                                NOT FOR PUBLICATION WITHOUT THE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-1959-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VICTOR F. HUERTAS,

     Defendant-Appellant.
_________________________

                    Submitted October 17, 2019 - Decided October 25, 2019

                    Before Judges Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment Nos. 17-03-0853
                    and 15-06-1721.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Cody Tyler Mason, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Kevin Jay Hein, Assistant
                    Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Victor F. Huertas appeals from the November 29, 2017

judgment of conviction entered after a guilty plea subsequent to the denial of his

motion to suppress evidence of a warrantless search of his vehicle. He also

challenges his sentence. We affirm in all respects, but remand for correction of

the judgment of conviction to reflect the appropriate jail credits.

      In 2016, Cherry Hill Township Police Officer James Harmon stopped a

GMC Yukon sports utility vehicle (SUV) operated by defendant. Harmon

observed defendant's vehicle traveling on the right-hand shoulder of a highway,

for some distance, attempting to overtake traffic before merging into the right-

most lane. When Harmon approached the vehicle, he smelled burnt marijuana

coming from the passenger compartment.

      Harmon asked defendant to step out of his car, informed him he could

smell the marijuana "plain as day," and asked if there were any illegal items in

the vehicle. Defendant responded a friend smoked marijuana in the car earlier,

but claimed there was nothing else in the car. Harmon informed defendant he

had probable cause to search the vehicle. Defendant cooperated and stepped out

of the vehicle as Harmon searched the passenger compartment.




                                                                          A-1959-17T3
                                        2
       According to Harmon, the search of the passenger compartment

uncovered "a significant quantity of heroin or cocaine" and "rubber bands and

bags everywhere." Harmon administered Miranda1 warnings to defendant and

asked him if he was on his way to "make a drop," or if he was dealing drugs out

of the car. Defendant volunteered that he was dealing drugs out of his car. A

search of the rear passenger compartment yielded a bag, which contained bags

of rice,2 a blender, a scale, and a brownish powder substance.

       Officer Harmon then searched the rear cargo area of the vehicle and

discovered three guns inside a black trash bag: an Uzi style machine gun, a

sawed-off shotgun, and a smaller compact handgun. Defendant was arrested.

       Defendant filed a motion to suppress the evidence obtained during the

search. He argued Harmon did not have probable cause to make the initial traffic

stop and therefore the subsequent search and arrest were improper. The motion

judge found there was a reasonable, articulable suspicion to stop defendant

because Harmon's testimony established defendant did not merely drift into the




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
   Based on his training and experience, Harmon testified heroin is often
packaged and stored in rice because it acts like a desiccant and keeps the drug
free from contamination.
                                                                        A-1959-17T3
                                       3
shoulder of the highway, but was driving on it, which constituted a motor vehicle

violation.

      The judge found Harmon testified credibly because "he is well[-]spoken,

he is articulate" and his "body language exuded that of someone with

confidence." She noted Harmon conducted over 100 car searches throughout

his career involving the seizure of marijuana. She found Harmon had probable

cause to search defendant's car when he smelled burnt marijuana. The judge

denied the suppression motion.

      Thereafter, in accordance with a plea agreement, defendant pled guilty to

one count of second-degree certain persons not to have weapons, N.J.S.A.

2C:39-7(b)(1). Pursuant to the plea agreement, the motion judge sentenced

defendant to eight years' incarceration, with a five-year period of parole

ineligibility, to run concurrently with a previously-negotiated sentence of four

years of probation with 270 days incarceration on a separate indictment.

Defendant's plea resulted in a violation of probation (VOP), which was imposed

pursuant to defendant's guilty plea on third-degree drug distribution charges in

2015. As a result, the judge revoked and terminated probation, and sentenced

defendant to a three-year term of incarceration to run concurrently with the plea

sentence, and accorded defendant 510 days of jail credit on the VOP.


                                                                         A-1959-17T3
                                       4
      Defendant raises the following arguments on appeal:

            POINT I - THE MOTION COURT ERRED IN
            DENYING   THE MOTION     TO  SUPPRESS
            EVIDENCE BECAUSE THE OFFICERS DID NOT
            HAVE PROBABLE CAUSE TO SEARCH THE CAR
            TRUNK.

            POINT II – A REMAND IS REQUIRED BECAUSE
            THE SENTENCING COURT DID NOT EXPLAIN
            THE SENTENCE, DID NOT HEAR FROM DEFENSE
            COUNSEL, AND WITHHELD EARNED JAIL
            CREDIT.

                  A.   A Remand Is Required Because the Court
                  Did Not Adequately Explain the Eight-Year
                  Sentence Imposed.

                  B.    Resentencing Is Required Because the
                  Court Imposed Sentence Without Hearing from
                  Defense Counsel.

                  C.    A Remand Is Required to Award
                  Defendant Additional Jail Credit and Prior
                  Service Credit for His 2015 Conviction.

                                      I.

      "When reviewing a claim with respect to an issue of suppression, a

reviewing court must accept the factual findings made by the trial court in

analyzing the question, provided those factual findings are 'supported by

sufficient credible evidence in the record.'" State v. Smith, 212 N.J. 365, 387




                                                                       A-1959-17T3
                                      5
(2012) (quoting State v. Handy, 206 N.J. 39, 44 (2011)). "In considering the

legal conclusions to be drawn from those facts, our review is de novo." Ibid.

      When a sentence is challenged, unless the appeal raises a question of law,

a court reviews a sentence imposed pursuant to a plea agreement under the abuse

of discretion standard. State v. Sainz, 107 N.J. 283, 292 (1987). Where a

defendant receives the exact sentence bargained for, a presumption of

reasonableness attaches to the sentence. State v. S.C., 289 N.J. Super. 61, 71

(App. Div. 1996).

                                      II.

      Although defendant's counseled brief stipulates the motor vehicle stop

was valid, defendant's pro se brief challenges the stop. In his counseled brief,

defendant argues the motion to suppress was wrongly decided because police

lacked probable cause to search the entirety of his vehicle. Specifically, he

contends the smell of burnt marijuana emanating from the passenger

compartment did not provide probable cause to search the cargo section of the

vehicle. We address these arguments in turn.

                                      A.

      "[A] police officer may stop a motor vehicle where there is a reasonable

or articulable suspicion that a motor vehicle violation has occurred." State v.


                                                                        A-1959-17T3
                                       6
Cohen, 347 N.J. Super. 375, 378 (App. Div. 2002) (citing Delaware v. Prouse,

440 U.S. 648, 663 (1979)).      "[T]he State is not required to prove that the

suspected motor vehicle violation occurred." State v. Locurto, 157 N.J. 463,

470 (1999) (quoting State v. Williamson, 138 N.J. 302, 304 (1994)).

      The judge credited Harmon's testimony that he observed defendant driving

on the shoulder of the highway in violation of N.J.S.A. 39:4-88B, while

attempting to overtake another vehicle in the right lane. In the absence of any

objective evidence refuting Harmon's testimony, the motor vehicle violation

provided a reasonable, articulable suspicion and the stop was lawful.

                                       B.

      The odor of marijuana emanating from a car will generally establish

probable cause to search its passenger compartment. State v. Birkenmeier, 185

N.J. 552, 563 (2006).      New Jersey's automobile exception authorizes a

warrantless search of an automobile when police have probable cause, and the

circumstances giving rise to the probable cause are "unforeseeable and

spontaneous[.]" State v. Witt, 223 N.J. 409, 450 (2015).

      In State v. Guerra, the Court held a warrantless search of the trunk and its

contents was justified under the automobile exception to the warrant

requirement. 93 N.J. 146, 151-52 (1983). There, police stopped a vehicle and


                                                                          A-1959-17T3
                                        7
detected a strong odor of marijuana that could not have come from a small

suitcase visible in the passenger compartment. Id. at 149. The driver declined

consent to search the trunk. Ibid. The Court found officers were justified in

performing a warrantless search of the trunk, and "every part of the vehicle"

based on their detection of a strong odor of marijuana. Id. at 151.

      Lawful observation of contraband can create probable cause to search an

area beyond which the initial probable cause permitted. State v. Nishina, 175

N.J. 502, 515-16 (2003). In Nishina, an officer smelled the "odor of burnt

marijuana coming out from" the defendant's clothes after the defendant exited

his vehicle. Id. at 508. Based on the smell, the officer patted down the defendant

and discovered a pen and a pack of rolling papers, which the officer recognized

as "drug paraphernalia used for marijuana cigarettes." Ibid. The officer then

shined a flashlight into the defendant's car and saw a "clear plastic bag

protruding out of the console" which contained more marijuana. Ibid. The Court

concluded the odor of marijuana on defendant's person, the discovery of drug

paraphernalia as a result of a lawful search of defendant's person, and the plain

view observation of the plastic bag in the car, "amply supplied the officer with

probable cause to suspect that drugs would be found in defendant's vehicle." Id.

at 517-18.


                                                                          A-1959-17T3
                                        8
      Here, Harmon testified that after stopping the vehicle he immediately

smelled burnt marijuana emanating from it while speaking with defendant.

Defendant admitted his friend smoked marijuana in the car earlier. Based on

the odor, Harmon conducted a lawful search of the vehicle where he found

heroin and heroin paraphernalia in the passenger compartment.

      The recovery of heroin and paraphernalia in the center console, and the

fact it was not marijuana and yet there was a marijuana odor in the car, provided

the probable cause to search the rest of the vehicle. 3 Therefore, the discovery

and seizure of the drugs, paraphernalia, and guns in the rear cargo area was

constitutional.

                                       C.

      We reject defendant's challenge to the sentence on the grounds the judge

did not provide a basis for the aggravating factors. We also reject the claim his

attorney was not permitted to address the court at sentencing.

      Our Supreme Court stated findings regarding the aggravating and

mitigating factors ensure the "sentence imposed is tailored to the indivi dual

offender and to the particular crime he or she committed." Sainz, 107 N.J. at



3
  Although not determinative, we note the vehicle did not have a trunk per se,
but a contiguous rear cargo area commonly found in SUVs.
                                                                         A-1959-17T3
                                       9
288. The sentencing record readily demonstrates the judge made the proper

findings to support the applicable aggravating factors.       Indeed, the judge

reviewed the pre-sentence report and found defendant's prior contact with the

court system, including adjudications of juvenile delinquency and indictable

convictions as an adult, were sufficient to find the aggravating factors. She also

concluded defendant's prior convictions         for aggravated manslaughter,

aggravated assault, and numerous drug offenses justified finding the applicable

aggravating factors. The judge's findings were individualized to defendant and

supported the application of aggravating factors N.J.S.A. 2C:44-1(a)(3), (6), and

(9).

       We also reject the claim the judge erred when imposing the State

recommended sentence without hearing from defense counsel, who could argue

for mitigation and a lower sentence. The sentencing record does not support

defendant's argument his attorney was prevented from addressing the court. The

judge inquired if defendant wished to place a statement on the record. The

reason defendant did not is because, as the sentencing judge noted, "[t]his [was]

a negotiated agreement between the prosecutor and the defendant." We find no

reversible error in this regard.




                                                                          A-1959-17T3
                                       10
                                        D.

      Defendant argues he is entitled to the following: three days additional jail

credit from April 16 through April 18, 2016; relabeling of jail credit from April

11 through September 19, 2015, and February 25 through April 18, 2016, as

"prior service time" credit; and twenty-seven additional days of jail credit on his

VOP sentence for the time spent in jail following his arrest.

      We agree the sentencing judge undercounted defendant's credit by three

days because he was incarcerated from April 16 until April 18, 2016, not April

15, 2016. The State concedes this point, and does not object to relabeling the

three days as prior service credit to "avoid inaccuracy and confusion." For these

reasons, we remand this aspect of the sentence to correct the judgment of

conviction.

      Finally, defendant was provided jail credit starting on January 24, 2017,

but argues that since he was arrested on December 28, 2016, the court withheld

twenty-seven days to which he was entitled. We disagree.

      We previously stated "[a]bsent a showing of an abusive exercise of

authority, it would be unreasonable to grant defendant credit for the custodial

time elapsing prior to the filing of a VOP statement of charges." State v.

DiAngelo, 434 N.J. Super. 443, 462 (App. Div. 2014). Here, the statement of


                                                                           A-1959-17T3
                                       11
charges was filed on January 19, 2017. Pursuant to DiAngelo, defendant's credit

for custodial time commenced on that date, not the date of his arrest. At best,

this calculation entitled defendant to five additional days credit on the VOP

sentence. However, as the State notes, these alterations will have no practical

effect, since it is uncontested defendant received the correct number of credits

on his eight-year weapons sentence to which the three-year flat sentence for the

VOP runs concurrently.

      Affirmed in part and remanded in part. We do not retain jurisdiction.




                                                                        A-1959-17T3
                                      12
