RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-2009-19T6 A-2010-19T6 STATE OF NEW JERSEY, Plaintiff-Respondent, APPROVED FOR PUBLICATION v. July 8, 2020 APPELLATE DIVISION JUAN C. MOLCHOR, Defendant-Appellant. ________________________ STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE A. RIOS, Defendant-Appellant. ________________________ Argued telephonically May 4, 2020 – Decided July 8, 2020 Before Judges Messano, Ostrer and Susswein. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Complaint Nos. W-2020-000045-0806 and W-2020-000047-0806. Cristina L. Vazquez argued the cause for appellant Juan C. Molchor. Tamar Yael Lerer, Assistant Deputy Public Defender, argued the cause for appellant Jose A. Rios (Joseph E. Krakora, Public Defender, attorney; Tamar Yael Lerer, of counsel and on the briefs). Jonathan I. Amira, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christine A. Hoffman, Acting Gloucester County Prosecutor, attorney; Jonathan I. Amira, of counsel and on the briefs). Sarah C. Hunt, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sarah C. Hunt, of counsel and on the brief). Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey, attorneys; Katherine Eliza Haas, Alexander R. Shalom, and Jeanne M. LoCicero, on the brief). The opinion of the court was delivered by OSTRER, J.A.D. These consolidated pretrial detention appeals raise the question: does the Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, authorize a court to detain arrestees who are undocumented immigrants in order to thwart their potential removal from the country by federal immigration officials, and thereby to assure they appear at trial? Construing the Act in light of its legislative history and persuasive federal authority, we A-2009-19T6 2 conclude it does not. Rather, the risk of a defendant's failure to appear justifying detention must arise from the defendant's own misconduct, not the independent acts of a separate arm of government that may prevent a defendant from appearing. The trial court erred in detaining defendants in part out of concern that their possible removal from the country would prevent their appearance at trial. The trial court also lacked sufficient evidence for its finding that no conditions would reasonably assure that they would not obstruct justice, and, in Rios's case, would not pose a risk to the safety of others. Therefore, we reverse the trial court's orders and remand for further consideration. I. Jose A. Rios and Juan Molchor were both arrested and charged with second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and fourth degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). According to the State's version of events,1 Rios, Molchor and a third person engaged in a fight with an acquaintance, Hugo Alvarez, at a party at Alvarez's address. Defendants allegedly punched Alvarez, and struck him repeatedly on the head with beer bottles. Alvarez suffered a severe laceration, and briefly lost consciousness. 1 We rely on ...
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