                                NOT FOR PUBLICATION WITHOUT THE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-2574-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL A. SANTOS,

     Defendant-Appellant.
_____________________________

                   Argued telephonically May 7, 2020 –
                   Decided July 8, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment No. 16-11-2186.

                   Brian P. Keenan, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Brian P. Keenan, of counsel
                   and on the brief).

                   William Kyle Meighan, Senior Assistant Prosecutor,
                   argued the cause for respondent (Bradley D. Billhimer,
                   Ocean County Prosecutor, attorney; Samuel
                   Marzarella, Chief Appellate Attorney, of counsel;
                   William Kyle Meighan, on the brief).
PER CURIAM

      Defendant Michael A. Santos was convicted of the disorderly persons

offense of possession of prescription drugs not in the original container 1; third-

degree possession of CDS with intent to distribute (oxycodone) (count two),

N.J.S.A.   2C:35-5(a)(1)    and   N.J.S.A.   2C:35-5(b)(5);    and    third-degree

distribution of CDS (oxycodone) (count three), N.J.S.A. 2C:35-5(a)(1) and

N.J.S.A. 2C:35-5(b)(5).2    The court granted the State's motion to sentence

defendant to an extended term. He was sentenced to five years of drug court

probation with an alternative sentence of six years imprisonment with a thirty -

six-month period of parole ineligibility on count three, five years on count two

and six-months on count one as amended, all to be served concurrently.

Defendant appeals his January 23, 2018 judgment of conviction, which we now

affirm.




1
  This was the lesser included offense of third-degree possession of a controlled
dangerous substance (CDS) (oxycodone) (count one), N.J.S.A. 2C:35-10(a)(1).
2
  He was acquitted of counts four and five of the indictment charging possession
of the CDS Alprazolam and possession of it with the intent to distribute.
                                                                           A-2574-17T1
                                        2
                                        I.

      While conducting surveillance for drug activity at a Wawa with other

officers, Patrolman Andrew Chencharik of the Toms River Police Department

testified at the suppression motion that Patrolman Ryan Quinn reported

observing a car pull into the parking lot, circle the lot once and leave. The car

returned a short time later, parking in a location away from the business, and the

female driver got out. She walked to a silver Nissan Altima on a side street and

got in it. The Altima drove up the street, turned around and came back, dropping

the woman off in the same place she had gotten in. The Altima left, heading

east on Route 37.

      Chencharik requested that a marked patrol unit stop the Altima. He

arrived shortly afterwards. Defendant was nervous and shaking when he got out

of the car. Defendant told Chencharik he had "no reason" for meeting the

woman at the Wawa, who he identified by her first name, Haley.

      Quinn, who was still at the Wawa, advised Chencharik that he stopped the

woman, Haley McAteer, after she discarded something in the bushes.            She

acknowledged purchasing drugs from "Mike from the [Altima]." Oxycodone

pills were recovered from the bushes.




                                                                          A-2574-17T1
                                        3
       Defendant was placed under arrest and read the Miranda3 rights.

Chencharik searched the Altima, recovering both oxycodone and alprazolam

from pill bottles in the center console. Defendant had $429 in cash in his pocket.

       Defendant's motion to suppress the pills was denied, the trial court finding

the police had a reasonable suspicion to stop defendant's vehicle. The court

noted the officers were conducting surveillance in an area known by them "to

have a high rate of drug activity."          McAteer's actions gave the officers

reasonable suspicion of some type of drug activity, enough to stop defendant's

vehicle. The trial court also found the officers had probable cause to search the

vehicle because McAteer entered defendant's vehicle to make the purchase and

"identified the pills that she purchased from him . . . ."

       Following a hearing in August 2017, defendant's motion to proceed pro se

was granted.    His attorney was appointed as stand-by counsel.         Defendant

represented himself at his motion to suppress the statement he gave to the police

after he was stopped.      That motion was denied and thereafter defendant

requested the reinstatement of his attorney, which was granted.

       At the trial in October 2017, McAteer testified she arranged to purchase

four oxycodone pills from defendant, agreeing to meet at the Wawa. When she


3
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                           A-2574-17T1
                                         4
did not see him on her first drive through the parking lot, she texted defendant,

who instructed her where to meet. She got into his car, purchased the pills, and

as she was returning to her car, saw an officer in the parking lot. She t hrew the

pills into the bushes.

      Quinn's attention initially was drawn to McAteer's vehicle because of the

speed she was driving, while using her cell phone. He watched as she parked

and walked over to defendant's vehicle. As she walked back toward her car, he

identified himself as a police officer. Quinn did not see her throw the pills in

the bushes, but she told him she did, 4 and the pills were recovered.

      Chencharik testified the pills were found in two bottles: one was an

oxycodone prescription for defendant filled in August 2016, and the other was

an Advil bottle.

      Defendant testified he met McAteer at the Wawa because he lived near

there and needed to borrow $200 to pay for a friend's medical appointment. He

claimed they talked briefly, and she gave him the money. He denied moving his

car. He testified the Advil bottle and contents were not his.

      On appeal, defendant raises these issues:



4
  She claimed this was after he threatened to impound her car and have her strip
searched. The officer denied this.
                                                                          A-2574-17T1
                                        5
POINT I

THE MOTION JUDGE ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS BECAUSE
THE POLICE LACKED REASONABLE SUSPICION
TO STOP DEFENDANT'S CAR.

POINT II

THE MOTION JUDGE'S FAILURE TO SECURE A
KNOWING AND VOLUNTARY WAIVER BEFORE
ALLOWING MR. SANTOS TO PROCEED PRO SE,
DEPRIVED HIM OF HIS RIGHT TO COUNSEL
PRIOR TO THE TRIAL AND DURING THE
MIRANDA HEARING.

POINT III

THE TRIAL JUDGE'S HIGHLY PREJUDICIAL
ERROR    IN PERMITTING LAY OPINION
TESTIMONY BY TWO OFFICERS AS TO THE
ULTIMATE ISSUE IN THE CASE USURPED THE
ROLE OF THE JURY AND REQUIRES REVERSAL.

POINT IV

THE TRIAL JUDGE'S FAILURE TO ISSUE A
CURATIVE INSTRUCTION TO THE JURY WHEN
SANTOS' TESTIMONY REVEALED PRIOR BAD
ACTS   DURING   DIRECT    EXAMINATION
REQUIRES REVERSAL.

POINT V

THE   CUMULATIVE     EFFECT   OF   THE
AFOREMENTIONED       ERRORS     DENIED
DEFENDANT A FAIR TRIAL.


                                          A-2574-17T1
                   6
                                        II.

                                        A.

       Defendant argues the trial court erred by denying his suppression motion

because the police had no reasonable, articulable suspicion to stop his car. "An

appellate court reviewing a motion to suppress evidence in a criminal case must

uphold the factual findings underlying the trial court's decision, provided that

those findings are 'supported by sufficient credible evidence in the record.'"

State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven, 226 N.J.

20, 40 (2016)). We do so "because those findings 'are substantially influenced

by [an] opportunity to hear and see the witnesses and to have the "feel" of the

case, which a reviewing court cannot enjoy.'" State v. Gamble, 218 N.J. 412,

424-25 (2014) (alteration in original) (quoting State v. Johnson, 42 N.J. 146,

161 (1964)). We owe no special deference, however, to conclusions of law made

by trial courts in suppression decisions, which we review de novo. State v.

Watts, 223 N.J. 503, 516 (2015).

       An investigatory stop implicates constitutional requirements.    State v.

Elders, 192 N.J. 224, 247 (2007). Sometimes referred to as a Terry5 stop, an

investigatory stop does not require a warrant if it is based on "specific and


5
    Terry v. Ohio, 392 U.S. 1 (1968).
                                                                        A-2574-17T1
                                              7
articulable facts which, taken together with rational inferences from those facts,"

provide a "reasonable suspicion of criminal activity." Ibid. (quoting State v.

Rodriquez, 172 N.J. 117, 126 (2002)).

      Whether a reasonable and articulable suspicion exists depends upon the

totality of the circumstances. State v. Pineiro, 181 N.J. 13, 22 (2004). A court

must consider whether the "historical facts, viewed from the standpoint of an

objectively reasonable police officer, amount to reasonable suspicion." State v.

Stovall, 170 N.J. 346, 357 (2002) (quoting Ornelas v. United States, 517 U.S.

690, 696 (1996)). An officer's experience and knowledge in applying the totality

of the circumstances test may also be considered. Id. at 361. "[D]ue weight

must be given . . . to the specific reasonable inferences which [an officer] is

entitled to draw from the facts in light of his [or her] experience."         Ibid.

(alterations in original) (quoting Terry, 392 U.S. at 27).

      The record supported the trial judge's finding a reasonable suspicion

existed that a drug transaction occurred between defendant and McAteer.

McAteer drove through the Wawa parking lot and returned. She parked away

from the entrance of the store, exited, leaving a passenger in the car, and walked

to defendant's car. Defendant's car then went a short distance, made a turn and

returned to the same location. The police were surveilling the Wawa because of


                                                                           A-2574-17T1
                                        8
drug activity. It was reasonable to conclude McAteer's behavior was not the

behavior of a customer of the Wawa nor a person meeting someone for a ride,

but was more reasonably consistent with a short transaction.

                                      B.

      The trial court granted defendant's request to have his public defender

relieved as his attorney. Defendant argues for the first time on appeal that his

waiver of counsel was not knowing and voluntary, and deprived him of his right

to counsel.    Defendant contends the trial judge did not advise him of the

sentencing range for an extended range sentence, was not advised of the

elements of the charges or defenses, was not advised he had to follow the rules

and was not aware of his right to remain silent.

      A criminal "[d]efendant possesses both the right to counsel and the right

to proceed to trial without counsel." State v. DuBois, 189 N.J. 454, 465 (2007).

His or her right to self-representation may be exercised "only by first knowingly

and intelligently waiving the right to counsel." State v. Crisafi, 128 N.J. 499,

509 (1992) (citing McKaskle v. Wiggins, 465 U.S. 168, 173 (1984)). Trial

courts are required to inform a defendant who asserts a right to self-

representation of:

              (1) the nature of the charges, statutory defenses, and
              possible range of punishment; (2) the technical

                                                                         A-2574-17T1
                                           9
            problems associated with self-representation and the
            risks if the defense is unsuccessful; (3) the necessity
            that defendant comply with the rules of criminal
            procedure and the rules of evidence; (4) the fact that
            lack of knowledge of the law may impair defendant's
            ability to defend himself; (5) the impact that the dual
            role of counsel and defendant may have; (6) the reality
            that it would be unwise not to accept the assistance of
            counsel; (7) the need for an open-ended discussion so
            that the defendant may express an understanding in his
            or her own words; (8) the fact that, if defendant
            proceeds pro se, he or she will be unable to assert an
            ineffective assistance of counsel claim; and (9) the
            ramifications that self-representation will have on the
            right to remain silent and the privilege against self-
            incrimination.

            [DuBois, 189 N.J. at 468-69.]

      Here, defendant asked to replace his attorney because they had a

"difference of opinions and . . . haven't seen eye to eye." This was just a few

days before the scheduled trial date. In the hearing, the court inquired about

defendant's education and knowledge of the law, generally. Defendant was

aware of the charges, alerting the court he had a possession with intent to

distribute charge. He advised he "[a]bsolutely" had a defense to the major

charge, believing a message on his cell phone and a prescription printout from

his pharmacy had the potential to exonerate him. Defendant was aware of his

prior criminal record. The court told defendant he was in significant jeopardy

of a longer sentence. "[T]he problem is in a case like this . . . you face a

                                                                       A-2574-17T1
                                     10
significant amount of time that someone else who doesn’t have a prior recor d

would not face." Regarding the potential for a longer sentence, defendant

advised the court: "I’m told, sir. We went over that[,]" apparently making

reference to the Pretrial Memorandum that listed the maximum jail time for each

count and mandatory periods of parole ineligibility.

      The court was clear it would be better for defendant to have an attorney.

"[C]learly . . . the scales of justice say that it’s better to have an attorney . . .

you’re not comfortable with." The court added, "a lawyer can argue things on

your behalf because he is an adversarial professional . . . [and] [an] absolute

professional . . . in representing defendants." The court urged defendant to keep

his attorney and continued him as stand-by counsel.

      The court advised defendant "not to make any statements about the facts

in your case because that's something that could be possibly used against you at

this point in time." He was told he risked the loss of a drug court sentence. The

trial court cautioned defendant to follow the rules even though self-represented,

stating "you have to be respectful [at trial], you have to abide by the rules." The

court encouraged an open-ended discussion on several occasions.




                                                                             A-2574-17T1
                                        11
        We are satisfied from our review of the record that the trial court complied

with the principles of Reddish6 and Crisafi, and that defendant's right to counsel

was not denied. He was aware of the charges against him, his need to follow

the rules, the risk that his statements could be used against him and that his

sentence could be affected by his criminal record.

                                       C.

        Defendant argues the trial court erred by permitting lay opinion testimony

by two police officers about whether a drug sale occurred. Because there was

no objection to the testimony at trial, the question is whether the testimony was

"of sufficient magnitude to raise a reasonable doubt as to whether it led the jury

to a result it would otherwise not have reached." State v Weston, 222 N.J. 277,

294 (2015) (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on

R. 2:10–2).

        Police officers can "testify as lay witnesses, based on their personal

observations and their long experience in areas where expert testimony might

otherwise be deemed necessary." State v. LaBrutto, 114 N.J. 187, 198 (1989).

The testimony "must be . . . firmly rooted in the personal observations and

perceptions of the lay witness in the traditional meaning of the Rule 701." State


6
    State v. Reddish, 181 N.J. 553 (2004).
                                                                            A-2574-17T1
                                        12
v. McLean, 205 N.J. 438, 459 (2011). However, "[o]pinion testimony . . . is not

a vehicle for offering the view of the witness about a series of facts that the jury

can evaluate for itself or an opportunity to express a view on guilt or innocence."

Id. at 462.

      In the present case, both Quinn and Chencharik were asked, based on their

training to opine about what they thought occurred from what they observed.

Both responded that they believed a drug transaction occurred.

      We agree it was error for the police officers to testify based on their

training and experience that a drug sale had taken place. Id. at 463. This was

not an error, however, that requires reversal.

      This case is not like McLean. In McLean, the defendant's conviction was

based entirely on the testimony by the officers about what they observed. Ibid.

Here, there was other evidence a drug sale occurred. McAteer testified at trial,

admitting having purchased drugs from defendant, the police had probable cause

to arrest defendant, and pills with the same markings to those purchased by

McAteer were found in defendant's vehicle. The jury found defendant guilty of

possession of prescription drugs outside the container in which dispensed, the

lesser included offense under count one, and not of possession of oxycodone ,




                                                                            A-2574-17T1
                                        13
indicating its consideration of all the evidence. He also was acquitted on two

other counts.

         We are satisfied, therefore, the error was harmless, not warranting a new

trial.

                                       D.

         Defendant argues he was deprived of his right to a fair trial because the

trial court did not give a curative instruction to the jury after defendant testified

he was taking more painkillers than prescribed and had not paid taxes for several

years. The court cautioned defendant to answer the questions he was asked and

then instructed the jury: "Ladies and gentlemen, I’m instructing you that I’ve

given him those warnings. Some of the things that were said are things that are

not really appropriate as far as being in front of you. I’m trying not to interrupt

at this time. Mr. Santos, please follow those instructions.” Because there was

no request for a curative instruction at trial, we review this issue for plain error.

See State v. Wakefield, 190 N.J. 397, 456-57 (2007) (quoting State v. Bucanis,

26 N.J. 45, 57 (1958)).

         The "bad acts" testimony was not offered by the State but was volunteered

by defendant on direct examination. Given its brief nature, contemporaneous

comments by the judge, lack of objection at the time and in light of the jury's


                                                                             A-2574-17T1
                                        14
verdict, where defendant was acquitted on some charges, we do not agree that

this was the type of error that would lead to an unjust result.

                                      E.

      Defendant contends that there were cumulative errors committed during

trial that warrant reversal. Since we have found no errors capable of producing

an unjust result, we need not discuss whether there were cumulative errors. See

R. 2:11-3(e)(2).

      Affirmed.




                                                                       A-2574-17T1
                                       15
