 230 N.J. 190, 213 (2017), but it has the option to do so. Additionally, “the trial court has discretion to require direct testimony if it is dissatisfied with the State’s proffer.” Ibid.

At the hearing, the court “may take into account” various factors, including “[t]he nature and circumstances of the

[charged] offense”; the weight of the evidence proffered against the defendant; characteristics of the defendant as he or she stands before the court, including his or her employment status,

18 familial ties, and length of residence in the community; “[t]he nature and seriousness of the danger” that would be posed to other persons or the community if the defendant were released; the risk that the defendant will obstruct the criminal justice process; and the PSA recommendation. N.J.S.A. 2A:162-20.

If the court orders pretrial detention, it shall “include written findings of fact and a written statement of the reasons for the detention.” N.J.S.A. 2A:162-21(a)(1); see also R.

3:4A(c). A defendant may appeal a pretrial detention order as of right, pursuant to court rules. N.J.S.A. 2A:162-18(c); see also R. 2:9-13(a). Because the defendant remains detained pending appeal, the court shall hear the defendant’s appeal in an expedited manner. N.J.S.A. 2A:162-18(c); R. 2:9-13(a).

Although the CJRA does not explicitly set forth the appropriate scope of appellate review of trial court detention decisions, its language supports that the proper standard of appellate review is abuse of discretion. First, the Legislature used both “may” and “shall” in various provisions of the CJRA.

See generally N.J.S.A. 2A:162-15 to -26. “Where a statutory provision contains both the words 'may’ and 'shall,’ it is presumed that the lawmaker intended to distinguish between them,

'shall’ being construed as mandatory and 'may’ as permissive.”

Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000).

19 Under the CJRA, “the court may take into account” certain information. N.J.S.A. 2A:162-20 (emphasis added). If the court finds by clear and convincing evidence that no conditions of release will be sufficient, “the court may order, before trial, the detention of an eligible defendant.” N.J.S.A. 2A:162-

18(a)(1) (emphasis added). By contrast, the trial court must provide a written statement of reasons if it orders detention.

N.J.S.A. 2A:162-21(a)(1). The pointed use of the permissive

“may” in those provisions establishes the trial court’s significant discretion in making pretrial detention decisions and suggests that deferential review is appropriate. See

Pierce, 487 U.S. at 559.

Nevertheless, because the statutory language is not sufficiently explicit to dispose of the question here, we apply the two-part McLane test.

Turning to the first inquiry under that test, we find further support for the abuse of discretion standard in “the history of appellate practice.” McLane, 137 S. Ct. at 1166.

Since the 1800s, appellate courts have acknowledged that bail determinations were discretionary and not readily reviewable by appellate courts. See Parsell v. State, 30 N.J.L. 530, 546 (1863) (finding that “the law confides 'the exclusive order and directions in such cases [(referring to discharging

20 bail, &c.,)] to the legal discretion and judgment of the court having jurisdiction over the subject matter; and courts of error will not deem themselves at liberty to review the same’”

(alteration in original) (quoting Wright v. Green, 11 N.J.L. 334, 337 (Sup. Ct. 1830) (involving trial court’s decision to set aside amercement and discharge debtor))).

As a result, over many decades, appellate courts have reviewed many bail determinations for abuse of discretion. See

State v. Fajardo-Santos, 199 N.J. 520, 531, 533-34 (2009)

(stating that a trial court “engage[s] in a fact-sensitive analysis in setting bail” and noting our Court “us[ed] [an] abuse of discretion standard to review [the] fact-sensitive determination whether to remit forfeited bail” in State v.

Ventura, 196 N.J. 203, 206 (2008)); State v. Korecky, 169 N.J. 364, 373 (2001) (“The imposition of a bail condition is a matter of judicial discretion.”); State v. Johnson, 61 N.J. 351, 364

(1972) (noting that “bail liberty is a matter for the discretion of the trial courts” and that “discretion must be exercised reasonably”); State v. Steele, 430 N.J. Super. 24, 34 (App. Div.

2013); State v. Petrucelli, 37 N.J. Super. 1, 6 (App. Div. 1955)

(noting that “[t]he amount of bail is left to sound judicial discretion” and that appellate courts are “not warranted in nullifying a trial court’s exercise of judicial discretion in the absence of showing that its action was clearly

21 unreasonable”). There is no indication that the Legislature intended to change that practice under the new system. See

C.W., 449 N.J. Super. at 254-56.

The second part of the Supreme Court’s test in McLane is whether “as a matter of sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.” 137 S. Ct. at 1166-67 (quoting Pierce, 487 U.S. at 559-60). We have long deferred to trial courts’ factual determinations because they “hear and see the witnesses and

. . . have the 'feel’ of the case, which a reviewing court cannot enjoy.” State v. Johnson, 42 N.J. 146, 161 (1964). As a consequence, trial courts are “better positioned” than appellate courts to make factual determinations.

With respect to detention determinations, trial courts regularly handle detention motions under the CJRA and, going forward, will continue to develop expertise in the CJRA’s application. See Ingram, 230 N.J. at 212 (stating that under

CJRA, “the State moved for detention in 7824 cases in the first half of 2017” with “[c]ourts h[olding] hearings in 5548 of those cases”).

The Legislature’s significant use of permissive language in the CJRA, the history of appellate deference to the factual findings of trial courts, the history of appellate review of

22 bail decisions for abuse of discretion, and the ongoing development of trial court expertise in applying the CJRA, all suggest that abuse of discretion is the appropriate appellate standard of review for determinations made in pretrial detention hearings under the CJRA.

In C.W., cited by the Appellate Division here, the panel also concluded that an abuse of discretion standard should apply to detention determinations under the CJRA. 449 N.J. Super. at 235, 252–54. The panel found support in the words and policy objectives of the CJRA -- “the objectives of the [CJRA] in attaining the expeditious resolution of criminal cases could be thwarted if this court routinely second-guessed decisions on pretrial detention motions simply because we personally would have reached a different result than the trial judge.” Id. at

256.

C.W. correctly recognized that, “[i]n many instances, the pretrial hearing may entail no witness testimony and no need for credibility findings by the trial court, to which we ordinarily accord great deference.” Id. at 257. Nevertheless, regardless of whether the evidence is live testimony, a videotaped statement, or documentary evidence, deference is owed to the trial court’s determinations of fact and credibility. State v.

S.S., 229 N.J. 360, 379 (2017) (“[A] standard of deference to a

23 trial court’s fact findings, even fact findings based solely on video or documentary evidence, best advances the interests of justice in a judicial system that assigns different roles to trial courts and appellate courts.”); State v. Elders, 192 N.J. 224, 244 (2007).

We conclude that the appellate panel in C.W. identified the proper standard of review of detention decisions under the CJRA

-- abuse of discretion. We find that the panel correctly enunciated the standard when it stated that,

[w]hile the concept is difficult to define with precision, an appellate court “may find an abuse of discretion when a decision 'rest[s] on an impermissible basis’ or was 'based upon a consideration of irrelevant or inappropriate factors.’” Steele, 430 N.J. Super. at 34-35, 61 (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). 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. State v. Baynes, 148 N.J. 434, 444 (1997). Likewise, when the trial court renders a decision based upon a misconception of the law, that decision is not entitled to any particular deference and consequently will be reviewed de novo. See, e.g., State v. Stein, 225 N.J. 582, 593 (2016); State v. Williams, 441 N.J. Super. 266, 272 (App. Div. 2015). [C.W., 449 N.J. Super. at 255.]

Under that standard, “[a] reviewing court generally will give no deference to a trial court decision that fails to 'provide

24 factual underpinnings and legal bases supporting [its] exercise of judicial discretion.’” C.W., 449 N.J. Super. at 255 (second alteration in original) (quoting Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012)). In other words, a trial court’s detention decision not supported by articulable facts is not entitled to deference and may constitute an abuse of discretion.

IV.

Our final task is to determine whether the trial court abused its discretion in ordering defendant’s detention. This determination requires a review of whether the trial court’s decision “rest[s] on an impermissible basis,” “was based upon a consideration of irrelevant or inappropriate factors,” “fail[ed] to take into consideration all relevant factors and whe[ther]

[the] decision reflects a clear error in judgment.” C.W., 449 N.J. Super. at 255 (first alteration in original) (internal citations omitted).

Where, as here, the defendant has not been indicted, the

CJRA requires trial courts to determine at a detention hearing whether the State established probable cause and demonstrated by clear and convincing evidence that a defendant’s danger, risk of flight, and risk of obstruction overcomes the presumption of release. See N.J.S.A. 2A:162-18(a)(1); -19(e)(2); -20(a), (b).

Because the finding of probable cause is not at issue here, we confine our consideration to the trial court’s conclusion that

25 defendant’s danger, risk of flight, and risk of obstruction overcame the presumption of his release. See N.J.S.A. 2A:162-

18(a)(1); -19(e)(2); -20(a), (b).

We repeat the following principles that guide our final determination. The State’s burden to overcome the statutory presumption of release is substantial because “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” State v. Robinson,

229 N.J. 44, 68 (2017) (alteration in original) (quoting United

States v. Salerno, 481 U.S. 739, 755 (1987)). If the court orders pretrial detention, it shall “include written findings of fact and a written statement of the reasons for the detention.”

N.J.S.A. 2A:162-21(a)(1); see also R. 3:4A(c). Indeed, “[a] reviewing court generally will give no deference to a trial court decision that fails to 'provide factual underpinnings and legal bases supporting [its] exercise of judicial discretion.’”

C.W., 449 N.J. Super. at 255 (second alteration in original)

(quoting Clark, 429 N.J. Super. at 72).

The CJRA specifically delineates the kind of evidence that the court may consider in making a detention decision. N.J.S.A.

2A:162-20. As noted above, pursuant to N.J.S.A. 2A:162-20, the court may take into account various factors, including “[t]he nature and circumstances of the [charged] offense;” “the weight of the evidence” proffered against the defendant;

26 characteristics of the defendant as he stands before the court, including his or her employment status, familial ties, and length of residence in the community; “[t]he nature and seriousness of the danger” posed to other persons or the community if the defendant were released; the risk that the defendant will obstruct the criminal justice process; and the

PSA recommendation.

The court here considered the nature of the offense charged and gave it “great weight.” The court acknowledged the weakness of the State’s case by stating that the proofs were limited to

“he said, she said.” Even though the weakness of the State’s case generally militates in favor of release, the court used this factor to support the prosecutor’s claim that there was a risk of obstruction. That was so, even though there was no past conduct by defendant or empirical evidence offered by the prosecutor to support the contention that

Defendant’s characteristics as he stood before the court, pursuant to N.J.S.A. 2A:162-20, were as follows: he was fifty years of age; he had a PSA score of 1/6 -- the lowest score --

27 for both “[f]ailure to appear” and “[n]ew criminal activity”; he was gainfully employed, had no criminal history, had no violence flags, and had strong ties to the community including the support of his adoptive parents and his relationship with his biological children; he was born in Canada, but adopted shortly thereafter, and has lived in the United States; because he was born in Canada, defendant has dual U.S.-Canadian citizenship; and his birth mother visited him on one occasion more than ten years ago, and the visit ended with defendant obtaining a restraining order against her.

In addition, defense counsel proffered, without dispute by the prosecutor, that defendant had “no telephonic or face-to- face contact with [his mother]” and “doesn’t even know where to go find her”; defendant lived in the same home as the victim

“until a couple of years ago” and “no further problems apparently . . . have been alleged”; and defendant is involved in the lives of his three biological children and has had

“constant contact” with them despite no longer living in the same household.

The nature and circumstances of the offense are pertinent to whether the statutory presumption of release has been overcome. However, the court based its detention decision almost entirely upon the offense charged, even though that charge does not carry a presumption of detention. See N.J.S.A.

28 2A:162-18(b). The court also relied on unsupported conclusory statements by the prosecutor to establish risk of obstruction even though there was no evidence of defendant’s obstructive conduct. As defense counsel noted, defendant lived in the same home as the victim “until a couple of years ago” and “no further problems apparently . . . have been alleged.”

The court based defendant’s risk of flight upon his dual

U.S.-Canadian citizenship even though the evidence presented at the detention hearing was that defendant had “lived in New

Jersey [for] almost his entire life” and that defendant has no ties to Canada because he has no contact with his biological mother and does not know where she lives.

In summary, the trial court, in ordering defendant detained, failed to properly consider defendant’s characteristics as he stood before the court. Furthermore, the trial court relied upon general, conclusory statements put forward by the prosecutor at the detention hearing. For example, at the detention hearing, the prosecutor asserted in a conclusory fashion that defendant’s dual citizenship created a risk of flight and that because defendant knows where the victim and her mother live “the fear is that if he’s released, he will harm them physically.” Lastly, the prosecutor stated, without factual support, that “[t]hese sorts of cases are sensitive” because “defendant has access to the victim and other family

29 members” and that “it’s common sense . . . that the defendant often tries to obstruct justice by trying to convince family members and other people in the family to say it didn’t happen, or put pressure on the victim.” Because the court’s detention decision does not set forth articulable facts supporting its exercise of judicial discretion, it is not entitled to deference.

We are thus constrained to find that the evidence at the detention hearing did not overcome the CJRA’s presumption of release. The trial court’s detention decision constituted an abuse of discretion because it “rest[s] on an impermissible basis,” “was based upon a consideration of irrelevant or inappropriate factors,” “fail[ed] to take into consideration all relevant factors,” including defendant’s characteristics as he stood before the court, and “reflects a clear error in judgment.” C.W., 449 N.J. Super. at 255 (first alteration in original) (internal citations omitted).

Having determined that the trial court abused its discretion by detaining defendant, the next appropriate procedural step is to remand the matter to the trial court to determine the suitable conditions of release. Remand is required because the trial court has the opportunity at a detention hearing to “hear and see witnesses” and gain a “'feel’ of the case which a reviewing court cannot enjoy.” Johnson, 42

30 N.J. at 161. Trial courts are therefore better positioned to determine conditions of release.

For the reasons set forth above, we affirm as modified the judgment of the Appellate Division and remand to the trial court for a hearing to determine the appropriate conditions of release.

Honorable Peter F. Bariso, Jr., AJSC is Assignment Judge, Hudson County, and sits in Jersey City, New Jersey. Appointed to the Superior Court in January 2005, he formerly served as Presiding Judge of the Civil Division from 2006-2012. Prior to his appointment, he was Certified as a Civil Trial Attorney by the Supreme Court of New Jersey and was Chair of the Litigation Department at Chasan, Leyner, Bariso & Lamparello, P.C. in Secaucus, New Jersey. Judge Bariso is Past Chair of the Supreme Court Arbitration Advisory Committee and a former member of the Supreme Court Civil Practice Committee and the Supreme Court Special Committee on Peremptory Challenges and Jury Voir Dire, where he served as Chair of the Civil Sub-Committee. Past Chair of the Conference of Civil Presiding Judges, he has been a member of the Conference of Assignment Judges, the Judicial Council and the Advisory Committee on Expedited Civil Actions, where he has served as Chair of the Pre-Trial Subcommittee. He is also a member of the New Jersey State, Hudson County and Essex County Bar Associations.

Judge Bariso frequently lectures on civil litigation issues for the judiciary and organizations including ICLE and the New Jersey State and Hudson County Bar Associations. A Master in the Hudson American Inn of Court, he has been an instructor for ICLE’s Civil Law segment of the Skills and Methods course for newly-admitted attorneys. Judge Bariso is the recipient of ICLE’s Alfred C. Clapp Award in 2015 as well as the ICLE Distinguished Service Award for Excellence in Continuing Legal Education, and has had four published opinions. He is a contributing author of Education Law for the Encyclopedia of New Jersey and has contributed to a number of ICLE publications over the past 20 years. Judge Bariso received his B.A., magna cum laude, from Rutgers University, where he was elected to Phi Beta Kappa. He received his J.D. from Rutgers University School of Law. Justice Barry Albin was nominated by Governor James E. McGreevey on July 10, 2002 to serve on the Supreme Court. He was confirmed by the Senate on September 12, 2002 and was sworn in as an Associate Justice by Chief Justice Deborah T. Poritz at a private ceremony on September 18, 2002. On October 3, 2002, he reaffirmed the oath of office in a public ceremony at the Trenton War Memorial. Justice Albin was confirmed by the Senate for a second term and tenure on June 22, 2009. At the time of his nomination, Justice Albin was a partner in the Woodbridge law firm of Wilentz, Goldman and Spitzer. Justice Albin was born on July 7, 1952, in Brooklyn, New York. He graduated from Rutgers College in 1973. After graduating from Cornell Law School in 1976, he began his career as a Deputy Attorney General in the Appellate Section of the New Jersey Division of Criminal Justice. Justice Albin then served as an Assistant Prosecutor in Passaic and Middlesex counties from 1978 to 1982. He began his association with the Wilentz firm in 1982, and was named a partner in 1986. Justice Albin is a past President of the New Jersey Association of Criminal Defense Lawyers (1999-2000) and served as a member of the New Jersey Supreme Court Criminal Practice Committee from 1987 to 1992. He was selected by his peers to be included in the publication "Best Lawyers in America" (2000-2001). He and his wife, Inna, have two sons, Gerald and Daniel.

Justice Anne M. Patterson was born in Trenton on April 15, 1959, and raised in Hopewell Township and Princeton. In 1980, she graduated magna cum laude from Dartmouth College, where she was elected to Phi Beta Kappa. She is a 1983 graduate of Cornell Law School, where she won the Cuccia Cup moot court competition. She was admitted to the New Jersey Bar in 1983. In 1983, Justice Patterson joined the law firm of Riker, Danzig, Scherer, Hyland & Perretti LLP as an associate. In 1989, Justice Patterson left Riker Danzig to serve as a deputy attorney general and special assistant to New Jersey Attorney General Peter N. Perretti, Jr., handling civil litigation and criminal appeals on behalf of the state. After rejoining Riker Danzig, Justice Patterson became a partner in the firm in 1992. Her practice focused on product liability, intellectual property and commercial litigation in state and federal trial and appellate courts. Justice Patterson served as Chair of the New Jersey State Bar Association Product Liability and Toxic Tort Section, as an officer and trustee of the Association of the Federal Bar of New Jersey, and as a trustee of the Trial Attorneys of New Jersey. From 1991 to 2006, Justice Patterson served on the New Jersey Supreme Court Committee on Character.

Justice Patterson was awarded the William A. Dreier Award for Excellence in the Advancement of Product Liability and Toxic Tort Law, the New Jersey Commission on Professionalism's Professional Lawyer of the Year Award, the Seton Hall Law School Women of Substance Award, and the New Jersey Institute for Continuing Legal Education's Distinguished Service Award. She was elected to the New Jersey Fellows of the American Bar Foundation in 2011 and to the American Law Institute in 2017. Justice Patterson is a member of the Dean's Advisory Council at Cornell Law School.

Justice Lee A. Solomon. Following his nomination by Gov. Chris Christie and confirmation by the Senate, Justice Solomon was sworn in as an associate justice on June 19, 2014. Justice Solomon was born on Aug. 17, 1954 in Philadelphia and attended public schools there. He received his bachelor's degree from Muhlenberg College in 1975 and his law degree from Widener University School of Law in 1978. He served on the Haddon Heights Borough Council, Camden County Board of Freeholders and five years in the New Jersey General Assembly. Justice Solomon was first appointed to the bench in January 2006 by Acting Gov. Richard J. Codey. He served in the Camden Vicinage for two years in the family division, and then for two years in the criminal division. In February 2010, Gov. Christie named Justice Solomon to his cabinet, as president of the Board of Public Utilities. Justice Solomon left the bench to lead the BPU until December 2011, when he was nominated by Gov. Christie to return to the bench in Camden. He rejoined the court in the civil division. In April 2013, Justice Solomon was named presiding judge of the criminal division, and in November 2013, he was named assignment judge, both by Chief Justice Stuart Rabner. Immediately prior to his appointment to the Judiciary, Justice Solomon served as deputy U.S. Attorney for the southern vicinages, District of New Jersey, a position to which he was appointed in 2002 by then-U.S. Attorney Chris Christie. He also served as Camden County prosecutor for five years and acting prosecutor for one year. Justice Solomon is married and has three children.

Honorable Jeanne T. Covert was appointed to the Bench in 2005 and began her judicial career in the Family Part, handling FM, FD and CIC matters. She was reassigned to the Criminal Division in 2009, and named Presiding Judge of the Criminal Division in 2010, where she currently sits. Judge Covert was appointed Chair, Conference of the Criminal Presiding Judges, in January 2013. She served on the Supreme Court Joint Committee on Criminal Justice and is also a member of the Supreme Court Committee on Salaries and Pensions, the Sovereign Citizen Judge Advisory Group and the Judiciary Advisory Committee on Information Technology. Additionally, she served as faculty for the Comprehensive Judicial Orientation Program, New Judge Orientation, Judicial College, and the New Jersey Institute for Continuing Legal Education. Prior to her appointment, Judge Covert served as an Assistant Prosecutor in the Appellate Unit of the Camden County Prosecutor’s Office, Public Defender for Bordentown Township, and Assistant Prosecutor for Burlington County. She was also an associate and partner with the firm of Call and Covert. Judge Covert graduated from the University of Delaware in 1980 and received her Juris Doctor from Rutgers Law School-Camden.

Honorable Deborah J. Venezia, PJFP is Presiding Judge, Family Part, Middlesex County, and sits in New Brunswick, New Jersey. She previously sat in the Family and Criminal Divisions prior to her appointment as Presiding Judge of the Family Part in 2008. Chair of the Juvenile Committee of the Conference of Family Presiding Judges from 2009-2015, Judge Venezia is Chair of the Conference of Family Presiding Judges and the Children in Court Improvement Committee. She is Co-Chair of the Middlesex Council for Juvenile Justice System Improvement and Chair of the Middlesex County Vicinage Courthouse Art Advisory Committee. Judge Venezia also served on the Supreme Court Ad Hoc Committee on the Code of Judicial Conduct. Prior to her appointment to the bench, she was in private practice and served as a municipal court judge and in other appointed positions for several municipalities. Judge Venezia is a graduate of Fairfield University and St. Mary’s University, San Antonio School of Law.