STATE OF NEW JERSEY VS. TRAVIS J. MIDDLEBROOKS (16-11-0921, 17-08-0804, and 19-01-0006, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0651-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TRAVIS J. MIDDLEBROOKS,
a/k/a BRANDON ADAMS,
TRAVIS L. MIDDLEBROOKS,
and BIG BABY,
Defendant-Appellant.
___________________________
Submitted November 15, 2021 – Decided December 2, 2021
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment Nos. 16-11-0921,
17-08-0804, and 19-01-0006.
Joseph E. Krakora, Public Defender, attorney for
appellant (James K. Smith, Jr., Assistant Deputy Public
Defender, of counsel and on the briefs).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Travis J. Middlebrooks appeals from separate judgments of
conviction (JOC) following his guilty plea to three controlled dangerous
substance-related offenses (CDS). He was sentenced to an aggregate eight-year
extended custodial term with a four-year period of parole ineligibility, along
with applicable fines and penalties.
Defendant entered his plea following the denial of his motion to suppress.
On appeal, he argues:
I. THE JUDGE ERRED IN DENYING THE MOTION
TO SUPRESS BECAUSE THE ACT OF
EXCHANGING AN UNKNOWN ITEM OR
ITEMS FOR MONEY, EVEN IN A HIGH-CRIME
NEIGHBORHOOD, DID NOT GIVE THE POLICE
REASONABLE [SUSPICION] TO DETAIN
DEFENDANT.
A. THE TESTIMONY AT THE HEARING.
B. THE JUDGE'S FINDINGS.
C. THE EXCHANGE OF "SMALL OBJECTS"
FOR CASH DOES NOT IN ITSELF PROVIDE
REASONABLE SUSPICION TO CONDUCT
AN INVESTIGATORY DETENTION, EVEN
IN A HIGH CRIME AREA.
II. THIS CASE SHOULD BE REMANDED FOR A
RESENTENCING DUE TO THE COURT'S
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FAILURE TO GIVE ADEQUATE REASONS FOR
THE SENTENCE IMPOSED.
After considering these arguments against the record and applicable legal
principles, we affirm the court's decision to deny defendant's suppression motion
and the resulting convictions and sentence. We remand for the limited purpose
for the court to amend two of the JOCs to correctly reflect the offenses to which
defendant provided a factual basis and pled guilty.
I.
At the suppression hearing, one witness testified, Detective Salvatore
Macolino, a twelve-year veteran of the Paterson Police Department. Detective
Macolino's experience included working as a patrol officer prior to his
assignment to the narcotics division. He received training from the police
academy in the recognition of CDSs, participated in additional instruction
provided by the Drug Enforcement Agency, and testified he was involved in
fifteen to twenty thousand cases involving the recovery of CDSs.
On June 3, 2016, Detective Macolino was patrolling the area of Hamilton
and Summer Streets in Paterson with Detective Sergeant Piccelli and Detective
Singh. As they were working undercover at the time, all the officers were in
plain clothes and in an unmarked vehicle with Detective Sergeant Piccelli
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3
driving, Detective Macolino in the front passenger's seat, and Detective Singh
in the rear passenger seat.
At approximately 9:00 p.m., Detective Macolino observed defendant
standing on Summer Street interacting with an individual through the driver's
side window of a black Chevrolet Cruze parked on the right-hand side of the
road. He testified that he was approximately fifteen feet away from the vehicle
with an unobstructed and well-lit view when he witnessed, based on his training
and experience, defendant and the occupant of the Chevrolet Cruze engage in "a
hand-to-hand drug transaction." Specifically, Detective Macolino stated he
observed defendant exchange "small items, which he had in his pocket . . . for
paper currency," which was "crumpled up" or "folded." He described the
transactions as "quick," with defendant "cup[ping]" his hand when making the
transfer of the items.
Detective Macolino described Summer Street as an area well known to
him as he was involved in "numerous narcotic[-]related investigations and
arrests" within that area of Paterson. He characterized the area as not only a
"well documented high crime and drug trafficking area," but an "open area drug
market."
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After the police observed the transaction, Detective Sergeant Piccelli
pulled the undercover police car in front of the Chevrolet Cruze, at which time
Detective Macolino testified defendant was not free to leave. He exited his
vehicle and approached the driver side window of the Chevrolet Cruze, which
was rolled down. As he advanced, defendant began to walk away.
When Detective Macolino approached the window, he observed "glassine
envelop[es] in . . . a bundle form by the center console area." Based on his
training and experience, Detective Macolino determined the CDS was bundled
heroin, which he explained was "typically [ten] glassines of heroin bound
together by a rubber band." He informed Detective Sergeant Piccelli and
Detective Singh that he believed there were CDSs in the vehicle and placed the
driver under arrest.
Detective Macolino advised defendant he was under arrest. Defendant
then fled and ran into the first floor of a nearby building. A short time later, he
exited the rear of the building where he was arrested by Detective Sergeant
Piccelli. Detective Macolino noted that in addition to the heroin seized from the
vehicle, the police recovered $172 from defendant.
On November 10, 2016, defendant was charged under Indictment No. 16-
11-0921 with: 1) third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); 2)
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third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-
5(b)(3); 3) third-degree distribution of CDS within 1,000 feet of school property,
N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a); 4) second-degree distribution of
CDS within 500 feet of a public housing facility, park, or building, N.J.S.A.
2C:35-7.1 and N.J.S.A. 2C:35-5(a); 5) third-degree burglary, N.J.S.A. 2C:18-
2(a)(1); and 6) fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2).
Defendant was also charged with multiple additional offenses in two
separate indictments related to unrelated incidents. As defendant's plea
addressed these charges as well, we briefly detail the offenses in those two
charging documents.
On August 15, 2017, defendant was charged under Indictment No. 17-08-
0804 with: 1) third-degree possession of CDS; 2) third-degree possession of
CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-
5(b)(3); 3) third-degree possession of CDS with intent to distribute within 1,000
feet of school property; and 4) second-degree possession of a CDS with intent
to distribute within 500 feet of a public housing facility, park, or building.
Defendant was thereafter charged on January 10, 2019 under Indictment
No. 19-01-0006 with: 1) three counts of third-degree possession of CDS; 2) one
count of third-degree distribution of CDS; 3) three counts of third-degree
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distribution of CDS within 1,000 feet of school property; 4) three counts of
distribution of CDS within 500 feet of a public housing facility, park, or
building; 5) two counts of third-degree possession of CDS with intent to
distribute; 6) one count of third-degree hindering apprehension, N.J.S.A. 2C:29-
3(b)(1); 7) one count of second-degree possession of a weapon while committing
certain CDS offenses, N.J.S.A. 2C:39-4.1(a) and N.J.S.A. 2C:35-5; 8) one count
of fourth-degree possession of a prohibited weapon or device, N.J.S.A. 2C:39-
3(h); 9) one count fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d).
Defendant filed a motion to suppress in which he claimed the initial Terry1
investigatory stop, subsequent arrest, search and seizure violated his Fourth
Amendment rights. The court denied the motion in a May 20, 2019 order, and
in its accompanying oral decision found Detective Macolino a credible witness,
characterizing his demeanor as "calm, respectful, cooperative[,] and non[-
]confrontational," and his substantive testimony as "straightforward" with a
"clear recollection of the underlying events."
Relying on State v. Davis, 104 N.J. 490, 504 (1986), State v. Gibson, 218
N.J. 277, 298 (2014), and United States v. Cortez, 449 U.S. 411 (1981), the court
1
Terry v. Ohio, 392 U.S. 1 (1968).
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determined the initial investigatory stop lawful as it was based on Detective
Macolino's experience and his "particularized suspicion of criminal activity in
considering the totality of the circumstances surrounding the stop." In support
of its decision, the court found:
[B]ased on Detective Macolino's training and
experience[,] the location the detectives were patrolling
on Summer Street is known to be a high crime drug
trafficking area, also, described as an open air drug
market.
Moreover, while patrolling the area [Detective]
Macolino witnessed an interaction between . . .
defendant and [the driver of the vehicle] which . . . he
believed to be a hand-to-hand narcotics transaction.
This [was] based on his observation of the defendant
removing small objects from his pocket, passing them
to Ms. Luth in exchange for, quote, "crumpled up paper
currency."
The court also concluded that once defendant began to flee, the police had
additional particularized suspicion to detain him.
Next, the court applied the two-step test discussed in State v. Gonzalez,
227 N.J. 77 (2016), and determined the seizure of the heroin was justified under
the plain view doctrine. The court explained that Detective Macolino was
"lawfully . . . in an area where he observed and seized" the "bundles of heroin"
through the open window of the vehicle.
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Alternatively, the court concluded the search was valid under the
automobile exception to the warrant requirement. In this regard, the court found
as Detective Macolino approached the vehicle he "observed the bundles" and
this "observation gave rise to probable cause that the black vehicle contained
elicit contraband constituting evidence of a crime."
Finally, the court explained that the search and seizure was valid as a
search incident to arrest. The court noted that the detectives had "probable cause
to arrest the defendant and a search was reasonably contemporaneous with the
suspicion that [defendant] had executed a hand-to-hand transaction."
On June 27, 2019, defendant pled guilty to one charge from each
indictment. The record, however, reveals discrepancies between defendant's
plea form, testimony, and the resulting JOCs. We detail these inconsistences as
they explain the bases for our limited remand.
First, regarding Indictment No. 16-11-0921, defendant's plea form
indicated he was pleading guilty to count six, possession with intent to distribute
CDS. That indictment, however, did not charge defendant with possession with
intent to distribute CDS, and count six was actually a charge for resisting arrest.
At the plea hearing, defendant provided a factual basis for possession with intent
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to distribute CDS, but the resulting JOC erroneously listed that defendant was
convicted of count six, resisting arrest.
Second, as to Indictment No. 19-01-0006, defendant's plea form stated he
intended to plead guilty to count eight, possession with intent to distribute CDS
within 1,000 feet of a school, which was actually count six; count eight charged
him only with possession with intent to distribute CDS. At his plea hearing,
defense counsel properly noted that defendant's plea related to count six, and
defendant provided a factual basis for possession with intent to distribute CDS
within 1,000 feet of a school. The resulting JOC, however, erroneously stated
defendant was convicted of count eight, possession with intent to distribute
CDS.
In exchange for defendant's plea, the State recommended an "extended
term sentence of eight [years] with [forty-eight months] . . . to be served before
parole eligibility" on Indictment Nos. 16-11-0921 and 19-01-0006, and four
years on Indictment No. 17-08-0804, to run concurrently. The State also
dismissed the remaining counts in the three indictments.
On August 21, 2019, the court sentenced defendant consistent with the
plea agreement to an aggregate eight-year extended-term prison sentence with
four years of parole ineligibility related to Indictment Nos. 16-11-0921 and 19-
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01-0006. Defendant was also sentenced to a four-year custodial term with
respect to Indictment 17-08-0804, concurrent to the sentences imposed related
to the other two indictments.
In support of its sentence, the court found aggravating factor three, the
risk that the defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3);
aggravating factor six, the 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); and nine, the need for deterring the defendant and others from violating
the law, N.J.S.A. 2C:44-1(a)(9). The court found these aggravating factors
applicable, after thoroughly considering the presentence report and noting
defendant's extensive criminal record, including two disorderly person's
offenses, two CDS-related offenses, unlawful possession of a weapon, and
aggravated assault.
The court also acknowledged that defendant had previously completed
three outpatient drug programs and had sporadic employment. Finally, the court
found that defendant was not married, did not have any children, and lived in
the same residence as his mother.
On December 10, 2019, defendant was resentenced under Indictment No.
19-01-0006 to a four-year prison term with a two-year period of parole
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ineligibility. The court explained that the concurrent sentence was reduced
because "the original sentence contained [a] second extended term which was
not permissible" but that "all other aspects of the sentence remain the same."
In addition, on June 2, 2020, the court entered an amended JOC with
respect to Indictment No. 16-11-0921, changing the offense for which defendant
was convicted to count two of that indictment, distribution of CDS. The
amended judgment provided that the:
[O]riginal [j]udgment of [c]onviction reflected that the
sentence [under Indictment No. 16-11-0921] was on
[c]ount six. The defendant was sentenced on this count
to [eight] years with [four] years of parole ineligibility.
This count was incorrect. The sentence should have
been imposed on [c]ount [two]. All other aspects of the
original sentence remain the same . . . with the
exception of one additional day of jail credit as
reflected below.
[Id.].
Although the court amended the JOC, we note that defendant's plea testimony
only provided a factual basis for a charge of possession with intent to distribute
CDS, rather than distribution. This appeal followed.
II.
In reviewing a motion to suppress, we defer to the trial court's factual and
credibility findings, "so long as those findings are supported by sufficient
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credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting
State v. Elders, 192 N.J. 224, 243 (2007)). This deference is particularly
appropriate when the court's factual findings are "substantially influenced by
[its] opportunity to hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166 (2015)
(quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court should
disregard those findings only when a trial court's findings of fact are clearly
mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). We afford no special
deference to the court's legal conclusions, however, which we review de novo.
State v. Gandhi, 201 N.J. 161, 176 (2010).
On appeal, defendant first argues that the police lacked the reasonable,
particularized suspicion of criminal activity necessary for an investigatory
detention. Specifically, he contends that the "exchange of 'small objects' for
cash does not in itself provide reasonable suspicion to conduct an investigatory
detention, even in a high crime area." Defendant maintains that "such
transaction[s] between friends, neighbors, or family members are a common part
of everyday life" and the fact that the transaction occurred in a "high crime, high
drug" area alone is not sufficient to provide reasonable suspicion. Defendant
further argues that this case is distinguishable from State v. Ramos, 282 N.J.
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Super. 19 (App. Div. 1995), State v. Alexander, 191 N.J. Super. 573 (App. Div.
1983), and State v. Pineiro, 181 N.J. 13 (2004), because those cases involved
"other factors . . . in addition to hand-to-hand transfer in a high crime area." We
disagree with all of defendant's arguments.
The Fourth Amendment of the United States Constitution, and Article I,
Paragraph 7 of the New Jersey Constitution, guarantee "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures" by requiring warrants issued on probable cause. "Under
our constitutional jurisprudence, when it is practicable to do so, the police are
generally required to secure a warrant before conducting a search . . . ." State
v. Hathaway, 222 N.J. 453, 468 (2015) (citations omitted).
Thus, searches and seizures conducted without a warrant "are
presumptively invalid as contrary to the United States and the New Jersey
Constitutions." Pineiro, 181 N.J. at 19 (citing State v. Patino, 83 N.J. 1, 7
(1980)). As such, "the State must demonstrate by a preponderance of the
evidence" that "[the search] falls within one of the few well-delineated
exceptions to the warrant requirement." Id. at 19-20 (alteration in original)
(quoting State v. Wilson, 178 N.J. 7, 13 (2003); State v. Maryland, 167 N.J. 471,
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482 (2001)). One exception is an investigatory stop. See Elders, 192 N.J. at
246-47.
It is well settled that police officers may lawfully detain someone to
conduct an investigatory stop without a warrant, and on less than probable cause.
Terry, 392 U.S. at 21-22; State v. Stovall, 170 N.J. 346, 356 (2002). An
investigatory stop allows an officer to detain an individual temporarily for
questioning if the officer can articulate "some minimal level of objective
justification" based on "something more" than an "inchoate and unparticularized
suspicion or hunch" of wrongdoing. United States v. Sokolow, 490 U.S. 1, 7
(1989) (citation and internal quotation marks omitted); accord State v. Nishina,
175 N.J. 502, 510-11 (2003).
A warrantless investigative stop is valid when an "officer observes
unusual conduct which leads [the officer] reasonably to conclude in light of his
[or her] experience that criminal activity may be afoot." Terry, 392 U.S. at 30.
The stop must be "based on specific and articulable facts which, taken together
with rational inferences from those facts, give rise to a reasonable suspicion of
criminal activity." Pineiro, 181 N.J. at 20 (quoting Nishina, 175 N.J. at 510-
11). Reasonable suspicion "involves a significantly lower degree of objective
evidentiary justification than does the probable cause test," Davis, 104 N.J. at
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501, and is found when an officer has "a particularized and objective basis for
suspecting the person stopped of criminal activity." Stovall, 170 N.J. at 356(quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).
A reviewing court "must look at the 'totality of the circumstances' of each
case to see whether the detaining officer has a 'particularized and objective basis'
for suspecting legal wrongdoing" by the detained individual. United States v.
Arvizu, 534 U.S. 266, 273 (2002). In evaluating the totality of the circumstances
"giving rise to the officer's suspicion of criminal activity, courts are to give
weight to 'the officer's knowledge and experience' as well as 'rational inferences
that could be drawn from the facts objectively and reasonably viewed in light of
the officer's expertise.'" State v. Richards, 351 N.J. Super. 289, 299-300 (App.
Div. 2002) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).
Some of the factors to be considered when reviewing a police officer's
decision to embark upon an investigatory stop are as follows: the officer's
experience and knowledge, Pineiro, 181 N.J. at 22 (citing Davis, 104 N.J. at
504); the defendant's presence in a high crime area, see Pineiro, 181 N.J. at 26;
and the defendant's criminal history. Id. at 24-25, 29. The suspect's demeanor,
such as nervousness when questioned by the police, may also be considered in
determining whether reasonable suspicion exists. Stovall, 170 N.J. at 367.
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However, a person's flight upon seeing the police, without more, generally does
not constitute reasonable suspicion to support a stop. State v. Dangerfield, 171
N.J. 446, 457-58 (2002); Pineiro, 181 N.J. at 26; State v. Tucker, 136 N.J. 158,
168-69 (1994).
Similarly, an individual's "presence in a high crime or narcotics area does
not give the police reasonable grounds for an investigatory stop and frisk where
the conduct of the suspect itself adds nothing to justify police intrusion." In re
State in Interest of D.S., 125 N.J. Super. 278, 286 (App. Div. 1973) (Botter, J.,
dissenting), rev'd on dissent, 63 N.J. 541 (1973). That a location is "a high-
crime area does not mean that residents in that area have lesser constitutional
protection from random stops." State v. Shaw, 213 N.J. 398, 420 (2012).
We are satisfied that the court's factual findings are supported by
sufficient credible evidence and its legal conclusions are in accordance with
applicable constitutional jurisprudence. Detective Macolino testified that based
on his extensive experience, he observed defendant involved in a hand-to-hand
drug transaction at night in an "open area drug market," not simply a high crime
area. His observations included defendant exchanging "small items, which he
had in his pocket . . . for currency" with the driver of the Chevrolet Cruze in a
quick manner and while his hands were cupped.
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Based on Detective Macolino's training and experience, he believed the
"manner[]" in which the objects were transferred – quickly and with a cupped
hand – supported the conclusion that defendant was engaged in a hand-to-hand
drug transaction. These constitute articulable facts to support an objectively
reasonable determination that defendant engaged in criminal activity sufficient
to justify the Terry stop. See Pineiro, 181 N.J. at 26 ("the reputation or history
of an area" as being a high-crime area "and an officer's experience with and
knowledge of the suspected transfer of narcotics" are "relevant factors to
determine the validity of a Terry stop").
In disputing that Detective Macolino lacked specific and articulable facts
supporting his reasonable suspicion that defendant was engaging in criminal
activity to warrant the initial Terry stop, defendant compares this case with
Pineiro, Alexander, and Ramos. We are not persuaded.
In Pineiro, an officer was patrolling a "high drug, high crime area" when
he observed two men, both of whom he knew to be involved with drugs,
exchanging a cigarette pack. Pineiro, 181 N.J. at 18. The officer became
suspicious because his "specialized knowledge" included that "cigarette pack[s]
[are] sometimes . . . used to transport drugs." Id. at 19. Thereafter, the men
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noticed the officer, appeared shocked, and immediately attempted to leave the
area before the officer and his partner detained them. Id. at 18-19.
Our Supreme Court held that the officer had "reasonable and articulable
suspicion of criminal activity, justifying an investigatory stop ." Id. at 25. The
Court reasoned that "police may rely on behavior that is consistent with
innocence as well as guilt in finding reasonable and articulable suspicion to
conduct an investigatory stop" and "even though standing alone each factor may
not have been sufficient, the totality of the circumstances" viewed by an officer
with knowledge and experience justified the investigatory stop. Ibid.In Alexander, officers were patrolling a "high drug area" and observed the
defendant exchanging money with another individual. Alexander, 191 N.J.
Super. at 575. When they noticed the officers, they appeared to be surprised
and, when asked what they were doing responded "nothing." Ibid. We held that
"taken together these facts . . . form a reasonable basis to suspect that defendant
was engaged in an illegal drug transaction." Id. at 576.
In Ramos, an officer observed the defendant standing in the rain in "a high
drug trafficking area" and exchanging something unidentifiable concealed in his
closed fist for currency. Ramos, 282 N.J. Super. at 20. We held that "[the
officer's] observations, considered in light of his training and experience,
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supported a reasonable suspicion that defendant was engaging in a drug
transaction." Id. at 21.
Here, as discussed, Sergeant Macolino observed defendant in an "open
area drug market" quickly exchanging something unidentifiable concealed in a
cupped hand for currency, which based on his experience suggested that
defendant was engaged in a drug transaction. These facts are comparable to
those that supported a finding of reasonable suspicion in Pineiro, Alexander, and
Ramos, and when viewed in totality by an officer of Sergeant Macolino's
expertise, sufficiently established a "reasonable and articulable suspicion of
criminal activity, justifying an investigatory stop." Pineiro, 181 N.J. at 25.
To the extent defendant challenges his arrest, we agree with the court that
the police had probable cause to arrest defendant. In addition to an investigatory
stop, a second exception to the warrant requirement authorizes the warrantless
search of persons incident to their lawful arrest. See United States v. Robinson,
414 U.S. 218, 225 (1973). Indeed, because a lawful "custodial arrest of a suspect
based on probable cause is a reasonable intrusion under the Fourth
Amendment[,] . . . a search incident to the arrest requires no additional
justification," and the mere "fact of the lawful arrest which establishes the
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authority to search" justifies "a full search of the person." Id. at 235; see also
Dangerfield, 171 N.J. at 461.
Probable cause to arrest is "something less than [the] proof needed to
convict and something more than a raw, unsupported suspicion." State v. Davis,
50 N.J. 16, 23 (1967). Probable cause exists when the totality of the facts and
circumstances presented to the arresting officer would support "a [person] of
reasonable caution in the belief that an offense has been or is being committed."
State v. Sims, 75 N.J. 337, 354 (1978) (quoting Draper v. United States, 358
U.S. 307, 313 (1959)).
Here, as Detective Macolino approached the vehicle, defendant
simultaneously began to walk away. He approached the vehicle and viewed
what appeared to be bundled heroin in the front car seat in plain view. 2 At that
point, defendant attempted to flee the scene. These facts, combined with
Detective Macolino's and the other officer's initial observations, fully supported
defendant's arrest and the resulting search. See State v. Johnson, 171 N.J. 192,
2
To fall under the plain view exception, the officer must be lawfully present in
the viewing area when he or she observes the evidence, and the incriminating
nature of the evidence to be seized must be immediately apparent to the officer.
Gonzalez, 227 N.J. at 101. Those conditions were clearly met here as Detective
Macolino saw the bundle of glassine envelopes containing heroin while standing
in a public street after attempting to conduct a lawful Terry stop.
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214 (2002) (describing that plain view of drugs establishes probable cause to
make an arrest); State v. Doss, 254 N.J. Super. 122, 129-30 (App. Div. 1992)
(holding defendant's flight from an investigatory stop constituted probable cause
for his arrest).3
III.
In his second point, defendant challenges his sentence contending that
"because the sentence was greater than required by N.J.S.A. 2C:43-6(f), the
[court] was not bound to impose it." 4 Specifically, defendant asserts that under
that statutory provision he was eligible for a five-year prison term with a three-
3
As noted, the court also relied on the automobile exception to the warrant
requirement to support defendant's search and seizure. See State v. Roman-
Rosado, 462 N.J. Super. 183, 196 (App. Div. 2020), aff'd as modified sub nom.
State v. Carter, 247 N.J. 488 (2021) (describing that "[a] police officer has the
right to conduct an investigatory stop of a motor vehicle where there is a
reasonable and articulable suspicion that violations of the motor vehicle code or
other laws have been or are being committed," but "an automobile search
incident to the traffic stop is forbidden absent probable cause of other criminal
conduct or if the occupants pose a safety threat."). We do not reach that
alternative ruling because we have concluded, as did the court, that the police
conducted a constitutionally permissible Terry stop and arrest. We also note
that neither party has briefed the issue of the propriety of the search and seizure
under this exception.
4
Despite a certain lack of clarity in his plea forms, defendant does not contest
that he was eligible, based on his prior criminal history, for a mandatory
extended term under N.J.S.A. 2C:43-6(f). He also concedes that he was fully
aware that "the prosecutor was . . . asking that [he] be sentenced to an extended
term."
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year period of parole ineligibility, and the court did not provide "sufficient
findings" supporting the longer sentence. In addition, the defendant claims that
the court failed to consider mitigating factor eleven, "imprisonment of the
defendant would entail excessive hardship to himself or his dependents."
N.J.S.A. 2C:44-1(b)(11).
Our review of a court's sentencing decision "is relatively narrow and is
governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,
297 (2010). We "must affirm the sentence of a trial court unless: (1) the
sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were not 'based upon competent credible evidence in the
record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]
the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration
in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
We are further "bound to affirm a sentence, even if [we] would have
arrived at a different result, as long as the trial court properly identifies and
balances aggravating and mitigating factors that are supported by competent
credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
An appellate court should modify a sentence "only when the trial court's
determination was 'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990)
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(quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). "[A]n appellate court
should not second-guess a trial court's finding of sufficient facts to support an
aggravating or mitigating factor if that finding is supported by substantial
evidence in the record." O'Donnell, 117 N.J. at 216; see also State v. Carey, 168
N.J. 413, 426-27 (2001).
The Comprehensive Drug Reform Act of 1987 (CDRA), N.J.S.A. 2C:35-
1 to 35-31, L. 1987, c. 106, requires extended mandatory minimum terms for
certain enumerated offenses based on a defendant's prior drug convictions.
Under the CDRA, a person convicted of distributing or possession with intent
to distribute a CDS, "who has been previously convicted of manufacturing,
distributing, dispensing or possessing with intent to distribute [CDS] . . . shall
upon application of the prosecuting attorney be sentenced by the court to an
extended term as authorized by section c. of N.J.S.A. 2C:43-7, notwithstanding
that extended terms are ordinarily discretionary with the court." N.J.S.A. 2C:43 -
6(f). In addition, "[t]he term of imprisonment shall, except as may be provid ed
in N.J.S.A. 2C:35-12, include the imposition of a minimum term . . . fixed at, or
between, one-third and one-half of the sentence imposed by the court[,] . . .
during which the defendant shall be ineligible for parole." Ibid.A-0651-19
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We are satisfied, from our review of the entire transcript of the sentencing
proceedings, that the court sufficiently set forth the reasons for its sentence and
the factual basis supporting each aggravating factor considered and the
balancing process that led to the sentence. In this regard, the court considered
defendant's extensive criminal history, including two disorderly person's
offenses, two CDS offenses, unlawful possession of a weapon, and aggravated
assault, and found three aggravating factors applicable and no mitigating factors.
Regarding mitigating factor eleven, we first note that defendant never
requested that the sentencing court consider this factor, nor did the record
support its application. Defendant was single, did not have any children, was
sporadically employed, and was the only one of his siblings living with his
elderly mother, and the record does not indicate that he was her sole caregiver.
Simply put, we are satisfied with the court's conclusion that a lengthy term of
imprisonment would not cause an excessive hardship to defendant or his elderly
mother.
Accordingly, we are satisfied that the court did not err in its consideration,
explanation and application of the aggravating factors against the non-existent
mitigating factors, including mitigating factor eleven, and defendant's sentence
does not shock our judicial conscience. Bolvito, 217 N.J. at 228.
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IV.
Although we reject the substance of defendant's appeal, we nevertheless
conclude that a limited remand is required to correct the clerical discrepancies
between defendant's plea testimony and resulting JOCs related to Indictment
Nos. 16-11-0921 and 19-01-0006. As noted, regarding Indictment No. 16-11-
0921, defendant provided a factual basis for possession of CDS with intent to
distribute, but the amended JOC listed a conviction for count two, distribution
of CDS. As to Indictment No. 19-01-0006, defendant provided a factual basis
for possession of CDS with intent to distribute within 1,000 feet of a school, but
the JOC stated that he was convicted of count eight, possession of CDS with
intent to distribute.
Defendant's JOCs should be amended to reflect properly the charges to
which he pled guilty. This will not affect defendant's aggregate sentence,
because, in light of his prior CDS conviction for distribution of CDS, the revised
JOC for possession with intent to distribute CDS under Indictment No. 16-11-
0921 subjects him to the same mandatory extended term as a conviction for
distribution of CDS. N.J.S.A. 2C:43-6(f).
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To the extent we have not addressed any of defendant's remaining
arguments, it is because we have concluded they are of insufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part, remanded in part.
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