                        NOT FOR PUBLICATION WITHOUT THE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-4703-13T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ALEEM MALLARD, a/k/a
ALIMEEN WATSON,

     Defendant-Appellant.
__________________________

              Submitted January 11, 2017 – Decided May 15, 2017

              Before Judges Fuentes, Simonelli and Carroll.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Hudson County,
              Indictment No. 07-09-1501.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alison Perrone, Designated
              Counsel, on the brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Eric P. Knowles,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Following a jury trial, defendant Aleem Mallard was convicted

of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a), and
acquitted of first-degree robbery, N.J.S.A. 2C:15-1, and fourth-

degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e).

After waiving his right to a jury trial, the trial judge found

defendant guilty of second-degree certain persons not to have

weapons,   N.J.S.A.   2C:39-7(b).       On   July   30,   2009,   the     judge

sentenced defendant to an extended term of seventeen years with

an eight-and-one-half year period of parole ineligibility on the

certain persons conviction, a concurrent five years on the unlawful

possession of a weapon conviction, and a concurrent eighteen months

on the resisting arrest conviction.

     On appeal, defendant raises the following contentions:

     POINT I

           THE TRIAL COURT'S DECISION DENYING DEFENDANT'S
           MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM
           THE TRUNK OF THE CAR MUST BE REVERSED.

     POINT II

           SINCE    THE    IDENTIFICATION    INSTRUCTION
           IMPROPERLY EMPHASIZED THE STATE'S EVIDENCE
           AGAINST DEFENDANT WITHOUT ANY MENTION OF
           DEFENSE   EVIDENCE    OF   MISIDENTIFICATION,
           DEFENDANT'S CONVICTIONS MUST BE REVERSED AND
           THE MATTER REMANDED FOR A NEW TRIAL.     (Not
           Raised Below).

     POINT III

           SINCE THE TRIAL COURT REFUSED TO INSTRUCT THE
           JURY   ON   FALSE-IN-ONE,   FALSE-IN-ALL,   AS
           REQUESTED BY COUNSEL, THIS COURT SHOULD
           REVERSE DEFENDANT'S CONVICTIONS AND REMAND THE
           MATTER FOR A NEW TRIAL.

                                    2                                   A-4703-13T3
     POINT IV

          THE COURT ERRED IN IMPOSING A SEVENTEEN-YEAR
          TERM WITH EIGHT AND A HALF YEARS OF PAROLE
          INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING
          OF THE RELEVANT FACTORS DOES NOT SUPPORT SUCH
          A SENTENCE. ADDITIONALLY, THE COURT ERRED IN
          BASING ITS SENTENCE ON CONDUCT FOR WHICH
          DEFENDANT WAS FOUND NOT GUILTY.

     We have considered defendant's contentions in Points II and

III in light of the record and applicable legal principles and

conclude they are without sufficient merit to warrant discussion

in a written opinion.    R. 2:11-3(e)(2).     However, we make the

following brief comments.

     There was no plain error in the identification charge.     State

v. Funderburg, 225 N.J. 66, 79 (2016).    The identification charge

the judge gave mirrored the Model Jury Charge on identification

in effect at the time of defendant's trial.      The charge did not

emphasize evidence favorable to the State, and the judge did not

comment on the State's evidence or strength of the State's case

or bolster the credibility of any identification witness or the

reliability of the identification procedures used.     See State v.

Robinson, 165 N.J. 32, 45 (2000).

     The judge did not abuse her discretion in declining to give

a false-in-one, false-in-all charge.     See State v. Ernst, 32 N.J.

567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5

L. Ed. 2d 374 (1961).   There was no evidence that a witness had

                                3                             A-4703-13T3
willfully or knowingly testified falsely as to a material fact at

issue, and defendant did not argue the contrary.     Thus, there was

no basis for a false-in-one, false-in-all charge.         See ibid.

(noting that a false-in-one, false-in-all charge requires evidence

that witness knowingly and willfully testified falsely as to a

material fact).

                                 I.

      The following facts are relevant to defendant's argument in

Point I regarding the denial of his motion to suppress a handgun

found in the trunk of his car.       Detective Joseph Walsh from the

City of Jersey City Police Department testified at the suppression

hearing that at approximately 8:00 p.m. on April 17, 2007, he

responded to the scene of an armed robbery at a bodega on Logan

Avenue.   A witness, F.F.,1 told Walsh that he called the police

after seeing two males acting suspiciously outside his home before

the robbery occurred.   The witness also said that he saw the men

drive away in a green car, and he obtained the license plate number

and gave it to the dispatcher.

      Walsh obtained information of the green car's whereabouts and

was transporting F.F. there in an unmarked patrol car to see if

F.F. could identify the car.     While en route, they saw the car



1   We use initials to protect the identity of the witness.

                                 4                            A-4703-13T3
drive by on Garfield Avenue.              Walsh notified the dispatcher,

requested assistance, and followed the car without activating his

siren or lights.

     Walsh saw the driver of the green car, later identified as

defendant, drive down Westside Avenue at a speed of between forty

and forty-five miles per hour in a twenty-five-mile-per-hour zone.

Defendant attempted to turn left on Fisk Avenue, but there were

marked    police   cars   and   emergency    service   units   with    lights

activated travelling up Fisk Avenue.          Defendant then quickly made

a sharp right turn back onto Westside Avenue, but did not have

enough room and struck a large metal pole.              Defendant and the

front    seat   passenger,   later   identified   as   co-defendant     Malik

Flowers, exited the car and ran.            Walsh exited his patrol car,

notified dispatch of the crash, and chased and apprehended Flowers.

Other police officers chased defendant and apprehended him.

     When Walsh returned to the scene of the crash, he saw that

the trunk of the car was open.             He did not see how the trunk

opened, but believed it had opened from the force of the crash.

Police Officer Mark Hennessey, who had responded to the scene of

the crash, advised Walsh that he had recovered in plain view a .40

caliber handgun in the open trunk of defendant's car.

     Hennessey testified that he was traveling in the area where

defendant's car was traveling and turned around after the car

                                      5                               A-4703-13T3
passed his patrol car.   He arrived at the scene of the crash thirty

seconds after the impact and saw that the front doors and trunk

of the car were open.    There was no one else in the area when he

arrived, and he was the only one who had approached the car.        He

exited his patrol car, went to the driver's door, and looked into

the car's interior to see if there was anyone inside.       Knowing

there had been an armed robbery, he also looked to see if there

was a weapon in the interior.    He then walked to the open trunk,

where he saw clothing, a blanket, and the butt of a black handgun

sticking out from under the blanket in plain view.

     Defendant's expert forensic engineer, Charles Edwin Neu,

testified that he inspected defendant's car and found it sustained

damage to the right front quarter panel and door, the passenger

side airbag had deployed, and the windshield by the passenger side

was fractured from an impact from the inside.     He also inspected

the trunk and found that the trunk and trunk lock were undamaged.

He opined there was no side force to the car for an object in the

trunk to activate the emergency release lever, and none of the

soft items in the trunk would have been likely to trip the latch

or force the trunk to open.   He concluded that the trunk "did not

open by itself in the collision."      He admitted, however, that

given the vehicle's maneuvers and crashing at a high rate of speed,



                                  6                          A-4703-13T3
it was possible a handgun in the trunk could have hit the latch

and opened the trunk.

     The judge held that the warrantless search of the trunk was

valid under the plain view exception.   The judge found credible

Hennessey's testimony that the trunk was open when he arrived at

the crash scene, and that he saw the butt of the gun in plain

view.    The judge was not persuaded by Neu's testimony that the

crash could not have caused the trunk to open.     The judge also

noted that Neu had "grudgingly" admitted that given the vehicle's

maneuvers and crash at a high rate of speed, it was possible that

a handgun in the trunk could have hit the latch and opened the

trunk.

     The judge also held that the warrantless search was valid

under the inevitable discovery exception.   The judge found that

defendant's car was disabled and would definitely have been towed

and inventoried, and the State would have pursued established

investigatory procedures that would have inevitably resulted in

the discovery of the gun.

     Defendant argues in Point I that the record did not support

the judge's factual findings that the warrantless search was valid

under either the plain exception or the inevitable discovery

exception to the warrant requirement.   We agree with respect to



                                7                          A-4703-13T3
the inevitable discovery doctrine exception, but disagree as to

the plain view exception.

     "Appellate review of a motion judge's factual findings in a

suppression hearing is highly deferential."           State v. Gonzales,

227 N.J. 77, 101 (2016) (citation omitted).           "We are obliged to

uphold the motion judge's factual findings so long as sufficient

credible evidence in the record supports those findings."           Ibid.

(citation   omitted).   "Those   factual   findings    are   entitled    to

deference because the motion judge, unlike an appellate court, has

the 'opportunity to hear and see the witnesses and to have the

feel of the case, which a reviewing court cannot enjoy.'"           Ibid.

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

     The inevitable discovery doctrine is an exception to the

exclusionary rule.   Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct.

2501, 2509, 81 L. Ed. 2d 377, 387 (1984).      "If the State can show

that 'the information ultimately or inevitably would have been

discovered by lawful means . . . the deterrence rationale [of the

exclusionary rule] has so little basis that the evidence should

be received.'"    State v. Maltese, 222 N.J. 525, 551-52 (2015)

(alteration in original) (quoting Nix, supra, 467 U.S. at 444, 104

S. Ct. at 2509, 81 L. Ed. 2d at 387-88), cert. denied, ___ U.S.

___, 136 S. Ct. 1187, 194 L. Ed. 2d 241 (2016)).



                                   8                              A-4703-13T3
     In order to invoke the inevitable discovery doctrine in New

Jersey, the State must show by clear and convincing evidence that:

            (1) proper, normal and specific investigatory
            procedures would have been pursued in order
            to complete the investigation of the case; (2)
            under   all  of   the   surrounding   relevant
            circumstances the pursuit of those procedures
            would have inevitably resulted in discovery
            of the evidence; and (3) the discovery of the
            evidence through the use of such procedures
            would have occurred wholly independently of
            such evidence by unlawful means.

            [State v. Keaton, 222 N.J. 438, 451 (2015)
            (quoting State v. Sugar, 100 N.J. 214, 238
            (1985) (Sugar II)).]

The State must demonstrate that "had the illegality not occurred,

it would have pursued established investigatory procedures that

would have inevitably resulted in the discovery of the controverted

evidence, wholly apart from its unlawful acquisition."       Sugar II,

supra, 100 N.J. at 240.     "[T]he central question to be addressed

in invoking the inevitable discovery rule is whether that very

item of evidence would inevitably have been discovered, not merely

whether     evidence   roughly   comparable   would   have   been     so

discovered."    State v. Worthy, 141 N.J. 368, 390 (1995) (citation

omitted).     However, "the State need not demonstrate the exact

circumstances of the evidence's discovery . . . . It need only

present facts sufficient to persuade the court, by a clear and

convincing standard, that the [evidence] would be discovered."


                                   9                           A-4703-13T3
Maltese, supra, 222 N.J. at 552 (alterations in original) (quoting

State v. Sugar, 108 N.J. 151, 158 (1987)).

     Neither Walsh nor Hennessey, the State's only witnesses at

the suppression hearing, testified that the police would have

towed     and   inventoried   defendant's   car      and   pursued    proper

procedures to discover the handgun by independent lawful means.

Because the State presented no evidence, let alone clear and

convincing evidence, to invoke the inevitable discovery doctrine,

it was error to apply the doctrine in this case.

     We    reach   a   different   conclusion   as   to    the   plain   view

exception.      The plain view exception has three elements:

            (1) the police officer must be lawfully in the
            viewing area; (2) the officer has to discover
            the evidence inadvertently, meaning that he
            did not know in advance where evidence was
            located nor intend beforehand to seize it; and
            (3) it has to be immediately apparent to the
            police that the items in plain view were
            evidence of a crime, contraband, or otherwise
            subject to seizure.2

            [State v. Reininger, 430 N.J. Super. 517, 535-
            36 (App. Div.) (quoting State v. Bruzzese, 94
            N.J. 210, 236 (1983), cert. denied, 465 U.S.
            1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695
            (1984)), certif. denied, 216 N.J. 367 (2013).]



2  In Gonzales, supra, 227 N.J. at 83, our Supreme Court held
prospectively "that an inadvertent discovery of contraband or
evidence of a crime is no longer a predicate for a plain-view
seizure."


                                    10                               A-4703-13T3
These   three   elements    were   satisfied   here.   Hennessey,     whose

testimony the judge found credible, saw defendant's car prior to

the crash and knew there had been an armed robbery.          He arrived

at the crash scene within thirty seconds and saw the front doors

and trunk were open.       Hennessey looked into the open trunk and saw

the butt of a handgun in plain view.           Neu, whose testimony the

judge rejected, could not rule out the possibility that the trunk

opened during the crash.

     The evidence confirms that Hennessey was lawfully in the

viewing area; discovered the handgun inadvertently in the open

trunk in plain view; and it was immediately apparent to him that

the handgun was evidence of a crime or otherwise subject to

seizure.   Accordingly, we discern no reason to reverse the judge's

application of the plain view exception to the warrant requirement.

                                     II.

     Defendant challenges his sentence in Point IV.         He does not

dispute he was eligible for an extended-term sentence pursuant to

N.J.S.A. 2C:44-3(a).       Rather, relying on State v. Dunbar, 108 N.J.

80 (1987), he argues that the judge improperly double counted his

criminal record in finding him eligible for an extended-term

sentence and in finding aggravating factors N.J.S.A. 2C:44-1(a)(3)




                                     11                             A-4703-13T3
and (6)3 to increase the base term.   Defendant also argues that

the judge was biased and improperly relied on unproven facts and

crimes for which he was acquitted.

     We review a judge's sentencing decision under an abuse of

discretion standard.   State v. Fuentes, 217 N.J. 57, 70 (2014).

As directed by the Court, we must determine whether:

          (1) the sentencing guidelines were violated;
          (2) the aggravating and mitigating factors
          found by the sentencing court were not based
          upon competent and credible evidence in the
          record; or (3) the application of the
          guidelines to the facts of [the] case makes
          the sentence clearly unreasonable so as to
          shock the judicial conscience.

          [Ibid. (quoting State v. Roth, 95 N.J. 334,
          364-65 (1984)).]

We discern no abuse of discretion in defendant's sentence.

     Defendant's reliance on Dunbar is misplaced.      There, the

Court noted:

          [t]he defendant's prior record of conviction
          has been taken into account in deciding
          whether to impose an extended term and
          presumably would not have the same qualitative
          weight in grading the range of the extended
          sentence.     But   other   aspects   of   the
          defendant's record . . . will be relevant
          factors in adjusting the base extended term.

          [Dunbar, supra, 108 N.J. at 91-92.]


3  "The risk that the defendant will commit another offense[;]"
and "[t]he extent of the defendant's prior criminal record and the
seriousness of the offenses of which he has been convicted[.]"

                               12                            A-4703-13T3
Thus, if a defendant only has one prior conviction, and the court

used that conviction to justify an extended term, that same prior

conviction cannot be used to extend the base term.          See State v.

Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005).

      Defendant has an extensive criminal record that includes the

following   convictions   that   occurred   within   ten   years   of   the

robbery:4

            August 26, 1998:      third-degree aggravated
            assault,   N.J.S.A.   2C:12-1(b)(7);  fourth-
            degree   simple   assault,   N.J.S.A.  2C:12-
            1(b)(5);

            November 5, 1998: third-degree distributing a
            controlled dangerous substance (CDS) within
            1,000 feet of school property, N.J.S.A. 2C:35-
            7; third-degree unlawful possession of an
            imitation firearm, N.J.S.A. 2C:39-4(e);

            December 15, 1998: third-degree unlawful
            possession of a weapon, N.J.S.A. 2C:39-5(b);

            December   18,  2002:   federal     charges   of
            counterfeiting   and   uttering      counterfeit
            securities or obligations;

            April 6, 2003: third-degree conspiracy to
            distribute a CDS, N.J.S.A. 2C:5-2 and N.J.S.A.
            2C:35-5(b)(3);

            January 12, 2004: third-degree distributing a
            CDS within 1,000 feet of school property,
            N.J.S.A. 2C:35-7; and

            March 15, 2004: third-degree possession of a
            CDS, N.J.S.A. 2C:35-10(a)(1); second-degree
            aggravated assault, N.J.S.A. 2C:12-1(b)(1).

4   The robbery occurred on April 17, 2007.

                                  13                               A-4703-13T3
Only    two   of   these   convictions   were   necessary   to   support     an

extended-term sentence.        All other convictions can be considered

"other aspects of the defendant's record," Dunbar, supra, 108 N.J.

at 92, and provide a sufficient basis for the imposition of a

maximum base term.         Defendant's criminal record contains enough

separate convictions to warrant both an extended term as well as

an elevated base term.

       We have considered defendant's remaining sentencing argument

and conclude it is without sufficient merit to warrant discussion.

R. 2:11-3(e)(2).      We are satisfied that the judge did not violate

the    sentencing    guidelines   and    the   record   amply   supports   her

findings on aggravating and mitigating factors.             The sentence is

clearly reasonable and does not shock our judicial conscience.

       Affirmed.




                                    14                                A-4703-13T3
