                            NOT FOR PUBLICATION WITHOUT THE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-5223-14T4

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

RONALD T. DANIELS, JR.,

     Defendant-Appellant.
_____________________________

                Submitted May 14, 2018 – Decided March 4, 2019

                Before Judges Ostrer and Whipple.

                On appeal from Superior Court of New Jersey, Law
                Division, Monmouth County, Indictment Nos. 14-01-
                0037.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Daniel S. Rockoff, Assistant Deputy Public
                Defender, of counsel and on the brief).

                Christopher J. Gramiccioni, Monmouth County
                Prosecutor, attorney for respondent (Monica do
                Outeiro, Assistant Prosecutor, of counsel and on the
                brief).

       The opinion of the court was delivered by
OSTRER, J.A.D.

      The trial court denied the motion of defendant Ronald T. Daniels, Jr., to

suppress a handgun that police seized from his person after a pat-down search.

Thereafter, a jury found defendant guilty of second-degree unlawful possession

of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree possession of hollow nose

bullets, N.J.S.A. 2C:39-3(f), but acquitted him of first-degree murder, N.J.S.A.

2C:11-3(a)(1), (2), and second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a).     The court imposed an eight-year term of

imprisonment with four years of parole ineligibility.

      In appealing his conviction, defendant challenges the court's suppression

denial, by arguing:

                                   POINT I

            BECAUSE          POLICE        LACKED              THE
            INDIVIDUALIZED           REASONABLE                AND
            ARTICULABLE SUSPICION OF CRIMINAL
            ACTIVITY NECESSARY TO SEIZE AND SEARCH
            TEN PEOPLE, INCLUDING MR. DANIELS,
            WITHOUT A WARRANT, THE COURT ERRED BY
            DENYING THE MOTION TO SUPPRESS. U.S.
            Const., Amends. IV, XIV; N.J. Const., Art. I, ¶ 7.

            A. The State Did Not Prove that the Officers'
            Warrantless Seizure of Ten People, Including Mr.
            Daniels, Was Lawful.



                                                                        A-5223-14T4
                                       2
            B. The State Did Not Prove that the Officers'
            Warrantless Search of Ten People, Including Mr.
            Daniels, Was Lawful.

      Defendant also challenges the court's sentence, contending:

                                   POINT II

            A RESENTENCING REMAND IS REQUIRED
            BECAUSE THE COURT OFFERED NO REASONS
            FOR IMPOSING A PAROLE DISQUALIFIER
            GREATER THAN THE STATUTORY MINIMUM,
            AND ALSO INAPPROPRIATELY ACTED AS A
            THIRTEENTH JUROR BY DECIDING MR.
            DANIELS HAD BEEN AN "ACCESSORY" TO
            CONDUCT FOR WHICH HE WAS ACTUALLY
            ACQUITTED.

      Having reviewed these arguments in light of the record and applicable

principles of law, we affirm defendant's conviction but remand for resentencing.

                                       I.

      Applying our deferential standard of review, we uphold the trial court's

factual findings after the suppression hearing, as they were supported by

sufficient credible evidence. See State v. Elders, 192 N.J. 224, 243-44 (2007).

The trial judge credited the testimony of the two witnesses at the suppression

hearing: Asbury Park police officer Lorenzo Pettway and Neptune Township

police officer Nicholas Taylor.




                                                                        A-5223-14T4
                                       3
      Pettway testified that a confidential informant (CI) called him to report

observing a man with a gun. The CI said the man was black, had dreadlocks,

and wore a white t-shirt. He was on the east side of the apartment complex at

1514 Monroe Avenue, near the border between Neptune Township and Asbury

Park, with a group of other people. Pettway considered the CI reliable, as the

CI had provided helpful and accurate information for three or four years. Also,

the CI was not facing charges that would suggest self-interest.

      As the address was on the Neptune Township side of the border, Pettway

conveyed this information to Taylor, with whom he had worked in the past on

joint investigations. Taylor described the area as a high-crime area where the

Bloods street gang was active.      Taylor assembled four Neptune Township

officers to plan their response to the scene, but one was dispatched to a shooting

a mile away. So, Taylor and the three remaining officers approached the address

on foot at around 10:25 p.m., roughly an hour after the CI called Pettway. Taylor

and one fellow officer approached the east side of the apartment complex, while

the other two entered the complex from the south and north, to prevent flight.

      As Taylor came upon a group of ten men and a woman, he heard one say,

"Oh shit, it's the cops." Taylor recognized four men from prior dealings as

members of the Bloods. Included was Shamere Reid, who started to walk away.


                                                                          A-5223-14T4
                                        4
Reid wore a white collared shirt, had dreadlocks, and was black.         Taylor

observed him reach into his pants, toss a handgun over a fence, and then heard

it clank on the pavement.

      At that point, Taylor placed Reid under arrest and handcuffed him. Taylor

said Reid was agitated and hostile.        The officer accompanying Taylor

commanded the rest of the group to sit. Once the other two officers arrived,

Taylor ran around the fence to retrieve Reid's gun. Upon return, Taylor noticed

defendant, with whom he was unfamiliar, in the front of the seated group.

Defendant also had dreadlocks, was black, and wore a white tank top. Taylor

said defendant appeared nervous and uncomfortable. While seated, he moved

side to side while he scanned the area, suggesting to Taylor that he was looking

for an avenue of escape.

      Suspecting defendant possessed a firearm, Taylor asked him to stand up.

Taylor patted down his waistband and felt something hard. Grasping it, he

recognized the butt of a handgun, which he then seized. A further search of

defendant and of the other members of the group did not uncover additional

contraband.

      The judge held that, under the totality of the circumstances, Taylor had a

reasonable and articulable suspicion to stop defendant and pat him down for


                                                                        A-5223-14T4
                                       5
weapons. The judge noted that it was late at night in a high-crime area; gang

members were present; a shooting had recently occurred nearby; the officers

were significantly outnumbered; and the CI was known to be reliable.

Corroborating the CI's information, police discovered a gun possessed by a man

(Reid), who roughly matched the CI's description, in the place and among a

group the CI described. However, defendant also matched the CI's description,

and he appeared nervous and of a mind to flee. Citing Terry v. Ohio, 392 U.S.

1 (1968) and State v. Roach, 172 N.J. 19 (2002), among other authorities, the

judge held that Taylor had a reasonable and articulable suspicion that defendant

was armed and dangerous, and was therefore justified in conducting a protective

pat-down. Upon doing so, Taylor had probable cause to search and seize the

handgun.

      Applying a de novo standard of review, see State v. Jessup, 441 N.J.

Super. 386, 389-90 (App. Div. 2015), we discern no error in the trial court's

application of its factual findings to the governing principles of law. Two

intrusions occurred here: the order to defendant to stop, and the pat-down of his

waist. We must analyze the events separately. "[W]hether there is good cause

for an officer to make a protective search incident to an investigatory stop is a

question separate from whether it was permissible to stop the suspect in the first


                                                                          A-5223-14T4
                                        6
place." State v. Thomas, 110 N.J. 673, 678-79 (1988); accord State v. Lund,

119 N.J. 35, 45 (1990).

      First, we conclude the police had sufficient grounds, after arresting Reid

for gun possession, to direct the rest of the group to stop and sit so the police

could investigate further. Police are entitled, without a warrant, to conduct a

brief investigatory stop if they find "specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that

intrusion." Terry, 392 U.S. at 21. Something more than a "hunch," but less than

probable cause, is required. State v. Barrow, 408 N.J. Super. 509, 517 (App.

Div. 2009) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). "There

must be 'some objective manifestation that the suspect was or is involved in

criminal activity.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Thomas, 110

N.J. at 678). The court considers the reasonableness of a stop based on the

totality of the circumstances. State v. Stovall, 170 N.J. 346, 361 (2002).

      The trial judge cogently recounted the circumstances that warranted

stopping the group of men and woman to investigate. The police already found

that one person in the group – Reid – possessed a gun and attempted to discard

it. That corroborated the CI's information, and justified further investigation.

See State v. Birkenmeier, 185 N.J. 552, 562 (2006) (stating that a "confidential


                                                                          A-5223-14T4
                                        7
informant's tip, once corroborated by the observations made by the police,

provided sufficient reasonable suspicion to detain and conduct an investigatory

stop of [the] defendant"); State v. Esteves, 93 N.J. 498, 506 (1983) (noting that

discovery of one weapon in vehicle would have created probable cause to search

swiftly for other, concealed weapons).

      Three men, in addition to Reid, were known gang members. See State v.

Privott, 203 N.J. 16, 29 (2010) (finding defendant's association with gang

members supported reasonable suspicion of carrying concealed weapon). It was

late at night in a high-crime area. See State v. Pineiro, 181 N.J. 13, 26 (2004)

(considering presence in high-crime area as factor contributing to reasonable

suspicion). Without focusing yet on defendant, the police had sufficient grounds

to prevent the entire group from leaving, to investigate whether anyone else in

the group with Reid possessed a weapon or was engaged in criminal activity.

      Defendant contends that once Reid was arrested, the CI's tip was

"exhausted," leaving no basis to investigate further.         To the contrary,

corroboration of the CI's information, including that a man among a group of

people possessed a gun, warranted further investigation of the group. As Taylor




                                                                         A-5223-14T4
                                         8
explained, based on his experience, the other group members may also have

possessed guns.1

      Second, Taylor had sufficient grounds to frisk defendant based on

defendant's conduct, demeanor, and appearance, which matched the CI's

description.2 During an investigatory stop, a police officer may conduct a

protective search, that is, a pat-down or frisk, "where [the officer] has reason to

believe that he [or she] is dealing with an armed and dangerous individual."

Terry, 392 U.S. at 27. The test is objective; we consider whether "a reasonably

prudent man [or woman] in the circumstances would be warranted in the belief

that his [or her] safety or that of others was in danger." Ibid. The officer need

not be "absolutely certain" a suspect is armed before conducting a brief



1
   Defendant also contends the court misplaced reliance on the shooting that
occurred shortly before the stop, because Taylor testified that he had no
objective basis at the time to link that event with his investigation at the Monroe
Avenue apartments. However, police later determined that the gun seized from
defendant was used in the shooting. In any event, the trial court had ample basis
to find reasonable suspicion without relying on the shooting incident.
2
  Although defendant contends that the police had no basis to "search . . . ten
people, including [defendant]," defendant has standing only to challenge the
search of his own person. See State v. Alston, 88 N.J. 211, 220 (1981) (stating
that generally, "a motion to suppress evidence obtained in violation of the Fourth
Amendment may be successfully brought only by those persons whose rights
were violated by the search itself"). Besides, the contraband relevant to his
conviction was found only in his possession.
                                                                           A-5223-14T4
                                        9
protective search. Ibid. As with a stop, in considering the reasonableness of a

protective search, "due weight must be given . . . to the specific reasonable

inferences which [the officer] is entitled to draw from the facts in light of his [or

her] experience." Ibid. "[I]t is important for courts to take a realistic approach

to 'reviewing police behavior in the context of the ever-increasing violence in

society.'" State v. Bard, 445 N.J. Super. 145, 157 (App. Div. 2016) (quoting

State v. Valentine, 134 N.J. 536, 545 (1994)).

      In addition to the circumstances that justified stopping defendant and the

rest of the group, defendant's own behavior aroused safety concerns. First and

foremost, defendant matched the CI's description of the gun possessor. While,

technically, defendant wore a tank top instead of a t-shirt, his clothing fit the

description as well as Reid's collared shirt did. Thus, Taylor could not know

whether the CI observed Reid or defendant. See State v. Gavazzi, 332 N.J.

Super. 348, 361 (App. Div. 2000) (stating that police were justified in stopping

man in white shirt when victim identified assailant as wearing a white sweater).

      Defendant also appeared nervous. See Elders, 192 N.J. at 250 (stating that

nervousness may contribute to finding reasonable suspicion). He also was

scanning the scene, apparently looking for a way to flee. Cf. Piniero, 181 N.J.




                                                                             A-5223-14T4
                                        10
at 26 (stating that flight "in combination with other circumstances . . . may

support reasonable and articulable suspicion").

      Under the totality of these circumstances, Taylor had sufficient grounds

to conduct a pat-down of defendant's waist. Upon discovery of what appeared

to be the butt of a gun, he had probable cause to seize it.

      In sum, the trial court did not err in denying defendant's motion to

suppress.

                                        II.

      Defendant contends the trial court did not adequately state its reasons for

imposing a four-year period of parole ineligibility. We are constrained to agree.

We may not second-guess a court's exercise of sentencing discretion that

conforms with the Code's sentencing guidelines. State v. Roth, 95 N.J. 334, 365

(1984). Under the sentencing law in effect when defendant committed his

offense, the court was required to impose a period of parole ineligibility between

one third and one half the eight-year base term, or three years if greater. See

N.J.S.A. 2C:43-6(c) (2012). Therefore, the court had the discretion to impose a

parole-ineligibility period between three and four years.

      However, regardless of the statutory source of a minimum term, the court

must set forth the reasons for its decision, based on the aggravating and


                                                                          A-5223-14T4
                                       11
mitigating factors and in light of the base term imposed.                See State v.

Jefimowicz, 119 N.J. 152, 163 (1990) (stating "sentencing courts must be

cognizant of their flexibility in determining the duration of parole ineligibility

even under the Graves Act" and must "weigh aggravating and mitigating factors

. . . to fix the period of parole ineligibility"); see also State v. Kirk, 145 N.J. 159,

179 (1996) (stating that a sentencing court must "state on the record the reasons

supporting . . . any term of parole ineligibility not mandated by statute"). We

therefore remand for reconsideration of the parole ineligibility term.

      Defendant also contends the court, in fashioning defendant's sentence,

inappropriately considered defendant an accessory to the murder of which he

was acquitted.     Defendant mischaracterizes the judge's statement.            Before

proceeding to address aggravating factor five, "substantial likelihood that the

defendant is involved in organized criminal activity," N.J.S.A. 2C:44-1(a)(5),

the judge stated the jury's verdict was understandable because the State's two

key witnesses "were less than stellar" and one conceded his willingness to lie.

Nonetheless, the judge found that defendant was involved with the Bloods and

ultimately came to possess the gun that was used in a gang-related homicide:

                   But these facts do seem to remain. This
             defendant, a member of the Bloods street gang, was at
             a gathering of other Bloods members. At some point a
             decision was made for he and at least two other people

                                                                               A-5223-14T4
                                         12
            to go to a location where the rival street gang of Crips
            hung out. There's no other explanation for why they
            would go there.

                    Upon arrival, shots were fired. An individual
            was killed. I don't think there's any question that this
            defendant was present at the time . . . within 15 minutes
            . . . after shots being fired this defendant was found
            with a handgun that was ballistically matched up to be
            the handgun that the bullets came out of that killed the
            individual. And when originally confronted by the
            police, he didn't voluntarily turn over the gun. The gun
            was observed and taken from him within 15 minutes.

                  So I don't think there's any question that his
            involvement here was at least as an accessory at some
            point. And that there's a substantial likelihood that he
            was involved at the time that this incident occurred in
            organized criminal activity as a Bloods member. So I
            find aggravating five exists.

      Although perhaps inartful in his choice of words, the judge did not find

that defendant committed a substantive offense as an "accessory" to the murder,

but that his secreting the murder weapon fifteen minutes after the homicide

demonstrated his involvement in organized criminal activity. Thus, the judge's

finding of aggravating factor five was consistent with the jury's verdict.

      Affirmed as to the conviction and the base term of the sentence.

Remanded for reconsideration of the period of parole ineligibility.




                                                                             A-5223-14T4
                                       13
