                                NOT FOR PUBLICATION WITHOUT THE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-3148-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ELIJAH DOWNEY, a/k/a
ELIJAN DOWNEY,

     Defendant-Appellant.
_________________________

                    Submitted December 9, 2019 – Decided February 13, 2020

                    Before Judges Fasciale, Rothstadt and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Morris County, Indictment No. 16-06-0525.

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

                    Fredric M. Knapp, Morris County Prosecutor, attorney
                    for respondent (Paula Cristina Jordao, Assistant
                    Prosecutor, on the brief).

PER CURIAM
      Defendant Elijah Downey appeals from his conviction following a

conditional retraxit plea of guilty to third-degree aggravated assault, N.J.S.A.

2C:12-1(b)(7), amended from count one of an indictment charging second-

degree robbery, N.J.S.A. 2C:15-1(a)(1). Count two of the indictment, charging

second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:15-1(a)(1), was dismissed pursuant to the plea agreement. 1 On appeal, he

argues the motion judge should have granted his suppression motion challenging

the motor vehicle stop that resulted in the victim's show-up identification of

defendant as one of his assailants. Specifically, he advances:

            POINT I

            THE OFFICERS DID NOT HAVE REASONABLE
            SUSPICION TO STOP DEFENDANT'S CAR
            SIMPLY BECAUSE IT WAS IN THE AREA AND
            WAS SIMILAR TO THE SUSPECTS' CAR WHEN
            THE VICTIM SAID THE SUSPECTS HAD
            ALREADY LEFT THE AREA, OTHER SIMILAR
            CARS WERE NEARBY, AND THE OCCUPANTS OF
            THE CAR DID NOT MATCH THE DESCRIBED
            SUSPECTS.

Defendant adds:




1
  Another four-count complaint warrant, not the subject of this appeal, was also
dismissed.
                                                                        A-3148-17T3
                                       2
            POINT II

            A REMAND IS NEEDED TO AWARD DEFENDANT
            SEVEN DAYS OF JAIL CREDIT.

We are unpersuaded and affirm the denial of defendant's motion to suppress

evidence but remand for the trial judge to address the jail credits to which

defendant may be entitled.

      Our review of the record confirms the following findings of fact—made

by Judge Stephen J. Taylor after an evidentiary hearing, during which two

officers testified and the judge viewed body-camera footage—are supported by

the record evidence, including the testimony of a Morristown police sergeant

whom the judge found to be credible. The victim of the robbery was walking

on Sussex Avenue in Morristown in the early-morning hours when he noticed a

dark-colored sedan following him. Two men exited the vehicle and accosted

him. Although the victim ran, the two caught and assaulted him. He eventually

escaped, but the perpetrators took his phone.

      The victim called police from a nearby sandwich shop, prompting the

response of a Morristown police sergeant to the victim's location at

approximately 1:37 a.m. As interpreted by another police officer, the Spanish -

speaking victim told the sergeant of the encounter and described the assailants

who exited the dark-colored sedan as a black male and a Hispanic male.

                                                                         A-3148-17T3
                                       3
      About two minutes after the sergeant arrived at the scene—at

approximately 1:40 a.m.—he observed a dark-colored sedan (the suspect

vehicle) traveling "very slowly" southbound on Sussex Avenue , towards

Speedwell Avenue. The four occupants of the vehicle, all of whom the sergeant

believed to be black males, "were looking very intently" at the sergeant. The

sergeant asked the victim if "that was the vehicle." The sergeant testified the

victim "indicated it could be."

      The sergeant then broadcast the vehicle's license plate. The vehicle, in

which defendant was a passenger, was stopped by another officer shortly

thereafter. Police transported the victim to the vehicle. He identified defendant

and a juvenile passenger as the two who attacked him.

      We defer to the judge's factual findings on a motion to suppress, "unless

they were 'clearly mistaken' or 'so wide of the mark' that the interests of justice

require[] appellate intervention." State v. Elders, 192 N.J. 224, 245 (2007)

(quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

We owe "deference to those findings of the trial judge [that] are substantially

influenced by [the judge's] opportunity to hear and see the witnesses and to have

the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto,

157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).


                                                                           A-3148-17T3
                                        4
In State v. S.S., our Supreme Court extended that deferential standard of review

to "factual findings based on a video recording or documentary evidence" to

ensure that New Jersey's trial courts remain "'the finder of the facts[.]'" 229 N.J.

360, 381 (2017) (quoting Fed. R. Civ. P. 52(a) advisory committee's note to

1985 amendment). The Court explained that "[p]ermitting appellate courts to

substitute their factual findings for equally plausible trial court findings is likely

to 'undermine the legitimacy of the [trial] courts in the eyes of litigants, mul tiply

appeals by encouraging appellate retrial of some factual issues, and needlessly

reallocate judicial authority.'"   Id. at 380-81 (second alteration in original)

(quoting Fed. R. Civ. P. 52(a) advisory committee's note to 1985 amendment).

The trial court's application of its factual findings to the law, however, is subject

to plenary review. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).

      Recognizing the United States Supreme Court's holding in Terry v. Ohio,

392 U.S. 1 (1968), our Supreme Court held "that the reasonableness of the police

conduct in conducting an investigatory stop in light of the Fourth Amendment

could be generally assessed by 'balancing the need to search (or seize) against

the invasion which the search (or seizure) entails.'" State v. Arthur, 149 N.J. 1,

7 (1997) (quoting Terry, 392 U.S. at 21). The Arthur Court, quoted from Terry

at length in determining:


                                                                              A-3148-17T3
                                          5
            The facts used in that balancing test are to be judged
            objectively: "[W]ould the facts available to the officer
            at the moment of the seizure or the search warrant a
            man of reasonable caution in the belief that the action
            taken was appropriate?" [Terry, 392 U.S.] at 21-22.
            When determining if the officer's actions were
            reasonable, consideration must be given "to the specific
            reasonable inferences which he is entitled to draw from
            the facts in light of his experience." Id. at 27. Neither
            "inarticulate hunches" nor an arresting officer's
            subjective good faith can justify an infringement of a
            citizen's constitutionally guaranteed rights. Id. at 21.
            Rather, the officer "must be able to point to specific and
            articulable facts which, taken together with rational
            inferences from those facts, reasonably warrant [the]
            intrusion." Ibid.

            [Arthur, 149 N.J. at 7-8 (third alteration in original).]

      The same test applies to the investigatory stop of an automobile. Id. at 9.

An automobile stop is justified if police "could reasonably surmise that the

particular vehicle they stopped was engaged in criminal activity." United States

v. Cortez, 449 U.S. 411, 421-22 (1981); see also Arthur, 149 N.J. at 9.

Investigative stops are justified, even absent probable cause, "if the evidence,

when interpreted in an objectively reasonable manner, shows that the encounter

was preceded by activity that would lead a reasonable police officer to have an

articulable suspicion that criminal activity had occurred or would shortly occur."

State v. Davis, 104 N.J. 490, 505 (1986). Courts are to determine whether the

totality of the circumstances gives rise to an "articulable [and] particularized

                                                                          A-3148-17T3
                                        6
suspicion" of criminal activity, not by use of a strict formula, but "through a

sensitive appraisal of the circumstances in each case." Ibid.

      Our Supreme Court recognized the two-step analysis set forth in Cortez,

            for determining whether the totality of circumstances
            creates a "particularized suspicion." A court must first
            consider the officer's objective observations. The
            evidence collected by the officer is "seen and weighed
            not in terms of library analysis by scholars, but as
            understood by those versed in the field of law
            enforcement." "[A] trained . . . officer draws inferences
            and makes deductions . . . that might well elude an
            untrained person. The process does not deal with hard
            certainties, but with probabilities." Second, a court
            must determine whether the evidence "raise[s] a
            suspicion that the particular individual being stopped is
            engaged in wrongdoing."

            [Davis, 104 N.J. at 501 (first and third alterations in
            original) (citations omitted) (quoting Cortez, 449 U.S.
            at 418).]

      The Arthur Court noted the refinement of that standard by the United

States Supreme Court, which explained:

            The Fourth Amendment does not require a policeman
            who lacks the precise level of information necessary for
            probable cause to arrest to simply shrug his shoulders
            and allow a crime to occur or a criminal to escape. On
            the contrary, [Terry] recognizes that it may be the
            essence of good police work to adopt an intermediate
            response. A brief stop of a suspicious individual, in
            order to determine his identity or to maintain the status
            quo momentarily while obtaining more information,


                                                                        A-3148-17T3
                                       7
            may be most reasonable in light of the facts known to
            the officer at the time.

            [Arthur, 149 N.J. at 8 (quoting Adams v. Williams, 407
            U.S. 143, 145-46 (1972)).]

      Under that lens, we agree with Judge Taylor's well-reasoned written

opinion, that the totality of the circumstances presented the police with a

reasonable and articulable suspicion that the suspect vehicle in which defendant

was a passenger was involved in the assault of the victim. Those circumstances

include the victim's general description of the suspect vehicle which matched

the dark-colored sedan in which defendant was a passenger and the proximity of

the suspect vehicle to the location and time of the assault. See State v. Reynolds,

124 N.J. 559, 569 (1991) (recognizing a "defendant's proximity to the crime in

both time and space," as well as his or her "similarity to the general description

of the suspect," are relevant factors in determining the establishment of a

reasonable suspicion). We note that the sergeant said it took him less than two

minutes to respond to the call and he was at the scene less than two minutes

when the suspect car passed.

      The judge also credited the sergeant's testimony that he found the slow

speed of the suspect vehicle and the intent gaze of its four occupants to be

unusual. The judge considered defendant's contention—also advanced to us—


                                                                           A-3148-17T3
                                        8
that the occupant's "behavior [was] common given the proclivity of people to

stare or 'rubberneck' at police activity or accidents[.]" Judge Taylor properly

viewed the occupants' actions "through the experience and knowledge of [the

sergeant] and the circumstances under which it occurred," under the guidance

provided by our Supreme Court:

            In evaluating the facts giving rise to the officer's
            suspicion of criminal activity, courts are to give weight
            to "the officer's knowledge and experience" as well as
            "rational inferences that could be drawn from the facts
            objectively and reasonably viewed in light of the
            officer's expertise." The fact that purely innocent
            connotations can be ascribed to a person's actions does
            not mean that an officer cannot base a finding of
            reasonable suspicion on those actions as long as "a
            reasonable person would find the actions are consistent
            with guilt."

            [State v. Citarella, 154 N.J. 272, 279-80 (1998)
            (citation omitted) (quoting Arthur, 149 N.J. at 10-11).]

      We see no reason to disturb Judge Taylor's conclusion:            "Given the

location, time of day, relative closeness in time and space to the robbery, as well

as the fact that the passing vehicle matched a description of the vehicle involved

in the robbery, [the sergeant's] conclusions regarding the actions of the

occupants was not improper." See Arthur, 149 N.J. at 4, 11 (recognizing one

factor in determining whether an investigatory stop was justified is a trained

officer's view that a woman was looking around "really suspiciously"); State v.

                                                                           A-3148-17T3
                                        9
Dunbar, 434 N.J. Super. 522, 527-28 (App. Div. 2014) (continuously looking at

police is a factor in determining whether an investigative stop is justified); State

v. Butler, 278 N.J. Super. 93, 104 (App. Div. 1994) (the lateness of the hour is

another factor); see also State v. Todd, 355 N.J. Super. 132, 138 (App. Div.

2002). The judge also found the most compelling factor justifying the stop: The

victim, when viewing the suspect vehicle, said it might be the car.

        We are not persuaded by defendant's argument that the judge's "ruling was

mistaken because it overlooked important contextual facts."             Instead of

considering the totality of the circumstances, defendant parses the facts of the

case.

        Defendant first argues it was natural for the occupants of the suspect

vehicle to slow down and look at the three to five police officers on the scene.

Besides the credited testimony of the sergeant about the occupants' "unusual"

interest in the scene, we note that the sergeant also confirmed that the police

activity was not particularly conspicuous.         None of the police vehicles'

emergency lights were activated.

        Defendant also contends the victim told police the suspects "fled the area"

before police arrived, and that the suspect vehicle was not leaving the scene of

the crime, thereby rendering the suspect vehicle's presence near the crime scene


                                                                            A-3148-17T3
                                        10
unsuspicious. He further asserts that police ignored another car, similar to that

described by the victim, that also passed the victim and sergeant as they stood

on Sussex Avenue in the early-morning hours. Defendant's argument that the

perpetrators would not be in the area after commission of the crime is

speculative and unsupported by any facts in the record. And the other car that

passed did not slow or look at the police activity as did the suspect vehicle and

its occupants.

      Moreover, these arguments ignore what the Stovall Court said was clear:

"[P]olice may rely on characteristics consistent with both innocence and guilt in

formulating reasonable suspicion." State v. Stovall, 170 N.J. 346, 369 (2002).

"Even if all of the factors were susceptible of 'purely innocent' explanations, a

group of innocent circumstances in the aggregate can support a finding of

reasonable suspicion." Id. at 368.

      Nor do the inconsistencies defendant alleges in the victim's description of

the suspects draw into question the judge's conclusion. Although the victim

described his attackers as one black male and one Hispanic male, as was made

abundantly clear during the sergeant's testimony at the evidentiary hearing, the

victim did not describe the occupants of the vehicle, only the two who exited




                                                                         A-3148-17T3
                                      11
the vehicle and attacked him.2 He did not even tell police the number of

occupants in the vehicle. And, although the sergeant initially thought there were

four black males in the suspect vehicle, whereas it was later determined one of

the occupants was female, the sergeant admitted he could not see into the suspect

vehicle well enough to determine whether the occupants were black or Hispanic.

       The judge considered the evidence and correctly analyzed the totality of

the circumstances in determining police were justified in stopping the suspect

vehicle. There is no reason to overturn his sound analysis and conclusion

denying defendant's suppression motion.

      Defendant seeks jail credits from his arrest on June 18, 2018. He was

initially sentenced on December 15, 2017 to a three-year probationary term

conditioned on incarceration in the county jail for 364 days. He violated the

conditions of probation and, on September 21, 2018, was continued on probation

which was extended for one year. That sentence ran concurrent to an accusation

(18-08-00634-A) on which defendant was sentenced to a one-year probationary

sentence and a warrant (W-2018-000174-1424) on which he was sentenced to

103 days in the county jail, with credit for that amount as time served.


2
  We see no evidence in the record of the complexion of the suspect vehicle's
occupants; only that the victim identified defendant and the juvenile occupant
as his assailants.
                                                                           A-3148-17T3
                                      12
      Although the September 2018 judgment of conviction (JOC) sets forth the

original charges under the indictment here under consideration, and the

complaint-warrant that was dismissed in connection with defendant's plea under

that indictment, it does not list the charges under the newer accusation and

warrant. The jail credits listed in the September 2018 JOC, in addition to those

awarded when defendant was sentenced in December 2017, are from: May 8,

2018 to May 14, 2018 and June 25, 2018 to September 21, 2018. The December

11, 2017 presentence report contained in the record predates the violation of

probation and the dates for which defendant now seeks credits; and the warrant

numbers on the commitment summary defendant appended to his merits brief

do not match the warrant numbers on the presentence report. Although an

Inmate Lookup List provided by defendant shows a June 18, 2018 commitment

date, it does not indicate the concomitant charge. In short, we are unable to

ascertain from the record if defendant is entitled to the additional credits. We,

therefore, remand this matter for the trial judge to address that issue; the State

does not oppose that action.

      Affirmed in part; remanded to address defendant's contention that he is

entitled to jail credits from June 18, 2018 to June 24, 2018. We do not retain

jurisdiction.


                                                                          A-3148-17T3
                                       13
