STATE OF NEW JERSEY v. TE'MON M. MOLLEY (17-09-1991, ATLANTIC COUNTY AND STATEWIDE) ( 2022 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-4810-18
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    TE'MON M. MOLLEY,
    a/k/a TEMON M. MOLLEY,
    Defendant-Appellant.
    ________________________
    Submitted December 9, 2020 – Decided February 22, 2022
    Before Judges Accurso and Enright.
    On appeal from the Superior Court of New Jersey, Law
    Division, Atlantic County, Indictment No. 17-09-1991.
    Jacobs & Barbone, PA, attorneys for appellant (Louis
    M. Barbone, on the brief).
    Damon G. Tyner, Atlantic County Prosecutor, attorney
    for respondent (Melinda A. Harrigan, Assistant
    Prosecutor, of counsel and on the brief).
    The opinion of the court was delivered by
    ACCURSO, J.A.D.
    Following the denial of his suppression motion, defendant Te'Mon M.
    Molley pleaded guilty to first-degree possession with intent to distribute over
    five ounces of cocaine and heroin, N.J.S.A. 2C:35-5(b)(1), in exchange for a
    recommended ten-year prison term, including five years of parole ineligibility.
    Three months after the entry of his guilty plea, but before sentencing,
    defendant obtained new counsel and filed a motion to withdraw the plea,
    premised on the alleged ineffective assistance his first lawyer provided him in
    connection with his suppression motion. The trial court denied the motion
    without an evidentiary hearing, finding defendant could not establish
    ineffective assistance of counsel under the two-part Strickland 1 standard nor
    any entitlement to withdraw his plea under State v. Slater, 
    198 N.J. 145
    , 157
    (2009).
    Defendant appeals, raising two issues for our consideration:
    POINT I
    THE TRIAL COURT ABUSED ITS DISCRETION IN
    DENYING DEFENDANT'S MOTION TO
    WITHDRAW HIS PLEA.
    POINT II
    DEFENDANT PROVED THAT COUNSEL'S
    REPRESENTATION ON [THE] MOTION TO
    1
    Strickland v. Washington, 
    466 U.S. 668
    , 693-94 (1984).
    A-4810-18
    2
    SUPPRESS WAS CONSTITUTIONALLY
    DEFICIENT BY FAILURE TO INVESTIGATE,
    PRESENT AND PROFFER CRITICAL EVIDENCE
    THAT WOULD HAVE EVISCERATED THE
    STATE'S CLAIM OF REASONABLENESS ON THE
    WARRANTLESS SEARCH.
    Finding no reversible error, we affirm.
    Patrolman Ryan VanSyckle, a five-year veteran of the Pleasantville City
    Police Department assigned to the street crimes unit, was the only witness to
    testify at the suppression hearing. In his investigation report, VanSyckle
    stated that he and his partner, Patrolman Girard Tell, were patrolling in the
    area of a particular apartment complex when they "observed a black BMW
    535i bearing North Carolina registration . . . with dark tinted side and rear
    windows parked facing west next to the wooden fencing that surrounds the
    dumpster located in the far northwest corner of the complex." VanSyckle
    wrote:
    It should be noted that this vehicle has bullet ricochets
    on the driver side from an unreported shooting that
    occurred on June 21, 2017 . . . which Officer Tell and
    I investigated. Additionally[,] this agency has
    received private citizen complaints in regards to
    suspected narcotic sales within the . . . apartment
    complex and specifically occurring next to the
    dumpster. As we pas[sed] by the vehicle in question,
    the brake lights illuminated and we observed it to be
    running and occupied. We then circled around and
    approached the vehicle to conduct a suspicious motor
    A-4810-18
    3
    vehicle stop. As we approached the rear of the
    vehicle, we observed a black male wearing a purple
    shirt with short hair and a beard exiting from the front
    passenger side compartment. We immediately
    recognized that male to be Tackeem Molley.
    The report continued:
    Once we exited, Tackeem Molley began to walk away
    and attempted to conceal an item within a yellow
    plastic bag under the left side of his shirt. I
    subsequently ordered Tackeem to stop and show me
    his hands. He did so without incident. As we were
    standing next to the open front passenger side door,
    Officer Tell advised he smelt the odor of raw
    marijuana emanating from inside the vehicle. At this
    time, I removed the yellow bag from Tackeem and
    placed him in handcuffs. Inside the open unsealed bag
    was a large amount of U.S. paper currency about the
    size of a brick, wrapped in rubber bands and black hair
    ties. A further search of the yellow plastic bag
    revealed suspected cocaine residue, as well as a small
    rubber band, commonly used to hold together
    packages of narcotics, based on my training and
    experience.
    At the suppression hearing, VanSyckle testified he and Tell were in an
    unmarked, white Chevy Tahoe patrolling the parking lot of the apartment
    complex when they spotted a black BMW in a spot next to the dumpster. It
    was July 8, 2017, about 2:20 in the afternoon, and the officers were there
    because there'd been a number of complaints about hand-to-hand drug
    transactions occurring at all hours in the parking lot near that dumpster.
    A-4810-18
    4
    The officers immediately recognized the BMW as they drove past as the
    same car involved in a shooting incident a few weeks earlier the officers were
    investigating. The car had been hit with gunfire, and a ricochet mark was still
    visible on the driver's side. VanSyckle testified the officers circled back
    around the lot, intending to "conduct a suspicious vehicle stop in regards to
    that shooting." As they were two car lengths away from the BMW, which was
    legally parked with the engine running, nose into the curb, the officers saw a
    man get out of the front passenger seat and turn to look at them.
    VanSyckle testified he and Tell immediately recognized the man as
    Tackeem Molley, a convicted drug dealer. VanSyckle claimed Tackeem
    recognized them as well and began to walk hurriedly away, tucking a bright
    yellow bag under his shirt.2 The officers activated their emergency warning
    lights, got out of the car, and VanSyckle ordered Tackeem to stop and show
    his hands. When the prosecutor asked how Tackeem would have recognized
    him in an unmarked car, VanSyckle explained the white Tahoe was a well-
    known police vehicle, and when the two made eye contact through the Tahoe's
    2
    Because defendant and Tackeem Molley share the same last name, we
    hereafter refer to Tackeem Molley by his first name to distinguish him from
    his brother, intending no disrespect in doing so.
    A-4810-18
    5
    windshield, Tackeem appeared startled, with a "deer-in-the-headlights" look,
    and his "demeanor changed immediately" as he tried to conceal the yellow bag.
    Tackeem obeyed the order to stop, standing near the open passenger
    door. VanSyckle claimed that as the officers approached, both he and Tell
    smelled burnt marijuana "coming from his person," although he acknowledged
    it could have been coming from the car because Tackeem "was standing within
    five to six feet" from it. According to VanSyckle, he immediately grabbed the
    bag from Tackeem, and based on the marijuana smell, handcuffed him and
    placed the bag on the trunk. VanSyckle searched Tackeem, finding cash but
    no contraband, and placed him in the backseat of the Tahoe. In the bag, which
    was open, VanSyckle found $12,000 in cash wrapped in rubber bands and hair
    ties, and some white residue, which the officer suspected was cocaine.
    Officer Tell meanwhile had defendant, Tackeem's brother, step out of
    the car and likewise handcuffed him and patted him down, finding cash but no
    contraband. VanSyckle testified that one of the brothers had over $600 on him
    and the other around $1,700. Given the odor of marijuana and the amount of
    cash in the brothers' possession, the officers called for a canine unit.
    Following the dog's positive indication of drugs near one of the backdoors, the
    officers searched the car, finding a black digital scale in the backseat, also with
    A-4810-18
    6
    white residue. In the trunk, the officers found a bag containing over seven
    ounces of cocaine, some packaged separately, and seven packages of heroin.
    At the station house, officers discovered an additional ounce of cocaine, a
    couple of grams of marijuana, presumably for personal use, and 127 individual
    packs of heroin in defendant's possession.
    On cross-examination, the lawyers for the brothers inquired into the
    basis for the stop, the sequence of events, which of the officers had smelled the
    marijuana, whether it was raw or burnt and where exactly they had smelled it.
    In response to their questions, VanSyckle testified the officers had two reasons
    for looping back to the BMW — the shooting investigation and the car being
    parked with its engine running right where residents had complained about
    drug activity. The officer explained in his experience, shootings and drug
    dealing are often related, and people and cars that get shot at are often
    involved in the same sorts of crimes.
    VanSyckle testified he couldn't see into the car because the rear and side
    windows were heavily tinted and thus didn't know that defendant or his brother
    were inside. He confirmed that neither was a suspect in the shooting. Asked
    whether he knew the owner of the BMW, VanSyckle testified the officers had
    looked up the registration at the time of the shooting, but he didn't remember
    A-4810-18
    7
    the owner's name. According to VanSyckle, a canvass of the area where the
    shooting occurred had yielded no information, and he had not interviewed the
    registered owner between the time of the shooting and finding the car parked
    next to the dumpster.
    On redirect, VanSyckle repeated the "reasons why [they] approached"
    the BMW, including "to make contact with who was in that vehicle . . . in
    regards to the shooting to further follow up with that investigation."
    According to VanSyckle, he and Tell had already decided they were "going to
    definitely check . . . out and investigate" the BMW before they saw Tackeem
    get out, "at least find out who was in that vehicle." But "[a]s [they] were
    approaching prior to activating [their] lights, Tackeem exited the vehicle."
    After hearing that testimony and the argument of counsel, the judge
    denied defendant's motion in a comprehensive written opinion. The judge
    found the officers were patrolling the specific area of the stop in response to
    citizen complaints of drug trafficking when they spotted a car they recognized
    as having been involved in a recent shooting. Their attention having been
    drawn to the car, they observed Tackeem, whom they knew to be a drug dealer,
    get out and look over at them. Upon observing the officers, Tackeem appeared
    nervous and tried to "conceal a large item wrapped in a yellow bag under his
    A-4810-18
    8
    shirt." Based on the totality of those circumstances, the judge found the
    officers had reasonable and articulable suspicion to conduct an investigatory
    stop.
    The judge was also satisfied the smell of burnt marijuana coming from
    Tackeem and the car he had just exited provided the officers probable cause to
    search defendant and his brother, as well as the yellow bag and the interior of
    the car. See State v. Vanderveer, 
    285 N.J. Super. 475
    , 479 (App. Div. 1995)
    (noting the smell of marijuana constitutes probable cause "that a criminal
    offense ha[s] been committed and that additional contraband might be
    present").3 The smell of marijuana, the discovery of the cash, the canine sniff
    indicating the presence of drugs in the car, and the digital scale found in the
    backseat made the further search of the trunk permissible under State v. Witt,
    
    223 N.J. 409
    , 447 (2015) (approving a warrantless search under the automobile
    3
    The legalization of marijuana in New Jersey has obviously changed that.
    The New Jersey Cannabis Regulatory, Enforcement Assistance, and
    Marketplace Modernization Act took effect on February 22, 2021. L. 2021, c.
    16. The Act amended N.J.S.A. 2C:35-10, by providing "[t]he odor of
    marijuana or hashish, or burnt marijuana or hashish, shall not constitute
    reasonable articulable suspicion to initiate a search of a person to determine" if
    the person is in possession of an amount of either marijuana or hashish
    constituting the commission of a crime. N.J.S.A. 2C:35-10(a)(3)(b)(i); L.
    2021, c. 16, § 56. The amended statute does not apply here because this search
    took place more than three years before its effective date.
    A-4810-18
    9
    exception when "police have probable cause to believe that the vehicle
    contains contraband or evidence of an offense and the circumstances giving
    rise to probable cause are unforeseeable and spontaneous").
    Following the denial of his motion for reconsideration and the entry of
    his guilty plea, defendant retained new counsel and moved to withdraw his
    plea based on the alleged ineffective assistance of his counsel in connection
    with the suppression motion. Specifically, defendant averred he told his first
    lawyer that his girlfriend's cousin Hector Olivo owned the black BMW, and
    that VanSyckle had stopped Olivo several times, harassed him and
    groundlessly searched his car for drugs, which were not present, because the
    BMW had an out-of-state license plate.
    Defendant proffered the affidavit of his girlfriend and a summary of a
    recorded statement Olivo provided to new counsel's investigator in support of
    his motion. In the summary, Olivo claimed he lived in Georgia, but had stayed
    some months in Pleasantville with his mother prior to defendant's arrest in July
    2017. According to Olivo, VanSyckle and Tell had stopped him
    approximately six times over those few months, resulting in four or five tickets
    for illegally tinted windows. Each time the officers had asked whether there
    were guns or drugs in the car, conducted a search and found nothing. Olivo
    A-4810-18
    10
    was sure VanSyckle knew he owned the BMW because, in addition to those
    stops, VanSyckle had stopped him again after the car was struck by a bullet
    while parked in front of Olivo's uncle's house. Olivo claimed he'd been out of
    town when the car was damaged, but VanSyckle informed him of what
    happened and accused him of having been in the area when the shooting
    occurred.
    Defendant's girlfriend said in a statement incorporated into her affidavit
    that she told defendant's lawyer that when VanSyckle assisted her in retrieving
    her belongings from the BMW in impound, he asked her relation to Olivo and
    told her to tell "[her] cousin he better change his address or [VanSyckle] was
    going to make it his business to take all [Olivo's] vehicles until he does follow
    the law." She claimed VanSyckle "already knew the owner" of the BMW and
    "decided to pull it over . . . simply to [h]arass [her] cousin." She claimed
    VanSyckle "was wrong for the intentions he had when he noticed the vehicle
    and decided to proceed with the stop."
    Defendant claimed his first lawyer told him before the suppression
    hearing "that all of that was irrelevant, and that the only important issue had to
    do with the search of the trunk." Defendant contended that because his lawyer
    failed to investigate VanSyckle's history with Olivo, she was unprepared to
    A-4810-18
    11
    effectively cross-examine him on his reasons for stopping the BMW, including
    "his lie" about not having had "contact information or interviews with the
    vehicle owner." In addition, he argued his lawyer should have requested the
    State produce the alleged complaints about drug activity at the apartment
    complex where he was arrested and cross-examined VanSyckle about the
    discrepancies between his report of the stop and his testimony, including the
    chronology of the stop, and the omission of the odor of marijuana or any eye
    contact with Tackeem and his startled reaction from the officer's report.
    Defendant's motion was heard, and denied, by the same judge who
    presided over the suppression motion and took defendant's plea. Being careful
    to analyze defendant's claim of ineffective assistance separately from his Slater
    motion, see State v. O'Donnell, 
    435 N.J. Super. 351
    , 371 (App. Div. 2014), the
    judge found defendant could not prevail on either claim. Applying the two-
    prong Strickland standard, the judge found counsel's decision not to pursue the
    information of VanSyckle's history with Olivo was strategic because she
    deemed it irrelevant to defendant's suppression motion.
    The judge found whether VanSyckle knew the identity of the owner of
    the BMW was irrelevant because the tinted windows made it impossible to see
    who was inside and "there was ample independent probable cause for the stop;
    A-4810-18
    12
    namely that the vehicle was part of an active shooting investigation, parked in
    the precise area where complaints of illegal CDS activity had been made."
    The judge concluded that "even if defense counsel had elicited that VanSyckle
    was aware who owned the BMW, that fact would not have undermined the
    basis for the stop."
    The judge rejected defendant's claims that the differences between
    VanSyckle's report and his testimony were significant. As to the chronology,
    the judge noted the only difference between the report and VanSyckle's
    testimony was when Tackeem started to walk away once he was out of the car.
    The report stated it was after the officers got out of their car that "Tackeem
    Molley began to walk away and attempted to conceal an item within a yellow
    plastic bag under the left side of his shirt," while VanSyckle testified that as
    soon as Tackeem exited "he appeared to be in shock, bladed his body away and
    concealed the bag."
    The judge found VanSyckle didn't specifically testify whether Tackeem
    concealed the bag before or after he was ordered to stop, and "[a]s such there
    is no real inconsistency between the report and the testimony." The judge
    noted VanSyckle's unequivocal testimony that the officers had already decided
    "to make an investigatory stop before they even saw Tackeem exit," and thus
    A-4810-18
    13
    "[h]is acting in a suspicious manner afterwards only strengthened their
    reasonable suspicion and further justified their decision to conduct a stop."
    The judge also found counsel's decision "not to spend time and
    resources" obtaining citizen complaints of drug activity in the area, "which
    may have only reinforced the State's case" was "a valid strategic choice,"
    especially as defendant offered no evidence "to suggest either officer had a
    history of falsifying reports to justify motor vehicle stops." Because the judge
    found none of defendant's suggested subjects for cross-examination of the
    officer would have undermined his valid basis for effecting the stop — seeing
    Tackeem, a known drug dealer, get out of the car parked in an area the police
    were patrolling based on complaints of drug transactions, and try to hide the
    yellow bag — and thus would not have changed the outcome of the
    suppression hearing, the judge concluded defendant could not establish
    prejudice under Strickland.
    Turning to the Slater4 factors, the judge concluded defendant had not
    asserted a colorable claim of innocence, his reason for wishing to withdraw his
    4
    The four Slater factors are: "(1) whether the defendant has asserted a
    colorable claim of innocence; (2) the nature and strength of defendant's
    reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether
    withdrawal would result in unfair prejudice to the State or unfair advantage to
    the accused." 
    198 N.J. at 157-58
    .
    A-4810-18
    14
    plea — the alleged ineffective assistance of his counsel — was unavailing; the
    plea was the product of a plea bargain, and the State was not required to
    establish prejudice in light of defendant's failure to offer proof of the other
    factors, see 
    198 N.J. at 162
    . Accordingly, the judge denied defendant's
    motion, and he was sentenced three days later. This appeal followed.
    Because the viability of defendant's Slater motion rested on his ability to
    establish a prima facie case of ineffective assistance of counsel entitling him to
    an evidentiary hearing, we, like the trial judge, turn first to defendant's
    Strickland claim. See Kimmelman v. Morrison, 
    477 U.S. 365
    , 375 (1986)
    (noting "[w]here defense counsel's failure to litigate a Fourth Amendment
    claim competently is the principal allegation of ineffectiveness, the defendant
    must also prove that his Fourth Amendment claim is meritorious" and there
    exists a reasonable probability the outcome would have been different without
    the excludable evidence); State v. Johnson, 
    365 N.J. Super. 27
    , 35 (App. Div.
    2003) (same). And because it is readily apparent that had defendant been
    successful on his motion to suppress the drugs, he would not have pleaded
    guilty to a charge the State couldn't prove, see State v. Nunez-Valdez, 
    200 N.J. 129
    , 142 (2009), we focus on the first Strickland prong. See Johnson, 365 N.J.
    A-4810-18
    15
    Super. at 35 (focusing on "the performance component" because a successful
    suppression motion "would most likely have affected the outcome").
    Like the trial judge, we reject defendant's claim that he established a
    prima facie case that his first lawyer incompetently litigated the suppression
    motion, albeit for different reasons from those expressed by the judge. See
    State v. Maples, 
    346 N.J. Super. 408
    , 417 (App. Div. 2002) (noting "we affirm
    or reverse judgments and orders, not reasons"). We agree with the judge that
    most of the differences between VanSyckle's written report and his testimony
    at the suppression hearing were insignificant, and note that most, like the
    discrepancy between whether the officers had smelled raw or burnt marijuana,
    were thoroughly explored by the brothers' lawyers.
    We disagree, however, that the reason defendant claims his first lawyer
    provided for failing to investigate VanSyckle's history with Olivo — that it
    was irrelevant — which we assume for these purposes is correct, see State v.
    Fisher, 
    156 N.J. 494
    , 498-99 (1998), or the trial court's surmise for counsel's
    failure to obtain discovery of the complaints the department had received
    about drug transactions in the vicinity of the dumpster — that it was a waste of
    time and money to seek the State's production of items that could have
    strengthened its case — could be fairly characterized as strategic choices.
    A-4810-18
    16
    Counsel is duty-bound to make "reasonable investigations or to make a
    reasonable decision that makes particular investigations unnecessary."
    Strickland, 
    466 U.S. at 691
    . "[S]trategy decisions made after less than
    complete investigation are subject to closer scrutiny." State v. Savage, 
    120 N.J. 594
    , 617-18 (1990). Only when "counsel thoroughly investigates law and
    facts, considering all possible options, [is] his or her trial strategy . . . 'virtually
    unchallengable.'" 
    Id. at 617
     (quoting Strickland, 
    466 U.S. at 690
    ).
    Had defendant's first lawyer sought the State's production of any prior
    tickets issued to Olivo, police reports involving the BMW, and complaints of
    drug activity at the apartment complex, she may have uncovered information
    to support the report defendant had received from Olivo that defendant claimed
    he sought to assert at the suppression hearing — that VanSyckle and his
    partner knew who owned the BMW because they had been harassing Olivo
    over the past several months. That information would have supported what
    defendant claimed he told his counsel — that this stop had nothing to do with
    complaints of drug activity at the apartment complex but was simply another
    opportunity for VanSyckle and Tell to harass Olivo.
    It is easy to imagine that had the information been favorable to the
    defense, and had VanSyckle been confronted on cross-examination with proof
    A-4810-18
    17
    the officers had repeatedly stopped the BMW over the past few months and
    groundlessly searched the car, or that the department had never received any
    complaints about drug activity at the apartment complex, the officer's
    credibility would certainly have been affected, see State v. Fritz, 
    105 N.J. 42
    ,
    65 (1987) (discussing the importance of impeachment evidence), perhaps
    shaking the court's confidence in the accuracy of his account about whether he
    smelled marijuana or the sequence of events leading up to the warrantless
    search, an always critical consideration in assessing its validity, see State v.
    Gamble, 
    218 N.J. 412
    , 427 (2014) (noting "circumstances of an encounter
    between a private citizen and police may evolve quickly, thereby progressing
    rapidly from a simple field inquiry to a search").
    Defendant may have similarly been able to call the officer's credibility
    into question had Olivo been subpoenaed to appear at the suppression hearing,
    and testified VanSyckle and Tell had stopped his car several times and
    searched it without cause. In that regard, we note the only video the State
    admitted was of the dog sniff and subsequent search. There is no video in the
    record of the officers approaching the BMW or of the actual stop, and thus no
    video confirming VanSyckle's account that Tackeem got out of the car, saw the
    A-4810-18
    18
    officers and tried to hide the yellow bag — all before the officers activated
    their lights to initiate the stop.
    But it is not enough for a defendant pressing an ineffective assistance
    claim to point to possibly fruitful lines of cross-examination a more thorough
    investigation might have allowed. The defendant must be able to establish
    what such an investigation would have revealed and how its absence
    prejudiced him. See State v. Cummings, 
    321 N.J. Super. 154
    , 170 (App. Div.
    1999) (noting when a defendant "claims his trial attorney inadequately
    investigated his case, he must assert the facts that an investigation would have
    revealed"). And he must do so with competent evidence. See State v. Porter,
    
    216 N.J. 343
    , 353-55 (2013). This record lacks that competent evidence.
    Although defendant presented a summary of a recorded statement from
    Olivo on his motion, there is no sworn statement from Olivo in the record. A
    defendant claiming his trial counsel inadequately investigated his case must
    assert the facts the investigation would have uncovered, "supported by
    affidavits or certifications based upon the personal knowledge of the affiant or
    the person making the certification." Porter, 216 N.J. at 355 (quoting
    Cummings, 
    321 N.J. Super. at 170
    ). There is no affidavit or certification from
    Olivo in the record. And the affidavits from defendant and his girlfriend about
    A-4810-18
    19
    Olivo's history with VanSyckle consist of inadmissible hearsay on those
    points. Although the girlfriend's sworn statement also recounts a conversation
    she had with VanSyckle, that conversation occurred after the stop and was
    limited to VanSyckle asking who Olivo was to her, and why did she have his
    car, and him telling her to tell Olivo to change the registration of the BMW or
    risk having his cars seized.
    Nothing about that conversation impugned VanSyckle's account of the
    stop, even the testimony that he couldn't remember the name of the BMW's
    registered owner. Nor did defendant proffer other competent evidence on his
    Slater motion that might have permitted an effective cross-examination of the
    officer, as for example, the traffic tickets Olivo claims he was issued. Those
    tickets, if indeed they existed, would have been competent evidence that could
    have been used to impeach VanSyckle's testimony. But defendant presented
    no proof of them on his motion to withdraw his plea, nor any proof that the
    Pleasantville Police Department had not received the complaints of drug
    transactions near the dumpster that VanSyckle mentioned in his report and
    testified to at the suppression hearing.
    As we explained in Johnson, a defendant urging ineffective assistance on
    direct appeal for failure to mount an effective suppression motion must
    A-4810-18
    20
    succeed in convincing us he has a potentially meritorious suppression motion
    on the existing record. 
    365 N.J. Super. at 34-35
    . We cannot make that finding
    here because the report of what Olivo would say if called to testify is not
    competent evidence, and defendant did not muster any other relevant proofs —
    and thus any entitlement to an evidentiary hearing. See State v. Marshall, 
    148 N.J. 89
    , 158 (1997) (noting an evidentiary hearing is not warranted if "the
    defendant's allegations are too vague, conclusory, or speculative").
    Nevertheless, we would be remiss if we did not note certain misconceptions
    about the current state of the law of search and seizure apparent on this
    record.5
    Van Syckle testified he and Tell circled back around the parking lot
    intending to conduct an investigatory or suspicious vehicle stop of the BMW
    for two reasons — the citizen complaints about drug activity near the dumpster
    where the BMW was lawfully parked, and because they wanted to make
    contact with the driver, whom they had not interviewed, to follow up on the
    shooting investigation. The judge rejected defendant's claim that he could
    establish VanSyckle had testified falsely because Olivo's statement made clear
    5
    We hasten to add that one of the cases we note below was decided only
    weeks before the officers conducted this stop and another several months after
    the judge rendered his decision on defendant's motion to withdraw his plea.
    A-4810-18
    21
    VanSyckle had already interviewed him about the shooting, thereby
    "eviscerating" any reasonable basis for the stop. The judge found Olivo's
    statement would not have undermined the officer's testimony. According to
    the judge, whether VanSyckle knew Olivo owned the BMW was irrelevant
    because the officers had "independent probable cause for the stop; namely that
    the vehicle was part of an active investigation, parked in the precise area
    where complaints of illegal CDS activity had been made," which VanSyckle
    "was clear in his testimony . . . was the reason for the stop."
    We disagree the officers had probable cause to conduct a de facto arrest
    of defendant and his brother or reasonable suspicion to conduct an
    investigatory detention of the BMW based only on the car having previously
    been hit by gunfire and being lawfully parked in an area where drug
    transactions had allegedly occurred. Those facts would only have permitted
    the officers to conduct a field inquiry, not an investigatory detention. See
    State v. Rosario, 
    229 N.J. 263
    , 274 (2017) (distinguishing the "more casual
    and conversational interactions with a person in a parked car" characterized as
    field inquiries from an investigative detention created by police "partially
    blocking in [the defendant's] car from the rear [and] activating the alley light
    to flood the area with light"); State v. Stampone, 
    341 N.J. Super. 247
    , 252
    A-4810-18
    22
    (App. Div. 2001) (noting an occupied car parked on a residential street in the
    afternoon with out-of-state plates in an area where a crime was committed a
    week or two earlier is not suspicious, and if the rule were different, "a
    significant portion of our urban population would be susceptible to constant
    police investigation"). We also disagree the officers could have lawfully made
    an "investigatory stop" of the BMW simply "to make contact with who was in
    that vehicle . . . in regards to the shooting" or to "conduct a suspicious vehicle
    stop in regards to that shooting." See State v. Alessi, 
    240 N.J. 501
    , 508, 518-
    23 (2020) (holding police may not pull over a driver for questioning in
    furtherance of an investigation without reasonable suspicion the driver had
    committed a crime or a traffic violation).
    Those errors, however, do not change our decision, because the law is
    well-established that an officer's subjective intent for making a stop is
    irrelevant so long as there is an objectively reasonable basis for the action.
    See State v. O'Neal, 
    190 N.J. 601
    , 614 (2007) (noting "[a]lthough an officer
    may testify to his or her subjective intent, the crucial inquiry is whether the
    officer's conduct was objectively reasonable"). Although the location of the
    car and its involvement in the shooting would not have been a sufficient basis
    to conduct an investigatory detention of the BMW, the judge accepted
    A-4810-18
    23
    VanSyckle's testimony that he saw Tackeem, a known drug dealer, get out of
    the car and try to hide the yellow bag while the officers were still two car
    lengths away and before they activated their lights initiating the stop. We
    agree those facts, in combination with the location of the car and its
    involvement in the shooting, were sufficient to permit the officers to conduct a
    Terry6 stop of Tackeem and the BMW, given how near he was standing to its
    open front door. See State v. Pineiro, 
    181 N.J. 13
    , 20 (2004) (holding "an
    investigatory stop, sometimes referred to as a Terry stop, is valid 'if it is based
    on specific and articulable facts which, taken together with rational inferences
    from those facts, give rise to a reasonable suspicion of criminal activity.'"
    (quoting State v. Nishina, 
    175 N.J. 502
    , 510-11 (2003)) (footnote omitted)).
    Defendant's colorable claim of innocence and his reason for wishing to
    withdraw his plea, the first two Slater factors, rested entirely on his contention
    that his first lawyer provided ineffective representation on the suppression
    motion, which we do not find defendant established any prima facie claim.
    Accordingly, we cannot find the judge abused his discretion in denying
    defendant's motion to withdraw his plea, even under the more liberal "interests
    of justice" standard applicable to motions made before sentencing. See R. 3:9-
    6
    Terry v. Ohio, 
    392 U.S. 1
     (1968).
    A-4810-18
    24
    3(e); Slater, 
    198 N.J. at 156
    . Our ruling is without prejudice to a post-
    conviction relief proceeding. See State v. Preciose, 
    129 N.J. 451
    , 460 (1992)
    (noting the appropriateness of deferring ineffective-assistance-of-counsel
    claims to post-conviction relief proceedings when such claims involve
    allegations and evidence outside the trial record).
    Affirmed.
    A-4810-18
    25