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Sunday, September 15, 2019

IN THE MATTER OF THE EXPUNGEMENT OF J.S. (12-06-00713)

This case presents an issue of first impression: whether an out of state conviction for an offense classified as a crime in a foreign jurisdiction acts as a bar to the expungement petition of a successful graduate from the drug court program, when that same offense is classified as a motor vehicle offense in New Jersey? During his term on special probation, the petitioner was arrested in Philadelphia, Pennsylvania and charged with driving under the influence. J.S. was convicted of this charge on January 3, 2017. Under Pennsylvania law, this DUI charge is graded as a misdemeanor level crime. The Prosecutor opposed this petition for expungement on the basis that petitioner had been charged and convicted of a crime in the Commonwealth of Pennsylvania while a participant in the drug court program.
The court found that the Pennsylvania DUI conviction is not a statutory bar to this drug court graduate’s expungement because: (1) there exists a strong presumption towards expungement; (2) petitioner completed the drug court’s rigorous monitoring program, and; (3) such an offense, under the laws of the State of New Jersey, does not constitute a crime, disorderly persons or petty disorderly persons offense.

Saturday, September 07, 2019

Consent to search produce of unlawful detention STATE v ANGEL L. RIVERA,

Consent to search produce of unlawful detention 
STATE v
ANGEL L. RIVERA,

     Defendant-Appellant.
_________________________

                    Submitted May 1, 2019 – Decided May 22, 2019

                    Before Judges Nugent and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 16-06-
                    0556.
NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4836-17T1
PER CURIAM Following the denial of his suppression motion, defendant Angel L. Rivera pled guilty to second-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(b)(2), and second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1), and was sentenced to five years in prison, with a three-and-one-half year parole bar. As permitted by the terms of the plea agreement, defendant appeals from his conviction, focusing on the denial of the suppression motion. On this appeal, defendant presents the following points of argument for our consideration: I. INFORMATION IN THE SEARCH WARRANT SHOULD NOT HAVE BEEN CONSIDERED IN DETERMINING WHETHER THE DETENTION AND SEIZURE WITHOUT A WARRANT WERE VALID II. THE PROLONGED DETENTION OF DEFENDANT'S CAR WAS NOT JUSTIFIED BY THE TESTIMONIAL EVIDENCE PRESENTED BY THE STATE AT THE SUPPRESSION HEARING III. THE INFORMATION DID NOT PROVIDE REASONABLE SUSPICION JUSTIFYING THE CONTINUED DETENTION OF DEFENDANT WHILE A DOG SNIF[F] WAS CONDUCTED IV. DEFENDANT'S CONSENT TO SEARCH WAS NOT VOLUNTARY V. EVEN IF THE CONSENT IS DEEMED VALID, LAW ENFORCEMENT EXCEEDED THE SCOPE OF A-4836-17T1 2 THE CONSENT BY INVADING THE STRUCTURAL INTEGRITY OF THE MOTOR VEHICLE In reviewing the denial of a suppression motion, we defer to the trial court's factual findings if they are supported by sufficient evidence. State v. Hubbard, 222 N.J. 249, 262 (2015). However, we engage in de novo review of the trial court's legal interpretations. Id. at 263. After reviewing the motion record, we conclude that the police did not have the reasonable and articulable suspicion needed to prolong defendant's roadside detention for the purpose of having a trained police dog sniff his vehicle for drugs. We also conclude that defendant's written consent to the search of his car was the product of the unconstitutional prolonged detention. The search warrant, pursuant to which the police performed an additional search of defendant's car and eventually found contraband, was likewise the fruit of the unlawful detention. Accordingly, we reverse the order denying the suppression motion. I The following facts are derived from the motion record. On March 16, 2016, at about 10:15 p.m., Vineland Police Officer James Day observed a 2005 Toyota Avalon with its driver's side rear brake light not operating. Defendant was driving the car, which was registered to his girlfriend. Officer Day pulled A-4836-17T1 3 the car over due to the traffic violation. When Day approached the car to speak with the driver, he recognized defendant.1 Officer Day told defendant why he pulled him over, and defendant acknowledged the brake light was out. Defendant provided Officer Day his license, registration, and proof of insurance. The officer observed the interior of the vehicle using his flashlight but did not see anything suspicious. Officer Day did not smell an odor of CDS, and defendant was cooperative through the conversation. At that point, two additional officers arrived on the scene as backup. Officer Day performed a driver's license check and a warrant check. Defendant's license was valid, and there were no warrants out for his arrest. At some unspecified point during the stop, Sergeant Shaw arrived with his canine unit, and Officers Selby and Maslanich also arrived. Officers Selby and Maslanich told Officer Day that confidential informants had told them that defendant was "currently selling large quantities of heroin and cocaine" in Vineland. At the suppression hearing, Office Day was unable to recall anything more specific concerning his conversation with those two officers. Neither officer was called to testify at the suppression hearing. However, during Day's testimony, the prosecutor asked him about a warrant 1 There was no testimony explaining how Day knew defendant. A-4836-17T1 4 affidavit he had signed the day after the stop, and the affidavit was introduced in evidence. After receiving the information from Selby and Maslanich, Officer Day asked defendant for his consent to search the car. Defendant responded, "what does that have to do with my brake light being out?" and refused to consent. After defendant declined consent to a search, Sergeant Shaw performed a canine "sniff" test around defendant's vehicle, searching for evidence of narcotics. Sergeant Shaw told Day that the dog "hit," indicating a positive reaction to narcotics, near the front driver's side headlight. Based on the positive dog sniff, the officers searched defendant, recovering $1,138 in cash. They then again asked defendant for his consent to search the car, indicating if nothing was found he would be permitted to leave. Defendant then signed a consent to search form. During the search, Officer Maslanich found an inconsistency in the back panel of the front passenger seat. The officer pulled the panel away from the seat to look into the interior of the seat and saw pieces of rice. According to Officer Day, rice can be used to keep heroin dry. The officers stopped the search, seized the car, and applied for a search warrant, supported by Day's affidavit. During a search the following day, A-4836-17T1 5 the police found a handgun, ammunition, and heroin in a hidden compartment in the front passenger seat. II We begin our legal analysis by addressing defendant's challenges to the dog sniff and the warrant affidavit. In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the Supreme Court drew a clear line of demarcation between a dog sniff that prolongs an otherwise-routine traffic stop and one that does not prolong the stop. If a police officer detains a suspect for a longer time than is reasonably required to complete the traffic-related inquiry, the delay requires a separate justification apart from the alleged traffic infraction. "An officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id. at 1615. "The critical question . . . is not whether the dog sniff occurs before or after the officer issues a ticket, . . . but whether conducting the sniff 'prolongs'—i.e., adds time to—'the stop.'" Id. at 1616 (citation omitted). See State v. Dunbar, 229 N.J. 521, 524 (2017) (adopting the federal standard "barring unnecessary delays for the purpose of canine sniffs"). Thus, if the process of getting the dog to the scene and conducting the sniff prolongs the A-4836-17T1 6 stop, the court's inquiry must turn to whether the officer had reasonable suspicion to detain the driver based on facts other than the traffic infraction. State v. Nelson, __ N.J. __, __ (2019) (slip op. at 14); Dunbar, 229 N.J. at 525. In this case, the State does not deny that the stop was prolonged but argues that Officer Day had reasonable suspicion that defendant was engaged in selling drugs, based on information Day received from Officers Selby and Maslanich. As set forth in the search warrant affidavit Day prepared later on, those officers' knowledge was derived from two confidential informants (CIs). Based on our review of the suppression hearing, we find no abuse of discretion in the trial judge admitting Days' affidavit in evidence. After a colloquy with the trial judge, defense counsel waived his objection to the introduction of the warrant affidavit. And, as significantly, defense counsel had the opportunity to cross- examine Day about the affidavit. Hence, defendant's reliance on State v. Atwood, 232 N.J. 433, 446-48 (2018), is misplaced here. However, that does not end our inquiry. There was no testimony about how long the stop lasted or whether Officer Day was otherwise finished with the traffic-related portions of the stop before the two back-up officers and Shaw arrived. However, in a colloquy with the trial judge, the prosecutor admitted that the search was extended, and she argued A-4836-17T1 7 that "what forms the basis of [the extension] is the extra informatio n [Day obtained] from Officer Selby and Officer Maslanich." The prosecutor also relied on the search warrant affidavit, describing the information Selby and Maslanich had obtained from the CIs. Day certainly had the right to rely on information provided by fellow officers. State v. Crawley, 187 N.J. 440, 457 (2006). However, in challenging the reasonable basis for the investigative detention, defendant was entitled to challenge the source of those fellow officers' knowledge. Id. at 457-58. See State v. Handy, 206 N.J. 39, 47-48 (2011). As the Court stated in Crawley: It is understood “that effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.” . . . For example, if the dispatcher in this case had been provided adequate facts from a reliable informant to establish a reasonable suspicion that defendant was armed, common sense tells us that the dispatcher had the power to delegate the actual stop to officers in the field. On the other hand, if the information received by the dispatcher or headquarters fell short of the suspicion required by law for an investigatory stop, the fact that Officers Williams and Milton relied in good faith on the dispatch would not make the stop a constitutional one. Ultimately, the State must prove that a warrantless, investigatory stop was based on reasonable and articulable suspicion, and A-4836-17T1 8 failing that any evidence obtained as a result of an unconstitutional stop must be suppressed. [ 187 N.J. at 457-58 (citations omitted).] As our Supreme Court recently held, "[i]n determining whether reasonable suspicion exists, a court must consider 'the totality of the circumstances — the whole picture.'" Nelson, slip op. at 15 (quoting State v. Stovall, 170 N.J. 346, 361 (2002)). Looking at the "whole picture" here, the critical question is, assuming the truth of Day's statements set forth in the search warrant affidavit, did the information from the CIs give Day or his colleagues the reasonable suspicion necessary to detain defendant for purposes of the dog sniff? Put another way, viewed wholly apart from the traffic infraction, would the CIs' information have justified the police in detaining defendant in order to conduct an investigatory stop? We conclude it would not. The CIs told the police that defendant was selling large amounts of drugs in the City of Vineland. One CI told Officer Selby that defendant was "currently trafficking heroin and cocaine within the city of Vineland . . . within the last week of February 2016." Another CI told Officer Maslanich that defendant "has been and still is selling a large quantity of heroin and cocaine within the city of Vineland" in "the week of March 1 through March 8." The affidavit described the ways in which the CIs had proven reliable in the past in other cases. A-4836-17T1 9 However, the affidavit was devoid of any other details about this case, such as the factual basis for either CI's knowledge about defendant's activities, whether defendant was allegedly selling drugs from his car or from a house, a description of the car defendant drove, or whether he was known to transport the drugs himself. 2 See State v. Walker, 213 N.J. 281, 291 (2013); State v. Zutic, 155 N.J. 103, 113 (1998). The CIs' information did not approach the specificity found sufficient in other cases such as State v. Birkenmeier, 185 N.J. 552, 561 (2006). Neither Selby nor Maslanich testified at the suppression hearing, so there was no evidence of further details they may have received from the CIs. Unlike Nelson, in which the officers observed multiple suspicious circumstances to corroborate an informant's tip, here Day did not provide any additional information to support a reasonable suspicion that defendant could have drugs in his car. See Nelson, slip op. at 5-6. For example, Day did not testify that he 2 As previously noted, the affidavit was submitted in support of a search warrant for defendant's car. By that time, the police already had evidence of the positive dog sniff and had discovered the probable "trap" in the front passenger seat. Perhaps the affidavit contained so little detail about the CIs' observations because it was not thought necessary to obtain the warrant. However, for purposes of the suppression hearing, detail about the CIs' information was critically important, as it was the only possible justification for the investigative detention. A-4836-17T1 10 smelled CDS or that defendant was unaccountably nervous. According to Day, defendant was calm and cooperative. In upholding the dog sniff, the motion judge relied on State v. Leggette, 441 N.J. Super. 1 (App. Div. 2015), rev'd on other grounds, 227 N.J. 460 (2017). However, in Leggette, and unlike this case, the officer had reasonable grounds to detain defendant based on the strong smell of burnt marijuana on the porch where defendant was standing. 441 N.J. Super. at 28-29. In this case, the bald, uncorroborated assertions by the two CIs were constitutionally inadequate to justify prolonging what was otherwise a routine traffic stop for a broken tail light. At a hearing on a motion to suppress, the State must prove by a preponderance of the evidence that the stop, or its extension, was reasonable. "The State has the burden of proof to demonstrate by a preponderance of the evidence that the warrantless seizure was valid.” State v. O'Neal, 190 N.J. 601, 611 (2007); Atwood, 232 N.J. at 437-38. In this case, the State simply failed to meet its proof burden. Clearly, defendant's consent to the search of his car, which he gave only after the unlawful detention and the dog sniff, was "the product of the 'exploitation' of the unlawful . . . detention." State v. Shaw, 213 N.J. 398, 414 A-4836-17T1 11 (2012) (citations omitted); see also State v. Carty, 170 N.J. 632, 647 (2002). It cannot serve as an intervening circumstance that would "purge[] the taint" from the eventually-discovered contraband. Shaw, 213 N.J. at 421; State v. Smith, 155 N.J. 83, 101 (1998). The search warrant suffers from the same constitutional infirmity, since it relied heavily on the dog sniff and the resulting partial search of the car. See Atwood, 232 N.J. at 449. Suppression of the evidence is required. Shaw, 213 N.J. at 422. Accordingly, we remand to the trial court to enter an order granting defendant's suppression motion and for further proceedings consistent with this opinion.3 Reversed and remanded. We do not retain jurisdiction. 3 In light of our disposition of the appeal, we need not address defendant's remaining arguments.

Thursday, September 05, 2019

PTI denial without full evaluation was error here STATE v. JAMAL C. NURSE

PTI denial without full evaluation was error here STATE  v.  JAMAL C. NURSE
______________________________

                    Submitted December 10, 2018 – Decided January 2, 2019

                    Before Judges Sabatino, Haas and Sumners.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Indictment No. 15-07-0704.

                  NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3528-16T3
PER CURIAM A Morris County grand jury charged defendant in a seven-count indictment with two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(2) (counts one and two); second-degree burglary, N.J.S.A. 2C:18-2(b)(2) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); and two counts of second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (counts six and seven). Prior to trial, the judge 1 denied defendant's motion to suppress identification evidence provided by his coworkers, who told the police that defendant was the individual seen in a surveillance video connected to the offenses. Following a multi-day trial, the jury convicted defendant on counts one through five, and of the lesser-included offense of false imprisonment, a disorderly persons offense under N.J.S.A. 2C:13-3, on counts six and seven. The judge sentenced defendant to concurrent twelve-year terms on counts one and two, subject to the 85% parole ineligibility provisions of the No Early 1 One judge handled the pre-trial motions and a different judge presided at the trial and sentencing. Because we have no reason to distinguish between the judges involved for purposes of this opinion, we do not. A-3528-16T3 2 Release Act (NERA), N.J.S.A. 2C:43-7.2; concurrent six-year terms on counts three, four,2 and five, subject to NERA; and concurrent six-month terms on counts six and seven. Accordingly, defendant's aggregate sentence was twelve years, subject to NERA. On appeal, defendant raises the following contentions: POINT I THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS WERE SUGGESTIVE, INADMISSIBLE, AND VIOLATED DUE PROCESS BECAUSE THE WITNESSES AND ADMINISTRATOR ALREADY SUSPECTED [DEFENDANT] OF THE ROBBERY WHEN THE WITNESSES IDENTIFIED HIM AS THE FACELESS MAN ON A GRAINY SURVEILLANCE VIDEO. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARA. 1. A. Arguments and Testimony at the Pre-Trial Suppression Hearing. B. The Out-of-Court and In-Court Identifications Were Inadmissible. 2 In rendering his oral sentencing decision, the judge stated that count four should merge into counts one, two, and three. However, the judgment of conviction (JOC) failed to reflect this merger. In Point V of his appellate brief, defendant argues that the JOC should have included this merger. The parties agree, and we concur, that merger of count four into the other counts was appropriate. Therefore, we remand to the trial court for the entry of a corrected JOC to address this mistake. A-3528-16T3 3 C. A New Trial Should Occur Because the Admission of the Identifications Was Harmful Error. D. Alternatively, a New Suppression Hearing Should Occur. POINT II A NEW TRIAL SHOULD OCCUR BECAUSE THE COURT IMPROPERLY REFUSED TO GIVE JURY INSTRUCTIONS APPROPRIATE TO WHEN AN IN- COURT IDENTIFICATION IS PRECEDED BY AN OUT-OF-COURT IDENTIFICATION, EVEN THOUGH THAT WAS THE SITUATION HERE. U.S. CONST., AMEND. XIV; N.J. CONST. ART. I, PARA. 1. POINT III AN INVESTIGATING DETECTIVE WHO DID NOT KNOW [DEFENDANT] WAS IMPROPERLY PERMITTED TO OPINE THAT [DEFENDANT'S] APPEARANCE WAS SIMILAR TO THE ROBBER'S. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARA. 1. POINT IV THE COURT IMPROPERLY REFUSED TO GIVE A COOPERATING WITNESS INSTRUCTION REGARDING A WITNESS WHO TOLD OFFICERS THAT SHE DROVE [DEFENDANT] TO THE ROBBERY AND WHOM OFFICERS THREATENED WITH CRIMINAL CHARGES. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARA. 1. A-3528-16T3 4 POINT V THE WRITTEN [JOC] SHOULD BE CORRECTED TO MERGE GUN POSSESSION FOR AN UNLAWFUL PURPOSE [UNDER COUNT FOUR OF THE INDICTMENT] WITH THE SUBSTANTIVE OFFENSES [SET FORTH IN COUNTS ONE, TWO, AND THREE] THAT WERE THE PURPOSE OF THE GUN POSSESSION. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and aggregate sentence, but remand to the trial court to correct the JOC to reflect the merger of count four into counts one, two, and three. I. At approximately 11:00 p.m. on July 19, 2014, two employees of a children's store, M.D.3 and M.W., left the business after it closed for the night. As they walked away, a man wearing a black stocking over his face rushed toward them, brandishing a handgun. The employees could not see the man's face, but his hands were uncovered. They described him as a very tall, thin man with a light complexion. He was wearing a black hoodie and ripped jeans. The man ordered the employees to go back into the store and stated, "get me to the safe, hurry up, be quiet." Once they reached the safe in the manager's 3 We use initials to identify the store employees in order to protect their privacy. A-3528-16T3 5 office, the man directed the employees to take the money out of the safe and put it in a black bag the man was carrying. The man also helped load the money into the bag. Some of the money was stacked and wrapped in blue, paper bands. Once the employees were done, the man ordered them to get under a desk while he fled the scene. The employees then called the police. The entire event was captured on the store's security cameras. Detective Frank Franco was the lead detective on the investigation that followed. In addition to the store's security video, Detective Franco obtained surveillance video from several nearby businesses. The first of two important pieces of evidence came from the video taken from outside a car wash. On this video, the detective could see a white Honda parked in the car wash's parking lot before the robbery. There were two people in the car. The car remained in the lot for about thirty minutes, until it moved outside the children's store. Shortly before the robbery occurred, a man could be seen running toward the store. The car then left the scene. The police later determined that the car belonged to Nicole Biggs. She testified at trial that she met defendant on "social media" in the weeks prior to July 19, and the two sometimes hung out together. On the night of the robbery, defendant called Biggs and asked her to help him pick up something from a A-3528-16T3 6 friend. Biggs agreed, and arrived at defendant's house around 9:00 p.m. Once he got into Biggs's car, defendant asked her to drive him to a hotel parking lot, where he called someone from a cellphone. He then told her to go to a department store. Biggs stated that defendant told her buy him some gloves at the store, but she refused to do so. However, she did go into the store to use the bathroom. When she got back into her car, she saw that defendant had changed his clothes and was now wearing a black, hooded sweatshirt and jeans. Defendant also had a piece of duct tape on his face. After making another phone call, defendant told Biggs to take him to the car wash, where they parked for about thirty minutes. Defendant placed another phone call, and directed Biggs to drive around the children's store, and then to the parking lot of a plumbing company nearby. Defendant got out of the car and told Biggs to wait for him. Biggs testified that she did not see defendant after that. She called and texted him to say that she was going to leave if he did not come back. When defendant failed to reply, Biggs drove away. As discussed above, many of the movements of her car outside the children's store that she described at trial were captured by surveillance cameras. Later that night, defendant called Biggs and told her it was "messed up" that she had left him, but he had gotten home anyway. Two days later, defendant A-3528-16T3 7 asked Biggs when he could get his "stuff back." 4 After some back and forth between them, Biggs took defendant's things to his house and left them in a bag near his front door. The two then began to argue with each other in a series of text messages. During this exchange, defendant boasted of how much money he had, and sent Biggs a photograph of himself holding six stacks of money on his lap that were wrapped together with blue, paper bands. 5 Defendant was wearing red, Polo- brand boxer shorts in the photograph. The next important item of evidence was a surveillance video Detective Franco obtained from the plumbing company. In this video, the detective saw several views of a very tall, thin man moving around the area near the time of the robbery. The man's face was not visible. However, the detective could see that the man was wearing a Cincinnati Reds baseball cap, and his hair was styled in short braids that stuck out of the hat. The man wore a light t-shirt and ripped blue jeans, and carried a black bag. Detective Franco believed that the 4 Defendant had left a jacket and sneakers in Biggs's car after he changed his clothes in the department store parking lot. 5 Copies of the pertinent texts and the photograph were obtained from Biggs's phone and entered in evidence at the trial. A-3528-16T3 8 appearance of the man seen in the video was consistent with the descriptions M.D. and M.W. provided of the robber. The day after the robbery, Detective Franco spoke to M.F., an investigator who worked for the children's store. Suspecting that the robbery was an "inside job," the detective asked M.F. if the store had any "problem employees." M.F. had spoken to M.D., M.W., and other employees at the store about this issue earlier in the day. M.F. identified defendant as an employee who had recently stopped showing up for work. 6 Defendant had worked part-time on the sales floor and in the "back of the house" for different shifts, including closing. Defendant was 6'6" tall, and weighed only 180 pounds. He had a light complexion, styled his hair in short braids, and frequently wore a baseball cap and jeans while working. Several days after the robbery, Detective Franco called M.D. and M.W. and asked them to come to the police station because he wanted to show them a video. The detective testified that he did not tell the two employees that the video was taken from the plumbing company's surveillance system, or that he 6 M.F. also identified a second individual, who had recently applied for a job at the store but did not get it. However, this individual was short and stocky and, therefore, was never considered a suspect. A-3528-16T3 9 suspected that the person depicted in the video was the robber or defendant. Instead, he simply instructed them to look at the video and tell him what they saw.7 At trial, the prosecutor played the surveillance video and asked M.D. and M.W. if they could identify the person seen in it. Both employees testified that the man was defendant. They based their in-court identifications on their knowledge of defendant's appearance from when he worked with them at the store. The police obtained a search warrant and searched defendant's home. They found a Cincinnati Reds baseball cap and a pair of red, Polo-brand boxer shorts. The police seized four cell phones, but were not able to recover any relevant data from them. No forensic evidence, such as fingerprints or DNA, was discovered. 7 As discussed in greater detail in Section II of this opinion, M.D. and M.W. identified defendant as the man in the video as part of the out-of-court identification procedure Detective Franco conducted. However, the State presented no evidence concerning the employees' out-of-court identifications of defendant at trial, even though the motion judge had denied defendant's pre-trial motion to suppress this evidence. A-3528-16T3 10 II. In Point I of his brief, defendant argues that the trial judge incorrectly denied his pre-trial motion to suppress the identifications M.D. and M.W. made of him after viewing the plumbing company surveillance video at the police station. Defendant contends that the judge erred by determining that the out-of- court identifications, and the in-court identifications the two employees made at trial, were admissible as lay opinion testimony under N.J.R.E. 701. Instead, defendant asserts that the judge should have excluded this evidence under State v. Henderson, 208 N.J. 208 (2011), because the procedures the police used to obtain the identifications were impermissibly suggestive and deprived him of his constitutional rights to due process and a fair trial under U.S. Const., amend. XIV, and N.J. Const. art. I, ¶ 1. We disagree. The judge conducted a Rule 104 evidentiary hearing prior to ruling on defendant's suppression motion. Detective Franco was the only witness, and his account of how the identifications occurred was consistent with, but even more detailed than, his trial testimony. As noted above, Detective Franco obtained a four-camera view, surveillance video from the plumbing company. The quality of the video was "grainy," but there were several fairly clear views of a man in the area near the A-3528-16T3 11 children's store. One of the cameras showed a front view of a man wearing ripped jeans, a light t-shirt, and a Cincinnati Reds hat. This angle showed the man crouching and walking. A second camera captured the man, his clothing, and his "distinctive twist" hairstyle. A third camera enabled the viewer "to observe this person's gait or style of walking[.]" After obtaining this video, Detective Franco spoke to M.F., the children's store security investigator, who identified defendant as a possible disgruntled employee. The detective believed that the description he obtained of defendant was consistent with the physical appearance of the man in the surveillance video and the victims' description of the robber from the night of the crime. However, the detective could not be sure defendant was the man in the video because he did not know him. Accordingly, Detective Franco reached out to M.D., M.W., and three other employees of the children's store. The detective chose these individuals because they had worked with defendant. He separately asked each employee to come to police headquarters to view a video. At police headquarters, each employee was brought into the sergeant's office, which was a private area with a computer that was capable of showing the plumbing company video on a desktop monitor. Detective Franco was in A-3528-16T3 12 the room, along with two other officers. All of the employees were kept apart from each other. None of the employees had ever seen the video before, and Detective Franco did not tell them anything in advance about the subject of the video, that it was a surveillance video from the plumbing company, or that it might depict a possible suspect in the robbery. He simply explained that he was going "to show them a video and once the video is played[,] I would like them to just tell me what they saw." He then played the plumbing company surveillance video for each employee. 8 Detective Franco's purpose in showing these individuals the video was "strictly to identify the individual in the . . . video." The employees were permitted to view the video as many times as they wanted and to enlarge it if desirable. This process was not recorded because the sergeant's office was not equipped to do so. After an employee watched the video, he or she was taken to a different room, where they gave a video-recorded statement. M.D. and M.W. both told the officers that defendant was the man shown in the plumbing company 8 Detective Franco testified that he did not show the surveillance video of the actual robbery to M.D., M.W., or the other employees because the robber was wearing a mask and his hair was covered. In contrast, the plumbing company video showed several views of the man, in both stationary and walking positions, his clothes, height, and hair style. A-3528-16T3 13 surveillance video. In particular, M.D. stated that the "twist" hairstyle worn by the man, his mannerisms, and the length of his arms matched defendant. M.W. also recognized defendant as the man in the video, and remarked that his hair style and mannerisms were a match. 9 At the conclusion of the hearing, the judge rendered a thorough oral decision denying defendant's motion to suppress the identifications made b y M.D. and MW. In so ruling, the judge found that Detective Franco's testimony was "credible and reliable as to the source of what was done [during the identification process] and how it was done." The judge further found that the detective had done nothing to interfere with the employees' independent ability to view the contents of the video and provide their opinions on what they saw. The judge concluded that the employees would be permitted to provide lay testimony at trial under N.J.R.E. 701 that defendant was the man shown in the plumbing company surveillance video. Under N.J.R.E. 701, "[i]f a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the 9 Two of the other three employees identified defendant as the man in the plumbing store surveillance video. One of the employees could not make a positive identification of the man. Neither party called any of these three employees as a witness at the trial. A-3528-16T3 14 witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Also, under N.J.R.E. 704, "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Opinion testimony "is subject to exclusion if the risk of undue prejudice substantially outweighs its probative value." State v. Summers, 176 N.J. 306, 312 (2003). A witness who can demonstrate familiarity with the defendant may be permitted to testify regarding identification. See State v. Lazo, 209 N.J. 9, 22- 24 (2012) (citing State v. Carbone, 180 N.J. Super. 95 (Law. Div. 1981)). For example, in Carbone, the court admitted the State's lay witness testimony of personal photographic identifications of the defendant before the jury by individuals who did not witness the crime, but nevertheless had personal knowledge of and familiarity with the defendant's appearance at the time the defendant committed the offense charged. Id. at 96-100. Underlying the court's decision were "crucial factors" such as the lack of available eyewitness identification and the change of the defendant's appearance since the time of the crime. Id. at 100. Citing Carbone, the judge found that the plumbing company surveillance video, although grainy in spots, contained "the type of imagery that [he] would A-3528-16T3 15 characterize as showing enough features and detail of a person to be able to give a pretty good general description of the person." Although the judge stated that neither he nor the detective would be able identify defendant from the video, M.D. and M.W. were in a "different position" because they worked with and knew defendant prior to viewing it. Thus, the judge determined that defendant's coworkers could rationally and competently form an opinion that they recognized the person in the video. The judge also addressed the issue of suggestiveness, finding that there was no undue suggestibility in the identification procedure and that the detective's approach was sensible even though this was not a traditional identification process. In so finding, the judge recognized that this was not a double-blind procedure since Detective Franco already suspected defendant; however, the judge noted that the detective was careful not to taint the identification. When reviewing an order denying a motion to bar identification evidence, our standard of review "is no different from our review of a trial court's findings in any non-jury case." State v. Wright, 444 N.J. Super. 347, 356 (App. Div. 2016) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We accept those findings of the trial court that are "supported by sufficient credible evidence in A-3528-16T3 16 the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). Deference should be afforded to a trial judge's findings when they are "substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, 42 N.J. at 161. However, "[a] trial court's interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference." Gamble, 218 N.J. at 425. In addition, it is well settled that the admissibility of evidence is a matter within the sound discretion of the trial court. State v. McGuire, 419 N.J. Super. 88, 123 (App. Div. 2011). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so "wide of the mark that a manifest denial of justice resulted."'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). Applying these principles, we discern no basis for disturbing the trial judge's reasoned decision to permit M.D. and M.W. to provide lay opinion testimony; that is, their opinions that defendant was the individual depicted in the plumbing company surveillance video. In so ruling, we are mindful that there is no New Jersey appellate case law directly on point specifically A-3528-16T3 17 addressing the admissibility of a lay witness's opinion testimony that identified a defendant, based upon a review of a surveillance video. However, in Lazo, 209 N.J. at 19-24, our Supreme Court considered the admissibility of lay opinion testimony from a police officer regarding the reason he selected a photo of defendant to be included in a photo array, that is, because the officer belie ved defendant resembled a composite sketch of the suspect. As noted in Lazo, resolution of the admissibility of this evidence question required consideration of a number of factors. For example, a trial court should consider whether the defendant had disguised his appearance during the offense or altered his appearance before trial; if not, then the jury could decide for itself if defendant was the person in the photograph. Id. at 22-23. Also, the court should consider whether there were additional witnesses to identify the defendant at trial, and how long the witness knew the defendant, and in what capacity. Id. at 23-24. The Court held in Lazo that the officer was improperly permitted to give jurors his opinion that the defendant resembled a composite sketch of the suspect. Id. at 24. The Court cited favorably to the Law Division's 1981 decision in Carbone. A-3528-16T3 18 In Carbone, the defendant was charged with five armed bank robberies, and the State had secured statements from individuals who knew the defendan t, who identified him from photographs taken by the banks' surveillance cameras. 180 N.J. Super. at 96-97. Citing cases from other jurisdictions, the Law Division, as previously discussed, considered a number of factors in reaching its determination that the proposed identifications were admissible, including: the fact that the defendant's appearance had changed since the time of the offense charged; the lack of eyewitnesses to the offenses charged; the extent of the potential witnesses' familiarity with the defendant, particularly at the time of the offenses charged; and the basis of the witnesses' knowledge of the defendant. Id. at 97-100. Although New Jersey law is sparse on the subject of the admissibility of lay opinion testimony identifying a defendant from surveillance video or surveillance photographs, there is abundant case law from other jurisdictions on the subject. Those cases generally hold that such testimony may be admissible after considering a variety of factors, including a number of the factors set forth under New Jersey case law in Lazo and Carbone.10 10 See, e.g., United States v. White, 639 F.3d 331, 335-36 (7th Cir. 2011); United States v. Contreras, 536 F.3d 1167, 1170-73 (10th Cir. 2008); United States v. A-3528-16T3 19 Contrary to defendant's argument, a few courts from other states have concluded that lay opinion testimony is more likely to be admissible when the surveillance video is of passable quality, but is grainy or shows only a partial view of the person of interest. See, e.g., Nooner, 907 S.W 2d at 685; Glenn, 806 S.E 2d at 569; Barnes, 212 P.3d at 1025; Thompson, 49 N.E 3d at 404. In such cases, the lay witnesses' opinions become more valuable to the jury, based upon Beck, 418 F.3d 1008, 1013-15 (9th Cir. 2005); Nooner v. State, 907 S.W.2d 677, 684-86 (Ark. 1995); People v. Leon, 352 P.3d 289, 312-13 (Cal. 2015); Robinson v. People, 927 P.2d 381, 382-85 (Colo. 1996) (en banc); Young v. United States, 111 A.3d 13, 15-16 (D.C. 2015); Glenn v. State, 806 S.E.2d 564, 568-69 (Ga. 2017); State v. Barnes, 212 P.3d 1017, 1020-26 (Idaho Ct. App. 2009); People v. Thompson, 49 N.E.3d 393, 402-09 (Ill. 2016); Gibson v. State, 709 N.E.2d 11, 15-16 (Ind. Ct. App. 1999); Morgan v. Commonwealth, 421 S.W.3d 388, 391-92 (Ky. 2014); State v. Berniard, 163 So.3d 71, 89-91 (La. Ct. App. 2015); State v. Robinson, 118 A.3d 242, 247-52 (Me. 2015); Moreland v. State, 53 A.3d 449, 453-56 (Md. Ct. Spec. App. 2012); Commonwealth v. Vacher, 14 N.E.3d 264, 278-79 (Mass. 2014); Lenoir v. State, 222 So.3d 273, 276-78 (Miss. 2017) (en banc); State v. Gardner, 955 S.W.2d 819, 823-25 (Mo. Ct. App. 1997); Rossana v. State, 934 P.2d 1045, 1048-49 (Nev. 1997); State v. Sweat, 404 P.3d 20, 22, 24-27 (N.M. Ct. App. 2017); People v. Sanchez, 941 N.Y.S.2d 599, 606 (App. Div. 2012), aff'd, 991 N.E.2d 698 (N.Y. 2013); State v. Patterson, 791 S.E.2d 517, 520-23 (N.C. Ct. App. 2016), review denied, 794 S.E.2d 328 (N.C. 2016); State v. Fripp, 721 S.E.2d 465, 467-69 (S.C. Ct. App. 2012); Woods v. State, 13 S.W.3d 100, 101-05 (Tex. Crim. App. 2000); State v. George, 206 P.3d 697, 700-02 (Wash. Ct. App. 2009), review denied, 217 P.3d 783 (Wash. 2009). But see State v. Finan, 881 A.2d 187, 191-94 (Conn. 2005); Ibar v. State, 938 So.2d 451, 462 (Fla. 2006). A-3528-16T3 20 their superior knowledge of the defendant's appearance, particularly around the time of the crime. After considering the relevant Lazo and Carbone factors, we are satisfied that the judge correctly concluded that M.D. and M.W.'s identifications of defendant as the man in the plumbing company surveillance video were permissible lay opinions under N.J.R.E. 701. Both witnesses worked with defendant and, unlike the jurors, were fully familiar with his mannerisms, gait, and appearance, including his distinctive hairstyle. 11 Thus, they were able to draw on this knowledge when they watched the surveillance video. Because of the grainy quality of the video, the jury likely would have been unable to identify whether defendant was the man in the video without the assistance of this testimony. Indeed, the judge noted that he would have been uncomfortable making such an identification because, unlike M.D. and M.W., he did not have a prior working relationship with defendant. Thus, M.D. and M.W.'s identification testimony was admissible because it was "rationally based on the perception of the witness[es]" and would assist the jury "in determining a fact in issue." N.J.R.E. 701. Under these circumstances, we detect no abuse 11 By the time of the trial, defendant no longer wore his hair in short, twisted braids. A-3528-16T3 21 of discretion in the judge's denial of defendant's suppression motion and the admission of the identification testimony. We also reject defendant's claim that M.D. and M.W.'s identifications were made under suggestive conditions that required their exclusion under State v. Henderson. That case is clearly distinguishable from the matter at hand. As our colleague, Judge Allison Accurso, recently stated in Wright, "[t]he central point of Henderson is the recognition that suggestive procedures can skew a witness's report of his opportunity to view the crime[.]" 444 N.J. Super. at 360. Here, Detective Franco did not ask M.D. or M.W. to identify the robber based on what they remembered from seeing him during the actual robbery. Instead, he showed them a surveillance video of a man walking and crouching in a parking lot and asked what they thought of it. Unlike crime victims who have only a fleeting opportunity to observe their assailant, M.D. and M.W. both knew defendant from working with him at the children's store. Thus, the witnesses were well-acquainted with defendant and, therefore, could rely on that relationship, rather than what they might have remembered from the robbery, in pinpointing defendant as the man in the video. See State v. Herrera, 187 N.J. 493, 507 (2006) (finding prior relationship a "significant, if not controlling" fact in determining reliability of identification procedure). Indeed, a "confirmatory" A-3528-16T3 22 identification, which occurs when a witness identifies someone he or she knows from before but cannot recall their name, is not considered suggestive. State v. Pressley, 232 N.J. 587, 592-93 (2018). Under these circumstances, the "estimator variables" identified by the Henderson Court were inapplicable to the identification procedure involved in this case. These factors include stress; weapon focus; duration of the witness' observation of the perpetrator; distance and lighting; the witness' characteristics that could impact an identification's accuracy; the perpetrator's appearance, including whether a mask or disguise was employed; racial bias, and speed of an identification. Henderson, 208 N.J. at 261-272. Again, M.D. and M.W.'s testimony that defendant was the man in the plumbing company surveillance video was based entirely upon their past working relationship with him, and not upon their ability to see and remember what the robber looked like on the night of the crime. Nevertheless, the judge did consider most of the "system variables" described in Henderson, and found that the procedure Detective Franco used to show the video to the employees was not unduly suggestive. These variables concern the manner in which the police conduct an identification procedure and include considerations such as the type of procedure used, what pre- A-3528-16T3 23 identification instructions were given to a witness, and whether suggestive feedback was given to a witness post-identification. Id. at 248-61. The judge noted that Detective Franco suspected defendant was the man in the surveillance video and, therefore, the procedure was not "double blind." The judge also observed that the police did not record the witnesses as they watched the video, which was "not ideal[.]" Nevertheless, the judge concluded that the detective's approach was sensible, although [unlike a case governed by the Henderson rules,] this was not a constructed identification array or sequential photo identification process. [Detective Franco] did employ, as was suggested, many of the principles of how to handle people so that you don't taint their process of identification. Therefore, the judge concluded, and we agree, that the procedures the detective used were not unduly suggestive. In addition, the judge ruled that defendant could address the question of possible taint on cross-examination of any witnesses the State proffered in connection with the identifications. Defense counsel took full advantage of this opportunity at trial after M.D. and M.W. made their in-court identifications based on the surveillance video. A-3528-16T3 24 In sum, there is no basis to disturb the judge's denial of defendant's suppression motion. We therefore reject defendant's contentions on this point. III. At the end of the trial, the judge gave a detailed instruction to the jury on the in-court identifications M.D. and M.W. made of defendant based upon Model Jury Charge (Criminal), "Identification: In-Court Identification Only" (rev. July 19, 2012, eff. Sept. 4, 2012). In Point II, defendant argues that the judge erred by denying his request to give the jury the model charge for in-court identifications and out-of-court identifications. 12 We disagree. It is well settled that "[a]ppropriate and proper charges are essential for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (alteration in original) (internal quotation marks omitted) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)). Jury instructions must give a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). 12 Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (rev. July 19, 2012, eff. Sept. 4, 2012). A-3528-16T3 25 "A trial court is vested with discretion in delivering the jury instructions that are most applicable to the criminal matter before it." State v. Funderburg, 225 N.J. 66, 80 (2016) (citing State v. Ernst, 32 N.J. 567, 583-84 (1960)). To assess the soundness of the jury instruction, we consider "how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole." State v. Savage, 172 N.J. 374, 387 (2002) (alteration in original) (internal quotation marks omitted) (quoting Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996)). Applying these principles, there are no grounds for disturbing the judge's determination that only the model judge charge for in-court identifications was appropriate. At trial, the State did not present evidence concerning the out-of- court identifications that were the subject of the pre-trial, Rule 104 hearing. Instead, M.D. and M.W. only made in-court identifications of defendant. Detective Franco was also careful not to reveal that either of the victims had identified defendant as the man in the plumbing company video prior to trial. Although M.W. made a fleeting remark on cross-examination that she thought it was defendant in the surveillance video when she was first shown it, defendant concedes in his brief that this comment was "oblique" and defense counsel asked no follow up questions. A-3528-16T3 26 As the judge noted, the State was "cautious and careful" not to refer to any out-of-court identifications during the trial. As a result, there was no need to instruct the jury on identifications that were not introduced in evidence. Moreover, the jury received ample guidance in the final jury charge on identification issues relating to the in-court identifications that were the only ones actually presented to the jury for consideration. Therefore, we reject defendant's contention on this point. IV. In Point III, defendant argues for the first time on appeal that reversal is required because Detective Franco offered lay opinion witness testimony in violation of N.J.R.E. 701. Defendant points to the detective's statement that the man's ripped jeans in the plumbing store surveillance video were "consistent with the blue jeans . . . [shown] on the [children's store] surveillance video[,]" and his answer in the affirmative when asked whether the man in the video "was consistent with the description [he] had received of the suspect and what [he] had seen on the [children's store] video." Defendant also contends for the first time that it was improper for Detective Franco to testify that he suspected the man in the shopping store video might be defendant because both men were A-3528-16T3 27 extremely tall, styled their hair in short twists, and wore ripped jeans. In support of this position, defendant relies upon State v. Lazo. Because defendant did not raise this issue at trial, we must review the matter for plain error. R. 2:10-2. Plain error is "error possessing a clear capacity to bring about an unjust result and which substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merits of his [or her] defense." State v. Timmendequas, 161 N.J. 515, 576-77 (1999) (quoting State v. Irving, 114 N.J. 427, 444 (1989)). "[A]ny finding of plain errors depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006). As noted above, N.J.R.E. 701 permits lay opinion testimony that is "rationally based on the perception of the witness" and "will assist in understanding the witness' testimony or in determining a fact in issue." Lay opinion testimony "is not a vehicle for offering the view of the witness about a series of facts that the jury can evaluate for itself or an opportunity to express a view on guilt or innocence." State v. McLean, 205 N.J. 438, 462 (2011) (remanding for a new trial on the defendant's possession with intent to distribute controlled dangerous substances charge because a police officer, who observed A-3528-16T3 28 the defendant hand an item to an individual in exchange for money, testified as to his opinion that a drug transaction had occurred). In Lazo, the issue was whether it was proper for a detective who had no personal knowledge of the crime to testify at trial that he included the defendant's photo in a photo array because the defendant's photo resembled the composite sketch of the assailant. Lazo, 209 N.J. at 12. Unlike in this case, the defendant in Lazo fully presented and argued the issue at trial and, therefore, it was not raised as plain error as it is here. "The victim's identification was the only evidence linking defendant to the crime. No physical evidence or other corroboration of the identification was presented." Id. at 15. The Court held that the detective's testimony violated N.J.R.E. 701 because his opinion was not based on personal knowledge and the testimony was introduced to bolster the victim's identification. Id. at 24. The Court further ruled that "[n]either a police officer nor another witness may improperly bolster or vouch for an eyewitness' credibility and thus invade the jury's province. Ibid. Because the identification was the only evidence against the defendant, the Court could not "conclude that the error was harmless." Id. at 27. Contrary to defendant's assertions, the point of the detective's testimony was not to bolster an identification made by another witness. Detective Franco A-3528-16T3 29 did not testify that defendant was the man who robbed the victims. Instead, his testimony had a notably different, and more relevant, significance than the detective's testimony in Lazo: it laid the foundation for why defendant became a suspect and why the detective decided to show the two robbery victims, M.D. and M.W., the plumbing store surveillance video to see if they could recognize the man appearing in it. Indeed, in testimony that defendant omits from his appellate brief, Detective Franco agreed "it [was] fair to say [that M.D. and M.W.] would be in a better position to know what [defendant] looked like and to make that I.D. if there was an I.D. to make[.]" Because this was not improper lay opinion testimony, we are satisfied that the trial judge did not err in admitting it. However, even if the detective's brief remarks were to any degree problematic, any error in admitting them was not "clearly capable of producing an unjust result[.]" Rule 2:10-2. This is so because, unlike in Lazo, the State had independent evidence in the form of Biggs's testimony placing defendant at the scene of both the children's store and the plumbing company on the night of the robbery. In addition, the State produced the photograph defendant sent Biggs showing him holding a number of stacks of money bound together with distinctive blue tape as was used at the store, and his texts stating that he now A-3528-16T3 30 had enough to pay cash for a car. Thus, there was strong evidence of defendant's guilt, separate and apart from the detective's testimony, that was more than sufficient to support the jury's verdict. Therefore, defendant's contention on this point fails. V. In Point IV, defendant argues that the trial judge erred by denying his request to give Model Jury Charge (Criminal), "Testimony of a Cooperating Co- Defendant or Witness" (rev. Feb. 6, 2006) (Cooperating Witness Charge) based upon Biggs's testimony at the trial. We disagree. It is long-established that "a defendant has a right, upon request, to a specific jury instruction 'that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his specific interest in the context of his specific interest in the proceeding.'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Begyn, 34 N.J. 35, 54 (1961)). The purpose of the Cooperating Witness Charge is to "caution the jury 'regarding the credibility of witnesses who may have a special interest in the outcome of the cause, which might lead to influencing their testimony.'" Id. at 208 (quoting Begyn, 34 N.J. at 54). "This special interest comes about by reason of hope, or even bargain, A-3528-16T3 31 for favor in later prosecution treatment of the witness' own criminal conduct in return for aid in convicting the defendant." Begyn, 34 N.J. at 54.13 Defendant asserts that because the police gave Biggs Miranda14 warnings when they first met with her, and stated she "could have been charged in a conspiracy or as an accessory" in the robbery, she had a "special interest" in the outcome of the case requiring the judge to give the jury the Cooperating Witness Charge. However, when defendant counsel asked Biggs at trial whether she "felt like as long as [she] cooperated with the police and told them that it was [defendant], that [she] felt like [she] would not be charged with this crime or . . . in a conspiracy or as an accessary to a crime[,]" she replied, "No." Indeed, neither the police nor the prosecutor ever charged Biggs with any offense, and never asserted she played any role whatsoever in defendant's 13 Thus, the Cooperating Charge provides: The law requires that the testimony of such a witness be given careful scrutiny. In weighing his/her testimony, therefore, you may consider whether he/she has a special interest in the outcome of the case and whether his/her testimony was influenced by the hope or expectation of any favorable treatment or reward, or by any feelings of revenge or reprisal. 14 Miranda v. Arizona, 384 U.S. 436 (1966). A-3528-16T3 32 criminal conduct on the night of the robbery. Because Biggs faced no past, present, or future penal liability as the result of driving defendant around after he told her he was looking for his friend, she had no reason to seek any favor from the prosecution that would give her any "special interest" in the outcome of the trial or influence her testimony. Therefore, the judge did not err by denying defendant's request for a Cooperating Witness Charge. 15 VI. In sum, we affirm defendant's convictions and aggregate sentence, but remand to the trial court to correct the JOC to reflect the merger of count four into counts one, two, and three. 16 Affirmed in part; and remanded. We do not retain jurisdiction. 15 In addition, defense counsel thoroughly cross-examined Biggs to challenge her credibility, and the judge instructed the jury on credibility at the beginning and end of the trial. Thus, any possible error in the failure to give the jury this instruction would have been harmless. Adams, 194 N.J. at 209. 16 As for the balance of any of defendant's arguments not expressly discussed above, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Denial of Suppression motion reversed STATE v. SHELBY E. HUTCHINS

Denial of Suppression motion reversed 
STATE  v. SHELBY E. HUTCHINS,

          Defendant-Appellant.


                   Argued June 4, 2019 – Decided June 20, 2019

                   Before Judges Fasciale and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment Nos. 15-09-2222
                   and 15-10-2632.

                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0715-17T4
PER CURIAM Following denial of her motion to suppress evidence seized without a search warrant, defendant Shelby Hutchins pled guilty to multiple charges of an Atlantic County indictment, including second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The charges emanated from defendant's involvement in the burglary of her ex-boyfriend's residence, from which several firearms were stolen. Defendant was sentenced to an aggregate term of imprisonment of three years with one year of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). Defendant now appeals, claiming the motion judge erred by failing to suppress incriminating paperwork seized from her bag during the search of her friend's vehicle, and by finding defendant lacked standing to challenge the search. For the reasons that follow, we revers e and remand. I. We summarize the salient facts from the suppression hearing, during which the State presented the testimony of four members of the Egg Harbor Police Department (EHPD). Defendant did not testify nor present any evidence. While attempting to locate defendant two days after the burglary, EHPD Detectives Kyle Warren, Robert Harte and Shawn Owen approached a red A-0715-17T4 2 minivan owned by defendant's friend, Nicole Cooper. After passing the detectives' unmarked car, the minivan pulled over to the side of a roadway in the vicinity of the hotel where Cooper and defendant were reportedly staying. Cooper and defendant's then-current boyfriend, Elmer Burgos, 1 were the only occupants of the vehicle. While speaking with Cooper, Owen detected an odor of raw marijuana. Mindful that "the case was a firearm case," Owen asked Cooper whether she wished to surrender anything in the vehicle. Cooper turned over a small bag of marijuana from her purse, and consented to a search of the vehicle at roadside. When Warren opened a drawstring bag and discovered what appeared to be several bundles of heroin, Cooper disclaimed ownership of that bag and all other bags in the minivan, except for her purse. Notably, Cooper told Warren she and Burgos were en route to defendant's mobile home "to drop the bags off" when the minivan pulled over. Rather than resuming the search, Warren contacted his supervisors, who directed him to tow the vehicle to the police station to photograph and record the items seized during the search. Thereafter, police considered obtaining a 1 Burgos was charged as a codefendant in the present matter. He participated in the suppression hearing, but is not a party to this appeal. Cooper was not indicted in this matter. A-0715-17T4 3 search warrant to resume the search of the minivan, including the remainder of the bags that had not been opened. However, "a legal advisor from the Prosecutor's Office" said a search warrant was unnecessary. Instead, Warren again asked Cooper for her consent to continue searching the minivan, including the bags, of which she had denied ownership. Cooper's consent was video and audio recorded. During the second search of the minivan, detectives opened another drawstring bag, containing female clothing and "paperwork for the stolen handgun that was removed from the residence." Police determined that bag belonged to defendant. Following the suppression hearing, the motion judge issued a written decision. Relevant here, the judge initially determined the search conducted at the police station was valid because drugs had been found in one of the bags during the roadside search: After the car was towed to [EHPD] headquarters, police officers resumed the search of Ms. Cooper's vehicle. Finding the drugs in one bag created probable cause to believe more drugs would be found in other similar container[s]; thus, the search of the other bag would also be permissible. A-0715-17T4 4 Further, the motion judge found defendant lacked standing to challenge the search of Cooper's minivan because "at the time of the stop, [defendant] had fled to Northern New Jersey." According to the judge: The fact that [defendant] was not present when the vehicle was searched, nor in the vicinity of the stop, further exemplifies an absence of . . . defendant's proprietary, possessory and participatory [sic]. The record is void of any evidence to support the contention that defendant retained any interest in the victim's permit to purchase firearms and paperwork for [the stolen] handgun at the time of the search. Further the [c]ourt finds that the[re] was seemingly no connection [between] the search of the car and [defendant]. While the police may have initially stopped the vehicle to investigate into the whereabouts of [defendant], the search was commenced after marijuana was found and Ms. Cooper consented to the search of the vehicle. The police stopped the car to learn if [defendant] was in the car, but the police were not searching the car with the purpose to find [defendant]. Accordingly, the judge concluded defendant's "alleged connection to the vehicle searched and the items seized simply [wa]s far too attenuated to support a constitutional right to object to the search and seizure." On appeal, defendant renews the arguments she raised before the motion judge: POINT I THE PAPERWORK RELATED TO THE THEFT OF THE HANDGUNS SHOULD HAVE BEEN A-0715-17T4 5 SUPRESSED BECAUSE COOPER'S CONSENT TO SEARCH THE VAN COULD NOT REASONABLY EXTEND TO CLOSED BAGS ONCE THE POLICE WERE INFORMED THAT THE BAGS DID NOT BELONG TO HER. STATE V. SUAZO, 133 N.J. 315, 320 (1993). POINT II THE JUDGE'S CONCLUSION THAT DEFENDANT LACKED STANDING BECAUSE "SHE WAS NOT PRESENT WHEN THE ITEMS WERE DISCOVERED" VIOLATED NEW JERSEY'S AUTOMATIC STANDING RULE. STATE V. RANDOLPH, 228 N.J. 566 (2017). In response, the State abandons its third-party consent argument for the bags searched after the minivan was impounded, claiming "the continued search at police headquarters was justified by the automobile exception [to the warrant requirement] . . . ." Indeed, at oral argument before us, the State conceded the validity of Cooper's second consent to search no longer was an issue, but claimed exigent circumstances supported the warrantless search of the minivan at the police station. In its merits brief, the State mentioned in passing that the search was also proper under the inevitable discovery exception to the warrant requirement. The State did not advance that point at oral argument. II. In reviewing a suppression ruling, we are mindful that we must uphold a trial court's factual findings if they are supported by sufficient credible evidence A-0715-17T4 6 in the record. State v. Dunbar, 229 N.J. 521, 538 (2017). "We accord no deference, however, to a trial court's interpretation of law, which we review de novo." Ibid. "Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). To overcome this presumption, the State must show by a preponderance of evidence that the search falls within one of the well- recognized exceptions to the warrant requirement. State v. Bryant, 227 N.J. 60, 69-70 (2016). The warrant requirement "is not lightly to be dispensed with, and the burden is on the State, as the party seeking to validate a warrantless search, to bring it within one of those recognized exceptions." State v. Alston, 88 N.J. 211, 230 (1981). As the motion judge noted in the present case, the State opposed defendant's suppression motion on four grounds. Pertinent to this appeal, 2 the State argued "Cooper's consent was valid[,]" and defendant lacked "standing to contest the evidence seized." Indeed, much of the testimony adduced at the motion hearing pertained to the propriety of the searches conducted at the 2 The State also contended the stop was valid and the protective pat-down search of Cooper and Burgos was lawful. Defendant does not contest those points on appeal. A-0715-17T4 7 roadside and police station. Nonetheless, the State now concedes Cooper's consent did not validate the search of the bags after the vehicle was impounded. Because we agree, we merely acknowledge the motion judge erroneously upheld the search of the bags at the police station where, as here, Cooper disclaimed ownership of the bags; expressly advised police the bags belonged to defendant; and stated she and Burgos had been en route to drop off the bags at defendant's residence before the search. As our Supreme Court explained in State v. Suazo 3: A third party who possesses the authority to consent to a search of premises generally, however, may lack the authority to consent to a search of specific containers found on those premises. [The] consent does not extend to containers in which the consenting party has disclaimed ownership[, or] to property within the exclusive use and control of another. [ 133 N.J. at 320 (emphasis added) (citations omitted).] 3 In Suazo, the third-party driver consented to a search of his vehicle, which revealed a closed bag in the trunk. 133 N.J. at 318. Prior to the search, the defendant-passenger claimed ownership of the bag. Ibid. Relying on the driver's consent, police opened the bag and discovered narcotics. Ibid. The Court held the defendant's ownership claim of the bag rendered the officer's reliance on the driver's consent unreasonable. Id. at 322. Rather, the defendant's "acknowledgment that he owned the . . . bag impelled [the officer] either to seek [the] defendant's consent or to make further inquiry before opening the bag." Ibid. Accordingly, the Court reversed the trial court's denial of defendant's suppression motion. Id. at 323. A-0715-17T4 8 Moreover, the motion judge erroneously determined defendant lacked standing to challenge the search and seizure of the bags. Although she was not present when the minivan was stopped or searched, defendant was the target of the stop; the bags contained evidence of the burglary; Cooper expressly disclaimed ownership of the bags; and Cooper identified defendant as the owner. Clearly, under those circumstances, defendant had automatic standing to challenge the search of the bags, at least one of which contained evidence implicating her in the burglary. See State v. Hinton, 216 N.J. 211, 233-34 (2013) (quoting Alston, 88 N.J. at 228) ("Unlike federal law, New Jersey law confers automatic standing on a defendant 'in cases where the defendant is charged with an offense in which possession of the seized evidence at the time of the contested search is an essential element of guilt.'"). Because the State did not raise before the trial judge its newly-minted argument that the search was justified under the automobile exception to the warrant requirement, we need not consider that argument on appeal. State v. Robinson, 200 N.J. 1, 20 (2009). Nonetheless, at oral argument before us, the State maintained the testimony adduced at the hearing established exigent A-0715-17T4 9 circumstances,4 thereby preventing police from obtaining a warrant. The State therefore urges us to affirm on grounds other than those relied upon by the motion judge. See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011). However, we need look no further than the consistent testimony of the EHPD detectives, which dispel the State's belated argument that exigent circumstances justified the warrantless search here: DEFENSE COUNSEL: . . . you would agree with me, would you not, Detective [Warren], that you had ample opportunity to apply for a search warrant at th[e] point [in which the vehicle was towed to the station], right? WARREN: I could have, yes. .... DEFENSE COUNSEL: . . . in your judgment you would agree, would you not, Detective [Harte], that you or your team had ample opportunity, . . . the police that were conducting this investigation had ample opportunity to apply for a warrant, is that right? 4 Because the search in the present case occurred before the Supreme Court decided State v. Witt, 223 N.J. 409, 431 (2015), exigent circumstances making it "impracticable to obtain a warrant when the police have probable cause to search the car" were still necessary to conduct a warrantless search of Cooper's minivan. As we recently recognized, "[i]n the aftermath of Witt, the current law of this State now authorizes warrantless on-the-scene searches of motor vehicles in situations where: (1) the police have probable cause to believe the vehicle contains evidence of a criminal offense; and (2) the circumstances giving rise to probable cause are unforeseeable and spontaneous." State v. Rodriguez, ___ N.J. Super. ___, ___ (App. Div. 2019) (slip op. at 12) (emphasis added) (footnote omitted) (citing Witt, 223 N.J. at 447-48). A-0715-17T4 10 HARTE: I believe so, sir. Further, at the time of the search at the police station, Cooper's minivan was in the exclusive custody of the EHPD, secured at its own sally port, thereby obviating the risk the bags would be removed or destroyed by passersby as might be the case at the roadside. Also, the burglary had occurred two days before the vehicle was stopped and the search occurred during daytime hours. But cf. State v. Minitee, 210 N.J. 307, 322-23 (2012) (upholding the search of a motor vehicle under the automobile exception where the car was searched after midnight, while police were actively investigating a string of robberies). We thus reject the State's argument that the search was justified under the automobile exception on substantive as well as procedural grounds. Finally, the State's fleeting suggestion that "the incriminating evidence would have inevitably been discovered by the police obtaining a search warrant" lacks sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2). We simply note our Supreme Court recently rejected a similar belated argument in State v. Shaw, ___ N.J. ___, ___ (2019) (slip op. at 38) (declining to apply the inevitable discovery doctrine where "[a] review of the record show[ed] the prosecutor made only passing reference to the inevitable discovery doctrine"). Reversed and remanded. We do not retain jurisdiction. A-0715-17T4