                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5249-13T3


STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

SAYVON LAWS, a/k/a
KAYVON LAWS,

     Defendant-Appellant.

______________________________


         Submitted May 11, 2016 – Decided June 8, 2017

         Before Judges Kennedy and Gilson.

         On appeal from Superior Court of New Jersey,
         Law Division, Monmouth County, Indictment
         Nos. 13-01-0182 and 13-04-0640.

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

         Robert   Lougy, Acting   Attorney  General,
         attorney for respondent (Frank Muroski,
         Deputy Attorney General, of counsel and on
         the brief).



PER CURIAM
       Following the denial of his motion to suppress evidence,

defendant pled guilty to second-degree unlawful possession of a

handgun,    N.J.S.A.    2C:39-5(b),         and    third-degree       aggravated

assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and was

thereafter sentenced to five years' incarceration, subject to a

three-year period of parole ineligibility, in accordance with a

plea   bargain.   He   now   appeals       the    denial   of   his   motion    to

suppress and argues as follows:

           POINT I – IN A CASE WHERE DEFENDANT CLAIMED
           THAT THE GUN WHICH SUPPORTED HIS STOP WAS
           NOT IN PLAIN VIEW, THE COURT'S RULING TO
           QUASH DEFENDANT'S SUBPOENA AND PREVENT A
           REPORTER FROM THE ASBURY PARK PRESS FROM
           TESTIFYING   ABOUT  HER   PUBLISHED   ARTICLE
           CONTAINING CONFLICTING INFORMATION VIOLATED
           THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES
           AGAINST HIM BY [RESTRICTING] HIS ABILITY TO
           CONFRONT THE STATE'S VERSION OF PLAIN VIEW.

We have considered this argument in light of the record and the

law, and we affirm.

       We begin with a brief recitation of the facts underlying

the appeal. On October 19, 2012, Asbury Park police officer

Raisin was on patrol in an unmarked police car with another

officer when he saw defendant walking down Sunset Avenue with

what appeared to be a gun handle protruding from his jacket

pocket. Upon pulling up next to defendant, Raisin got out of the

car and said, "I just want to make sure that's not a gun on

you." Defendant responded by lifting his shirt and denying he



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had   a    weapon.    This       action,     however,       caused    the      gun    butt   to

protrude     "even     more"      from       his   jacket     pocket,       and      confirmed

Raisin's     earlier       suspicion       that      defendant      had    a    gun    in    his

pocket.

      As    Raisin     reached         for     the    gun,    defendant         immediately

punched     the     officer       in   the     face    four       times.       The    officers

eventually subdued defendant after spraying him with a police-

issued     chemical        spray.      The     weapon       was    retrieved          and    was

discovered     to     be    an    operable         handgun    loaded       with      live    .45

caliber rounds.

      Defendant testified at the suppression hearing that he had

a gun in his pocket, but asserted that the weapon was in a

closed and zippered pocket other than the one identified by the

officer. Defendant also sought to subpoena an Asbury Park Press

reporter who wrote a story about the incident in which it was

reported     that     the     officers        saw     the    weapon       in    defendant's

"waistband." The story cited Asbury Park Police Captain Anthony

Salerno as the source of the information.

      Although       the    Law    Division        quashed    the    subpoena,         Captain

Salerno testified at the suppression hearing and defendant was

permitted to extensively cross-examine Raisin about the story in

the paper. Raisin said he did not speak to the reporter or to

Captain Salerno about the incident.




                                               3                                      A-5249-13T3
    Captain Salerno acknowledged he spoke to the reporter about

the incident, but confirmed he had not spoken to either of the

arresting officers prior to the publication of the article in

the Asbury Park Press.

    The     judge    found     the    testimony     of    the   officers     to    be

credible    and   denied     suppression.     Defendant         now   appeals     and

argues     that     the     quashing     of   the        subpoena     denied      his

constitutional right of confrontation and compulsory process.

    Initially,         we   address     defendant's       argument    that     Judge

Ronald Lee Reisner erred in granting the Asbury Park Press'

motion    to   quash      defendant's    pre-trial       subpoena     seeking     the

testimony of a reporter. A judge's decision to quash a subpoena

is reviewed for abuse of discretion. State v. Medina, 201 N.J.

Super. 565, 580-81 (App. Div.), certif. denied, 102 N.J. 298

(1985).

    Substantively, the Asbury Park Press argued that they were

entitled to the protections afforded newspersons, pursuant to

the New Jersey Shield Law, N.J.S.A. 2A:84A-21, and N.J.R.E. 508

(codifying the Shield Law into Rules of Evidence). However, the

motion judge did not grant the newspaper's motion on the basis

of this privilege, but rather based upon procedural defect.

    Following a hearing, the judge found that Rule 1:9-1, which

incorporates Rule 4:4-4, requires service of a subpoena upon a




                                         4                                 A-5249-13T3
non-party      by    personal       service.       See   N.J.    Cure   v.     Estate   of

Hamilton, 407 N.J. Super. 247, 250-51 (App. Div. 2009) (holding

that    mailed       service    to     an     unwilling        non-party     subject    to

personal service renders the subpoena ineffective). As defendant

left the subpoena for the reporter with the security guard at

the    door    of     the    Asbury     Park       Press    office,     this    did     not

constitute effective service. We find no abuse of discretion.

The motion judge properly deemed this error fatal to defendant's

application, and rightly quashed the subpoena.

       The defendant, thereafter, did not re-serve the subpoena,

and thus, he has no standing to challenge the quashing of the

subpoena on substantive grounds.

       Next,    we    turn     to     Judge       Joseph    W.    Oxley's      denial    of

defendant's         suppression       motion.       In     reviewing    a    motion      to

suppress, 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.'"       State    v.

Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386

N.J. Super. 208, 228 (App. Div. 2006), aff'd in part and rev'd

in     part,   192     N.J.     224     (2007)).         Deference      is     especially

appropriate when the trial court has the "opportunity to hear

and see the witnesses and to have the 'feel' of the case, which

a reviewing court cannot enjoy." Id. at 244 (quoting State v.




                                              5                                  A-5249-13T3
Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not

required to accept findings that are "clearly mistaken" based on

our independent review of the record. Ibid. Moreover, we need

not defer "to a trial . . . court's interpretation of the law,"

as "[l]egal issues are reviewed de novo." State v. Vargas, 213

N.J. 301, 327 (2013).

     The plain view doctrine is a recognized exception to the

Fourth Amendment's requirement for police to obtain a warrant

prior to conducting a search. Texas v. Brown, 460 U.S. 730, 735,

103 S. Ct. 1535, 1539, 75 L. Ed. 2d 502, 509 (1983); State v.

Bruzzese, 94 N.J. 210, 236 (1983). There are three requirements

for the plain view doctrine1:

          First, the police officer must be lawfully
          in the viewing area.

          Second the officer has to discover the
          evidence "inadvertently," meaning that he
          did not know in advance where evidence was
          located nor intend beforehand to seize it.

          Third, it has to be "immediately apparent"
          to the police that the items in plain view
          were evidence of a crime, contraband, or
          otherwise subject to seizure.




1
  The New Jersey Supreme Court has recently revisited the plain
view exception in State v. Gonzales, 227 N.J. 77, 82 (2016),
where it dispensed of the inadvertence requirement for a plain-
view seizure. Finding this to be a new rule of law, the Court's
holding is applied prospectively and does not control our
analysis. Ibid.



                                6                       A-5249-13T3
            [Bruzzese, supra, 94 N.J. at 236 (quoting
            Coolidge v. New Hampshire, 403 U.S. 443,
            465-70, 91 S. Ct. 2022, 2037-40, 29 L. Ed.
            2d 564, 582-85 (1971)).]

      Applying      these      principles,         we   discern       no     basis       for

disturbing the motion judge's determination that the officers

observed defendant's gun in plain view, thereby satisfying the

exception     to     the     warrant     requirement.         Here,        finding       the

testimony    of    the     officers     to    be   clear     and   unequivocal,          the

motion judge determined that all three of the requirements of

the plain view doctrine had been satisfied. The officers were

lawfully patrolling the 700 block of Sunset Avenue in Asbury

Park, a location where two individuals had been shot multiple

times the day prior, when they witnessed defendant walking. The

officers    observed        the   handle      of   a    handgun    protruding           from

defendant's        jacket     pocket,        and    based      upon        their      prior

interactions       with     defendant,       the   officers    knew        that    it    was

highly unlikely for that he had a permit to carry such a weapon.

All   of   these    findings      are   supported       by   substantial          credible

evidence in the record and therefore we discern no basis to set

aside the judge's order denying the motion to suppress.

      Affirmed.




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