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.