On March 29, 2019, a three-judge appellate panel decided the consolidated Middlesex and Hudson County cases of State v. McCray and State v. Gabourel. The principal issue in both cases was whether defendants can be charged with criminal Contempt under 2C:29-9(a) for violating conditions of pretrial release. Judge Yannotti authored the opinion and held in relevant part:
Although N.J.S.A. 2A:162-24 and 3:26-2(d)(1) do not state that criminal prosecution for contempt is one of the potential sanctions for a defendant’s failure to comply with a pretrial release order, the CJRA and the court rule do not preclude the State from charging a defendant with contempt under N.J.S.A. 2C:29-9(a) in these circumstances. The statute and the rule set forth the actions a court may take if a released defendant violates a condition of release. The statute and the rule do not address the State’s authority to charge a defendant with criminal contempt based on a violation of a pretrial release order because the statute and the rule deal with the court’s authority.
Indeed, the court does not have authority to charge a defendant with a criminal offense. The prosecutor has the discretion to prosecute those whom the prosecutor believes has violated the law. Furthermore, our “State Constitution guarantees the grand jury a central role in the enforcement of the criminal law of this State.” N.J. Const. art. 1, ¶ 8. Specifically, the grand jury must determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it.
Moreover, as stated previously, N.J.S.A. 2A:162-23 requires a court to inform an eligible defendant of all conditions of release. This section of the Act provides, however, that a court’s failure to do so does “not preclude any remedy authorized under the law for any violation committed by the eligible defendant.”
A counter to the State’s position is that the phrase “the law” in 2A:162-23 refers to the instant statute as opposed to the law in general. A supporting point is that our caselaw recognizes that penal statutes are to be strictly construed against the State.