                        NOT FOR PUBLICATION WITHOUT THE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-2024-15T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ELTEREKE DANIELS, a/k/a ELTEREKE
TYRELL DANIELS, ELTEREKE DANILES
and DANIELS T. ELETEREKE,

        Defendant-Appellant.

_____________________________

              Submitted March 27, 2017 – Decided June 7, 2017

              Before Judges Haas and Currier.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 15-02-0409.

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

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Ian C. Kennedy,
              Deputy Attorney General, of counsel and on the
              brief).

PER CURIAM
     Defendant Eltereke Daniels pleaded guilty to second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), fourth-

degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d), and

fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-

3(f).     He appeals from the denial of his motion to suppress

evidence resulting from a warrantless search, arguing that the

motion    judge's     credibility   determinations     were   "fundamentally

illogical" and "fatally flawed."            Because there is sufficient

evidence in the record to support the judge's ruling, we affirm.

     We glean the following facts from the record developed at the

suppression hearing.         Officer David Cohen of the Essex County

Sheriff's Office testified that on November 16, 2014, at 3:30

a.m.,    he   and   his   partner   conducted   a   motor   vehicle   stop   of

defendant's car after erratic movements of the car caused the

officers to suspect that the driver was driving under the influence

of alcohol.         The officers asked defendant to step out of the

vehicle to perform standard field sobriety tests.              A woman and a

child remained in the car.

     To administer the test, Cohen stood between the rear of

defendant's vehicle and the front of his patrol car while defendant

walked towards him, followed by the other officer. Cohen testified

that he scanned defendant's torso with a flashlight as he walked

into position for the test.         Based on his experience and training,

                                       2                              A-2024-15T1
he observed the butt of a handgun protruding from defendant's

waistband and a bulge just below, which he recognized as the

remaining portion of the weapon.       Because the officer did not want

to alert defendant and risk creating a dangerous situation, Cohen

allowed defendant to walk towards him, placed defendant into

position for the sobriety test, and then quickly removed the weapon

from defendant's waistband.    Defendant was subsequently arrested.

A search revealed two loaded magazines in defendant's pants pocket.

     Defendant also testified at the hearing, wearing the clothes

he had worn at the time of the traffic stop.          He stated that after

one sobriety test was completed, the officer swung at the left

side of defendant's jacket with his hand and asked if he had

anything on him.   Defendant responded no, but the officer searched

him anyway and found the gun on the right side of defendant's hip.

Defendant testified that the gun was completely hidden under his

untucked shirt and unzipped jacket.

     In an oral decision rendered on November 6, 2015, Judge Martin

G. Cronin noted that although defendant's testimony was fairly

consistent with Cohen's, the testimony diverged significantly as

to the physical location of the gun.          In finding Cohen to be the

more credible witness, the judge noted that defendant had lied to

the officer when asked if he had anything on him. Judge Cronin

found   defendant's   untruthfulness     to   Cohen    to   be   a   critical

                                   3                                  A-2024-15T1
determinant in his consideration of the witnesses' credibility.

He stated: "the fact that as to the location of the gun or the

existence of the gun, [defendant] previously lied [to Cohen], I

view that as critical in making a determination that he lied [in

court] as to the exact location of the gun on his body."

       The judge concluded that the State had satisfied all of the

requirements of the plain view exception and denied defendant's

motion to suppress the weapon.

       On appeal, defendant argues that Cohen's testimony was not

credible because he omitted the fact that he had asked defendant

whether he had anything on him.          Defendant contends that if the

officer had to ask this question, then he must not have seen the

gun.       Therefore, the plain view exception to a warrantless search

was not satisfied.1      We disagree.


       1
           For the plain view exception to apply, the State must prove

that

               (1) the officer was "lawfully in the viewing
               area," (2) the officer discovered the evidence
               "'inadvertently,' meaning that he did not know
               in advance where the evidence was located nor
               intend beforehand to seize it," and (3) it was
               "immediately apparent" that the items "were
               evidence of a crime, contraband, or otherwise
               subject to seizure."

               [State v. Earls, 214 N.J. 564, 592 (2013)
               (quoting State v. Mann, 203 N.J. 328, 341
               (2010.)]

                                     4                          A-2024-15T1
      In reviewing a motion to suppress, we defer to the findings

of   fact    and   credibility   determinations   of    the   trial    judge,

recognizing that he or she has had an opportunity to "hear and see

the witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy."       State v. Elders, 192 N.J. 224, 244 (2007)

(citing State v. Johnson, 42 N.J. 146, 161 (1964)). We will uphold

the decision below so long as it is "supported by sufficient

credible evidence" and not "so clearly mistaken 'that the interests

of justice demand intervention and correction.'" State v. Scriven,

226 N.J. 20, 32-33 (2016) (citing Elders, supra, at 243-44).

      "Our    constitutional     jurisprudence    expresses     a     decided

preference that government officials first secure a warrant before

conducting a search of a home or a person."            State v. Watts, 223

N.J. 503, 513 (2015) (citing State v. Edmonds, 211 N.J. 117, 129

(2012)).     A warrantless search or seizure is presumptively invalid

unless it falls within one of the well-delineated exceptions to

the warrant requirement.         State v. Bryant, 227 N.J. 60, 69-70

(2016) (citing Johnson, supra, 193 N.J. at 552).           The State bears




      In State v. Gonzales, 227 N.J. 77 (2016) the Supreme Court
held prospectively "that an inadvertent discovery of contraband
or evidence of a crime is no longer a predicate for a plain view
seizure." Id. at 82. This suppression motion pre-dated Gonzales
and therefore the element must be satisfied in this case.


                                     5                                A-2024-15T1
the burden of proving by a preponderance of the evidence that a

warrantless search or seizure is justified.           State v. Cope, 224

N.J. 530, 546 (2016) (citing Edmonds, supra, 211 N.J. at 128.).

     Contrary to defendant's argument, there is no evidence that

Cohen omitted anything in his testimony.            He was not asked by

either counsel whether he had asked defendant if he had anything

on him.   Judge Cronin found Cohen's testimony more credible than

defendant's version of events because of his admission that he had

lied to the officer about carrying a weapon.              The judge deemed

defendant's dishonesty critical in his credibility determinations,

and concluded that Cohen's testimony that the gun was located

towards the "right front" of defendant's body such that "he could

see the handle" was more believable.        The judge stated:

          it was immediately apparent to [Officer Cohen]
          as a trained law enforcement officer that it
          was a gun.    It was inadvertent within the
          meaning of a plain view exception because the
          initial . . . stop . . . [was] a D.W.I. stop
          . . . . All the requirements have been
          satisfied as to the plain view exception.

     "[T]he   appellate     court   must    defer   to    the   credibility

determinations   of   the   trial   court   between      competing   factual

testimony."   State v. Jefferson, 413 N.J. Super. 344, 349 (App.

Div. 2010) (citing State v. Locurto, 157 N.J. 463, 474 (1999)).

We are satisfied that the judge's denial of defendant's motion to



                                    6                                A-2024-15T1
suppress is supported by sufficient credible evidence in the

record.

    Affirmed.




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