State of New Jersey v. Kevin Lambert ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0864-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN LAMBERT,
Defendant-Appellant.
________________________
Argued January 9, 2024 – Decided February 22, 2024
Before Judges Whipple, Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 19-05-
0749 and 21-06-0523.
Rachel A. Neckes, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Rachel A. Neckes, of
counsel and on the brief).
David Michael Liston, Assistant Prosecutor, argued the
cause for respondent (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; David Michael Liston, of
counsel and on the brief).
PER CURIAM
Defendant Kevin Lambert appeals from a December 17, 2019 order
denying his motion to suppress evidence seized during a motor vehicle stop. He
also challenges his convictions and consecutive sentences under two judgments
of conviction (JOCs) dated October 6, 2021. One JOC resulted from a 2021 jury
trial; the other was based on defendant's guilty plea to a charge under a 2021
indictment. We affirm the December 17 order and the October 6 JOC based on
the guilty plea. However, we reverse the conviction resulting from defendant's
jury trial, and remand for a new trial. We also vacate the sentence imposed
under the October 6 JOC related to defendant's trial conviction.
I.
On May 7, 2019, a Middlesex County grand jury returned Indictment No.
19-05-00749, charging defendant with third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). His co-defendants,
Shaiwan, Tashien, and Leonard Edwards were charged under the same
indictment.1
Defendant filed a motion to suppress evidence that was recovered on the
1
Because the co-defendants share the same surname, we refer to them by their
first name. We intend no disrespect by doing so. None of the co-defendants are
involved in this appeal.
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date of his arrest following a motor vehicle stop. On December 17, 2019, the
trial court conducted a testimonial hearing on the motion. The State called
Officers Justin Miller and Jose Gomez to testify. Defendant testified on his own
behalf.
Officer Miller testified he was working for the New Brunswick Police
Department (NBPD) and handling narcotics investigations in the Street Crimes
Unit (SCU) on the day of defendant's arrest. He estimated he conducted over
100 such investigations. One investigation by the NBPD led to the issuance of
a search warrant for Apartment 3A at 55 Reservoir Avenue in New Brunswick,
and another search warrant for Leonard.
On the morning of February 15, 2019, at approximately 6:00 a.m., Miller
initiated surveillance in an unmarked vehicle at the apartment complex at 55
Reservoir Avenue. Miller had "received information that . . . drug activity would
begin around six o'clock in the morning" outside Apartment 3A. Two officers
from his squad were parked in an unmarked vehicle within two blocks of the
complex; two other officers were stationed in an unmarked vehicle the same
distance away, but in the opposite direction.
Miller testified that after he began surveilling the apartment complex, he
saw Leonard's son, Shaiwan, conduct multiple hand-to-hand transactions with
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people whom Miller suspected were buying drugs. Miller noted the transactions
were "very short" in duration.
Miller also testified he observed a maroon Ford Expedition drive up to the
"main entrance door that . . . [led to] Apartment 3A," where "Shaiwan was
waiting" in the foyer. Miller stated he could see into the Expedition, noting
"[t]he sun was out" and the weather was "[d]ry and clear." Miller recognized
defendant as the driver of the vehicle because defendant "was . . . known to
[him]."
Next, Miller testified he saw Shaiwan exit the building, enter defendant's
car from the passenger side, "lean over toward . . . [defendant] as if he[ was]
handing [defendant] something, and [Shaiwan and defendant] exchange[d] a
couple of words." Shaiwan then exited the Expedition and defendant drove
away. Miller estimated the two men were together for "[t]hirty seconds to a
minute," which he considered "a short period of time." Miller stated he could
not see "what, if anything, [wa]s actually . . . handed off" between Shaiwan and
defendant, but he saw Shaiwan's "body move over, as if he[ was] leaning . . .
towards the driver."
After Shaiwan went back inside the apartment building, Miller informed
two of his squad members, Sergeant William Oels and Officer Jose Gomez,
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about his observations. Miller also told them defendant's car was heading in
their direction. Sergeant Oels and Officer Gomez immediately effectuated a
motor vehicle stop and reported back to Miller "that they found heroin in the
vehicle."
Prior to defendant testifying, his attorney advised the court that defendant
only challenged the lawfulness of the stop, not the location of the drugs found
in his vehicle. When his direct examination commenced, defendant admitted he
drove to 55 Reservoir Avenue on February 15, 2019, explaining he went there
"to go tell him about a job." Defense counsel asked defendant to clarify who
defendant spoke to about a job. Defendant answered, "I forgot his name. I . . .
just met him, and he told me where he live[d]." Defendant continued, "I don't
know his name. I can't remember his name." He added:
all I know[,] . . . that's his father. He came to me one
day. He wanted a job. . . . I got information. The job
said they w[ere not] hiring. . . . I went to his house[
and] I told him that. He got in the car. He got out. I
drove off. The police pull[ed] me over.
On cross-examination, defendant conceded he phoned Shaiwan before he
arrived at the Reservoir Avenue apartment complex and told Shaiwan that he
was "on [his] way." Defendant testified, "that[ is] why [Shaiwan] knew to come
out when" defendant arrived at the complex. When the assistant prosecutor
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asked defendant if he "could have told [Shaiwan] about the job on the phone,"
defendant answered,
I could have told him about the job on the phone, but I
did[ not] want to . . . . I just said, come out, I'm going
to tell you about the job. . . . I could have d[one] a lot
of things on the phone, but I did[ not] want to tell him
on the phone.
Officer Gomez testified on rebuttal. He stated that based on his
assignment to the NBPD's SCU, his unit was "conducting a search warrant at 55
Reservoir Avenue" on the morning of February 15, 2019. He recalled that he
and Sergeant Oels were parked "a couple of blocks away[,] . . . waiting for
further . . . instructions" while Officer Miller was surveilling the apartment
complex. Gomez testified Miller subsequently informed him "that he [had] just
seen a transaction between [defendant] and . . . Shaiwan . . . and that [defendant]
was heading towards [Gomez's] direction." Gomez and Sergeant Oels promptly
effectuated a motor vehicle stop of defendant's vehicle.
Oels asked defendant for his license, registration, and insurance.
According to Gomez, Oels then saw defendant reach with his right hand toward
the glove box to retrieve his documents, while using "his left hand . . . [to] stuff[]
a brick of heroin between the seats and the center console." Oels ordered
defendant out of the vehicle. While Gomez detained defendant, Oels recovered
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the brick of heroin "[f]rom . . . between the center console and . . . the driver's
seat."
On cross-examination, defense counsel asked Gomez if he recalled what
Officer Miller told him before Gomez and Oels effectuated the motor vehicle
stop. Gomez testified he "remember[ed] clearly that Miller saw a transaction
between [defendant] and . . . [NBPD's] target." Gomez also stated he did not
"know what . . . Miller saw" because Gomez "was[ not] there."
The judge credited the testimonies of Officers Miller and Gomez, noting
their statements were, "in part, corroborated by the testimony of [defendant] in
terms of what the officers ultimately observed." The judge found that on the
date of defendant's arrest, the officers were "conducting surveillance . . . based
upon information . . . they had been provided" about activity "in the area of 55
Reservoir Avenue, more specifically Apartment 3[]A." Further, she determined
"the reason for the early surveillance was based upon . . . information that there
was, in fact, drug activity or suspected drug activity that began around that
hour." Additionally, the judge found Officer Miller "observed what he believed
to be a hand[-]to[-]hand transaction . . . based upon what he saw to be body
movements within [defendant's] vehicle and there was some conversation that
was relatively short[,] . . . anywhere from [thirty] seconds to a minute," between
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Shaiwan and defendant.
Moreover, the judge credited Officer Miller's testimony that he believed
Shaiwan "was, in fact, selling drugs from that particular location." She also
accepted Miller's testimony that NBPD's SCU
received a call from a concerned neighbor . . . informing
[the police] that [between] approximately . . . six and
seven [a.m.,] there were a lot of individuals selling and
purchasing narcotics from that . . . location. That
time . . . and location correspond[ed] with the time and
location that . . . defendant's Ford Expedition was in the
area, and . . . the officer[] observed Shaiwan . . . getting
in and out of . . . defendant's vehicle in a very short
period of time.
....
. . . [T]he observations of the police . . . were
consistent with[—]based upon their training and
experience[—]narcotic[]s activities, buyers[] and
sellers exchanging narcotics[,] and that interaction
[was] a relatively short one, which was what
[defendant] also described.
I don't find credible, however, . . . defendant's
explanation as to why he was at that particular
location. . . . [D]efendant[] show[ed] up at the very
time that buyers [we]re essentially coming into the area
to obtain drugs. I don't find that it's merely a
coincidence that he happened to be there at that
particular location at that particular time, and for that
duration. It [is] . . . not credible.
The [c]ourt finds that based upon the
observations of the officers, the fact that they were
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conducting surveillance for drug transactions when this
defendant arrived on the scene, the totality of all of the
circumstances that exist in this case, which are really
not disputed, those circumstances provide[d] probable
cause for the officer[s'] . . . stop and search of this
defendant's vehicle.
Moreover, the circumstances giving rise to
probable cause were unforeseeable. This defendant
was, in no way, the target of the investigation that was
happening separately when he just happened to drive
into that particular area on that particular morning,
essentially, . . . as the [c]ourt finds[,] . . . to, in fact,
make a purchase.
So [the stop and search] was unforeseeable [and]
spontaneous. The[ police] were not expecting this
defendant to drive into that area, for Shaiwan . . . to
enter and exit [defendant's] vehicle during their
investigation. And, so, for all of these reasons[,] the
motion to suppress is appropriately denied.
In June 2021, a Middlesex County grand jury returned Indictment No. 21-
06-00523, charging defendant with: third-degree possession with intent to
distribute CDS, N.J.S.A. 2C:35-5(b)(3); and third-degree possession of CDS.
Two months later, defendant's trial under Indictment No. 19-05-00749
commenced. The judge who presided over his suppression hearing also presided
over defendant's trial. Prior to opening statements, the State asked the judge to
grant its motion to admit defendant's prior convictions for the purpose of
impeachment. The judge stated she was "waiting for a response from the
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defense," but her "intentions were to allow [the State] only to use [defendant's]
most recent" conviction from 2017. The judge noted defendant had "priors
dating back to 1989," and asked if defense counsel wished to be heard on the
motion. Counsel stated the judge's decision was "fair," but he argued the 2017
conviction should be "sanitized" so the jury would be told only about the date
and degree of the 2017 conviction, as well as the sentence defendant received.
The State and the judge agreed to these requests.
During the trial, Officers Miller and Gomez testified consistent with their
testimony at the suppression hearing. After the State rested, it asked the judge
to reconsider her decision to admit only defendant's 2017 conviction for the
purpose of impeachment if he testified. Specifically, the State argued the judge
should admit his convictions from the following JOCs:
March 8, 1989 for third-degree theft from person,
N.J.S.A. 2C:20-3;
March 4, 1992, for third-degree possession of CDS,
N.J.S.A. 2C:35-10(a)(1); third-degree possession with
intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A.
2C:35-5(b)(3); and third-degree possession of CDS
with intent to distribute in a school zone, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-7;2
2
At defendant's March 4, 1992 sentencing, the two third-degree possession and
distribution charges were merged with the distribution in a school zone charge.
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November 4, 2002, for fourth-degree contempt,
N.J.S.A. 2C:29-9;
November 4, 2002, for third-degree possession of CDS
with intent to distribute in a school zone;3
June 7, 2007, for third-degree possession of weapons
for unlawful purposes, N.J.S.A. 2C:39-4(d); and
July 7, 2017 for third-degree manufacture and
distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and
2C:35-5(b)(3).4
The State argued "every single conviction should come in, because there
[was] no" ten-year period in defendant's life when he was not "committing and
[being] convicted of crimes." The judge responded, "I think I might be
persuaded by that argument." Defense counsel objected to any reconsideration
3
The State also sought to include the JOCs from defendant's re-sentencings on
this conviction from August 2004 and December 2005.
4
The 2017 conviction resulted from a 2012 jury trial. Following that trial,
defendant was convicted of various drug and weapons offenses. Defendant
successfully appealed from his convictions and sentence, and we ordered a new
trial. State v. Lambert, No. A-2698-12 (App. Div. April 9, 2015) (slip op. at
10). On remand, he pled guilty to third-degree possession of CDS with intent
to distribute and fourth-degree possession of a prohibited weapon, N.J.S.A.
2C:39-3(h). State v. Lambert, No. A-1996-15 (App. Div. June 5, 2017) (slip op.
at 2). He again appealed and we vacated the prohibited weapon conviction and
remanded for resentencing on the distribution charge. Id. at 3. Defendant was
resentenced for this offense in July 2017. Therefore, at defendant's August 2021
trial, the trial judge and counsel stipulated to treating this conviction as a 2017
conviction.
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of the judge's prior decision and argued "the prejudicial value [of admitting all
of defendant's prior convictions wa]s so much higher than the probative value,"
because defendant's convictions before 2017 were "very remote."
The judge granted the State's reconsideration application. She explained
that although defendant's 1989 and 1992 convictions were remote, he had "a
number of convictions" between 1989 and 2017 and served prison sentences for
what she "perceive[d] to be serious charges." The judge also found defendant
served "sentences on crimes that were not only third-degree, but second-degree
offenses as well." Further, the judge concluded, "to suggest to the jury that
[defendant] had perhaps one prior in 2017, when in fact[,] he ha[d] a slew of
them and . . . continued to . . . pick up new offenses, . . . would not[,] in fact[,]
represent truly to this jury who [defendant] is." Thus, she stated, "all of these
offenses come in if [defendant] chooses to testify." However, the judge also
directed that defendant's prior convictions would "be sanitized" to reflect only
"the date [and] degree [of the offense] and the sentence."
Defense counsel asked for time to speak with defendant, telling the judge
that her mid-trial ruling "kind of dera[iled defendant's] strategy," and counsel
was "surprised." Before counsel conferred with defendant, the judge advised
defendant he had the right to testify or "exercise [his] right not to testify."
A-0864-21
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Defendant told the judge he understood his options and "want[ed] to testify."
He reiterated that desire at least twice more and stated he was "not going to
change [his] mind." The judge advised defendant he was "not bound by anything
[he] just told [her]," and he "might want to have a talk with [his attorney] before
[he] ma[de his] decision."
After speaking with counsel, defendant elected not to testify. He then
called John McMahon, a defense investigator, as his only witness. McMahon
testified he interviewed defendant's acquaintance, Ashley Chalfant, by phone
prior to trial, and Chalfant admitted she drove defendant's Expedition the night
before defendant was arrested in February 2019. McMahon also testified that
Chalfant admitted to purchasing heroin the night before defendant's arrest,
dropping a brick of heroin in the Expedition, and forgetting to remove the brick
before returning the car to defendant. On cross-examination, McMahon
admitted he never met Chalfant face-to-face but used her birthdate and mailing
address to confirm her identity when the two spoke over the phone.
During closing arguments on August 6, 2021, the assistant prosecutor told
jurors to "scrutinize" McMahon's testimony, just as defense counsel asked them
"to scrutinize the [S]tate's witnesses." The assistant prosecutor further informed
jurors that McMahon was "a biased witness" who received "all of his
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information from the defense and . . . did absolutely no investigation and no
follow up." Additionally, the assistant prosecutor stated that even if the jury
assumed Chalfant made the statements McMahon attributed to her, Chalfant did
"nothing more than giv[e] a statement to try to help out a friend ," which was
"not worthy of belief." Defense counsel did not object to these comments. Later
that day, the jury found defendant guilty of third-degree possession of CDS.
On September 15, 2021, defendant pled guilty under Indictment No. 21 -
06-00523 to third-degree possession with intent to distribute CDS, in exchange
for the State's recommendation that the court dismiss his remaining three
charges and impose a four-year sentence to run consecutively to the sentence he
would receive under Indictment No. 19-05-00749. During his plea colloquy,
defendant testified he understood the terms of the plea agreement , he did not
"want to go to trial," he had a chance to "review . . . discovery with [his]
attorney," and he was "pleading guilty to th[e CDS] charge because [he was]
guilty of th[at] charge." Further, defendant stated he was satisfied with his
attorney's services. After defendant provided a factual basis for his guilty plea,
the judge found he entered the plea "freely and voluntarily," "understanding the
nature and consequences of the plea."
On October 6, 2021, the judge sentenced defendant under both
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indictments. The judge found aggravating factors three (risk of reoffense), six
(criminal history), and nine (need to deter), N.J.S.A. 2C:44-1(a)(3), (6), (9),
which she "weighed heavily." Next, the judge rejected defendant's request that
she find mitigating factors eight (defendant's conduct was a result of
circumstances unlikely to recur), nine (defendant's character and attitude made
it unlikely he would commit another offense), ten (amenability to probationary
treatment) and eleven (excessive hardship), N.J.S.A. 2C:44-1(b) (8), (9), (10),
and (11). She also found defendant "appear[ed] to have issues with substance
abuse," and that despite being indicted in 2019, he incurred additional charges
under a second indictment. She concluded such conduct was "a clear indication
that there's a risk of re[]offense." The judge sentenced defendant to a four-year
flat term on his trial conviction for third-degree possession of CDS and a
consecutive four-year flat term on his distribution charge, consistent with his
plea agreement.
II.
On appeal, defendant raises the following arguments:
POINT I
THE MOTION COURT'S DECISION MUST BE
REVERSED AND THE PHYSICAL EVIDENCE
SEIZED MUST BE SUPPRESSED BECAUSE THE
OFFICER LACKED THE REQUISITE
A-0864-21
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REASONABLE SUSPICION TO CONDUCT AN
INVESTIGATORY STOP.
POINT II
THE TRIAL COURT'S LAST MINUTE,
ERRONEOUS DECISION THAT DEFENDANT'S
DECADES-OLD PRIOR CONVICTIONS WERE
ADMISSIBLE FOR IMPEACHMENT REQUIRES
REVERSAL.
A. THE TRIAL COURT ERRED BECAUSE IT
RELIED UPON INCORRECT INFORMATION,
INCLUDING CONVICTIONS VACATED ON
APPEAL AND DISMISSED CHARGES, TO ADMIT
FIVE PRIOR CONVICTIONS, FATALLY
ALTERING THE [N.J.R.E.] 609 ANALYSIS.
B. THE TRIAL COURT'S LAST-MINUTE
REVERSAL OF ITS [N.J.R.E.] 609 DECISION
VIOLATED MR. LAMBERT'S RIGHT TO PREPARE
A DEFENSE.
C. THE ERROR IS NOT HARMLESS.
POINT III
THE PROSECUTOR ENGAGED IN REVERSIBLE
MISCONDUCT WHEN SHE DISPARAGED THE
DEFENSE AND THE ONLY DEFENSE WITNESS.
POINT IV
THE CUMULATIVE EFFECT OF THE ERRORS
REQUIRES THAT MR. LAMBERT'S TRIAL
CONVICTIONS BE REVERSED.
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POINT V
RESENTENCING IS REQUIRED BECAUSE THE
TRIAL COURT FAILED TO FIND MITIGATING
FACTORS ONE AND TWO AND, IN IMPOSING
CONSECUTIVE TERMS, FAILED TO
ADEQUATELY EVALUATE THE YARBOUGH5
FACTORS OR THE FAIRNESS OF THE OVERALL
SENTENCE.
A. RESENTENCING IS REQUIRED BECAUSE
THE COURT FAILED TO FIND MITIGATING
FACTORS ONE AND TWO, WHICH WERE WELL-
SUPPORTED BY THE RECORD.
B. RESENTENCING IS REQUIRED BECAUSE
THE SENTENCING COURT FAILED TO FOLLOW
THE MANDATES OF YARBOUGH AND TORRES6
IN IMPOSING CONSECUTIVE SENTENCES.
First, we note the State concedes "[d]efendant is correct that his 1992
conviction[s] w[ere] reversed and the charge[s were] eventually dismissed." In
fact, we reversed defendant's March 1992 convictions and remanded for a new
trial in 1994. See State v. Lambert, 275 N.J. Super. 125, 134 (App. Div. 1994).
Moreover, the record reflects the charges resulting in the March 1992
convictions were dismissed at the State's request in August 1994. Accordingly,
we agree with defendant's contention under Points II.A and II.C that, when the
5
State v. Yarbough, 100 N.J. 627 (1985).
6
State v. Torres, 246 N.J. 246 (2021).
A-0864-21
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judge conducted her Rule 609(b) analysis, she relied, in part, on misinformation
she received about the March 1992 JOC, and not only mistakenly considered
convictions that were reversed on appeal, but charges that were ultimately
dismissed. Because this was not harmless error, we are constrained to reverse
defendant's conviction under the 2019 indictment, vacate the corresponding
sentence imposed, and remand for a new trial. Based on this disposition, we do
not reach defendant's remaining arguments under Point II, nor the arguments
raised under Points III, IV and V, except to state that defendant's argument under
Point V.A lacks merit. R. 2:11-3(e)(2). Accordingly, we confine our discussion
to defendant's suppression and Rule 609(b) arguments.
An appellate court must uphold a trial court's findings on a suppression
motion if they are supported by "sufficient credible evidence in the record."
State v. Lamb, 218 N.J. 300, 313 (2014). This deference is applicable regardless
of whether there was a testimonial hearing, or whether the court based its
findings solely on its review of documentary evidence. State v. Johnson, 42 N.J.
146, 161 (1964); State v. S.S., 229 N.J. 360, 381 (2017). We typically will not
reverse a trial court's findings of fact unless the findings are clearly erroneous
or mistaken. S.S., 229 N.J. at 381. But a trial court's legal conclusions are
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reviewed de novo. State v. Dorff, 468 N.J. Super. 633, 644 (App. Div. 2021)
(citing S.S., 229 N.J. at 380).
"To lawfully stop a motor vehicle, 'a police officer must have a reasonable
and articulable suspicion that the driver of a vehicle . . . is committing a motor-
vehicle violation or a criminal or disorderly persons offense.'" State v. Nyema,
465 N.J. Super. 181, 190 (App. Div. 2020) (quoting State v. Scriven, 226 N.J.
20, 33-34 (2016)). "Accordingly, an investigatory stop is permissible '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.'" Ibid. (quoting State v. Chisum, 236 N.J. 530, 545-46 (2019)). In
addressing whether reasonable and articulable suspicion exists for an
investigatory stop, a trial court "must 'evaluate the totality of circumstances
surrounding the police-citizen encounter, balancing the State's interest in
effective law enforcement against the individual's right to be protected from
unwarranted and/or overbearing police intrusions.'" State v. Privott, 203 N.J.
16, 25-26 (2010) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).
The reasonable suspicion inquiry considers an officer's background and
training and permits the officer "to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative
A-0864-21
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information available to them that 'might well elude an untrained person.'"
United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v.
Cortez, 449 U.S. 411, 418 (1981)). "Reasonable suspicion necessary to justify
an investigatory stop is a lower standard than the probable cause necessary to
sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002).
"Both the United States Constitution and the New Jersey Constitution
guarantee an individual's right to be secure against unreasonable searches or
seizures." State v. Minitee, 210 N.J. 307, 318 (2012) (citing U.S. Const. amend.
IV; N.J. Const. art. 1 ¶ 7). "[S]earches and seizures conducted without warrants
issued upon probable cause are presumptively unreasonable and therefore
invalid." State v. Goldsmith, 251 N.J. 384, 398 (2022) (quoting State v. Elders,
192 N.J. 224, 246 (2007)).
To overcome the presumption that a warrantless search is unlawful, "the
State bears the burden of proving by a preponderance of the evidence not only
that the search or seizure was premised on probable cause, but also that it f[ell]
within one of the few well-delineated exceptions to the warrant requirement."
State v. Bryant, 227 N.J. 60, 69-70 (2016) (alteration in original) (quoting State
v. Johnson, 193 N.J. 528, 552 (2008)). Evidence seized when found in plain
view following a lawful traffic stop is one such exception. State v. Gonzales,
A-0864-21
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227 N.J. 77, 82 (2016). In fact,
[f]ollowing the Court's decision in Gonzales, police
may seize contraband in plain view and without a
warrant if two requirements are met: (1) they are
lawfully in the viewing area when observing and
seizing the evidence; and (2) the incriminating nature
of the evidence is "immediately apparent" to the
officers.
[State v. Washington, 475 N.J. Super. 292, 301-02
(App. Div. 2023) (quoting Gonzales, 227 N.J. at 101).]
Another exception to the warrant requirement is the automobile exception.
State v. Cohen, 254 N.J. 308, 319-20 (2023) ("'[W]hen the police have probable
cause to believe that [a] vehicle contains contraband or evidence of an offense
and the circumstances giving rise to probable cause are unforeseeable and
spontaneous,' law enforcement may search the vehicle without first obtaining a
warrant.") (second alteration in original) (quoting State v. Witt, 223 N.J. 409,
447 (2015)). Probable cause "requires 'a practical, common sense determination
whether, given all of the circumstances, there is a fair probability that
contraband or evidence of a crime will be found.'" State v. Myers, 442 N.J.
Super. 287, 301 (App. Div. 2015) (quoting State v. Moore, 181 N.J. 40, 46
(2004)).
Governed by these standards, we discern no basis to disturb the trial
judge's December 17, 2019 order denying defendant's suppression motion.
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Thus, we affirm the suppression decision, in part, for the reasons expressed by
the judge and, in part, for other reasons. See State v. Heisler, 422 N.J. Super.
399, 416 (App. Div. 2011) (noting a reviewing court is free to affirm "on
grounds different from those relied upon by the trial court"). In short, while we
agree with the judge that the motor vehicle stop was lawful, we affirm based on
the lesser standard of reasonable and articulable suspicion governing the
investigatory stop and based on the totality of circumstances detailed at length
in the judge's comprehensive oral decision. We also conclude the subsequent
seizure of heroin from defendant's vehicle was lawful under the plain-view
exception, considering he did not challenge the location of the heroin Sergeant
Oels found in defendant's vehicle.
Next, we consider the principles compelling us to reverse defendant's trial
conviction based on the judge's flawed analysis under N.J.R.E. 609(b). It is well
settled that we apply a deferential standard of review to a trial court's decision
to permit the State to use prior criminal convictions for impeachment. State v.
T.J.M., 220 N.J. 233-34 (2015). "However, we do not defer to a ruling that is
based on a mistaken interpretation of an evidence rule, or that misapplies the
rule." State v. R.J.M., 453 N.J. Super. 261, 266 (App. Div. 2018).
"Only convictions of crimes may be used to affect credibility." State v.
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Burgos, 262 N.J. Super. 1, 5 (App. Div. 1992). But "a conviction under appeal
may not be used to impeach [a] defendant's credibility at trial." State v.
Williams, 299 N.J. Super. 264, 274 (App. Div. 1997) (citing State v. Blue, 129
N.J. Super. 8, 12 (App. Div. 1974)). As the Blue Court reasoned, it is
"fundamentally unfair to permit the use of a prior conviction to impeach
credibility while the very credibility of this conviction itself is under attack
through the appellate process." Blue, 129 N.J. Super. at 12. "Likewise
inadmissible for impeachment purposes is 'evidence concerning criminal
charges that were dismissed as part of a plea agreement,'" because "a 'criminal
charge is more akin to an arrest since the defendant was never convicted of a
crime.'" Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 2 on
N.J.R.E. 609 (2023-2024) (quoting Burgos, 262 N.J. Super. at 5). Additionally,
pertinent to this appeal, "[i]f other crimes charged, but dismissed, are included
on a judgment of conviction, those other crimes charged may not be inquired
into for purposes of affecting credibility." Burgos, 262 N.J. Super. at 5.
We also are mindful that prior to 2014, Rule 609 presumptively admitted
prior criminal convictions for impeachment purposes "unless excluded by the
judge as remote or for other causes." State v. Harris, 209 N.J. 431, 442 (2012)
(quoting N.J.R.E. 609 (2012)). The Court in Harris recognized a significant
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difference between the Rule and the Federal Rules of Evidence (F.R.E.) 609,
which limited the use of any conviction that was more than ten years old. Id. at
444. The Court then referred "[t]he question of whether N.J.R.E. 609 should be
modified . . . to the Supreme Court Committee on Evidence." Id. at 445.
The Committee on the Rules of Evidence recommended significant
changes to the Rule, which were subsequently adopted by the Court effective
July 1, 2014, and have remained largely unchanged since.7 See Biunno et al.,
cmt. 1 on N.J.R.E. 609. Under its current iteration, any witness's credibility may
be presumptively impeached through prior convictions under subsection (a) of
the Rule, subject only to exclusion under N.J.R.E. 403 or subsection (b).
Admission of a conviction more than ten years old triggers a different
analysis under subsection (b), which provides:
Use of Prior Conviction Evidence After Ten Years.
(1) If, on the date the trial begins, more than ten years
have passed since the witness's conviction for a crime
or release from confinement for it, whichever is later,
then evidence of the conviction is admissible only if the
court determines that its probative value outweighs its
prejudicial effect, with the proponent of that evidence
having the burden of proof.
7
Minor "restyling" amendments to the Rules of Evidence effective July 1, 2020,
do not affect our analysis, and we use the current version of the Rule in this
opinion.
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(2) In determining whether the evidence of a conviction
is admissible under subparagraph (b)(1) of this rule, the
court may consider:
(i) whether there are intervening convictions for
crimes or offenses, and if so, the number, nature,
and seriousness of those crimes or offenses,
(ii) whether the conviction involved a crime of
dishonesty, lack of veracity, or fraud,
(iii) how remote the conviction is in time, [and]
(iv) the seriousness of the crime.
[N.J.R.E. 609(b).]
"However, making findings as to those four factors is not enough. The court
must then engage in the weighing process under (b)(1), to determine whether
the State has carried its burden of proving that evidence of the remote conviction
would not be more prejudicial than probative." R.J.M., 453 N.J. Super. at 270
(citing N.J.R.E. 609 (b)(1)).
Here, all of defendant's prior convictions—except for the inadmissible
reversed 1992 convictions and his 2017 conviction—were subject to subsection
(b) of the Rule because they were potentially admissible and more than ten years
old when the trial began. Thus, the judge was required to initially determine
whether the State demonstrated that the probative value of defendant's
potentially admissible and remote prior convictions "outweigh[ed] its
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prejudicial effect." N.J.R.E. 609(b)(1). To make this assessment, the judge
would have been guided by the non-exhaustive list of factors "the court may
consider" as set forth in N.J.R.E. 609(b)(2), the first of which is "whether there
are intervening convictions for crimes or offenses." N.J.R.E. 609(b)(2)(i). The
judge also could have considered "the number, nature, and seriousness of those
[intervening] crimes." N.J.R.E. 609(b)(2)(i). Through no fault of the judge, she
did not know the true number, nature, and dates of defendant's convictions. That
lack of knowledge triggered her flawed analysis under N.J.R.E. 609(b). On this
record, we cannot conclude this error was harmless, particularly given
defendant's professed desire to testify at trial before he consulted with counsel
and ultimately declined to do so.
Our Supreme Court cautioned in State v. Hedgespeth, 249 N.J. 234, 250
(2021) that "there can be situations, although likely unusual, in which an
erroneous N.J.R.E. 609 ruling may be deemed harmless even if that ruling
resulted in the defendant's deciding not to testify." (Emphasis added) (citing
State v. Whitehead, 104 N.J. 353, 359-60 (1986)). In reaching this conclusion,
the Court rejected the defendant's argument that "an erroneous ruling that pushes
a criminal defendant not to testify can never be harmless," id. at 247, and instead
reaffirmed "that in limine N.J.R.E. 609 rulings shall continue to be reviewed
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under the harmless-error standard," id. at 252. The Court said, "[t]o determine
whether admission of evidence constitutes harmless error, the relevant inquiry
is whether the purported error 'is of such a nature as to have been clearly capable
of producing an unjust result.'" Ibid. (quoting State v. Kuchera, 198 N.J. 482,
501 (2009)).
The Hedgespeth Court further assessed whether "the jury's failure to hear
defendant's testimony could have produced an unjust result." Ibid. The Court
concluded the trial court's ruling that the State could impeach the defendant with
his two prior convictions was harmful error, explaining:
The key testimony against defendant was that of two
police officers who testified that they saw the gun in
defendant's waist[]band and that a gun was later
recovered by other officers near where defendant and
others were apprehended. The State introduced the gun
itself into evidence; however, there was no fingerprint
or DNA evidence on the gun.
Had the trial court not erroneously admitted the
prior convictions, defendant argues he could have more
forcefully challenged the detectives' credibility as to
whether they saw the gun on his waistband. By not
testifying, defendant was only able to cast doubt on the
officers' accounts through cross-examination; he was
unable to effectively offer a counter theory of the case.
Moreover, the jury was not able to consider
Hedgespeth's demeanor and credibility in delivering his
theory of the case.
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No doubt, the strongest evidence against
defendant is that the State produced the gun in
evidence. But, without indisputable evidence linking
defendant to the gun—except through officer
testimony—the admission of the gun did not
necessarily cement the State's case against defendant.
The mere fact that the State may characterize a potential
defense theory seeking to explain away the gun as
"implausible" is not reason to hold that the trial court's
error was harmless. Determining implausibility "is in
the sole province of the jury. Judges should not intrude
as the thirteenth juror."
[Hedgespeth, 249 N.J. at 252-53 (first and third
emphases added) (quoting State v. Scott, 229 N.J. 469,
485 (2017)).]
Considering the guidance provided by the Court in Hedgespeth, we are
persuaded that here, the judge's Rule 609(b) analysis was not only impermissibly
faulty, but deprived defendant of the opportunity "to effectively offer a counter
theory of the case," the effect of which is not for us to judge. 249 N.J. at 252.
Thus, the error was not harmless, and we are compelled to reverse defendant's
trial conviction, vacate his sentence, and remand for a new trial.
Finally, to the extent defendant informally contends a reversal of his trial
conviction entitles him to withdraw his guilty plea under Indictment No. 21-06-
523, we disagree. Defendant specifically argues he "decided to plead guilty" to
a distribution charge under the second indictment "only after he was convicted
on Indictment No. 19-05-749," and "he would not have pleaded guilty if he had
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not already been facing substantial prison time for his conviction, through a
flawed trial." Preliminarily, we note this argument was raised in two succinct
paragraphs in the latter section of defendant's brief, without a separate point
heading, contrary to Rule 2:6-2(a)(6). "This kind of presentation of an issue for
appellate review is improper." Mid-Atl. Solar Energy Indus. Ass'n v. Christie,
418 N.J. Super. 499, 508 (App. Div. 2011). Although we need not reach this
issue, for the sake of completeness, we briefly address it.
Here, the record shows that the charges arising under defendant's second
indictment resulted from an incident entirely separate from the incident leading
to defendant's jury trial and conviction. Moreover, by the time defendant pled
guilty under the second indictment, he not only had failed to prevail on his
suppression motion under the first indictment, but had been convicted by a jury
under the 2019 indictment. Fully aware of these circumstances, defendant chose
to enter a guilty plea to the charge of third-degree possession of CDS with intent
to distribute, in exchange for the State's recommendation that he serve a four-
year prison term consecutive to the sentence he would serve on the 2019
indictment, with any remaining charges under the second indictment to be
dismissed. The judge sentenced defendant consistent with the negotiated plea
agreement after previously finding he knowingly and voluntarily entered into
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the plea agreement.
"A trial judge's finding that a plea was voluntarily and knowingly ent ered
is entitled to appellate deference so long as that determination is supported by
sufficient credible evidence in the record." State v. Lipa, 219 N.J. 323, 332
(2014). "Once it is established that a guilty plea was made voluntarily, it may
only be withdrawn at the discretion of the trial court." Ibid.Here, the record is devoid of any evidence defendant formally moved to
withdraw his plea. See State v. Slater, 198 N.J. 145, 150 (2009). Moreover,
there is no evidence the errors we have highlighted from defendant's August
2021 trial had any bearing on his pleading guilty in September 2021 to the
distribution charge under the second indictment. Thus, we discern no basis to
vacate defendant's guilty plea, notwithstanding our reversal of his trial
conviction.
Affirmed in part; reversed, remanded, and vacated in part for further
proceedings consistent with this opinion. We do not retain jurisdiction.
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