                        NOT FOR PUBLICATION WITHOUT THE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-2048-15T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JARRED D. WIGGINS, a/k/a J-LO
and JAY,

     Defendant-Appellant.
_________________________________

              Argued May 16, 2018 — Decided June 21, 2018

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              13-02-0129.

              Joshua D. Sanders, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Joshua D. Sanders, Assistant Deputy Public
              Defender, of counsel and on the brief).

              Michele    C.    Buckley,   Special    Deputy
              Attorney/Acting Assistant Prosecutor, argued
              the cause for respondent (Michael A. Monahan,
              Acting Union County Prosecutor, attorney; N.
              Christine Mansour, Special Deputy Attorney
              General/Acting    Assistant  Prosecutor,   of
              counsel and on the brief).
              Appellant filed a pro se supplemental brief.

PER CURIAM


         Defendant Jarred D. Wiggins appeals from his November 20,

2015 conviction after trial of second-degree unlawful possession

of   a    weapon,    N.J.S.A.    2C:39-5(b)   (count   one);    fourth-degree

unlawful possession of hollow-point bullets, N.J.S.A. 2C:39-3(f)

(count three); and fourth-degree obstructing the administration

of law by flight, N.J.S.A. 2C:29-1 (count four).1          The trial judge

sentenced defendant to a nine-year prison term with a fifty-four

month period of parole ineligibility on count one, and one-year

in prison on counts three and four to run concurrent to the nine-

year sentence.        Defendant appeals from the denial of his motion

to suppress evidence.        For the first time on appeal, he raises the

argument      that     the      flight   charge   given    by     the      judge

unconstitutionally shifted the burden of proof to defendant.                    He

also maintains that his sentence was excessive.            We affirm.

         At the motion to suppress, the following testimony was given.

On July 19, 2012, around 10:00 p.m. in a "well known high narcotics

area where numerous arrests have been made," Officer Matthew

Jakubowski of the Roselle Police Department began surveilling East



1
   Count two, third-degree receiving stolen property, N.J.S.A.
2C:20-7, was dismissed by the State prior to trial.

                                         2                              A-2048-15T1
Ninth Avenue in Roselle in an unmarked undercover vehicle.     He saw

four individuals, one of whom was defendant, rolling dice outside

defendant's residence.   Jakubowski testified that during a half-

hour period, on four occasions, he observed defendant receive a

phone call, have a brief conversation, leave on a purple mountain

bike, and return within two to three minutes.       Based on his

training and experience, Jakubowski thought the defendant was

meeting buyers for narcotics transactions.

     Jakubowski then saw defendant enter his home and exit within

about five minutes, go over to his bicycle, lift up his shirt to

place an unknown object "in the waistband of his pants, in the

front," and then leave the area on his bicycle. Jakubowski radioed

two officers to stop and detain defendant.

     Officer John Lynn testified he observed defendant two blocks

away and he and Sergeant Brian Byrnes stopped their marked patrol

car and identified themselves as police officers, where upon

defendant took off running.    Officer Lynn pursued defendant on

foot.   During the chase, defendant reached into his waistband and

discarded an object that made a "distinctive [] metallic sound"

when it "hit the ground."   After defendant was arrested, Officer

Lynn went back to the area of the discarded object and found a

loaded handgun with nine hollow-point bullets.



                                 3                           A-2048-15T1
     At trial, Officers Jakubowski and Lynn testified in accord

with their earlier testimony given during the suppression hearing.

The parties stipulated that defendant did not have a permit to

either purchase or carry a handgun.

     On    appeal   defendant   raises   the   following    issues    through

counsel:

            POINT I: THE COURT ERRED IN DENYING THE MOTION
            TO SUPPRESS BECAUSE THE POLICE LACKED AN
            ARTICULABLE REASONABLE SUSPICION TO STOP MR.
            WIGGINS.

            A. THE POLICE LACKED AN ARTICULABLE REASONABLE
            SUSPICION TO CONDUCT AN INVESTIGATORY STOP.

            B. MR. WIGGINS'S ACTIONS DID NOT VALIDATE THE
            SEIZURE OF THE HANDGUN.

            POINT II:       THE TRIAL COURT COMMITTED
            REVERSIBLE     ERROR    BY   ISSUING   AN
            UNCONSTITUTIONAL INSTRUCTION ON FLIGHT AS
            CONSCIOUSNESS OF GUILT.

            POINT III:     MR. WIGGINS'S SENTENCE               IS
            EXCESSIVE, UNDULY PUNITIVE, AND MUST                BE
            REDUCED.

     Defendant      raises   the   following   issues      in   his   pro    se

supplemental brief:

            POINT I:      THERE EXISTED         NO   REASONABLE
            SUSPICION TO STOP APPELLANT.

            POINT II:    APPELLANT'S DEPARTURE FROM THE
            ROSELLE POLICE CANNOT FORM THE IMPETUS WHEREBY
            EVIDENCE   SO   SEIZED   THEREAFTER    BECOMES
            ADMISSIBLE DUE TO THE FACT THAT THE TERRY STOP
            OF APPELLANT WAS ILLEGAL AND THEREFORE THE


                                     4                                A-2048-15T1
               PRESUMED DERIVATIVE EVIDENCE, IF ANY, MUST BE
               SUPPRESSED AS A FRUIT OF THE POISONOUS TREE.

               POINT III: THE OFFICERS LACKED PROBABLE CAUSE
               TO ARREST APPELLANT AND HIS CONVICTIONS MUST
               BE VACATED.

               POINT IV:       APPELLANT'S CONSTITUTIONALLY
               PROTECTED [RIGHT] TO A FAIR AND IMPARTIAL JURY
               WAS VIOLATED WHEN A BIASED JUROR WAS SEATED
               THAT BELIEVED THAT THE POLICE "DO NOT LIE" AND
               THEREFORE APPELLANT'S CONVICTIONS MUST BE
               VACATED AND A NEW TRIAL ORDERED.

               POINT V: THE LOWER TRIAL COURT ERRED IN NOT
               INSTRUCTING THE JURY ON THE ADVERSE INFERENCES
               TO BE DRAWN FROM SGT. BYRNES, ET AL, FAILURE
               TO ACTIVATE HIS MVR.

               POINT VI: THE JURY SHOULD HAVE BEEN GIVEN A
               DURESS CHARGE AS AN AFFIRMATIVE DEFENSE TO THE
               "OBSTRUCTION"    COUNT    AND   COUNSEL    WAS
               INEFFECTIVE FOR NOT REQUESTING AS MUCH.

                                         I.

       "When reviewing a trial court's decision to grant or deny a

suppression motion, [we] 'must defer to the factual findings of

the    trial    court   so   long   as   those   findings   are   supported    by

sufficient evidence in the record.'"              State v. Dunbar, 229 N.J.

521, 538 (2017) (quoting State v. Hubbard, 222 N.J. 249, 262

(2015)).       "We will set aside a trial court's findings of fact only

when    such    findings     'are   clearly   mistaken.'"     Ibid.   (quoting

Hubbard, 222 N.J. at 262).           "We accord no deference, however, to

a trial court's interpretation of law, which we review de novo."

Ibid.

                                         5                             A-2048-15T1
      Both the federal and State constitutions protect citizens

against unreasonable searches and seizures.        U.S. Const. amend.

IV; N.J. Const. art. I, ¶ 7.       An investigatory stop, sometimes

referred   to   as   a   Terry2   stop,    implicates   constitutional

requirements and must be based on "specific and articulable facts

which, taken together with rational inferences from those facts"

provide a "reasonable suspicion of criminal activity."        State v.

Elders, 192 N.J. 224, 247 (2007) (quoting State v. Rodriquez, 172

N.J. 117, 126 (2002)).    "Because an investigative detention is a

temporary seizure that restricts a person's movement, it must be

based on an officer's 'reasonable and particularized suspicion

. . . that an individual has just engaged in, or was about to

engage in, criminal activity.'"        State v. Rosario, 229 N.J. 263,

272 (2017) (alteration in original) (quoting State v. Stovall, 170

N.J. 346, 356 (2002)).     The officer's "articulable reasons" or

"particularized suspicion" is based on the officer's assessment

of the totality of the circumstances.        State v. Davis, 104 N.J.

490, 504 (1986).

      We disagree with defendant that this case is similar to State

v. L.F., 316 N.J. Super. 174 (App. Div. 1998).      There, the officer

noticed the defendant place something in his pocket after following



2
    Terry v. Ohio, 392 U.S. 1, 16 (1968).

                                   6                          A-2048-15T1
him down a dirt path in a high-crime area.         We found that placing

something in a pocket without other suspicious behavior did not

give rise to a reasonable articulable suspicion.           Id. at 179-81.

      Nor is this situation like State v. Williams, 410 N.J. Super.

549 (App. Div. 2009).    In Williams, the police observed defendant

riding a bicycle in a housing complex.        When defendant saw them,

he put his hand in his pocket and pedaled away.            No other facts

indicated the defendant was involved with drugs or drug sales.           We

found the police lacked an objectively reasonable basis to stop

defendant based on these observations.

      This case is also different from State v. Tucker, 136 N.J.

158 (1994).   There, the defendant was sitting on a curb when he

saw the police and fled.       As the police pursued him, he discarded

packets containing cocaine. Our Supreme Court found no reasonable,

articulable basis for the police to stop the defendant merely

because he fled when he saw the police.

      We "must decide if the officer's observations, in 'view of

the   officer's   experience    and   knowledge,   taken   together    with

rational inferences drawn from those facts,' warrant a 'limited

intrusion upon the individual's freedom.'"         Stovall, 170 N.J. at

361 (quoting State v. Caldwell, 158 N.J. 452, 459 (1999)).          "[D]ue

weight must be given . . . to the specific reasonable inferences

which [an officer] is entitled to draw from the facts in light of

                                      7                           A-2048-15T1
his [or her] experience."    Ibid. (alteration in original) (quoting

Terry, 392 U.S. at 27). "A court must first consider the officer's

objective observations," and then "must determine whether the

evidence 'raises a suspicion that the particular individual being

stopped is engaged in wrongdoing.'"             Davis, 104 N.J. at 501

(quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).

     We are satisfied here that the totality of the circumstances

provided   reasonable   articulable     suspicion   that   defendant       was

engaging in criminal activity.      The officer observed defendant at

night in a high crime area respond to phone calls on his bicycle

four times before he went into his house and came out, put

something in his waistband and set forth again on his bicycle.

     Even had the court been mistaken in determining that this

observed activity constituted reasonable articulable suspicion of

criminal   activity,    defendant   did   not    stop   when   the    police

confronted him, and was convicted of obstruction of justice. Thus,

discarding the gun was attenuated from the original cause for the

stop.   See State v. Williams, 192 N.J. 1, 10-11 (2007) (holding

that regardless of the propriety of the stop, the defendant is

obligated to submit to it, and obstruction will break the chain

of the investigatory stop).     We affirm the trial court's denial

of defendant's suppression motion.



                                    8                                A-2048-15T1
                                       II.

     Defendant did not testify and the judge gave the model flight

charge without objection from defense counsel.              "Pursuant to Rule

1:7-2, a defendant is required to challenge instructions at the

time of trial or else waives the right to contest the instructions

on appeal."      State v. Belliard, 415 N.J. Super. 51, 66 (App. Div.

2010).    "Where there is a failure to object, it may be presumed

that the instructions were adequate."               Ibid. (quoting State v.

Morais,    359    N.J.    Super.   123,      134-35    (App.   Div.     2003)).

Nonetheless, we briefly consider this argument.

     Because defendant failed to object to the jury charge, we

apply a plain error standard, and reverse only if we find a "legal

impropriety in the charge prejudicially affecting the substantial

rights of the defendant and sufficiently grievous . . . to convince

the court that of itself the error possessed a clear capacity to

bring about an unjust result."          State v. Nero, 195 N.J. 397, 407

(2008) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).

     "Flight      from   the   scene    of   a    crime,   depending    on    the

circumstances,     may   be    evidential    of    consciousness   of    guilt,

provided the flight pertains to the crime charged."                    State v.

Randolph, 228 N.J. 566, 594 (2017).               "If a defendant offers an

explanation for the departure, the trial court should instruct the

jury that if it finds the defendant's explanation credible, it

                                        9                               A-2048-15T1
should not draw any inference of the defendant's consciousness of

guilt from the defendant's departure."    State v. Mann, 132 N.J.

410, 421 (1993).

     The model jury charge pertaining to flight where a defendant

offers an explanation for departure, which the judge read to the

jury, states:

          There has been some testimony in the case from
          which you may infer that the defendant fled
          shortly after the alleged commission of the
          crime.     The defense has suggested the
          following explanation . . . . If you find the
          defendant’s explanation credible, you should
          not draw any inference of the defendant’s
          consciousness of guilt from the defendant’s
          departure. If, after a consideration of all
          the evidence, you find that the defendant,
          fearing that an accusation or arrest would be
          made against him/her on the charge involved
          in the indictment, took refuge in flight for
          the purpose of evading the accusation or
          arrest, then you may consider such flight in
          connection with all the other evidence in the
          case, as an indication or proof of a
          consciousness of guilt.     It is for you as
          judges of the facts to decide whether or not
          evidence of flight shows a consciousness of
          guilt and the weight to be given such evidence
          in light of all the other evidence in the case.

          [Model Jury Charges (Criminal), "Flight" (rev.
          May 10, 2010).]

     Model jury charges "should be followed and read in their

entirety to the jury.   The process by which model jury charges are

adopted in this State is comprehensive and thorough; our model

jury charges are reviewed and refined by experienced jurists and

                                10                          A-2048-15T1
lawyers."    State v. Docaj, 407 N.J. Super. 352, 370 (App. Div.

2009) (quoting State v. R.B., 183 N.J. 308, 325 (2005)).            Although

defendant did not testify, he was permitted via the flight charge

to insert his version of why he left the scene.            The judge stated:

            The defense     has   suggested      the   following
            explanation:

            during the encounter with Mr. Wiggins on July
            19, 2012 the vehicle operated by Sergeant
            Br[i]an Byrnes traveled into the opposing lane
            of travel cutting off Mr. Wiggins as he rode
            his bicycle.

                 Unlike the police vehicle depicted in
            S-14A and S-15A the vehicle, which was being
            operated by Sergeant Byrnes on July 19, 2012
            had no emergency lights on the roof of the
            vehicle. Sergeant Byrnes did not utilize his
            emergency lights or siren in the encounter
            with Mr. Wiggins and by opening the door of
            the vehicle Sergeant Byrnes obstructed from
            view a portion of the lettering identifying
            the vehicle as a unit associated with the
            Roselle Police.

      Defendant argues the model jury charge improperly shifts the

burden of proof from the State to defendant. The charge conference

was   unfortunately   not   placed    on   the   record.      See   R.   1:2-2

(regarding the necessity of recording all court proceedings).              The

defense explanation provided by the judge, however, also provided

defendant with a defense to obstruction of justice, because, if

believed, his departure from the scene was not with the purpose

to obstruct or impair the administration of law.               See N.J.S.A.


                                     11                              A-2048-15T1
2C:29-1.    Because the charge was so favorable to defendant and not

objected to by him, we see no reason to consider defendant's novel

argument with regard to burden-shifting.

                                III.

     Defendant argues his sentence is excessive because the judge

ignored mitigating factor eleven, that imprisonment would entail

an excessive hardship on defendant's children.      N.J.S.A. 2C:44-

1(b)(11).    "The sentencing court is required to consider evidence

of a mitigating factor and must apply mitigating factors that 'are

amply based in the record.'"     State v. Grate, 220 N.J. 317, 338

(2015) (emphasis added) (quoting State v. Dalziel, 182 N.J. 494,

504 (2005)).    A sentencing court may not "simply decline to take

into account a mitigating factor that is fully supported by the

evidence."     Dalziel, 182 N.J. at 505.      But the trial court

determines the appropriate weight that a mitigating factor should

be accorded.    Ibid.

     During the sentencing hearing, defendant explained he was

employed in Roselle prior to his incarceration.   Defendant further

explained that while he was employed, he was a source of financial

support for his family.   Defendant did not argue specifically that

imprisonment would impose an excessive hardship on his dependents.

The judge noted defendant lacked stable employment.



                                 12                         A-2048-15T1
     Defendant relies on State v. Mirakaj, 268 N.J. Super. 48

(App. Div. 1993), where we remanded for resentencing because the

trial judge failed to find mitigating factor eleven.         Mirakaj, 268

N.J. Super. at 51-52.       At sentencing, the defendant argued that

imprisonment would impose an excessive hardship on her children

because her husband had abandoned them and fled the country.            Id.

at 51 n.1.    The State did not dispute the presence of mitigating

factor    eleven.   Ibid.     The   trial   court   failed   to   identify

mitigating factor eleven, although it was "apparently applicable"

based on the record.    Id. at 51-52.

     Unlike in Mirakaj, defendant did not argue that imprisonment

would entail an excessive hardship for his family, but rather that

he was a source of income for the family.              Not all working

defendants with children are appropriate for mitigating factor

eleven.

     Having considered the record, we conclude that the findings

of fact regarding aggravating and mitigating factors were based

on competent and credible evidence in the record, the                judge

correctly applied the sentencing guidelines enunciated in the

Code, and the court did not abuse its discretion in imposing the

sentence.    State v. Cassady, 198 N.J. 165 (2009); State v. Roth,

95 N.J. 334 (1984).



                                    13                            A-2048-15T1
    Defendant's remaining arguments are without sufficient merit

to require discussion in a written opinion.   R. 2:11-3(e)(1)(E).

    Affirmed.




                              14                          A-2048-15T1
