STATE OF NEW JERSEY VS. PASCAL EXILUS (16-02-0062 AND 16-02-0063, HUNTERDON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4282-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PASCAL EXILUS, a/k/a
PASCEL EXILUS
Defendant-Appellant.
______________________________
Submitted February 26, 2019 – Decided March 6, 2019
Before Judges Fisher and Hoffman.
On appeal from Superior Court of New Jersey, Law
Division, Hunterdon County, Indictment Nos. 16-02-
0062 and 16-02-0063.
Joseph E. Krakora, Public Defender, attorney for
appellant (Margaret R. McLane, Assistant Deputy
Public Defender, of counsel and on the briefs).
Anthony P. Kearns, III, Hunterdon County Prosecutor,
attorney for respondent (Jeffrey L. Weinstein, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
In this appeal, we consider the denial of defendant's suppression motion,
an evidentiary ruling made during the course of trial, and the sentenc e imposed
following defendant's conviction. We find no merit in any of defendant's
arguments and affirm.
At approximately 4:30 a.m. on November 20, 2015, a police officer
patrolling the streets and highways in Flemington observed defendant's vehicle
parked along the side of Route 31. The vehicle had halted in the driveway of a
closed store with its hazard lights flashing, so the officer stopped to see if the
vehicle had been in an accident. As he approached, the officer observed a man
urinating by the passenger door; defendant was in the driver's seat.
The officer asked the urinating passenger – co-defendant Bereka Gelin –
why the vehicle stopped there when an open convenience store with available
bathrooms was in sight on the highway. As he stood alongside defendant's
vehicle during this discussion, the officer smelled alcohol and the strong odor
of cologne and air freshener from inside the vehicle. In response to the officer's
questions, Gelin identified himself but could not produce an identification card.
He asked to be permitted to sit in defendant's vehicle because it was cold outside.
The officer allowed that and returned to his own vehicle's computer to verify
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Gelin's identity; as he did this the officer watched as Gelin turned around toward
the vehicle's backseat and reached down, as if placing something under the seat.
Another officer arrived to assist, and the officer who initiated the stop
returned to defendant's vehicle and again questioned Gelin about his
identification; he also asked for defendant's license as the other officer walked
around defendant's vehicle. The other officer saw, with the use of a flashlight,
marijuana "shake"1 and the insides of a cigar on the floor of the passenger side,
and a small knotted plastic bag, of the type used to contain drugs, on the back
seat.
Defendant consented to a vehicle search,2 which produced a black plastic
bag with $800 in one-hundred dollar bills and a debit card bearing defendant's
and a music company's names. Defendant advised that he put the money and
the card in a bag under the seat prior to arriving at a party in Newark to avoid
theft. As the search continued, one of the officers observed a one-inch
separation between the passenger-side door panel and door frame; his moving
the bottom of the panel caused to fall out a black bag containing a handgun.
1
I.e., a small amount of marijuana shavings left over after rolling a blunt.
2
At a suppression hearing, the State did not rely on this consent but instead
sought to justify the warrantless vehicle search on other grounds.
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Both defendant and Gelin were then arrested. After the arrest, an officer
checked the panel in the driver's side door and obtained from there a plastic bag
containing cocaine. The vehicle was then towed to the police station.
A grand jury handed up two indictments. One charged defendant with:
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-
degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-
10(a)(1); third-degree CDS possession with an intent to distribute, N.J.S.A.
2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(5); second-degree possession of a weapon
while possessing CDS with the intent to distribute, N.J.S.A. 2C:39-4.1(a);
second-degree conspiracy to possess a weapon, N.J.S.A. 2C:5-2; N.J.S.A.
2C:39-5(b); third-degree conspiracy to possess CDS, N.J.S.A. 2C:5-2; N.J.S.A.
2C:35-10(a)(1); and second-degree conspiracy to possess a weapon while
possessing CDS with intent to distribute, N.J.S.A. 2C:5-2; N.J.S.A. 2C:39-
4.1(a). The other indictment charged defendant with second-degree being a
person not permitted to possess a weapon, N.J.S.A. 2C:39-7(b).
Defendant moved to suppress the physical evidence obtained from the
vehicle search. The judge denied the motion by way of a written opinion.
After dismissal of some counts, the remaining charges against defendant
and Gelin in the first indictment were tried to a jury over the course of six days.
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Defendant was convicted of second-degree unlawful possession of a weapon and
third-degree CDS possession; Gelin was acquitted of all charges. Immediately
after the trial's conclusion, the judge conducted a bench trial on the certain-
persons charge; defendant was convicted.
The State moved for either a discretionary or mandatory extended term
pursuant to N.J.S.A. 2C:44-3. The judge determined that defendant qualified
for both and sentenced defendant to: an extended fifteen-year prison term, with
a seven-and-one-half-year period of parole ineligibility, on the unlawful-
possession-of-a-weapon conviction; a concurrent seven-year prison term on the
CDS conviction; and a concurrent seven-year prison term on the certain-persons
conviction.
Defendant appeals, arguing:
I. THE EVIDENCE FOUND IN THE CAR MUST BE
SUPPRESSED BECAUSE SEEING AN
EXTREMELY SMALL QUANTITY OF
MARIJUANA DID NOT PROVIDE PROBABLE
CAUSE TO SEARCH, LET ALONE SUFFICIENT
PROBABLE CAUSE TO MOVE THE CAR'S DOOR
PANELS.
II. THE COURT ERRED IN ADMITTING
EVIDENCE OF MARIJUANA IN THE CAR, AND
THE LIMITING INSTRUCTION WAS
INSUFFICIENT (Not Raised Below).
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III. DEFENDANT'S FIFTEEN-YEAR SENTENCE,
WITH A SEVEN-AND-ONE-HALF-YEAR PAROLE
DISQUALIFIER[,] IS MANIFESTLY EXCESSIVE.
Defendant also filed a pro se supplemental brief raising the following single
point, which we renumber:
IV. DEFENDANT'S GRAVES ACT SENTENCE IS
ILLEGAL IN THAT IT WAS NOT IMPOSED IN
ACCORDANCE WITH STATE LAW, CONTRARY
TO THE PROVISIONS OF BOTH STATE AND
FEDERAL CONSTITUTIONS.
We find insufficient merit in all defendant's arguments to warrant further
discussion in a written opinion. R. 2:11-3(e)(2). We add only a few comments
regarding Point I.
At the suppression hearing, the only testimony came from the two officers ,
whom the judge credited, leading the judge to find the facts we briefly
summarized above. The judge applied correct legal principles in determining
that the officer was justified in originally approaching defendant's stopped
vehicle and in questioning Gelin in light of the circumstances in which he found
defendant's vehicle and Gelin's public urination. As that officer asked questions
about their identities, the other officer properly walked around defendant's
vehicle and, while outside the vehicle, permissibly looked into the vehicle with
the aid of a flashlight. State v. Johnson, 171 N.J. 192, 210 (2002). This
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permissible look led to the officer's observation of marijuana "shake," cigar
remains, and a plastic bag, all which gave the officers' probable cause to inquire
and search further for contraband despite the lack of a search warrant. State v.
Witt, 223 N.J. 409, 422 (2015). That search uncovered the handgun and CDS,
which were admitted at trial and formed the framework for defendant's
convictions.
We substantially agree with Judge Angela F. Borkowski's thorough and
well-reasoned written opinion which, in greater detail than we have provided,
describes the factual and legal justification for the stop, search and seizure.
Affirmed.
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