               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2026-17T2

STATE OF NEW JERSEY,

     Plaintiff-Appellant,
                                      APPROVED FOR PUBLICATION

v.                                               May 13, 2019

                                          APPELLATE DIVISION
DEANDRE PARKER,

     Defendant-Respondent.
___________________________

           Submitted April 25, 2018 – Decided May 13, 2019

           Before Judges Fuentes, Koblitz and Suter.

           On appeal from Superior Court of New Jersey, Law
           Division, Essex County, Indictment Nos. 16-04-1096
           and 16-04-1097.

           Robert D. Laurino, Acting Essex County Prosecutor,
           attorney for appellant (Frank J. Ducoat, Special
           Deputy Attorney General/Acting Assistant Prosecutor,
           of counsel and on the briefs).

           Joseph E. Krakora, Public Defender, attorney for
           respondent (Margaret R. McLane, Assistant Deputy
           Public Defender, of counsel and on the brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.
        An Essex County grand jury returned Indictment No. 16-04-1096

charging defendant Deandre Parker with second degree unlawful possession of

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

ammunition, N.J.S.A. 2C:39-3(f), and third degree resisting arrest, N.J.S.A.

2C:29-2(a)(3)(a). Indictment No. 16-04-1097, arising under the same core of

operative facts, charged defendant with second degree possession of a handgun

by a person previously convicted of one of the crimes listed in N.J.S.A. 2C:39 -

7(b).

        Defendant moved to suppress the physical evidence seized by the police

that formed the basis for these charges. The State filed a brief opposing the

motion, which included the indictments returned by the grand jury, an incident

report prepared and filed by one of the police officers who arrested defendant,

and the transcript of the grand jury minutes. Defendant's reply included a

computer aided dispatch (CAD) report. In an order dated September 18, 2017,

the trial court granted defendant's motion without conducting an evidentiary

hearing or considering oral argument from counsel. The judge explained the

basis of his ruling in a letter-opinion attached to the order.

        On October 7, 2017, the State filed a motion for reconsideration. In an

order dated November 22, 2017, accompanied by a letter-opinion, the trial

judge denied the State's motion for reconsideration, again without affording



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counsel the opportunity to present oral argument. By leave granted, the State

now argues the motion judge erred when he suppressed the physical evidence

without conducting an evidentiary hearing. We agree and reverse. Because

the parties dispute the material facts that led to defendant's arrest and

subsequent indictment, the motion judge was required to conduct an

evidentiary hearing pursuant to Rule 3:5-7(c).       We gather the following

account of events from the documents the parties presented to the motion

judge in support of their respective positions.

      At approximately 11:44 p.m. on February 4, 2016, Newark Police

Department detectives assigned to the Firearm Interdiction Team (FIT)

responded to a report of "shots fired" near the intersection of Avon Avenue

and South 12th Street.      Upon arrival, the detectives saw two men, later

identified as defendant and Quadri Cureton, standing by the driver-side door of

a parked car. As Detective Lamin Barryoh approached them, he saw defendant

drop a silver metal object; Barryoh also heard the sound of the object as it hit

the ground. Barryoh testified before the grand jury that Detective Holmes 1

retrieved the metal object and "immediately recognized that that metal object


1
  The incident report Barryoh filed indicates that the five FIT detectives who
responded to the report of "shots fired" that day were himself, Detective J.
Duran, Detective P. Hamilton, and Essex County Sheriff's Department
Detectives A. Holmes and S. Dellavelle.


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was, in fact, a revolver." Holmes thereafter yelled "gun, gun" to alert the other

officers at the scene.

      According to Barryoh, when he attempted to arrest defendant, he resisted

by "flailing his hands." He was able to control defendant and effectuate the

arrest with the assistance of the other officers at the scene. The Crime Scene

Unit took possession of the handgun and found it was a .38 caliber revolver

that contained "two live rounds of ball ammunition[,] . . . one hollow -point

round[,]" and three spent rounds. A subsequent search of defendant's criminal

history revealed he had two open arrest warrants and prior convictions for

crimes listed as predicate offenses under N.J.S.A. 2C:39-7.

      In his September 18, 2017 letter-opinion, the motion judge included a

"Counterstatement of Facts" derived exclusively from defense counsel's

motion brief. In this alternative narrative of events, defendant denied every

material factual contention made by the State. Specifically, defense counsel

claimed that defendant "at no point in time dropped a gun beneath or beside

the white vehicle . . . [or] resist[ed] arrest[.]"        Despite the obvious

irreconcilable material differences between the State's version of events and

the account described by defense counsel, the motion judge found: "Defendant

has not challenged the State's facts with sufficient specificity to warrant a

hearing." After citing State v. Elders, 192 N.J. 224, 250 (2007), a case that



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                                       4
involved the articulable suspicion required by police officers to request

consent to search a car, State v. Rodriguez, 172 N.J. 117, 126-28 (2002), in

which the Court addressed the requirements for a valid investigative detention,

and other inapposite cases, the judge concluded: "[T]he Incident Report and

Grand Jury transcript did not illustrate that the detectives, based on their

experience and training, had an inclination of what the dropped object was

between the time it was dropped and the time [d]efendant was called over by

Detective Barryoh. Therefore, this stop was unlawful."

      Pursuant to Rule 3:5-7(c), "[i]f material facts are disputed, testimony

thereon shall be taken in open court." Our Supreme Court has also recently

made clear:

              The proper mechanism through which to explore the
              constitutionality of warrantless police conduct is an
              evidentiary hearing. At evidentiary hearings, the State
              presents witnesses to substantiate its basis for the
              challenged warrantless conduct, and the defense is
              afforded the opportunity to confront and cross-
              examine the State's witnesses.

              [State v. Atwood, 232 N.J. 433, 445 (2018) (citations
              omitted).]

      Here, the parties made clear in their respective written submissions that

they had diametrically irreconcilable accounts about what Detective Barryoh

claimed occurred when he approached defendant. Under Rule 3:5-7(c), the

motion judge must conduct an N.J.R.E. 104 evidentiary hearing to provide the

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                                        5
parties the opportunity to probe the veracity of Barryoh's testimony.     The

motion judge thereafter must make factual findings that will be substantially

influenced by an opportunity to hear and see the witnesses. State v. Gamble,

218 N.J. 412, 424-25 (2014). Equally problematic is the judge's decision to

adjudicate this motion without affording counsel the opportunity to present

oral argument.   "The availability of oral argument on criminal motions is

implicit within the language of [Rule] 1:6-2(a)." State v. Mayron, 344 N.J.

Super. 382, 386 (App. Div. 2001). Oral advocacy is a fundamental aspect of

our criminal justice system and should be encouraged, preserved, and

protected.

      Reversed and remanded. We do not retain jurisdiction.




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