                                NOT FOR PUBLICATION WITHOUT THE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-5410-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WILLIAM SPORMAN,

     Defendant-Appellant.
_________________________

                   Submitted March 2, 2020 – Decided April 29, 2020

                   Before Judges Geiger and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Municipal Appeal No. 19-
                   0025.

                   Roberts & Teeter, LLC, attorneys for appellant
                   (Michael B. Roberts, on the briefs).

                   Michael H. Robertson, Somerset County Prosecutor,
                   attorney for respondent (Lauren R. Casale, of counsel
                   and on the brief).

PER CURIAM
      Defendant was convicted by a municipal court and, after a de novo appeal,

by the Law Division, for shoplifting in violation of N.J.S.A. 2C:20-11(b)(1),

possession of fifty grams or less of marijuana in violation of N.J.S.A. 2C:35 -

10(a)(4), and for possession of a controlled dangerous substance (CDS),

marijuana, in a motor vehicle while "operat[ing] . . . on any highway" in

violation of N.J.S.A. 39:4-49.1. The municipal court sentenced defendant to

fifteen days in county jail, imposed fines, penalties, and assessments, ordered

two years loss of license on the motor vehicle summons and a consecutive six-

month loss of license on the 2C:35-10(a)(4) violation. After considering the

parties' arguments against the applicable law and standards of review, we affirm

defendant's convictions, but we remand to the Law Division for the court to

sentence defendant.

                                       I.

      At the municipal court trial, the State presented the testimony of Jordan

Reagan, a loss prevention supervisor at Kohl's in Hillsborough, and Richard

Joseph Yock, a police officer with the Hillsborough Township Police

Department. Reagan testified that on August 9, 2018, he was monitoring the

store security cameras and observed defendant "select a Nike pair of sunglasses

and pull the tab off of them . . . throw [the tag] down in [the] Men's Basics


                                                                        A-5410-18T1
                                       2
[Department] [and] conceal[] the sunglasses in his pocket." He further observed

defendant "conceal[] a pair of socks in his pants, exit[] the store and . . . g[e]t

into his vehicle." Reagan then contacted the local police department, gave them

defendant's license plate number, and "one of the officers that responded stopped

[defendant] as he was . . . exiting the parking lot."

      Reagan provided the responding officers with a printed a receipt for the

sunglasses and socks showing a total value of $97.99, as well as a copy of the

security camera video footage. At trial, he also identified defendant as the

person he witnessed on the security cameras.

      Officer Yock also testified with respect to the events that day. He noted

that he was dispatched to Kohl's with another officer based on a report of a

shoplifter who entered a vehicle with a specified license plate. After speaking

with Reagan, both officers approached defendant who was "next to a Mercedes

Benz," in the Kohl's parking lot. According to Yock, defendant's vehicle door

was open, he "was wearing said sunglasses[,] and he was [having] difficulty

starting his car." While Yock was looking in the vehicle for the socks that

defendant allegedly stole, he "saw a small broken glass vial in plain view in the

center console with greenish vegetative matter in it" consistent with marijuana.




                                                                           A-5410-18T1
                                         3
The officers also discovered approximately forty vaping devices in the trunk of

defendant's car.

        Yock further testified that prior to being arrested, defendant voluntarily

told him that he removed "the sunglasses from the store without paying for them

and that he made a mistake." At a subsequent interview, and after his arrest,

defendant was read his Miranda1 rights, which according to Yock "he voluntarily

waived." Defendant then told Yock that he went to Kohl's to exchange a pair of

sneakers that he purchased earlier that day when he "saw the Nike sunglasses . .

. placed them on his head . . . put a pair of socks in his pocket . . . [and] left

without paying for either of them."2

       According to Yock, defendant then advised police that "the marijuana that

was in his vehicle was given to him by a male that came to his house [earlier

that day]." Yock also identified defendant at trial as the person he approached

in the parking lot, and further identified a lab report, subsequently introduced




1
    See Miranda v. Arizona, 384 U.S. 436 (1966).
2
  Defendant did not challenge the admissibility of any of his statements in the
municipal court, Law Division, or before us. We accordingly consider any
objection to our consideration of defendant's statements by the municipal or Law
Division judges waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.
Div. 2011) (holding that "[a]n issue not briefed on appeal is deemed waived").
                                                                          A-5410-18T1
                                        4
into evidence, confirming that the green matter he discovered in plain view in

the center console consisted of 1.11 grams of marijuana.

       On cross-examination, Yock stated that the vial containing what was later

confirmed to be marijuana was "[a]bsolutely" in the car when he approached the

vehicle. On redirect, he also testified that but for a failure of the interlock device

in the vehicle, defendant "[a]bsolutely" would have left the scene.

      On the second day of trial, defendant unsuccessfully moved to dismiss the

drug-related charges arguing that police "had been called because of the

shoplifting offense but there was certainly no reason to look into the vehicle to

do anything pertaining to the vehicle," Yock "should have limited his

observation to the merchandise[,] and [Yock] had no reason to go look further

in the car." The court denied defendant's motion noting that Yock "testified that

the vial was in plain view" and emphasized that defendant "had the sunglasses

on his head."

      Defendant also unsuccessfully attempted to call Wendy Sporman,

defendant's mother, as a witness. The State objected and the court requested a

proffer of her relevant testimony. Defendant stated that Ms. Sporman would

testify that she was "the owner of the vehicle" and with respect to "complaints

she has made against the Hillsborough Police Department." The defense further


                                                                              A-5410-18T1
                                          5
stated that Ms. Sporman would testify that "it is her belief that . . . the

Hillsborough Police Department is targeting [defendant]."           Significantly,

defendant did not provide any detail on the record regarding the alleged

complaints that either she or defendant had with the Hillsborough Police

Department or whether they involved any of the officers involved in defendant's

arrest. Nor did counsel claim, as he did in the Law Division and before us, that

Ms. Sporman would testify that the marijuana was hers, and not her son's.

Further, at no point did defendant request to supplement the record with an

affidavit or certification of Ms. Sporman attesting to any of these alleged facts.

      In sustaining the State's objection to calling Ms. Sporman as a witness,

the court noted that it watched the security camera footage entered into evidence

and "it was clear what [defendant] did . . . [and the court was] not sure what

relevance she has to the shoplifting event and . . . the fact that [defendant]

possessed contraband in the center console, which was in plain view." The court

further noted that the State was not made aware in a timely fashion that the

defense would call Ms. Sporman as a witness and emphasized that had it known,

the State would have sequestered her as she was in the court throughout the trial.

      Defendant again unsuccessfully moved to dismiss the summons for

possessing CDS in a motor vehicle stating that there was "no testimony that the


                                                                          A-5410-18T1
                                        6
vehicle was on [a] highway . . . [a]nd it was parked in the parking lot." In

denying defendant's motion, the court noted that it has "testimony from an

officer that says [defendant] was in his vehicle attempting to leave after

committing the offense of shoplifting, allegedly, in his vehicle with contraband

in the center console" and he was "attempting to start his vehicle, which was not

being operated only because the interlock device malfunctioned, according to

the testimony." The court further stated that "[t]here was an attempted operation

at the very least, given the testimony . . . [t]here was contraband in the vehicle

and I think if you look at the statute, you have all the elements that you need for

a conviction based on having drugs in the motor vehicle." The court also agreed

with the State's argument that according to the statute, "a parking lot for a store

that is used by the public in a normal course is also considered a public road or

highway for the purposes of our statutes."

      In its March 18, 2019 oral decision, the court determined that based on

"post-[Miranda] admissions . . . the testimony of the officer and Jordan Reagan,

as well as the video, which [it] was permitted to watch," the State proved the

shoplifting count beyond a reasonable doubt. The court also found defendant

guilty of the possession charges and imposed a custodial sentence along with

fines and penalties.


                                                                           A-5410-18T1
                                        7
      Defendant appealed to the Law Division and in a July 29, 2019 written

opinion and order, the Law Division judge denied defendant's appeal of his

convictions but remanded the matter to the municipal court for resentencing.

With respect to the municipal court's finding that the circumstances were

sufficient to prove defendant unlawfully possessed marijuana within the

meaning of N.J.S.A. 2C:35-10(a)(4), the Law Division judge noted that Yock

testified that defendant provided police with a post-Miranda statement admitting

the marijuana was in his vehicle and was given to him by a male that came to

his house that same day, the State Laboratory analyzed the recovered substance

and submitted a report indicating that the substance in defendant's possession

was marijuana, and Yock identified the report and testified that the results

revealed defendant was in possession of marijuana weighing 1.11 grams. 3

      The Law Division judge also concluded there was sufficient evidence to

establish defendant possessed CDS while operating a motor vehicle on a

highway. Specifically, the court noted that it could draw a reasonable inference



3
  Although defendant challenged the introduction of the State Laboratory report
in the municipal court and Law Division, as with his statements to the police,
see n. 2, supra, he has not challenged the admissibility of that report before us
and we consider any objection is similarly waived. Sklodowsky, 417 N.J. Super.
at 657.


                                                                         A-5410-18T1
                                       8
that a parking lot is a public highway under N.J.S.A. 27:1B-34 as that statute

provides that "public highways" include "rest areas" and "park-ride facilities."

The court found those phrases to be "similar in nature to that of a parking lot"

because they are "area[s] where pedestrians and motorists frequent" and have

"lower speed limits due to the potential danger to pedestrians and motorists in

these areas."

      The court also relied on a Google Maps printout, submitted by the State

without objection, showing that defendant's residence was at least three and a

half miles away from the Kohl's parking lot, as well as defendant's statements to

the police and testimony that he was attempting to start the car, to "reasonably

conclude that [d]efendant transported the marijuana to the location where he was

arrested."      The Law Division judge concluded that defendant also had

"constructive possession" of the CDS when it was discovered in plain view in

the center console of the vehicle he was attempting to start.

      Regarding the court's preclusion of Ms. Sporman as a witness, the Law

Division judge agreed with the State that the municipal court properly denied

the defense from calling her as a witness. Relying on State v. Spivey, 179 N.J.


4
  The Law Division mistakenly cited N.J.S.A. 27:113-3. The court likely meant
to cite N.J.S.A. 27:1B-3, which defendant cites again on appeal for the definition
of "public highway."
                                                                          A-5410-18T1
                                        9
229, the court stated, "[a]s was proffered by [d]efendant, Ms. Sporman would

have testified that Officer Yock and the Hillsborough Police Department were

harassing her and [d]efendant and that she had an open [internal affairs]

complaint against Officer Yock . . . [which] is not relevant or germane to the

present matter."

      The Law Division judge further determined Ms. Sporman not to be

credible because she was "[d]efendant's mother and . . . she would be interested

in the outcome of her son's trial and, considering what was proffered, she would

tailor her testimony to benefit her son." Further, the court noted that Ms.

Sporman's "[i]nternal [a]ffairs complaint against Officer Yock in 2013 . . . infers

that she would testify unfavorably against him," and in light of the evidence

against defendant including the surveillance video, testimony, and his post -

Miranda statement, "even if [her testimony was] admitted during the trial, [it]

would not have been credible or relevant." After thoroughly considering all of

the evidence, the Law Division concluded the testimony of defendant's mother

would not have "materially altered the outcome of the case."

      Finally, the Law Division judge remanded the matter for resentencing.

The court acknowledged that both the State and defendant agreed that the

municipal court did not conduct a proper sentencing analysis noting that it


                                                                           A-5410-18T1
                                       10
neither considered aggravating and mitigating factors nor did it state its reasons

on the record before sentencing defendant to a fifteen-day custodial term. The

Law Division judge also noted that the municipal court should have merged the

fines, penalties, and license suspension for unlawful possession of marijuana

with those resulting from defendant's operation of a motor vehicle on a highway

while possessing CDS.

      On appeal, defendant limits his challenge to the Law Division's July 29,

2019 order to the following arguments:

            POINT I

            THE STATE DID NOT PROVE DEFENDANT
            OPERATED A MOTOR VEHICLE ON A HIGHWAY
            WHILE IN POSSESSION OF A CONTROLLED
            DANGEROUS SUBSTANCE AND THE COURT
            BELOW     SHOULD    HAVE      GRANTED
            DEFENDANT'S MOTION FOR A DIRECTED
            VERDICT.

            A.    THE STATE DID NOT PROVE OPERATION.

            B.    THE STATE DID NOT PROVE OPERATION
                  ON A HIGHWAY.

            POINT II

            A RETRIAL IS REQUIRED WHEN THE COURT
            IMPROPERLY DENIED THE DEFENDANT'S ONLY
            WITNESS FROM TESTIFYING.



                                                                          A-5410-18T1
                                       11
                                     II.

      An appeal of a municipal court conviction must first be addressed by the

Law Division de novo. R. 3:23-8. The role of the Law Division is to make

independent findings of facts and conclusions of law based on the record

developed in the municipal court. State v. Avena, 281 N.J. Super. 327, 333

(App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). The Law

Division is required to decide the case completely anew on the record made

before the municipal judge, "giving due, although not necessarily controlling,

regard to the opportunity of the" judge to evaluate witness credibility. Johnson,

42 N.J. at 157; see also State v. Cerefice, 335 N.J. Super. 374, 382-83 (App.

Div. 2000). The Law Division judge performs "an independent fact-finding

function in respect of defendant's guilt or innocence" and must "make his [or

her] own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.

1983).

      We review the Law Division's decision employing the "substantial

evidence rule." State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012). "Our

review is limited to determining whether there is sufficient credible evidence

present in the record to support the findings of the Law Division judge, not the

municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div.


                                                                         A-5410-18T1
                                      12
2005) (citing Johnson, 42 N.J. at 161-62). We owe no deference to the trial

judge's legal conclusions. Manalapan Realty, L.P. v. Manalapan Twp. Comm.,

140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).

                                      III.

      In his first point, defendant argues that the evidence was insufficient to

sustain the N.J.S.A. 39:4-49.1 charge because the State did not establish beyond

a reasonable doubt that defendant operated his motor vehicle "on a highway"

while possessing a CDS. Specifically, defendant argues that there is no basis on

the record below to find that he so operated his vehicle as "[t]here was no

testimony or evidence that [defendant] drove himself to the shopping mall . . .

no testimony how and when the vehicle arrived at the shopping mall . . . [and]

simply no evidence of operation; direct, circumstantial, or otherwise." He

further maintains that "[t]he municipal court erroneously held that 'attempted

operation' was sufficient . . . while the Law Division based its decision on

evidence that was not in the record." We disagree with defendant that the

evidence before the Law Division was insufficient to sustain defendant's

convictions, albeit for slightly different reasons than those stated by the Law

Division in its decision. See State v. Scott, 229 N.J. 469, 479 (2017) ("It is a

long-standing principle underlying appellate review that 'appeals are taken from


                                                                        A-5410-18T1
                                      13
orders and judgments and not from opinions . . . or reasons given for the ultimate

conclusion.'" (quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199

(2001))).

      N.J.S.A. 39:4-49.1 provides that "[a] person shall not operate a motor

vehicle on any highway while knowingly having in the person's possession or in

the motor vehicle any [CDS] as classified in Schedules I, II, III, IV and V of the

'New Jersey Controlled Dangerous Substances Act.'" In order to establish guilt

under the statute, the State must prove beyond a reasonable doubt that defendant:

1) operated a motor vehicle; 2) on a highway; 3) while in knowing possession

of CDS located on the operator or in the vehicle.        See 17A N.J. Practice,

Municipal Court Practice §36:292 (Robert Ramsey) (rev. 3d ed. 2019); State v.

Judge, 275 N.J. Super. 194, 201 (App. Div. 1994) ("[I]t is a serious traffic

offense for a driver to 'operate a motor vehicle on any highway while knowingly

having in his possession or in the motor vehicle[]any controlled dangerous

substance . . .'" and "[m]arijuana is classified as a . . . [CDS]." (citations

omitted)).

      Here, there was substantial, credible evidence in the record to establish all

elements of the offense, including operation of a vehicle on a highway. For

reasons unclear in the record, both defendant and the Law Division relied on the


                                                                           A-5410-18T1
                                       14
definition of "public highway" under the New Jersey Transportation Trust Fund

Authority Act contained in N.J.S.A. 27:1B-3.5         Relying on that erroneous

definition, the Law Division reasoned that a "parking lot" is a public highway

because "rest areas" and "park-ride facilities" are substantially similar in nature

to parking lots.

       N.J.S.A. 39:4-49.1, however, explicitly states that a person shall not

operate a motor vehicle "on any highway" and does not refer to "public

highway." N.J.S.A. 39:1-1 specifically defines "highway" as "the entire width

between the boundary lines of every way publicly maintained when any part

thereof is open to the use of the public for purposes of vehicular travel."


5
    N.J.S.A. 27:1B-3 defines "public highways" as:

             public roads, streets, expressways, freeways, parkways,
             motorways and boulevards, including bridges, tunnels,
             overpasses, underpasses, interchanges, rest areas,
             express bus roadways, bus pullouts and turnarounds,
             park-ride facilities, traffic circles, grade separations,
             traffic control devices, the elimination or improvement
             of crossings of railroads and highways, whether at
             grade or not at grade, bicycle and pedestrian pathways
             and pedestrian and bicycle bridges traversing public
             highways and any facilities, equipment, property, rights
             of way, easements and interests therein needed for the
             construction, improvement, and maintenance of
             highways.



                                                                              A-5410-18T1
                                       15
      As noted, we conclude the reasonable inferences from the evidence before

the Law Division supports the court's conclusion that defendant was operating a

vehicle on a highway, with CDS in the vehicle. The statute does not state that

defendant must be on a highway when stopped, but only that he operated a

vehicle on a highway with drugs inside the vehicle. In that regard, there was

sufficient direct and circumstantial evidence to support the court's determination

that defendant's conduct satisfied that criteria.

      First, defendant admitted to Officer Yock that he visited Kohl's earlier in

the day and bought a pair of sneakers that he then came back to return. He also

admitted that he received the CDS from someone at his residence prior to the

shoplifting incident. It is reasonable to conclude that defendant would have had

to drive on a highway (public or otherwise), to arrive at Kohl's where police

made the plain-view observation of the CDS in his vehicle. Indeed, there simply

was no way for defendant to have arrived at the Kohl's parking lot without

having traversed on a public road or way. See State v. Emery, 27 N.J. 348, 356

(1958) (holding that a trial court may rely on direct and circumstantial evidence

to determine whether the elements of the offense are met); see also State v.

George, 257 N.J. Super. 493, 497 (App. Div. 1992) (proving operation of a car

may be done by direct or circumstantial evidence so long as it is competent an d


                                                                          A-5410-18T1
                                        16
meets the standards of proof). Defendant's argument that the evidence just as

likely indicates that some other individual drove him to the shopping mall or

parked the vehicle for him to retrieve at a later time is nothing more than

supposition unsupported by any record evidence or reasonable inference

sufficient to challenge the State's direct proofs and reasonable inferences.

      As to the Law Division's use of Google Maps showing the distance

between defendant's residence and the parking lot, defendant notably did not

object to the State's use of such evidence when it was introduced. While we

acknowledge that typically the record before the Law Division is restricted to

that considered by the municipal court, Avena, 281 N.J. Super. at 333 (citing

Johnson, 42 N.J. 157), "[i]f a defendant, as here, does not object or otherwise

preserve an issue for appeal at the trial court level, we review the issue for plain

error . . . [and] must disregard any unchallenged errors or omissions unless they

are 'clearly capable of producing an unjust result.'" State v. Santamaria, 236

N.J. 390, 404 (2019) (quoting R. 2:10-2). Under the circumstances here, we

find no plain error with the Law Division's consideration of the Google Maps

document.

      Even were we to conclude that the Law Division erroneously considered

the Google Maps exhibit, in light of defendant's admission that he received the


                                                                            A-5410-18T1
                                        17
CDS at his home and that he traveled to and from Kohl's that day, as well as the

fact that it is clear that he does not reside in either the Kohl's store or its parking

lot, we are satisfied that the other proofs and inferences are sufficient to sustain

the convictions. Any argument by defendant that someone other than him that

no one saw, spoke about, or mentioned, drove the vehicle to Kohl's and gave

him the keys to the vehicle he was seen attempting to start, are nothing more

than fanciful arguments that are insufficient to challenge that the State's proofs

and reasonable inferences that established defendant's guilt beyond a reasonable

doubt.

                                        IV.

      Finally, we disagree that a new trial is warranted because the municipal

court precluded defendant from calling his mother from testifying, again for

slightly different reasons than the Law Division. See Scott, 229 N.J. at 479.6


6
  Specifically, we part company with the Law Division to the extent it based its
decision, in whole or in part, on adverse credibility findings of Ms. Sporman as
she did not testify in either the municipal or the Law Division proceedings. As
noted, on de novo appeals, the Law Division judge must make independent
findings of fact and conclusions of law but defers to the municipal court's
credibility findings. State v. Robertson, 228 N.J. 138, 147, (2017). A court
should refrain, however, from making credibility determinations without the
opportunity to see the witness or hear testimony. See State v. Porter, 216 N.J.
343 (2013) (finding that the proper way to determine a witness's credibility was
to assess the testimony on direct and cross-examination and that "[t]here is no


                                                                               A-5410-18T1
                                         18
Defendant maintains that his mother "was the registered owner of the vehicle

and had filed complaints against the Hillsborough Police Department and the

arresting and investigating officer in this case," "[s]ome of those incidents

involved the [d]efendant," and that "[b]oth lines of inquiry are relevant and

admissible to challenge the State's charges." Defendant also claims that he

should have been afforded the opportunity to present his mother as a witness "to

testify that the marijuana recovered was in fact hers and not [his] . . . [e]ven if

such a fact is contradicted by [Officer Yock's] testimony . . . [because]

[d]efendant still has the right to offer evidence of third party guilt."7

      Moreover, defendant argues that Ms. Sporman "should have been

permitted to testify in the form of an opinion regarding the credibility of the

State's witness, the bias of the State's witness, [and] motive by the State's witness

to lie, as well as offering positive character evidence in support of . . .




substitute for placing a witness on the stand and having the testimony scrutinized
by an impartial factfinder"). Thus, it was improper for the Law Division to base
its decision on adverse credibility determinations of Ms. Sporman as she did not
testify before either the municipal court or the Law Division.
7
  We note that in the municipal court, defendant never proffered that his mother
would testify that the drugs belonged to her. In addition, as to the complaints
she had with the Hillsborough Police Department, defendant's counsel only
vaguely claimed that Ms. Sporman made complaints against them in the past
and that she believed they were targeting defendant.
                                                                             A-5410-18T1
                                        19
[d]efendant." Defendant contends that the credibility of Officer Yock was an

issue of "paramount importance" because there were no other witnesses and his

plain view observations at the scene were admitted unchecked. He concludes

that without Ms. Sporman's testimony, defendant could not rebut Yock's version

of events because such testimony would be "self-serving and likely rejected by

the fact-finder."

      The Supreme Court has held that a defendant must be afforded "a

meaningful opportunity to present a complete defense." Crane v. Kentucky, 476

U.S. 683, 690 (1986). Calling or compelling witnesses to testify in his defense

is a fundamental right of the accused protected by the due process clause of the

Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284, 302 (1973);

Webb v. Texas, 409 U.S. 95, 98 (1972); see also State v. Feaster, 184 N.J. 235,

250 (2005) ("An accused in a criminal case has a constitutional right to present

witnesses in his defense, pursuant to the due process and the compulsory process

provisions of the federal and state constitutions.").

      A defendant is not required "to provide evidence that substantially proves

the guilt of another, but to provide evidence that creates the possibility of

reasonable doubt." State v. Perry, 225 N.J. 222, 238 (2016) (quoting State v.

Cotto, 182 N.J. 316, 332 (2005)). "Indeed, even if there is no evidence linking


                                                                        A-5410-18T1
                                       20
another specific suspect to the crime, we 'have recognized that evidence that

tends to create reasonable doubt that someone else, generically, rather than

defendant, committed the offense, is admissible.'" Id. at 238-39 (quoting State

v. Loftin, 146 N.J. 295, 345 (1996) (citation omitted)).

      Considering first defendant's unsupported argument that the marijuana in

the vehicle belonged to his mother, we note that N.J.S.A. 39:4-49.1 provides

that a person "shall not operate a motor vehicle on any highway while knowingly

having in the person's possession or in the motor vehicle any [CDS]." (Emphasis

added). The record before the Law Division fully supported its finding that

defendant had constructive possession of the marijuana while operating the

vehicle.

      Constructive possession arises out of an individual's conduct with regard

to the subject item and is "a function of the relationship and conduct of the

parties." State v. Schmidt, 110 N.J. 258, 268, 272 (1998). Immediate control

and dominion over an object are not required; it must be shown a defendant had

the capacity, by direct or indirect means, to gain almost immediate physical

control, and the ability to affect the item during the time in question. Id. at 270-

71; see also State v. Brown, 80 N.J. 587, 597 (1979) (finding constructive

possession does not require "[p]hysical or manual control of the proscribed item


                                                                            A-5410-18T1
                                        21
. . . as long as there is an intention to exercise control over it manifested in

circumstances where it is reasonable to infer that the capacity to do so exists ").

      Constructive possession, however, "cannot be based on mere presence at

the place where contraband is located. There must be other circumstances or

statements of defendant permitting the inference of defendant's control of the

contraband." State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992). "A

determination of constructive possession is fact sensitive and requires careful

scrutiny by a court . . . ." State v. Hurdle, 311 N.J. Super. 89, 96 (App. Div.

1998). A court must consider "the totality of the circumstances, including

defendant's presence at the location of the [contraband], as well as other factors

before . . . an inference of constructive possession [may] be drawn." Ibid.

      Here, Yock testified that the CDS was in plain view in the center console

of the vehicle defendant was attempting to start when they approached him. As

noted above, defendant's mere presence in that vehicle containing CDS does not

necessarily rise to the level of constructive possession. When his presence in

that vehicle is coupled with defendant's statement to Yock that "the marijuana

that was in his vehicle was given to him by a male that came to his house,"

however, the Law Division judge's conclusion that defendant had constructive

possession of the CDS was fully supported by the record, and Ms. Sporman's


                                                                           A-5410-18T1
                                       22
unsupported claims that the marijuana belonged to her would not affect the

court's finding that defendant violated N.J.S.A. 39:4-49.1.

      Next, defendant maintains that pursuant to N.J.R.E. 404(a)(1), he had the

right to offer character evidence regarding any of his pertinent character traits,

and under N.J.R.E. 608, he was permitted to present opinion testimony regarding

a witness's reputation for lack of truthfulness in the community, and the

preclusion of his mother's testimony constituted reversible error. We disagree

and instead concur with the Law Division that Ms. Sporman's proposed

testimony was neither "relevant [n]or germane."

      "Traditional rules of appellate review require substantial deference to a

trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). We

uphold the trial court's rulings "absent a showing of an abuse of discretion, i.e.,

there has been a clear error of judgment." Perry, 225 N.J. at 233 (quoting State

v. Brown, 170 N.J. 138, 147 (2001)). If an abuse of discretion is found, "we

must then determine whether any error found is harmless or requires reversal."

State v. Prall, 231 N.J. 567, 581 (2018). Like the plain error standard, harmful

error will not lead to reversal unless it is "clearly capable of producing an unjust

result."   R. 2:10-2.   An error will be found "harmless" unless there is a

reasonable doubt that the error contributed to the verdict. State v. Macon, 57


                                                                            A-5410-18T1
                                        23
N.J. 325, 338 (1971). This is true even if the error is of constitutional dimension.

Ibid.; State v. Slobodian, 57 N.J. 18, 23 (1970).

      Under Rule 404(a)(1), "pertinent" character traits of a defendant are

admissible if offered by the accused or by the prosecution to rebut the accused 's

assertion of his or her pertinent good character traits. See N.J.R.E. 404(a)(1);

State v. Abril, 444 N.J. Super. 553, 560 (App. Div. 2016). Pertinent evidence

"must relate to a character trait directly involved and apply to a relevant time

and place in the defendant's life." Biunno, Weissbard & Zegas, Current N.J.

Rules of Evidence, cmt. 3 on N.J.R.E. 404 (2019) (citing State v. Reyes, 50 N.J.

454, 468 (1967); State v. Raymond, 46 N.J. Super. 463, 467 (App. Div. 1957);

State v. Steensen, 35 N.J. Super. 103, 106-07 (App. Div. 1955)).

      As our Supreme Court explained in Scott, N.J.R.E. 608 "preclude[s] the

use of specific instances of conduct to attack the credibility of a witness" and

"explicitly excludes specific instances of conduct as a means of proving a

character for untruthfulness, permitting only opinion or reputational evidence."

229 N.J. at 481, 483. Rule 608 imposes a complete ban on the use of specific

instances of conduct and "bars not only the use of extrinsic evidence but also

cross-examination into specific instances of misconduct. Id. at 488 (Rabner,

C.J., concurring).


                                                                            A-5410-18T1
                                        24
        Our evidence rules "bar 'the use of prior instances of conduct to attack the

credibility of a witness for two essential reasons: to prevent unfairness to the

witness and to avoid confusion of the issues before the jury.'" Scott, 229 N.J. at

498 (quoting State v. Guenther, 181 N.J. 129, 141 (2004)) (Albin, J.,

concurring).     Furthermore, N.J.R.E. 608 "was designed to prevent unfair

foraging into the witness's past" and to prevent "wide-ranging collateral attacks

on the general credibility of a witness [that] would cause confusion o f the true

issues in the case." Guenther, 181 N.J. at 141-42.

        It appears from the Law Division's description of Ms. Sporman's letter to

the Hillsborough Police Department that her testimony was intended to address

specific instances of how Officer Yock treated her and her family in the past and

that she filed an internal affairs complaint against Officer Yock in 2013.8


8
    The Law Division's opinion describes the letter as follows:

               According to defendant, "On March 17, Wendy
               Sporman authored a three-page letter to Hillsborough
               Police Sergeant Carney detailing her internal affairs
               investigation into Officer [] Yock and her personal
               feelings about how the Hillsborough [P]olice
               [D]epartment has treated her and her family, including
               [] filing [] false allegations against her and her son."
               Defendant further explains that "this letter was
               provided to counsel for both parties in advance of Ms.
               Sporman's testimony and sets forth a detailed account


                                                                            A-5410-18T1
                                         25
Although defendant elected not to cross-examine Officer Yock on any of these

alleged incidents, which apparently took place years before defendant's arrest,

defendant's merits brief similarly indicates that Ms. Sporman sought to testify

regarding "complaints against the Hillsborough Police Department and [Officer

Yock]," that "[s]ome of those incidents involved . . . defendant," and about her

internal affairs complaint against him.      It is clear from the limited record

presented that Ms. Sporman's proposed testimony involved improper specific

instances of bad conduct as opposed to proper opinion evidence related to

truthfulness permitted by N.J.R.E. 608.

      As to the admissibility of her proposed testimony under N.J.R.E.

404(a)(1), defendant's merits brief merely states that defendant "had an absolute

right to call [her] as a character witness in support of his positive character of a

pertinent trait pursuant to [Rule 404(a)(1)]." We assume from this description


            of her opinion that her son was being targeted by
            Hillsborough Police, but more specifically by Officer []
            Yock who she filed an IA complaint against in 2013."

We note that because "our consideration is generally limited to the record on
appeal, namely the appendices and transcripts," see W.H. Indus., Inc. v.
Fundicao Balancins, Ltda, 397 N.J. Super. 455, 460 (App. Div. 2008), we could
have rejected defendant's N.J.R.E. 608 arguments on procedural grounds as he
did not include the letter to the Hillsborough Police Department in the record on
appeal, frustrating an appropriate appellate review of the issue. For purposes of
completeness, however, we address defendant's arguments on the merits.
                                                                            A-5410-18T1
                                        26
that Ms. Sporman would have testified that defendant had an honest and truthful

character. As noted, however, defendant did not dispute at any stage of the

proceedings that he made the statements to the police, effectively admitting

constructive possession of the marijuana which, based on the circumstantial

evidence, he transported on a highway from his home to the Kohl's parking lot.

Under these circumstances and based on the record before us, we cannot

conclude that the court abused its discretion in precluding defendant from

belatedly calling Ms. Sporman from testifying.

      Finally, even were we to assume that the Law Division abused its

discretion on these evidentiary issues, we conclude any error was harmless as

there is not a reasonable doubt that the error contributed to the verdict. See

Macon, 57 N.J. at 338; see also State v. Gillespie, 208 N.J. 59, 93 (2011) (finding

harmless error when "overwhelming proof" established guilt "independent of"

improperly admitted evidence). Defendant was witnessed on security camera

footage taking sunglasses and socks from Kohl's without payment, he was

wearing the stolen sunglasses when police approached him in the parking lot,

and the CDS was found in plain view when they searched his vehicle for the

remaining merchandise. Defendant also admitted to police officers that he both

stole the merchandise and that he received the marijuana from someone earlier


                                                                           A-5410-18T1
                                       27
that day and returned to Kohl's where he was seen attempting to start the vehicle.

Consequently, no "manifest denial of justice resulted" from precluding Ms.

Sporman's testimony as an error was not "clearly capable of producing an unjust

result." State v. Kuropchak, 221 N.J. 368, 385-86; R. 2:10-2.

                                        V.

      We note that the Law Division's failure to sentence defendant affected the

finality of the July 29, 2019 order. See Grow Co. v. Chokshi, 403 N.J. Super.

443, 457-58 (App. Div. 2008) (stating generally, "only an order that finally

adjudicates all issues as to all parties is a final order and . . . an interlocutory

appeal is permitted only by leave of our appellate courts"). Because the matter

was fully briefed and is otherwise ready for disposition, we exercised our

discretion to rule on the appeal's merits. Caggiano v. Fontoura, 354 N.J. Super.

111, 125 (App. Div. 2002).

      In sum, we affirm the Law Division's rulings with respect to defendant's

convictions. We are, nevertheless, compelled to remand the case for sentencing.

"The Law Division, if it finds a defendant guilty after a trial de novo from a

municipal court conviction, is required to impose a new sentence." State v.

Moran, 202 N.J. 311, 325 (2010); R. 3:23-8(e). The new sentence must be no

greater than that imposed by the municipal court. See State v. Loce, 267 N.J.


                                                                            A-5410-18T1
                                        28
Super. 10, 14 (App. Div. 1993) (citing State v. De Bonis, 58 N.J. 182, 188-89

(1971)). Here, the Law Division did not impose a new sentence and instead

remanded the matter to the municipal court for resentencing to consider, among

other issues, the aggravating and mitigating factors, and to state its reasons on

the record for sentencing defendant to a fifteen-day custodial term.

      To the extent we have not addressed any of defendant's arguments, it is

because we have determined that they lack sufficient merit to warrant discussion

in a written opinion. See R. 2:11-3(e)(2).

      Affirmed in part and remanded in part. We do not retain jurisdiction.




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