                                NOT FOR PUBLICATION WITHOUT THE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-1602-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTONIO WINTERS, a/k/a
TONY WINTERS,

     Defendant-Appellant.
___________________________

                    Submitted January 28, 2020 – Decided March 13, 2020

                    Before Judges Yannotti and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 17-08-1700.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Elizabeth Cheryl Jarit, Deputy Public
                    Defender II, of counsel and on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Catlin A. Davis, Deputy Attorney General,
                    of counsel and on the brief).

PER CURIAM
      After the trial court denied his motion to suppress, defendant pled guilty

to second-degree certain persons not to possess weapons, N.J.S.A. 2C:35-7(n),

as charged in Atlantic County Indictment No. 17-08-1700. The trial court

thereafter sentenced defendant to a ten-year prison term, with five years of

parole ineligibility. Defendant appeals from the judgment of conviction (JOC)

dated November 2, 2018. We affirm.

                                        I.

      We briefly summarize the testimony presented at the suppression hearing.

On May 16, 2017, a confidential informant (CI) told Detective Brian Hambrecht,

of the Atlantic City Police Department (ACPD), that a man named Winters "had

possession of a gun" at a specific location on North New York Avenue and was

wearing "a red hat, black jeans[,] and red and black sneakers." The CI's tip did

not describe the gun or its location.

      The detective did not have independent sources to corroborate the CI's tip.

However, Detective Hambrecht stated that the ACPD had previously used this

CI on two separate occasions, which resulted in a number of arrests. On May

16, 2017, at approximately 3:00 p.m., detectives from the ACPD set up

surveillance at the location provided by the CI. After about twenty to twenty -

five minutes, Detective Hambrecht observed a man, who was later identified as


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                                        2
defendant, matching the suspect's description exit the building. Defendant

walked north on North New York Avenue and made a right-hand turn on

Adriatic Avenue. At some point, Detective Hambrecht lost visual contact with

defendant.

      Sergeant Andrew Leonard arrived at the scene to assist Detective

Hambrecht and other officers in conducting surveillance on "a potentially armed

suspect." Sergeant Leonard also observed defendant leave the building. He was

in an unmarked, black Dodge Durango. He was wearing plain clothes with a

police badge hanging from his neck. He approached defendant while in his

vehicle.

      Sergeant Leonard testified that defendant was surprised, recognized the

vehicle as a police vehicle, and moved his hands "towards the area of his

waistband . . . ." Sergeant Leonard "immediately exited [the] vehicle, drew [his]

firearm and ordered [defendant] to put his hands in the air." Defendant initially

walked towards the vehicle but after the officer repeated his order, he raised his

hands.

      Defendant informed Sergeant Leonard that he "just found" a firearm and

he was holding it in his waistband. The officer secured defendant's hands behind

his back. He "reached into [defendant's] waistband and removed the firearm."


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                                        3
At that point, Detective Hambrecht arrived. Sergeant Leonard handed him the

firearm he had recovered from defendant.

      Sergeant Leonard and another officer handcuffed defendant and took him

into custody. Defendant did not have a permit or other lawful authority, which

allowed him to possess the firearm. Defendant also knew he had certain prior

convictions, including a robbery conviction, which precluded him from

possessing a firearm lawfully.

      Sergeant Leonard testified that he was "concerned" when defendant

reached towards his waistband, after defendant saw his vehicle. He said that,

based upon his "training and experience[,]" the waistband is an area where

individuals commonly carry firearms.

      Detective Hambrecht testified that he commenced surveillance of

defendant based on the CI's tip that defendant "had possession of a gun" and the

information the CI provided regarding defendant's clothing and location.

Detective Hambrecht acknowledged that individuals commonly reach into their

waistband for reasons unrelated to possession of a firearm.

      The motion judge placed his decision on the record. The judge stated that

the investigation at issue began when the ACPD received a call from a CI, who

said that a person named Winters was in a building at a particular location and


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                                       4
had a gun. The police commenced surveillance at that location and defendant

was seen leaving the building. Defendant walked a short distance and, when

Sergeant Leonard approached, he saw defendant make a gesture with his hand

toward his waistband.

      The judge found that, at that point, Sergeant Leonard had reasonable

articulable suspicion to stop defendant for investigation. The judge noted that

the officers had acted on the basis of a tip from a CI, who previously provided

information to the ACPD that led to a number of arrests and was considered

reliable. Moreover, the officers corroborated the CI's tip with their surveillance

and observations.

      The judge noted that the officers observed defendant at the location the CI

had described, and Sergeant Leonard saw defendant make a gesture toward his

waistband. The judge found that the gesture was significant because the CI

reported that defendant had a gun. The judge entered an order denying the

motion to suppress.

      On July 12, 2018, defendant pled guilty to count three of the indictment,

in which he was charged with second-degree certain persons not to possess

weapons. The State agreed to recommend that the judge sentence defendant to

a ten-year term of incarceration, with five years of parole ineligibility. The State


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                                         5
also agreed to dismiss the remaining counts of the indictment and other charges

filed in a separate complaint.

      On October 26, 2018, the judge sentenced defendant in accordance with

the plea and thereafter filed a JOC. This appeal followed. On appeal, defendant

argues:

            POINT I
            THE INSUFFICIENT INFORMATION PROVIDED
            ABOUT THE RELIABILITY AND BASIS OF
            KNOWLEDGE FOR THE CI'S TIP FAILED TO
            ESTABLISH   THAT   THE   OFFICER  HAD
            REASONABLE     SUSPICION    TO   STOP
            DEFENDANT.

            POINT II
            DEFENDANT WAS DENIED DUE PROCESS WHEN
            HE WAS PREVENTED FROM CROSS-EXAMIINIG
            THE OFFICER ABOUT WHETHER THE CI HAD
            ANY PENDING CHARGES.

            POINT III
            RESENTENCING IS REQUIRED BECAUSE THE
            COURT MERELY RECITED THE DEFENDANT'S
            CRIMINAL HISTORY AS ITS STATEMENT OF
            REASONS   IN    FINDING    AGGRAVATING
            FACTORS THREE, SIX, AND NINE.

                                      II.

      As noted, defendant argues that the judge erred by denying his motion to

suppress. He contends the officer did not have reasonable suspicion to make the



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                                      6
investigatory stop. He argues the State failed to establish the veracity and

reliability of the CI.

      When considering the trial court's decision on a motion to suppress, our

"scope of review is limited." State v. Robinson, 200 N.J. 1, 15 (2009). We

"must uphold the factual findings underlying the trial court's decision so long as

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

(quoting State v. Elders, 192 N.J. 224, 243 (2007)). Furthermore, we give

deference to the trial judge's findings because those findings 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." Elders, 192 N.J. at

244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

      We may not disturb the trial court's findings merely because we "'might

have reached a different conclusion were it the trial tribunal' or because 'the trial

court decided all evidence or inference conflicts in favor of on side' in a close

side." Ibid. (quoting Johnson, 42 N.J. at 162). "The governing principle, then,

is that '[a] trial court's findings should be disturbed only if they are so clearly

mistaken that the interests of justice demand intervention and correction.'"

Robinson, 200 N.J. at 15 (quoting Elders, 192 N.J. at 244).




                                                                             A-1602-18T3
                                         7
      "[U]nder both the Fourth Amendment to the United States Constitution

and Article I, Paragraph 7 of [the New Jersey] Constitution, searches and

seizures conducted without warrants issued upon probable cause are

presumptively unreasonable and therefore invalid." Elders, 192 N.J. at 246

(citing State v. Pineiro, 181 N.J. 13, 19 (2004)). However, "[n]ot all interactions

between law enforcement and citizens constitute seizures, and not all seizures

are unconstitutional." Ibid. (citing State v. Maryland, 167 N.J. 471, 486-87

(2001)).

      An "investigatory stop" or "detention" is constitutional "if it is based on

'specific and articulable facts which, taken together with rational inferences

from those facts,' give rise to a reasonable suspicion of criminal activity." State

v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21

(1968)). Reasonable suspicion is "judged objectively: 'would 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?'" State v.

Arthur, 149 N.J. 1, 7-8 (1997) (quoting Terry, 392 U.S. at 21-22).

      The officer's conduct can be considered "in light of his experience[,]" but

"[n]either 'inarticulate hunches' nor an arresting officer's subjective good faith

can justify an infringement of a citizen's constitutionally guaranteed rights." Id.


                                                                           A-1602-18T3
                                        8
at 8 (citing Terry, 392 U.S. at 21, 27). Ultimately, reasonable suspicion is

"something less than the probable cause standard needed to support an arrest."

State v. Thomas, 110 N.J. 673, 678 (1988).

      "[A] descriptive tip by an informant may contribute to a reasonable

objective and particularized suspicion to serve as the basis for an investigatory

stop." State v. Richards, 351 N.J. Super. 289, 300 (App. Div. 2002) (quoting

State v. Caldwell, 158 N.J. 452, 467 (1999)). The reliability of an informant's

tip must be determined based on the totality of the circumstances. State v.

Novembrino, 105 N.J. 95, 122 (1987).

      "An informant's 'veracity' and 'basis of knowledge' are two highly relevant

factors under the totality of the circumstances." State v. Zutic, 155 N.J. 103,

110 (1998) (citing State v. Smith, 155 N.J. 83, 93 (1998)). However, "[a]

deficiency in one of those factors 'may be compensated for, in determining t he

overall reliability of a tip, by a strong showing as to the other, or by some other

indicia of reliability.'" Id. at 110-11 (quoting Illinois v. Gates, 462 U.S. 213,

233 (1983)).

      An informant's veracity may be established in several ways, including "by

demonstrating that the informant proved to be reliable in previous police

investigations." State v. Sullivan, 169 N.J. 204, 213 (2001); see also Zutic, 155


                                                                           A-1602-18T3
                                        9
N.J. at 111.    However, the proper weight afforded to an informant's past

reliability "may vary with the circumstances of each case" and past reliability is

not conclusive under the totality of the circumstances. Sullivan, 169 N.J. at 213

(citing Smith, 155 N.J. at 94).

      "An informant's basis of knowledge is sufficient 'if the tip itself relates

expressly or clearly how the informant knows of the criminal activity.'" State

v. Jones, 179 N.J. 377, 389 (2004) (quoting Sullivan, 169 N.J. at 213). If the

informant does not identify his/her basis of knowledge, "a reliable basis of

knowledge may nonetheless be inferred from the level of detail and amount of

hard-to-know information disclosed in the tip." Zutic, 155 N.J. at 111.

"Independent corroboration" of those details may also "bolster the tip's

reliability." Ibid.

      Here, the judge found that Sergeant Leonard had reasonable articulable

suspicion to stop defendant based on the CI's tip; the surveillance of defendant,

which corroborated the tip; and defendant's gesture towards his waistband,

which indicated he may be in possession of a weapon. The judge noted that the

CI's veracity was shown by the CI's prior cooperation with the ACPD, which led

to a number of arrests.




                                                                          A-1602-18T3
                                       10
        Moreover, although the CI did not identify his or her basis of knowledge,

the informant provided details from which such knowledge could be inferred.

The CI identified defendant by name, described his clothes, stated the location

where he could be found, and indicated that defendant had a gun.

        Furthermore, the CI's tip was corroborated by the officers' surveillance.

They observed defendant exiting the building the CI had identified. He also was

wearing the clothes the CI had identified. When Sergeant Leonard approached

defendant in his vehicle, defendant gestured toward his waistband.

        The sergeant testified, based on his experience as a police officer, that the

waistband is "a[n] area where individuals commonly will illegally carry

firearms." The gesture corroborated the CI's statement that defendant was in

possession of a gun.

        We are therefore convinced that there is sufficient credible evidence in

the record to support the trial court's findings of fact. The court correctly

determined that Sergeant Leonard had reasonable articulable suspicion to

suspect defendant committed, or was about to commit, an offense. Therefore,

the investigatory stop was lawful. Accordingly, the court did not err by denying

defendant's motion to suppress the evidence obtained during the investigatory

stop.


                                                                             A-1602-18T3
                                         11
                                        III.

      Next, defendant argues he was deprived of his right to due process because

at the suppression hearing the judge limited his cross-examination of Detective

Hambrecht. Defendant asserts he is entitled to a new suppression hearing.

      "In reviewing a trial court's evidential ruling, an appellate court is limited

to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J.

6, 12 (2008) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). We will

uphold a trial court's evidentiary determination unless its "finding was so wide

of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J.

86, 106 (1982).

      Here, defendant's attorney asked Detective Hambrecht whether the CI was

under any indictment or charges at the time he provided the tip. The assistant

prosecutor objected to the question, and the judge sustained the objection.

      Defendant argues that the judge erred by precluding him from eliciting

information that allegedly "went to the heart of the veracity" of the CI. We

disagree. As we stated previously, because the officers relied upon the CI's tip

as a basis for the investigatory stop, the State had to establish the veracity of the

informant. Whether or not the CI had pending charges at the time the CI

provided the tip was not relevant to the CI's veracity.


                                                                             A-1602-18T3
                                        12
      Detective Hambrecht testified that he viewed the CI as reliable because

the CI had previously provided information, which led to a number of arrests.

Moreover, the officers corroborated the CI's tip with their surveillance and

observations. The fact that the CI may have had pending charges when the CI

provided the tip would not necessarily render the CI unreliable or negate the

veracity of the information provided.

      Indeed, vital information about possible criminal activity does not always

come "from people of high motivation." State v. Oliver, 50 N.J. 39, 42 (1967).

"The police must have the aid of [persons] of lesser quality . . . [who] are needed

for what they know . . . [and] for what they can learn because of their

associations." Ibid.

      In support of his argument, defendant relies upon State v. Williams, 364

N.J. Super. 23 (App. Div. 2003). In that case, a CI informed the police that she

could arrange a drug transaction with a person named "Andre." Id. at 27. The

CI had previously given the police unspecified information that led to

investigations and drug-related arrests of other persons. Id. at 27-28. An officer

was assigned to investigate the matter. Id. at 28.

      The officer went with the CI to a train station, where the CI used a public

phone to call "Andre" and place an order for drugs. Ibid. The officer overheard


                                                                           A-1602-18T3
                                        13
the conversation. Ibid. Shortly thereafter, an automobile arrived at the train

station and the CI identified the passenger in the car as "Andre." Ibid. The

defendant exited the car and stood on the platform, but he did not engage in any

conduct of a suspicious nature. Ibid. The defendant later returned to the car and

sat in the passenger seat. Ibid.

      The driver of the car attempted to leave the area, but the police prevented

him from doing so. Id. at 28-29. The officers then questioned the defendant

and the driver, and the defendant said his first name was "Andre." Id. at 29.

The police found suspected cocaine in the car and arrested the defendant and the

driver. Ibid. At police headquarters, the officers searched the defendant and

found crack cocaine and currency in various denominations. Ibid.

      The defendant filed a motion to suppress and argued that the investigatory

stop was unlawful. Id. at 30. The defendant asserted that the CI's tip was

unreliable. Id. at 30-31. We held that the CI's on-site identification of the

defendant as the person with whom she arranged the drug transaction provided

a sufficient basis for the investigatory stop, even though the CI had not provided

any descriptive information and the police did not see the defendant engage in

any suspicious conduct. Id. at 35-37.




                                                                          A-1602-18T3
                                        14
      We observed that the police had conceded the CI provided the tip in an

effort to obtain favorable disposition of a pending municipal charge of

possession of drug paraphernalia. Id. at 27. We stated that the fact that a police

informant has engaged in criminal activity may undercut the informant's

veracity. Id. at 34 (citing State v. Davis, 104 N.J. 490, 506 (1986)). We also

stated that it could "be argued that an informant's expectation of gain or

concession cannot be viewed similarly, since gain seldom flows in this context

from mistruth." Ibid. (citing Adams v. Williams, 407 U.S. 143, 146-47 (1972)).

      We added that the fact that the CI had provided the police with the tip "in

order to reduce charges pending against her added to, rather than decreased her

veracity . . . ." Id. at 37. We commented that it was "inconceivable that [the CI]

would have consciously misidentified 'Andre' while seated in the back of the

police car operated by the person who had effected [the CI's] own arrest." Ibid.

      We are convinced defendant's reliance upon Williams is misplaced. That

case does not support defendant's contention that the judge erred by precluding

him from eliciting testimony as to whether the CI had pending charges .

Defendant asserts that this information was essential in determining the CI 's

veracity. Williams indicates, however, that pending charges would add to,




                                                                          A-1602-18T3
                                       15
rather than detract from, a CI's veracity because a CI will not gain from

providing false information to law enforcement. See ibid.

      Moreover, Williams supports the conclusion that information as to

whether a CI has pending charges will not be relevant where, as in this case,

there is other evidence that establishes the reliability and veracity of the CI. See

id. at 35-37. We therefore reject defendant's contention that the motion judge

mistakenly exercised his discretion by limiting the cross-examination of

Detective Hambrecht. The judge's evidentiary ruling did not deprive defendant

of his right to due process.

                                        IV.

      Defendant also argues that his sentence is excessive. He contends the

judge failed to provide specific findings with regard to the aggravating factors.

      When reviewing a trial court's sentencing determination, we apply a

"deferential" standard of review. State v. Fuentes, 217 N.J. 57, 70 (2014). "The

reviewing court must not substitute its judgment for that of the sentencing

court." Ibid. Rather, "[t]he appellate court must affirm the sentencing unless

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating

factors found by the sentencing court were not based upon competent and

credible evidence in the record; or (3) 'the application of the guidelines to the


                                                                            A-1602-18T3
                                        16
facts of [the] case makes the sentence clearly unreasonable so as to shock the

judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

      "To facilitate meaningful appellate review, trial judges must explain how

they arrived at a particular sentence." State v. Case, 220 N.J. 49, 65 (2014). "A

clear explanation 'of the balancing of aggravating and mitigating factors with

regard to imposition of sentences and periods of parole ineligibility is

particularly important.'" Fuentes, 217 N.J. at 73 (quoting State v. Pillot, 115

N.J. 558, 565-66 (1989)).

      Here, the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3)

(risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6)

(extent of defendant's prior criminal record and the seriousness of the offenses

of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter

defendant and others from violating the law). The judge found no mitigating

factors. The judge sentenced defendant to a ten-year term of incarceration, with

a five-year period of parole ineligibility.

       In sentencing defendant, the judge stated that defendant was fifty years

old and employed. The judge noted that defendant had thirty-one arrests in New

Jersey and New York, and had been convicted in New Jersey of various

indictable offenses, which include robbery, theft, unlawful possession of a


                                                                         A-1602-18T3
                                        17
weapon, and other drug offenses. He also has five misdemeanor convictions in

New Jersey, but no history of domestic violence. This was defendant's eleventh

conviction of an indictable offense. He also had four disorderly persons offenses

in New York, and a felony conviction in that state for possession of a controlled

dangerous substance.

      In addition, the judge observed that defendant had been afforded

probationary treatment, along with inpatient and outpatient substance abuse

treatment. The judge noted that defendant had been sentenced to five years'

probation, but he was incarcerated after violating the conditions of probation.

In addition, defendant had been paroled, but he violated the conditions of parole

and had been returned to prison.

      On appeal, defendant argues that the judge failed to provide a statement

of reasons for his findings of aggravating factors three, six, and nine. He

contends these findings cannot be based solely upon his criminal history.

Defendant notes that at sentencing, his cousin and sister explained that he has

been addicted to drugs since he was seventeen years old and was never afforded

treatment for that addiction. He asserts that after his parents died, there was a

"spiral of events" that led to this conviction.




                                                                         A-1602-18T3
                                        18
      We conclude, however, that there is sufficient credible evidence in the

record to support the judge's findings of aggravating factors three, six, and nine,

and the judge's determination that no mitigating factors apply. The judge

provided a sufficient explanation for his findings. Moreover, defendant was

sentenced in accordance with his negotiated plea. As the State points out, the

sentence was a substantial reduction of defendant's exposure under the

indictment, which included a first-degree weapons charge. We are convinced

the sentence is a reasonable exercise of the trial court's sentencing discretion.

      Affirmed.




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                                       19
