                        NOT FOR PUBLICATION WITHOUT THE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-3305-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

AZMAR CARTER,

     Defendant-Appellant.
___________________________________

              Submitted December 20, 2017 – Decided June 27, 2018

              Before Judges Fuentes and Koblitz.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No.
              16-01-0165.

              Joseph E. Krakora, Public Defender, attorney
              for   appellant    (Molly  O'Donnell   Meng,
              Assistant Deputy Public Defender, of counsel
              and on the brief).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (LeeAnn
              Cunningham,    Special    Deputy    Attorney
              General/Acting Assistant Prosecutor, on the
              brief).

PER CURIAM

        Pursuant     to    a   negotiated     agreement      with    the    State,

defendant Azmar Carter pled guilty to second degree unlawful
possession of a handgun while committing a drug-related offense,

N.J.S.A. 2C:39-4.1(a).         The court sentenced defendant to a term

of   five    years    imprisonment,   with    forty-two      months      of     parole

ineligibility as mandated by the Graves Act, N.J.S.A. 2C:43-

6(c).    Pursuant to Rule 3:5-7(d), defendant reserved his right

to appeal the order of the Criminal Part denying his motion to

suppress evidence.         Based on the record developed before the

motion judge, we affirm.

      City of Orange Police Detective Gregory Johnson was the

only witness to testify at the suppression hearing conducted on

August 4, 2016.         At all times relevant to this case, Johnson,

Sergeant Stefanelli, Detective Mooney, and Detective Greenfield

were assigned "to combat open air narcotics violations" using an

unmarked     black     Dodge   Durango.       Johnson     testified       that        at

approximately 1:5O p.m. on April 7, 2015, he saw defendant on

the sidewalk of Scotland Road, "just standing in and about the

area."      Johnson testified he was familiar with defendant from

"[p]rior     street     encounters"   and    because    he    had     "also        been

arrested for a [controlled dangerous substance] violation."

      When    Johnson    first   noticed     defendant,      he    was   "counting

currency, and . . . talking to . . . a couple [of] different

people."      Johnson watched defendant for approximately "five or

ten minutes" before deciding to approach him.                     He estimated he

                                      2                                       A-3305-16T3
was "a little bit shy of 100 feet" away from defendant at the

time.     Johnson acknowledged that defendant was not engaged in

any suspicious activities at the time he decided to step out of

the unmarked police car "to conduct a field interview."

       When asked to explain what he meant by a "field interview,"

Johnson said he "just wanted to see [defendant's] whereabouts as

far as why he was in a location."           Johnson made clear, however,

that he did not have any intention to search or even frisk

defendant at that time.       Johnson drove the unmarked police car

to where defendant was standing.           By his own estimation, he was

"about 25 feet" away from defendant when he stepped out of the

car.       Although    defendant   did      not     say     anything,    Johnson

nevertheless    assumed   defendant       had     noticed    him   "because      he

started to walk away . . . and that made me and the other

detective decide to just conduct a field interview."                    (Emphasis

added).

       Johnson and the other three detectives were all dressed in

civilian attire, with their police badges "displayed."1                       They

identified themselves as police officers and asked defendant to

stop.      Defendant   immediately       stopped    without    incident.         In

response to the prosecutor's question, Johnson testified that

1
    Johnson did not specify how the badges were displayed.



                                     3                                   A-3305-16T3
defendant did not say or do anything before they identified

themselves as police officers.               Johnson testified that before he

or his fellow officers asked him any questions, defendant "just

blurted    out"    the   following      statement:      "I     saw   you   guys    and

thought    you     wanted    me    to   leave."        According      to   Johnson,

defendant then "removed a small bag of marijuana . . . [from his

person and] threw it to the ground."2

      At this point, Johnson testified that they picked up the

bag of marijuana from the ground and arrested defendant.                           The

officers also took possession of a knapsack defendant had on his

person    and    transported      him   to    the   police     station.     Johnson

testified they did not search the knapsack at the time.                           After

they were in the police station, Johnson testified that they

opened    and     searched   the    knapsack        following    a   protocol      for

inventory of a prisoner's property.

      Johnson testified that Sergeant Robert Stefanelli conducted

the inventory search.          The knapsack contained twenty-four grams

of   marijuana,     "a   32-caliber      handgun       fully    loaded     with    six



2
  Earlier in his direct testimony, Johnson claimed he did not
remember many of the details of his encounter with defendant.
The prosecutor provided him with a copy of the police report of
this incident as a means of refreshing his recollection.     With
respect to defendant's alleged act of self-incrimination,
Johnson read directly from the police report without objection.


                                         4                                  A-3305-16T3
bullets[,]" and four Xanax pills.                        The prosecutor also asked

Johnson the following questions:

            Q. Did you have any suspicion or reason to
            believe that those items were inside the bag
            prior to it being opened at the police
            precinct?

            A. Yes.

            Q. Okay.        And    what      caused       that     suspicion
            . . . [?]

            A. It was . . . a strong [odor] of marijuana
            emanating off his person and . . . [there]
            was a decent weight to the bag also.

    On    August      29,   2016,      the       judge    issued    an   oral    decision

denying   defendant's        motion     to       suppress.       The     judge   rejected

defense counsel's argument that the contents of the knapsack

should have been suppressed because the State did not produce an

"inventory sheet."          Although the existence of an inventory sheet

would have "bolstered" the State's claim, the judge found the

police    had   the    right      to   conduct       an    inventory       search   of    a

knapsack that was carried by defendant on his person at the time

of his arrest:

                 I don't find any evidence to show that
            it was a pretext, as argued by defense
            counsel, . . . the detective did indicate
            that the bag was heavy for its size or
            condition and that he did smell marijuana
            coming out of it.    But the safety factor,
            which   was   the  detective's   basis  for
            conducting the inventory search, as opposed
            to just handing the defendant his backpack

                                             5                                   A-3305-16T3
           or holding onto his backpack until his
           criminal matter was resolved is a reasonable
           factor in this case.

    Defendant now appeals raising the following argument.

           POINT I

           THE TRIAL COURT ERRED IN FINDING THAT POLICE
           LAWFULLY STOPPED DEFENDANT WHERE THERE WAS
           NO SUSPICION THAT HE WAS ENGAGED IN CRIMINAL
           ACTIVITY.   BECAUSE THE EVIDENCE SEIZED WAS
           TAINTED BY THE UNLAWFUL STOP, DEFENDANT'S
           MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

    As the record we described here shows, defense counsel did

not challenge the propriety of defendant's stop when he argued

the matter before the motion judge.      Although not raised by the

State, appellate counsel did not identify that this issue was

not raised before the motion judge, as required by Rule 2:6-

2(a)(6).   Under these circumstances, we are bound to disregard

any error or omission "unless it is of such a nature as to have

been clearly capable of producing an unjust result." R. 2:10-2;

see also State v. Prall, 231 N.J. 567, 581 (2018); State v.

Macon, 57 N.J. 325, 337-38 (1971).        We conclude there is no

factual or legal basis to interfere with the decision of the

Criminal Part.

    With    respect   to   how   the   detectives   interacted   with

defendant at the inception of their encounter, the motion judge

made the following findings:


                                 6                          A-3305-16T3
                  The defendant walked away and the
             officers identified themselves as police and
             asked him to stop, which he did.     It does
             not appear that a simple stop and inquiry
             violates any of the defendant's rights as he
             did, in fact, stop and speak to them.     At
             that   time  the   defendant,  according  to
             Detective Johnson, stated I saw you guys and
             thought you might want me to leave and then
             took out what appeared to be a bag of
             marijuana and threw it on the ground, which
             was retrieved by the police officers.     At
             that time [defendant] was arrested and read
             his [Miranda]3 rights.

       The judge's findings are entirely based on his assessment

of Detective Johnson's credibility.                 As an appellate court, we

are bound to accept a trial judge's factual findings based on

the judge's assessment of a witness's credibility.                             State v.

Locurto, 157 N.J. 463, 474 (1999).                   Based on these findings,

defendant voluntarily discarded a bag of marijuana in the plain

view of the police officers.

       Our   Supreme     Court      has    held   that     a       police   officer   may

conduct a "field inquiry" with a person without "grounds for

suspicion,"       as   long    as   the     encounter      is      not   predicated     on

"impermissible reasons such as race."                    State v. Rodriguez, 172

N.J. 117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471,

483    (2001)).        The    police      may   initiate       a    field   inquiry   "by

approaching an individual on the street, or in another public

3
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                            7                                   A-3305-16T3
place,   and    'by     asking   him   if   he   is   willing   to   answer   some

questions[.]'" Ibid. (alteration in original) (emphasis added)

(quoting State v. Davis, 104 N.J. 490, 497 (1986)).                   Thus, "[a]

field inquiry is not considered a seizure 'in the constitutional

sense so long as the officer does not deny the individual the

right    to   move.'"       Ibid.   (emphasis     added)   (quoting    State     v.

Sheffield, 62 N.J. 441, 447 (1973)).

    Here, the "field inquiry" between the police and defendant

was described through Johnson's direct testimony as follows:

              Q. Did you identify yourselves at any point
              as police?

              A. Correct.

              Q. And did you inform him to stop or no?

              A. Yes.

              Q. Did he -- did he stop?

              A. Yes.

              [(Emphasis added).]

    Johnson also testified that he was familiar with defendant

from prior narcotic-related encounters and arrests.                    From this

record, there is no rational basis to conclude Johnson did or

said anything to defendant that could be construed as denying

his right to move freely.              Rodriguez, 172 N.J. at 126.             The

record shows defendant stopped when Johnson "informed" him to


                                        8                                A-3305-16T3
stop.     There is no evidence of coercion.                   It can be argued that

every time a police officer asks anyone to stop, there is an

implied    common   sense    notion        that    refusal      is    not   an   option.

However, under the constitutional concept of a field inquiry,

defendant    has    the    burden     of       showing   he    had    an    objectively

reasonable    belief      that   he   was       not   free     to    ignore   Detective

Johnson's request to stop.             There is insufficient evidence in

the record for this court to reach this conclusion.                              Defense

counsel's failure to raise this argument before the motion judge

buttresses this conclusion.           R. 2:10-2.

    Affirmed.




                                           9                                     A-3305-16T3
