Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Sunday, May 02, 2021

State v. Omar Vega-Larregui (085288) (Mercer County & Statewide) (A-33-20;

 State v. Omar Vega-Larregui (085288) (Mercer County & Statewide) (A-33-20; 084200)

The Court has the constitutional authority to make rules and procedures for all courts of this state, including the grand jury; the Court’s authorization of a virtual format for the selection of grand jurors and grand jury presentations during a lethal pandemic does not violate the State Constitution’s separation of powers. There is no support for the facial constitutional challenge to the temporary use of the virtual grand jury during the current public health crisis, and virtual grand jury proceedings do not facially violate the fundamental fairness doctrine. In individual cases where a defendant claims that an alleged error or defect undermined the fairness of the proceeding, a challenge may be mounted. But in this case, no error undermined the integrity of the grand jury proceeding; nor is there a basis for the dismissal of the indictment.

Tuesday, April 13, 2021

Court should have admitted video requested by defendant State v. Gabriel Garcia (A-47-19;

Court should have admitted video requested by defendant  State v. Gabriel Garcia (083568) (Hudson County & Statewide) (A-47-19; 083568)

The trial court erroneously kept admissible evidence from the jury. The video rebutted what the prosecutor implied during cross-examination -- that defendant’s witnesses lied about their attempt to speak with the police at the scene. That video also contradicted the investigating detective’s testimony that she had thoroughly canvassed the area for witnesses. In summation, the prosecutor exploited the suppression of the video to present a false narrative and improperly suggested to the jury that the defense witnesses made no effort to give their accounts to the officers at the scene. The combination of the trial court’s erroneous evidentiary ruling and the prosecutor’s inappropriate remarks during summation had the clear capacity to cause an unjust result.

Monday, April 12, 2021

Suppression of handgun denied where police saw defendant throw gun State v Gaddy

 Suppression of handgun denied where police saw defendant throw gun State v Gaddy

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.

ANDRE R. GADDY, a/k/a DRIZ, AND DIZZY,

Defendant-Appellant. _______________________

Submitted March 18, 2020 – Decided March 11, 2021 Before Judges Fuentes and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 18-05-0273.

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.

The opinion of the court was delivered by

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3046-18

FUENTES, P.J.A.D.
A Union County Grand Jury returned indictment 18-05-0270 charging

defendant Andre R. Gaddy with one count of second degree possession of a handgun by a person previously convicted of one of the offenses listed in N.J.S.A. 2C:43-7b(1). A separate Union County Grand Jury returned indictment 18-05-0273 charging defendant with second degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b(l), fourth degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3f(l), third degree hindering apprehension, N.J.S.A. 29-3b(l), and third degree receiving stolen property, N.J.S.A. 2C:20- 7a.

After the trial court denied his motion to suppress the evidence supporting the charges against him, defendant entered into a negotiated agreement with the State through which he pled guilty to second degree unlawful possession of a handgun. In return, the State agreed to dismiss the remaining counts in both indictments and recommend the court sentence defendant to a term of seven years, with forty-two months of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), to run concurrently with a sentence imposed in the Somerset County vicinage.

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Defendant accepted the terms of the plea agreement and provided a factual basis under oath to support his culpability. The court sentenced defendant on February 15, 2019, to seven years in prison, with forty-two months of parole ineligibility, to run concurrently with a sentence imposed for offenses committed in Somerset County, in accordance with the terms of the plea agreement.1

Defendant raises the following arguments in this appeal: POINT I

AN UNCORROBORATED ANONYMOUS TIP, EVEN IN CONJUNCTION WITH FLIGHT FROM POLICE IN A HIGH-CRIME AREA, DOES NOT ESTABLISH REASONABLE AND ARTICULABLE SUSPICION TO CONDUCT AN INVESTIGATIVE DETENTION; THEREFORE, THE EVIDENCE SHOULD BE SUPPRESSED. [U.S. CONST., AMENDS. IV AND XIV; N.J. CONST., ART. I, ¶ 7.]

POINT II

IN DENYING SUPPRPESSION, THE COURT ERRONEOUSLY FOUND THAT DEFENDANT LACKED STANDING TO CHALLENGE THE SEARCH AND SEIZURE, THAT HE DID NOT

Defendant pled guilty in Somerset County to one count of third degree burglary and two counts of third degree attempted burglary. N.J.S.A. 2C:18-2(a)(1) and 2C:5-1(a)(3). The Somerset court sentenced him to three years on each count, to run concurrently. This sentence would also run concurrently with the sentence imposed in Union County.

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HAVE A REASONABLE EXPECTATION OF PRIVACY IN THE AREA SEARCHED, AND THAT THE GUN WAS ADMISSIBLE PURSUANT TO THE PLAIN VIEW DOCTRINE.

We reject these arguments and affirm. We derive the following facts from the factual record developed before the trial court at the evidentiary hearing conducted in response to defendant's motion to suppress.

Detective James Williams of the Plainfield Police Department was the only witness called by the State. At the time of this hearing, Detective Williams was assigned to the Narcotics Vice Section. He testified that on February 21, 2018, at approximately 6:51 p.m., he was in the 200 block of Pond Place, in an area he described as "a residential neighborhood." Although it was dark at the time he arrived, there were streetlights in the immediate area where "the incident occurred" which provided good lighting.

Detective Williams was familiar with the area because he patrolled it "pretty much on a daily basis . . . when [he was] out on patrol." He characterized the area as "a high crime, high narcotic area . . . [and] the scene of numerous shootings and homicides since I've been employed with the police department." He reported to this area in response to a telephone call from a "concerned citizen" who reported possible illicit activities. The caller claimed that "about five to seven individuals . . . were congregating and engaging in disorderly

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activity" in a driveway on West 3rd Street "which is accessed from the 200 block of Pond Place." The prosecutor followed up with the following questions:

Q. Were there any particular type of activities going on in that area around the time of this incident?

A. Very -- disorderly activity such as gambling, drinking in public, narcotic activity, gang activity.

....

Q. Was there any other specific information that was relayed to you by this concerned citizen?

A. The concerned citizen relayed that [they] overheard that one of them -- heard -- overheard a conversation in regards to one of -- one of them, if not all of them, being in possession of a firearm.

Q. Were you given any information with regard to a particular individual?

A. No.

Q. Were you given the descriptions of any particular individuals or anyone else in that area?

A. No.
Based on this information, Williams and other "police units" responded to

the area in unmarked police vehicles to investigate. According to Williams, although the vehicles were not traditionally marked patrol cars, they are nevertheless "very well known" because they are equipped with emergency

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lights and sirens. Furthermore, although the officers wore plain clothes, they had "visible police identifiers" such as "Plainfield Police baseball caps, detective badges around our necks, tactical vests . . . [the] vest is actually a bullet proof vest, it has Velcro police on the front and the back in white lettering."

On arrival, the officers saw approximately six to seven individuals sitting and standing on the driveway that is adjacent to the sidewalk "engaging in disorderly activity." When asked to specify, Williams responded: "Drinking in public, smoking, just being loud and tumultuous."From this group of individuals, Williams testified that two men, later identified as defendant Gaddy and Troy White, immediately attracted his attention. Williams testified that as soon as he and Detective McCall alighted from their unmarked police car and identified themselves as police officers, both men "reached into the front of their waistband and turned their back . . . away from us and began running east towards the back fence of that yard." Based on his training and experience, Williams "believed" these two men "might have been in possession of a weapon."

On cross-examination by defense counsel, Williams expanded on what he meant by disorderly activity to include "gambling" and "shooting dice."

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Williams testified that he and other officers identified themselves as police officers and began to chase the two men. They ordered the two men to stop, to no avail. The police officers caught up to the two suspects seconds later, when they reached a tall fence. Williams saw defendant pull from his waistband what he "immediately recognized as a semi-automatic handgun . . . and throw it . . . over the fence into the adjacent yard." The officers then "wrestled" defendant and White to the ground and handcuffed them.

On cross-examination, defense counsel asked Williams for the name of the "concerned citizen" who reported the disorderly conduct. This prompted an immediate objection by the prosecutor who argued the identity of the caller was protected under N.J.R.E. 516, which provides, in relevant part:

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State . . . and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

Defense counsel argued that the information provided by the anonymous caller was the only reason the police officers responded to the area where defendant and the other individuals were located. Defense counsel emphasized:

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"That is why it is so crucial to find out what started this whole chain of events. So that is why we need this information." According to defense counsel, it is not enough for the caller to merely claim that he needs protection against possible retaliation. Otherwise, "it would be very easy for citizens to take out their vendettas against people[.]" The judge denied defendant's application based on the plain language of N.J.R.E. 516.

In a memorandum of opinion, the judge found the police properly responded to the caller's report of suspicious activities in a particular area of the municipality. Upon their arrival, the officers observed defendant and White engaged in conduct that provided reasonable suspicion to investigate further. Before the officers had the opportunity to interact with them, defendant and White ran from the scene and ignored repeated commands to stop. The judge found

[t]he detectives were lawfully in the area where they observed and seized the handgun. The detectives were conducting a field inquiry from the public streets of Plainfielda place where they were lawfully allowed to be present. The detectives then ran after [d]efendant. Once . . . [d]efendant removed an object from his waistband, Detective Williams identified the object as a handgun. Defendant then threw the handgun over the chain-link fence, leaving the handgun in plain view, in a public area. Because the detectives were lawfully present and the handgun was in plain view, the search

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and seizure of the handgun is lawful under the plain view doctrine.

As an intermediate appellate court, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Against these facts, we agree with the court's conclusion that under the plain view doctrine, the police officers properly seized the handgun discarded by defendant. The officers were lawfully in the viewing area and the nature of the evidence was immediately apparent. State v. Gonzales, 227 N.J. 77, 82 (2016).

The information provided by the confidential caller had far more probative value than similar information provided by an anonymous informant. State v. Amelio, 197 N.J. 207, 21213 (2008). We affirm the motion judge's decision to deny defendant's request to reveal the identity of the "concerned citizen" caller under N.J.R.E. 516 because defendant's unsubstantiated allegations of need in this case were not sufficient to justify disclosure. State v. McDuffie, 450 N.J. Super. 554, 567 (App. Div. 2017).

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Affirmed.

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Sunday, April 11, 2021

State v. Juan C. Molchor; State v. Jose A. Rios (A-9-20; 084694)

 State v. Juan C. Molchor; State v. Jose A. Rios  (A-9-20; 084694)

The CJRA favors pretrial release over detention; it authorizes judges to detain defendants when the State has shown, by clear and convincing evidence, that no conditions of release would reasonably assure the eligible defendant’s appearance in court when required, would protect the public, or would prevent the defendant from obstructing the criminal justice process. To make that determination, the Act directs judges to conduct an individualized assessment of the level of risk each defendant presents in light of their own conduct, history, and characteristics. The Act does not seek to detain defendants whose behavior poses a minimal level of risk, which describes all three defendants here. Nor does the CJRA cede control over pretrial release decisions to outside agencies. The statute’s primary focus is on a defendant’s behavior and choices, and the risk they present. The language, structure, purpose, and history of the CJRA reveal the Act was designed to address a defendant’s own choice not to appear in court, not independent actions by third parties like ICE. The Court agrees with the Appellate Division that the CJRA does not authorize judges to detain defendants to thwart their possible removal by ICE.

Monday, March 29, 2021

State v. Luis A. Maisonet (083066) (A-28-19

 State v. Luis A. Maisonet (083066)  (A-28-19; 083066)

The Court affirms settled principles of law that require trial judges to conduct a “reasoned, thoughtful analysis” of certain factors when they consider a request for an adjournment to hire new counsel. See State v. Kates, 216 N.J. 393, 396-97 (2014); State v. Furguson, 198 N.J. Super. 395, 402 (App. Div. 1985). If a trial judge does not conduct the proper analysis, it may be necessary to reverse a conviction. But defendants are not automatically entitled to a new trial. When a reviewing court can glean or infer the relevant considerations from the record, it may evaluate the appropriate factors. The Court does not find an actual deprivation of the right to counsel of choice here, so the doctrine of structural error does not apply.

State v. Andrea K. Dunbrack; State v. Gabriel Rodriguez (A-27-19;

 State v. Andrea K. Dunbrack; State v. Gabriel Rodriguez (A-27-19; 083008)

The Court finds no error, let alone plain error, in the trial court’s omission of a theft charge. Nothing in Dunbrack’s version of the events “jumps off the page” as indicative of theft. Neither Dunbrack nor Rodriguez requested an instruction on theft, and the trial court was not required to scour the record for a combination of facts to justify giving such a lesser included jury charge.

Monday, March 22, 2021

Defendant who gives consent to search loses here page1image3784 STATE , v. JOSE R. BAEZ

Defendant who gives consent to search loses here

page1image3784

STATE  ,

v.

JOSE R. BAEZ a/k/a
JOSE R. BAEZ-DE LA CRUZ,

Defendant-Appellant.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1525-19

page1image6864

Argued December 2, 2020 – Decided February 19, 2021

Before Judges Alvarez and Geiger.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 17-10-1383.

 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.

PER CURIAM

Defendant Jose R. Baez appeals the June 10, 2019 Law Division denial of his motion to suppress evidence, as well as the November 1, 2019 sentence. We affirm.

At the suppression hearing, Bergen County Prosecutor's Office Narcotics Task Force Detective Timothy Cullen testified that on February 22, 2017, a Drug Enforcement Agency (DEA) agentpassed on a tip from a confidential informant (CI). The CI notified the DEA agent, based on the CI's "personal knowledge," that defendant was moving laundered money in exchange for drugs. The CI said defendant was known to travel in a vehicle containing hidden compartments.

Cullen further testified he was advised the CI had been "responsible for the seizure of 100 kilograms of narcotics, over a million dollars in currency and about two dozen criminal arrests." As a result, on that date, officers monitored defendant's quick round trip from New Jersey to New York through license plate readers located at the George Washington Bridge. Cullen had previously surveilled defendant's home address and knew defendant drove a black 2008 Saturn Vue.

The officers monitored defendant's travel on Route 1 southbound, while Cullen stationed himself on a side street. When defendant's vehicle came into

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The agent was a Fort Lee officer on loan to the DEA. 2

A-1525-19

Cullen's view, defendant was traveling in the far-left lane. Cullen pulled out and followed defendant in the left lane for approximately a quarter mile. Defendant crossed over the right lane and turned right onto an exit ramp. Once off the highway, Cullen pulled him over, intending to cite defendant for a violation of failure to keep right, N.J.S.A. 39:4-88(a).

Because the car had tinted windows, Cullen knocked on a rear window so defendant would roll it down. The officer wanted to confirm that defendant was the only occupant. Cullen recognized defendant immediately as the person he had seen getting in and out of the Saturn Vue in front of the Palisades Park address he had surveilled a month or two earlier. As Cullen spoke to defendant through the open car window, he noticed a strong smell of air freshener, and saw a single key with an after-market alarm fob in the ignition. The judge watched the video recording of the stop, and it corroborated Cullen's account.

Cullen explained car air freshener was frequently used by persons involved in illegal drug trafficking because it was rumored to mask the scent of contraband, thus throwing off any police dogs used to search a vehicle. The after-market fob was commonplace in cars used in the transport of illegal drugs.

During the stop, defendant told Cullen that the car belonged to his sister. He first claimed that he never drove it, then said he drove it "sometimes." Cullen

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said it is not unusual that when a vehicle is "trapped out," in other words, fitted with hidden compartments for the transport of contraband, that it is registered to a third party.

Defendant told Cullen that he lived in Manhattan and was on his way to an Auto Zone store in New Jersey to buy brake parts. Cullen knew this statement was false, having seen defendant at his home address. When asked if he had ever been in trouble, defendant denied ita statement Cullen also knew was false, as defendant had a 2007 conviction for money laundering. At that juncture, Cullen asked defendant to sign a consent to search. Defendant agreed. $63,500 was found in a secret compartment, along with $1000 and two cell phones in a man's satchel on the front seat. Approximately $1600 was taken from defendant's person.

Based on the discovery of the bundled cash in defendant's vehicle, together with the other circumstances spelled out in an affidavit, Cullen obtained a search warrant for defendant's home. The execution of the warrant led to the discovery of $316,000 in bundled currency inside hidden compartments, along with four kilograms of cocaine.

Defendant moved to suppress the results of the search of the vehicle and his residence. The judge's denial of defendant's motion to suppress was

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anchored in his conclusion that Cullen was a credible witness and the motor vehicle stop constitutionally reasonable. He found the distance Cullen witnessed defendant driving in the left lane of an otherwise empty roadway sufficient to establish a reasonable and articulable suspicion that he was violating the motor vehicle laws. Based on the initial seizures of cash, and the vehicle's hidden compartment, he also found the search warrant application passed constitutional muster.

After the motion was denied, defendant entered a plea of guilty to count one of a multi-count indictmentfirst-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1).The judge imposed the recommended sentence of twelve years imprisonment with four years of parole ineligibility based on his weighing of the aggravating and mitigating factors, including consideration of defendant's personal and health status.

Now on appeal, defendant argues the following:

I. DEFENDANT'S VEHICLE WAS STOPPED IN THE ABSENCE OF A REASONABLE OR ARTICULABLE SUSPICION TO BELIEVE A CRIME WAS COMMITTED AND WAS A PRETEXT TO SEARCH DEFENDANT'S VEHICLE.

The dismissed charges included third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and second-degree money laundering, N.J.S.A. 2C:21-25.

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II. THE POLICE LACKED A REASONABLE BASIS TO REQUEST CONSENT TO SEARCH DEFENDANT'S VEHICLE.

III. THE ISSUANCE OF THE SEARCH WARRANT FOR DEFENDANT'S RESIDENCE WAS BASED UPON INFORMATION LEARNED DURING THE COURSE OF THE ILLEGAL STOP AND SEARCH OF DEFENDANT'S VEHICLE REQUIRING SUPPRESSION OF SAME.

IV . THE CUSTODIAL TERM IMPOSED ON DEFENDANT WAS EXCESSIVE.

I.
We "uphold the factual findings underlying the trial court's decision, so

long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Evans, 235 N.J. 125, 133 (2018) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We further defer to credibility findings because of the trial judge's exclusive opportunity to view a witness's demeanor. State v. Locurto, 157 N.J. 463, 474 (1999). "When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Id. at 471. However, the appellate court "need not defer 'to a trial . . . court's interpretation of the law' because '[l]egal

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issues are reviewed de novo.'" State v. Watts, 223 N.J. 503, 516 (2015) (second alteration in original) (quoting State v. Vargas, 213 N.J. 301, 327 (2013)).

It is well-established that a reasonable and articulable suspicion to conduct amotorvehiclestopisa"lowerstandardthanprobablecause[.]" Statev.Alessi, 240 N.J. 501, 518 (2020). We assess the totality of the circumstances in determining whether the officer had such a reasonable and articulable suspicion, as opposed to a mere hunch, or subjective good faith. Ibid.

Cullen testified unequivocally that when defendant's vehicle came into view, defendant was traveling in the left lane, where he continued for at least a quarter of a mile before crossing the right lane to exit to the right. Cullen also testified that there were no other vehicles on the roadway. Although defendant may be correct that the stop might never have occurred but for Cullen's suspicion that defendant was involved in nefarious activity, the driving he witnessed for that quarter of a mile sufficed to make his decision to stop the car and investigate the motor vehicle infraction lawful.

The State is not required "to prove that the suspected motor-vehicle violation occurred" and that it could have obtained a conviction in order for the stop to be lawful. Locurto, 157 N.J. at 470. Thus, defendant's failure to keep to the right demonstrated reasonable and articulable suspicion for the stop. Indeed,

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"the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense." State v. Williamson, 138 N.J. 302, 304 (1994).

Defendant suggests that traveling in the left lane was reasonable given the presence of numerous businesses including gas stations on the right-hand side of the roadway, and the presence of potential other drivers creating a driving hazard. This speculation is not supported by evidence in the record. Therefore, nothing refutes Cullen's statement, which the judge found credible, that at the time defendant was traveling in the left lane, he did so on an empty highway. Cullen's testimony established reasonable and articulable suspicion for the motor vehicle stop.

II.
Defendant also contends that the officer had no reasonable basis to request

the consent to search. This argument lacks merit. At the time of the stop, as Cullen explained, he had more than enough information to make the request. He had been provided information by the DEA suggesting that defendant's quick trip to New York had a criminal purpose. The motor vehicle was registered to a third party, and Cullen saw a single key with an after-market alarm fob in the ignition, often found in cars used to transport contraband. The odor of air

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freshener, defendant's untruth about his criminal history and how often he used the vehicle, and his unconvincing story regarding a trip to an auto parts store, add up to a substantial basis for a request for consent to search.

Defendant relies on State v. Carty, 170 N.J. 632 (2002), to support his position. But, in Carty, the officer who conducted the traffic stop had no expressed reasons for requesting the consent to search, nor did he have any objective basis for assuming that the defendant in that case was involved in criminal activity. In this case, however, Cullen had ample information.

III.
Defendant further contends that the evidence seized from his home should

be suppressed as the affidavit in support of the search warrant relied upon facts gathered during the initial stop of his vehicle and evidence seized after his consent to the vehicle's search. Since the officer's conduct was lawful, this argument has no merit and need not be addressed. R. 2:11-3(e)(2).

IV.
Defendant underwent successful treatment for throat cancer sometime

before the sentence. During the sentence hearing, the judge referred to the condition, the fact defendant appeared to be in remission, and that medical treatment is available within the prison system. He further found defendant had

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a minor child for whom he was financially responsible. On the other hand, the quantity of cash and drugs found in defendant's apartment was substantial, indicating in the judge's words "a significant profit motive."

Accordingly, the judge found aggravating factors three, the risk of reoffense, six, the extent of defendant's prior criminal history (in this case, a prior money laundering), and nine, the need to deter him and others from violating the law. See N.J.S.A. 2C:44-1(a)(3), (6), and (9). The court found in mitigation the hardship defendant's child will suffer as a result of defendant's incarceration. See N.J.S.A. 2C:44-1(b)(11). The judge adequately analyzed the aggravating and mitigating factors, and properly weighed them in imposing the sentence.

Our "review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). We find no such abuse of discretion occurred here. The sentence does not shock our conscience. Ibid.

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Affirmed.

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Defendant who represented himself on weapons charge loses page1image3776 STATE v. KEVIN A. CARTER,

Defendant who represented himself on weapons charge loses

page1image3776

STATE  v.

KEVIN A. CARTER,

Defendant-Appellant. _______________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1146-18

Submitted on January 6, 2021 – Decided February 22, 2021

Before Judges Sumners and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 16-10-1840

Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Maura K. Tully, Assistant Prosecutor, of counsel and on the brief).

 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.

Appellant filed a pro se supplemental brief.

PER CURIAM
A jury found self-represented defendant, Kevin Carter, guilty of various

weapon offenses. Defendant was sentenced to an aggregate extended ten-year prison term as a persistent offender with a five-year period of parole ineligibility. Through his counsel, defendant argues:

POINT I

THE [TRIAL COURT] ABUSED [ITS] DISCRETION WHEN [IT] APPOINTED DEFENSE COUNSEL AS STANDBY, AND THEN PROCEEDED WITH THE TRIAL DESPITE THE AMBIGUOUS THREAT [DEFENDANT] WOULD FILE AN ETHICS COMPLAINT AGAINST STANDBY COUNSEL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1[,] PARA. 10.

POINT II

THE DISCRETIONARY EXTENDED TERM FOR GUN POSSESSION – TEN YEARS WITH A FIVE- YEAR PAROLE DISQUALIFIER – WAS EXCESSIVE.

Defendant filed a pro se supplemental brief arguing: POINT I

I ASK THAT YOU GRANT MY MOTION TO APPEAL FOR THE FOLLOWING REASONS[:]

[A.] THE FIRST FALSITY IN THE AUGUST 17, 2016 POLICE REPORT OF OFFICER GIOVANNE AND FALSITY IN THE TESTIMONY IN THE

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A-1146-18

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SUPPRESSION HEARING ABOUT HIS FIRST STATEMENT AT THE SCENE[.]

[B.] DURING CROSS EXAMINA TION A T THE TRIAL THE HEAD CONDUCTOR GIANNA SALVATORE ADMITTED TO ILLEGALLY DETAINING THE DEFENDANT WITHOUT PROBABLE CAUSE BEING THAT HE WAS NOT A POLICE OFFICER OR AUTHORIZED TO DO SO.

POINT II

THE EXCLUSIVE RELIANCE UPON HEARSAY AND DOUBLE HEARSAY IN THE TRIAL MANDATES THE STATEMENTS SHOULD HAVE BEEN SUPPRESSED AND THE EVIDENCE SEIZED SHOULD HA VE BEEN FRUIT OF THE POISONIOUS TREE IN VIOLATION OF [DEFENDANT'S] FOURTH AMENDMENT RIGHT TO BE LEFT ALONE, FREE FROM ALL RESTRAINT AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS UNDER THE NEW JERSEY STATE CONSTITUTION AND RIGHT TO A FAIR TRIAL[.]

[A.] THERE ARE 5 LEGAL ELEMENTS THE STATE MUST PROVE THAT [DEFENDANT] WAS IN POSSESSION OF THE WEAPONS.

POINT III

I ASK THAT YOU GRANT MY MOTION TO APPEAL FOR THE FOLLOWING REASONS[:]

[A.] [TRIAL JUDGE] ALLOWED IN HEARSAY EVIDENCE INTO THIS TRIAL, IDENTIFICATIONS THAT WERE HIGHLY SUGGESTIVE,

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PREJUDICIAL, CONFUSING, AND A WASTE OF TIME.

POINT IV

I ASK THAT YOU GRANT MY MOTION TO APPEAL FOR THE FOLLOWING REASON:

[A.] AT THE TRIAL DURING THE EXAMINATION OF THE DEFENSE[] WITNESS KOREN JORDAN, THE JUDGE OBJECTED TO A QUESTION. SHE HAD THE PROSECUTOR AND STANDBY COUNSEL MEET HER AT SIDE BAR THEN OVERRULED ON HER OWN OBJECTION, WHICH IS PLAIN ERROR AND IT IMMEDIATELY PREJUDICED THE DEFENDANT IN VIOLATION OF THE DEFENDANTS RIGHT TO A FAIR TRIAL. STANDARDS OF REVIEW: PLAIN ERROR: JUDICIAL DISCRETION.

POINT V

I ASK THAT YOU GRANT MY MOTION TO APPEAL FOR THE FOLLOWING REASON:

[A.] INEFFECTIVE-ASSISTANCE-OF-COUNSEL

[B.] [TRIAL JUDGE] ALLOWED IN HEARSAY EVIDENCE INTO THIS TRIAL, IDENTIFICATIONS THAT WERE HIGHLY SUGGESTIVE, PREJUDICIAL, CONFUSING, AND A WASTE OF TIME.

Having considered the record and applicable law, we affirm. I

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When a New Jersey Transit (NJT) train ended its route at the Long Branch train station shortly after midnight on August 17, 2016, head conductor Salvatore Gianna and assistant conductor Harry Giannuzzi walked through the train to confirm it was empty before the return trip. Neither conductor saw any bags left behind by departing passengers.

As the train left the station at 12:08 a.m., Giannuzzi walked down the aisle collecting tickets. A man later identified as defendant sat at the window seat of a three-passenger bench, with a woman sitting in the aisle seat. As Giannuzzi walked past defendant, he noticed two gun barrels protruding from a black garbage bag under defendant's seat. After Giannuzzi told Gianna about the guns, Gianna walked down the aisle and also saw the gun barrels sticking out of the black plastic bag under defendant's seat.

Gianna then asked defendant to accompany him to the train's "vestibule"1to talk. Defendant complied, and Gianna then asked him if the black plastic

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According to Wikipedia,

[a] vestibuled train is a passenger train whose cars have enclosed vestibules at their ends, in contrast to the open platforms on early cars. Typically, a vestibule has doorways on either side to allow passenger entry and egress at stations, a door into the body of the car, and,

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bag was his. Defendant replied yes, stating it just contained laundry. Gianna retorted that the bag did not contain laundry, and that he had called the police and they would be waiting at the next station in Elberon. Defendant then told Gianna that the bag was not his.

When the train pulled into the next station, NJT Police Officers Christopher Giovannone and Zachary Kelliher were waiting along with other NJT officers and Long Branch police officers. Gianna led police to where the black garbage bag with guns was located, and the bag was removed from the train. Defendant told Giovannone that the bag was not his, but he was arrested based on "[t]he totality of the circumstances of everything that happened."

Defendant's denial was contradicted by a video from a Long Branch train station surveillance camera showing that, prior to the train leaving the station at 12:08, defendant, wearing the same clothing in which he was arrested, carried the black garbage bag onto the train. No one else was depicted in the surveillance video boarding the train matching defendant's description or carrying a black garbage bag.

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at the car end, a doorway to allow access to the next car through a flexible gangway connection.

Wikipedia (last visited February 4, 2021, 11:01a.m.), https://en.wikipedia.org/wiki/Vestibuled_train.

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Defendant was subsequently indicted for second-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f); two counts of fourth- degree unlawful transport of a firearm, N.J.S.A. 2C:39-9(d); two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1); third- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1); and fourth- degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(f).

Months before his trial, defendant filed several motions with differing results. First, he moved to waive his right to counsel and represent himself. The trial judge granted the application, determining defendant "freely, knowingly, and voluntarily . . . is waiving his right to counsel and . . . wants to represent himself . . . ." The judge also appointed standby counsel to assist defendant. Second, he moved to suppress his statements to Gianna and to suppress the search and seizure of the black garbage bag and the guns. The judge denied his requests. After an evidentiary hearing, the judge found that defendant's statements were voluntary, the train conductor was not acting as an arm of the state, and the search and seizure of the weapons were proper under the plain view doctrine. The judge later denied defendant's reconsideration motion of the suppression rulings, finding that she considered all probative evidence and properly applied the law.

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Defendant's trial was bifurcated to enable the jury to separately determine the predicate facts required to support the certain person charges. As the trial was about to begin but before the jury had been sworn, defendant asked the court clerk if there was a "grievance procedure" to complain about an "ex parte communication" between his standby counsel and the prosecutor. Defendant claimed standby counsel asked him a question in front of the prosecutor which would have had him reveal his trial strategy. After excusing defendant from the courtroom, the judge spoke with standby counsel and the prosecutor. The judge then stated:

I felt that I had to speak to counsel separately without [defendant] present, but this will be a record of what is going to be said. I am now very, very concerned, given what [defendant] has said, because it seems that he's going to or want to file some type of ethics grievance against [standby counsel] and if that's correct, then [standby counsel], in my opinion, is in a conflict situation with [defendant] and, therefore, [he] cannot be standby counsel and I have to now declare a mistrial.

Standby counsel responded that he was "not concerned that there's going to be any outcome vis-[à]-vis my license or my conduct in representing [defendant], or anyone else for that matter . . . we're all subject to ethics complaints." The judge eventually brought defendant back into the courtroom and decided there was no conflict between defendant and standby counsel, and

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that neither she nor her staff would be permitted to give defendant legal advice about filing a grievance against standby counsel.

The jury found defendant guilty of second-degree unlawful possession of an assault firearm, third-degree unlawful possession of a weapon, and fourth- degree possession of a prohibited weapon (hollow nose bullets). At the second trial, the same jury found defendant guilty of the two certain persons charges. However, a different trial judge later granted defendant's motion for a new trial on the certain persons offenses because the judgment of conviction (JOC) that the State submitted had redacted his conviction; therefore, it could not prove that defendant had been convicted of an offense specifically enumerated in the certain persons statute.

Defendant was sentenced on the remaining convictions by the judge who granted his motion for a new trial on the certain persons convictions. The judge granted the State's motion under N.J.S.A. 2C:44-3(a), for a discretionary extended term because of defendant's prior record. On the second-degree unlawful possession of an assault firearm conviction, defendant was sentenced to a ten-year prison term with a five-year period of parole ineligibility, concurrent with a four-year prison term with forty-two months parole ineligibility on the third-degree unlawful possession of a weapon charge, and an

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eighteen-months prison term for fourth-degree possession of a prohibited weapon.

II
Defendant argues the trial judge abused her discretion and erred in

appointing former defense counsel to serve as standby counsel and in allowing the trial to proceed without providing him a new standby attorney when he claimed that he wanted to file a grievance against standby counsel. He admits that he did not ask the judge for either form of relief. However, he argues that given his mistrust of defense counsel, the judge's initial appointment of standby counsel and failure to remove standby counsel impaired his ability to adequately represent himself because his subsequent distrust impaired their communication. McKaskle v. Wiggins, 465 U.S. 168, 178-79 (1984); Faretta v. California, 422 U.S. 806, 819 (1975). We are unpersuaded.

We agree with the State that because defendant never requested the appointment of different standby counsel at any stage of the proceedings, nor sought declaration of a mistrial, the "plain error" standard applies. Thus, we would only overturn defendant's conviction if the error were "clearly capable of producing an unjust result." R. 2:10-2; State v. Burns, 192 N.J. 312, 341 (2007).

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In Faretta, the United States Supreme Court recognized that "the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct." 422 U.S. at 834 n.46. "[A] State may -- even over objection by the accused -- appoint a 'standby counsel' to aid the [defendant] if and when the [defendant] requests help, and to be available to represent the [defendant] in the event that termination of the defendant's self- representation is necessary." Ibid. "Standby counsel may be appointed to provide the defendant with advice and assistance and to facilitate communications with the court[,]" but there are constitutional limits. State v. Gallagher, 274 N.J. Super. 285, 296 (App. Div. 1994). "First, the pro se defendant is entitled to preserve actual control over the case he chooses to present, and second, participation by standby counsel should not be allowed to destroy the jury's perception that the accused is representing himself." Id. at 297 (citing McKaskle v. Wiggins, 465 U.S. 168, 178 (1984)). "In determining whether a defendant's Faretta rights have been respected, the primary focus must be on whether the defendant had a fair chance to present his case in his own way." McKaskle, 465 U.S. at 177.

There is nothing in the record remotely suggesting that defendant's Faretta rights were denied and thereby produced an unjust result in his conviction.

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Defendant's claim that there should have been a mistrial after he asserted standby counsel partook in an "ex parte communication" with the prosecutor lacks any support in the record. An "ex parte communication" is defined as a comment made "between counsel or a party and the court when opposing counsel or party [was] not present." Communication, Black's Law Dictionary (11th ed. 2019). The alleged communication was between defendant and his standby counsel, not between opposing counsel and the judge. While defendant arguably meant that standby counsel shared a privileged communication with the prosecutor, the judge correctly decided this was a non-issue when defendant admitted that there was only a possibility that the prosecutor might have overheard the conversation. Moreover, a mistrial would have been inappropriate because the jury had not been sworn, and the trial had not commenced. State v. Veney, 409 N.J. Super. 368, 379-80 (App. Div. 2009).

Last, defendant fails to point out any time before or during the trial where his "distrust" of standby counsel affected his ability to represent himself and to have a fair trial. Thus, there was no reason for the judge to appoint new standby counsel.

III
Defendant argues the discretionary extended term imposed on him was

excessive. Specifically, he asserts his sentence must be reversed because the judge

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failed to consider the full sentencing range required by State v. Pierce, 188 N.J. 155 (2006), and placed too much emphasis on aggravating factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[,]" N.J.S.A. 2C:44-1(a)(6), without adequately taking into account how "mild" the offense was. Defendant argues that because state law focuses primarily on the gravity of the offense, and not on the perceived risk that the offender presents, State v. Roth, 95 N.J. 334, 354-55 (1984), the judge should have sentenced him within the ordinary term range even though he meets the statutory requirements for an extended sentence under N.J.S.A. 2C:44-3(a). He further argues the judge erred in not considering mitigating factor four, "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[,]" N.J.S.A. 44-1(b)(4), because he suffers from depression and the incident on the train could have been related to his illness. We are unpersuaded.

We defer to the trial judge's sentencing determination, State v. Fuentes, 217 N.J. 57, 70 (2014), and do not substitute our judgment for the trial court's judgment simply because we would have reached a different result, State v. Lawless, 214 N.J. 594, 606 (2013). There is no dispute that defendant was eligible for a discretionary extended term as a persistent offender under N.J.S.A. 2C:44-3. The judge properly applied his discretion to impose an extended term

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sentence. Pierce, 188 N.J. at 161. The judge's factual findings and consideration of the sentencing factors were based on credible evidence in the record, and the sentence does not shock our judicial conscience. See State v. Bolvito, 217 N.J. 221, 228 (2014).

IV
As for the arguments raised in defendant's pro se supplemental brief,

considering the record and relevant law, we conclude that they are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We do add, however, that defendant's ineffective-assistance claim is more appropriately raised on a petition for post-conviction relief instead of direct appeal. State v. McQuaid, 147 N.J. 464, 484 (1997). See also State v. Preciose, 129 N.J. 451, 460 (1992) (recognizing a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because they generally require examination of evidence outside the trial record). Accordingly, we do not address the merits of defendant's claim of ineffective assistance of counsel raised in this appeal.

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Affirmed.

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