                        NOT FOR PUBLICATION WITHOUT THE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-3397-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KELVIN REYES, a/k/a KEVIN REYES,

     Defendant-Appellant.
___________________________________

              Submitted November 29, 2016 – Decided June 19, 2017

              Before Judges Ostrer and Leone.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Camden County,
              Indictment No. 13-06-1904.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Peter T. Blum, Assistant Deputy
              Public Defender, of counsel and on the brief).

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

PER CURIAM

        Defendant     Kelvin    Reyes    pleaded     guilty    to   first-degree

possession       of   a   controlled     dangerous    substance     (over    fifty

marijuana plants) with the intent to distribute, N.J.S.A. 2C:35-
5(a)(1), -5(b)(10), after the trial court denied his motion to

suppress evidence.     Consistent with the plea agreement, the court

sentenced defendant to a ten-year term of incarceration with a

three-year    period   of    parole    ineligibility.         In   his    appeal,

defendant asserts the trial court erred by relying on the hearsay

statement of the officer who first observed the so-called "grow

facility" in the basement of defendant's Camden home.                    In doing

so, defendant argues the court both violated his constitutional

rights and abused its discretion.              Finding no such error, we

affirm.

      The principal State witness at the suppression hearing was

parole officer Anthony Bruno.         He had a warrant to arrest a parole

absconder    named   Joel    Hernandez,     who   was   defendant's       cousin.

Bruno's investigation into Hernandez's whereabouts led him and a

team of officers to defendant's house.             Bruno, lacking a search

warrant, requested defendant's permission to enter the home to

search for the fugitive.          Bruno testified that Reyes consented to

the officers' entry.        Bruno also testified that the house reeked

of   burnt   marijuana.      Reyes    admitted    he    had   recently     smoked

marijuana, but Bruno assured Reyes that his purpose was to find

the fugitive.

      Defendant   raised     no    objection   initially      as   the   officers

searched the first and second floors of his home.                   But, when a

                                        2                                 A-3397-14T3
member of the search team, Sergeant Dave Brooks, opened the door

to defendant's basement, he suddenly withdrew his consent to the

search and insisted that Bruno would need a search warrant to

proceed downstairs.   Brooks promptly shut the basement door.       But,

Bruno testified, without objection, that Brooks then said he had

already observed the basement contained a marijuana grow facility.

Brooks then told Bruno about his observation.       Although defendant

had withdrawn his consent, the officers thereafter conducted a

protective sweep of the basement to confirm that neither Hernandez

nor anyone else was hiding there. The officers eventually obtained

a search warrant for the basement and seized 307 plants.

     Defendant presented a competing version of events through two

witnesses — a cousin and a close friend — who were present in the

house when the officers arrived.       Both testified that the officers

initially entered the house without consent.       The friend, who was

familiar with the configuration of the basement stairs, further

asserted it would have been impossible to see into the basement

from Brooks's vantage point at the threshold of the door.            The

friend explained that the door led to a landing with the stairway

positioned at a ninety-degree angle to the left.1       He argued that


1
  Defendant introduced into evidence several photographs of the
doorway and stairway, but these are not included in the appellate
record.


                                   3                            A-3397-14T3
a wall abutting the far side of the steps precluded any view into

the basement until one walked at least halfway down.

      Defendant also called a State Police Detective Sergeant, Dean

Carnival, to testify about the protective search and subsequent

search   pursuant    to   the   warrant.    Significantly,    on    cross-

examination, Carnival testified that the lighting in the basement

was unusually bright, noting the lights mimicked sunlight to

promote the plants' growth.       He also stated that he could smell

the marijuana plants from the top of the basement.

      In denying the motion to suppress, the trial judge credited

Bruno's testimony and relied on Brooks's hearsay statement that

he detected the presence of marijuana plants before defendant

withdrew his consent. The judge found that the officers discovered

the   marijuana      plants     pursuant   to   defendant's    consent.

Accordingly, the seizure was lawful.

      As his sole point on appeal, defendant contends:

           POINT I

           THE HEARING COURT DEPRIVED REYES OF DUE
           PROCESS -- OR AT LEAST ABUSED ITS DISCRETION
           -- BY CREDITING AN OFFICER'S HEARSAY TESTIMONY
           THAT ANOTHER OFFICER HAD SEEN MARIJUANA IN
           REYES'S   BASEMENT    OVER   AN   EYEWITNESS'S
           TESTIMONY THAT THE BASEMENT COULD NOT BE
           VIEWED FROM THE OTHER OFFICER'S POSITION.
           U.S. CONST. AMENDS. XIV; N.J. CONST. ART. I,
           PARA. 1. (not raised below).



                                     4                             A-3397-14T3
      Defendant argues that his procedural due process rights were

violated by the court's reliance on Brooks's hearsay observation.

In particular, he contends Brooks's out-of-court statements were

unreliable and should have been supplemented by his in-court

testimony.     He argues the court abused its discretion by failing

to require the State to call Brooks.

      We find no merit in defendant's challenge to the court's

reliance on Brooks's hearsay observation. Defendant did not object

at the hearing to the admission of Brooks's hearsay statements

through Bruno.    Indeed, on cross-examination of Bruno, his counsel

had Bruno repeat the hearsay evidence about which he now complains:

           Q    So, Mr. Brooks says to you, you know
           what's down there in the basement, there's a
           bunch of marijuana plants; is that right?

           A     Correct, uh-huh.

      Even if hearsay is subject to a well-founded objection, it

is   generally   evidential   if   no       objection   is   made.   State   v.

Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring);

see also Morris v. United States, 813 F.2d 343, 348 (11th Cir.

1987) (stating that "if [hearsay] evidence . . . is admitted

without objection, it is to be considered, and accorded its natural

probative effect, as if it were in law admissible" (emphasis

omitted) (quoting Spiller v. Atchison, Topeka & Sante Fe Ry. Co.,

253 U.S. 117, 130, 40 S. Ct. 466, 472, 64 L. Ed. 810, 819 (1920))).

                                        5                             A-3397-14T3
     Our Court has declared that the admission of hearsay without

objection is subject to a plain error review, but it did so in a

criminal jury trial.      State v. Frisby, 174 N.J. 583, 591 (2002)

("Because no objection was advanced with respect to that hearsay

evidence   at   trial,   it   must   be   judged   under   the   plain-error

standard: that is, whether its admission 'is of such a nature as

to have been clearly capable of producing an unjust result.'"

(quoting R. 2:10-2)).         It is questionable whether plain error

review is required in a suppression hearing where the judge is the

fact-finder and permits the admission of unobjected-to hearsay.

The judge presumably appreciates the nature of the hearsay and

will give it the weight it deserves.        Cf. N.J. Div. of Child Prot.

& Permanency v. J.D., 447 N.J. Super. 337, 348-49 (App. Div. 2016)

(stating, in context of civil bench trial, "[w]hen objectionable

hearsay is admitted . . . without objection, we presume that the

fact-finder appreciates the potential weakness of such proofs, and

takes that into account in weighing the evidence").              "In general,

it is not the judge's responsibility, particularly in a bench

trial with represented parties, to intervene with a well-founded

hearsay objection, whenever counsel choose not to raise one of

their own."     Id. at 349.

     Even if the plain error standard does apply, we presume the

hurdle is high to show the prospect of an unjust result.                   Cf.

                                      6                               A-3397-14T3
Ibid. (noting the "high hurdle" to demonstrate plain error where

unobjected hearsay is admitted in a civil bench trial).           For two

reasons, we discern no plain error in the court's reliance on

Brooks's observation.      First, defendant places undue weight on the

evidence that Brooks could not actually see plants from his vantage

point at the basement door because of the configuration of the

stairway.    Second, defendant has not established that reliance on

hearsay was a "clear and obvious" error.         See State v. Morton, 155

N.J. 383, 421 (1998) ("Under that [plain error] standard, defendant

has the burden of proving that the error was clear and obvious and

that it affected his substantial rights."), cert. denied, 532 U.S.

931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

      Turning first to the evidence of what Brooks could or could

not   see,   we   defer   to   the   trial   court's   determination   that

defendant's friend was not credible.          State v. Scriven, 226 N.J.

20, 32 (2016).     We also note that defendant has not included the

photographs that he claims demonstrate the sight lines from the

doorway in the appellate record.          See Cmty. Hosp. Grp., Inc. v.

Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) (stating

that the court need not attempt to review an issue "when the

relevant portions of the record are not included"), certif. denied

and remanded on other grounds, 187 N.J. 489 (2006); see also R.

2:6-1(a) (stating appellant must include in the appendix "such

                                      7                            A-3397-14T3
other parts of the record . . . as are essential to the proper

consideration of the issues").

     Furthermore,   even   if    one    assumed   that   Brooks   could   not

actually see the plants in the basement, the evidence amply

demonstrated that Brooks could nonetheless reliably detect the

presence of a grow facility.           Notably, although Bruno testified

that Brooks "had . . . seen down the stairs" and conveyed that

there were plants in the basement, Bruno did not claim that Brooks

said he actually saw the plants from the doorway.            The following

colloquy is illustrative:

          A    I see -- as Mr. -- Sergeant Brooks opened
          the door, you know, he kind of -- and then he
          revoked consent, he shut the door. And as he
          was shutting the door he was kind of looking
          at me with a facial expression that we have
          some sort of issue.

               Q    Okay. Did he say anything aloud at
          that point in time? And I mean --

          A    Yes.

               Q      -- Sergeant Brooks when I say he?

          A    Yes.

               Q      What did he say?

          A    I can't recall the specifics, but
          something to me regarding something going on
          in the basement.

               Q      Okay.     And did he elaborate on that?

          A    I don't recall, sir.

                                       8                            A-3397-14T3
                  . . . .

                  Q    . . . . Did Sergeant Brooks relate
             to you at any point between the door opening,
             the contacting the Marijuana Eradication Unit,
             did he tell you what he was able to observe
             from the doorway?

             A    Yes.    Yes.

                  Q      And what did he tell you?

             A    That there was a lot of marijuana in the
             basement.

                  Q    Okay.   And that was based on the
             observation that he had made at the top of the
             stairs?

             A    Yes.

     Bruno's testimony demonstrates that Brooks's observation of

a marijuana grow facility could well have been based on the glow

of the bright lights that illuminated the basement to mimic

sunlight and on the detectable odor of 307 marijuana plants in the

basement of a Camden house.       In short, Brooks did not need to see

the plants to conclude a grow facility was present in the basement.

Thus,   we   reject   defendant's   contention   that   Brooks's    hearsay

statement was unreliable.

     Second, defendant has fallen far short of demonstrating that

it was a clear and obvious error of law for the court to rely on

Brooks's hearsay.        See Morton, supra, 155 N.J. at 421.       An error

is plain only if "the error is clear under current law."             United


                                     9                              A-3397-14T3
States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L.

Ed. 2d 508, 519 (1993).    However, the clear import of current law

is that "hearsay is permissible in suppression hearings."      State

v. Bivins, 226 N.J. 1, 14 (2016) (internal quotation marks and

citation omitted); see also State v. Wright, 431 N.J. Super. 558,

565 n.3 (App. Div. 2013) (citing N.J.R.E. 101(a)(2)(E)), rev'd on

other grounds, 221 N.J. 456 (2015); State v. Gibson, 429 N.J.

Super. 456, 466 (App. Div. 2013) (stating that "[t]he Rules of

Evidence do not apply in the suppression hearing, except as to

N.J.R.E. 403 and claims of privilege" and citing N.J.R.E. 104(a)),

rev'd on other grounds, 219 N.J. 227 (2014); State v. Williams,

404 N.J. Super. 147, 171 (App. Div. 2008) (concluding that the

defendant could not invoke his Sixth Amendment right to challenge

the admission of hearsay during a suppression hearing because the

right was "inapplicable" to the proceeding), certif. denied, 201

N.J. 440 (2010).2   There is also no clear authority for defendant's

contention that hearsay in a suppression hearing requires special

corroboration.



2
  New Jersey is not alone. "The overwhelming majority of state
courts that have addressed the question of whether Crawford [v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)]
applies to a preliminary hearing such as a motion to suppress have
also held that the right of confrontation is not implicated."
Washington v. Fortun-Cebada, 241 P.3d 800, 807 (Wash. Ct. App.
2010) (collecting cases, including Williams, supra).

                                 10                          A-3397-14T3
     Contrary       to   current   law    approving       reliance      on   hearsay,

defendant asks us to find a bar to the admission of hearsay in

suppression hearings grounded in the right to procedural due

process.   Defendant cites no precedent, let alone clear precedent,

in support of his argument.              The United States Supreme Court

supports the opposite view.           United States v. Raddatz, 447 U.S.

667, 679, 100 S. Ct. 2406, 2414, 65 L. Ed. 2d 424, 435 (1980)

(observing that "the process due at a suppression hearing may be

less demanding and elaborate than the protections accorded the

defendant at the trial itself").               Defendant's reliance on cases

involving parole and probation revocation and civil commitment —

to the extent they stand for a limitation on hearsay at all — are

readily distinguishable because they directly involve the liberty

of a defendant.3

     In sum, the court's admission of Brooks's hearsay through

Bruno   was   not    plain   error.           To   the   extent   not    addressed,




3
  We recognize that a majority of the panel in State v. Bacome,
440 N.J. Super. 228, 239 n.7 (App. Div. 2015), rev'd on other
grounds, 228 N.J. 94 (2017), raised questions about the observation
in Raddatz that "the interests at stake in a suppression hearing
are of a lesser magnitude than those in the criminal trial itself."
Raddatz, supra, 447 U.S. at 679, 100 S. Ct. at 2414, 65 L. Ed. 2d
at 435.    But the judges did not reach the issue of hearsay's
admissibility in a suppression hearing.      We need not join that
debate further here, as the issue in a plain error analysis, as
we have noted, is whether an error was clear under current law.

                                         11                                   A-3397-14T3
defendant's remaining arguments lack sufficient merit to warrant

discussion in a written opinion.   R. 2:11-3(e)(2).

    Affirmed.




                              12                         A-3397-14T3
