                        NOT FOR PUBLICATION WITHOUT THE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-2373-15T1




STATE OF NEW JERSEY

        Plaintiff-Respondent,

v.

CORY L. CURE,

        Defendant-Appellant.

______________________________________________

              Submitted May 9, 2017 – Decided July 31, 2017

              Before Judges Rothstadt and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment Nos.
              14-03-0591 and 14-12-3067.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Rasheedah Terry, Designated
              Counsel and on the brief).

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney for respondent (Samuel Marzarella,
              Supervising Assistant Prosecutor, of counsel;
              William Kyle Meighan, Assistant Prosecutor, on
              the brief).

PER CURIAM
     Defendant Corey Cure pled guilty to fourth-degree certain

persons not to possess a weapon (metal knuckles), N.J.S.A. 2C:39-

7(a), as charged in one indictment, and to fourth-degree tampering

with evidence, N.J.S.A. 2C: 28-6(1), as charged in a second

indictment.      The court sentenced defendant to "time served," an

aggregate period of 321 days in jail.        Defendant appeals from both

convictions, challenging the denial of his motion to suppress as

to the weapon he possessed and the denial of his motion to dismiss

the indictment as to the tampering charge.         For the reasons stated

herein, we affirm his conviction for possession of a weapon, but

reverse his conviction for tampering.

     An Ocean County grand jury initially charged defendant in an

indictment on March 18, 2014, with the "certain persons" offense

and fourth-degree possession of a prohibited weapon, N.J.S.A.

2C:39-3(e), based on his January 11, 2014 encounter with             a police

officer.   While pending trial, another Ocean County grand jury

charged defendant on December 11, 2014 with the tampering offense.

     In the weapons offense action, defendant filed a motion to

suppress   the    metal   knuckles   found   in   his   possession    by   the

arresting officer.        That officer was the only witness for the

State at the suppression hearing.        Defendant and an investigator

for the Public Defender's Office testified on behalf of defendant.

The facts adduced at the hearing are summarized as follows.

                                     2                                A-2373-15T1
     Police officer Allen Mantz testified that, while on patrol

at approximately 2:00 p.m. on            January 11, 2014, he observed

defendant from about two blocks away, walking in the middle of a

street, causing passing vehicles to "swerve[] around him."          At the

time, one sidewalk along the roadway was closed and gated off.

According to the officer, defendant was not crossing the road or

walking diagonally to get to the other side.        Defendant eventually

made his way out of the street to a sidewalk, and the officer

decided to "stop and talk" to defendant to "make sure everything

was okay," that defendant was not intoxicated, or that there was

not something wrong with him.             Mantz testified there was no

"infraction" committed by defendant.

     When     the   officer   confronted      defendant,   he   determined

defendant was not intoxicated.           Mantz asked defendant to remove

his hands from his pockets and observed that defendant was wearing

"pants and . . . [a] blue or black windbreaker jacket" with deep

front pockets, located towards the bottom of his chest, that opened

at the top.    Additionally, Mantz testified the jacket may have had

side pockets.

     The officer inquired of defendant as to why he was walking

in the middle of the street. Defendant did not reply. The officer

sought   to   obtain   defendant's   "pedigree"     information,    as    he

understood it was required whenever there was "an infraction"

                                     3                             A-2373-15T1
regardless of whether a summons was going to be issued.                  Mantz

asked for a driver's license, but defendant only provided a jail

identification card.     In response to further inquiry, defendant

told the officer that he was coming from one local motel to

another, which was close to the area the officer had stopped

defendant.    The officer understood from prior experience that the

motel to which defendant was going was a "high-crime area."

     As   defendant    spoke   to   Mantz,      the   officer   made   several

observations   about    defendant.       He     noted   that    defendant   had

difficulty maintaining eye contact, "stuttered," and appeared

"nervous."      Moreover,      despite    the     officer's     instructions,

defendant repeatedly placed his hands in his pockets, requiring

Mantz to tell him to remove them several times.

     When defendant removed his hands from his pockets after the

last direction, Mantz was able to a see what he believed to be a

black metal object in defendant's right front pocket.             The officer

observed a bulge and the top of the object protruding from above

the pocket.

     After Mantz observed the object, he advised defendant that

he was going to "pat him down to make sure [defendant did not]

have any weapons on his person."         Mantz "initially went right for

[defendant's] pocket . . . where [he had seen] the object" and

patted down the outside of the pocket using an open flat hand.

                                     4                                 A-2373-15T1
Upon feeling the object, and based on his training, the officer

immediately recognized the item as "brass knuckles" and removed

them from the pocket.   Mantz acknowledged, however, that he had

never previously encountered "someone with metal knuckles."     Upon

discovery of the metal knuckles, the officer placed defendant

under arrest, charging him with possession of a prohibited weapon

and public nuisance, an ordinance violation.

     Defendant presented his version of what transpired on the day

of his arrest.1   According to defendant, he was walking from one

motel to the other to retrieve an over-the-counter medication from

his sister to give to his child's mother.      Defendant testified

that he was not walking in the middle of the street, but merely

crossed from one side to another.    He stated that he did not see

any cars on the road and was merely "walking to [his] destination."

He also confirmed he was not intoxicated.

     Defendant described the jacket he was wearing at the time

differently from Mantz's description.   According to defendant, it

was a large snowboarding jacket with two zippers and five pockets




1
       Prior to defendant testifying, the Public Defender's
investigator testified to photographs of the area that he took a
year after defendant's arrest. In response to the prosecutor's
objection, the court ruled that the photographs were inadmissible
as not having any relevance. Ultimately, the judge gave no weight
to the investigator's testimony.

                                 5                          A-2373-15T1
located in different places – "[t]hree on the bottom, one on the

top and one inside."

     Defendant stated that when Mantz stopped him, he answered the

officer's questions about where he was coming from and going to.

Defendant confirmed that he stuttered when he spoke due to his

"high anxiety and several mental disabilities."

     When asked for identification, defendant took out a stack of

identifying documents from his jacket's top pocket and handed the

officer a state identification card.    At that point, the officer

noticed that defendant also had a jail identification card and

asked to see that one as well.    Defendant complied and while the

officer examined the card, defendant placed his hands in his

pockets because it was cold.     He confirmed that the officer had

to tell him twice to remove them and after the second time, he

never placed them inside again.

     Defendant explained that the officer asked him if he had any

weapons and informed defendant he was going to pat him down.

Defendant stated that he told the officer he did not consent to

the search, but the officer proceeded despite that objection,

telling defendant "it [was] too late for that."

     After considering the evidence adduced at the hearing, the

motion judge denied defendant's suppression motion, placing her

reasons on the record on May 1, 2015.     The judge observed that

                                  6                        A-2373-15T1
whether the officer's warrantless search of defendant was legal,

"turn[ed] on whether the stop . . . was a valid field inquiry that

then escalated into [a] lawful . . . investigatory detention

supported by a reasonable and articulable suspicion and a lawful

Terry[2] frisk."

     The judge found the officer's testimony to be "entirely

credible" and "consistent" and accepted his version of the events

that led to defendant's arrest.       She found defendant's testimony

to be not "at all credible," explaining in detail the reasons for

her conclusion.

     The motion judge determined that Mantz had a legitimate

concern that defendant may have been intoxicated while walking in

the middle of the roadway.   The judge noted that Mantz's request

for identification was part of a legitimate field inquiry.         She

found that he had to ask defendant three times to remove his hands

from his pockets and, upon asking a third time, Mantz observed a

black metal object protruding from the top of his pocket, at which

point he patted defendant down for his own safety and, "without

manipulating the item," he realized defendant was carrying metal

knuckles.




2
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).

                                  7                           A-2373-15T1
      The judge rejected defendant's contention that by patting him

down with an open hand, it would have been impossible for the

officer to know there were metal knuckles in his pocket. According

to the judge, she examined the knuckles "through the exhibit

envelope" and found the officer's testimony about what he discerned

from the pat down to "be entirely credible."                  The judge concluded

the   officer   "had   reasonable      suspicion      based     on    [d]efendant's

continued failure to follow directives to take his hands out of

his pockets [and] that the officer['s] . . . observation of a

black metal object justifies the pat down search."

      Based on the credible testimony and other evidence, the judge

concluded   that   there    "was   a    valid    field    inquiry,         which    was

permissible     without   any   suspicion       at    all."      She       found   that

defendant's      continued      detention            beyond      obtaining          his

identification     was     justified,       relying      upon        the    officer's

observations of what was an ordinance violation, the metal object,

and defendant's "demeanor of [stuttering] and failing to . . .

follow the directives to take his hands out of his pockets."

Accordingly, she concluded that the officer "lawfully frisked"

defendant for weapons because he had a reasonable suspicion that

that "[d]efendant may have been armed and dangerous."                       The judge

also found that the same facts supported the officer's warrantless



                                        8                                      A-2373-15T1
arrest of defendant relying primarily on the officer's observation

of the black metal object protruding from defendant's pocket.

     In addition to filing the suppression motion, defendant filed

a motion to dismiss the indictment that charged him with tampering.

That charge arose from an incident that occurred when defendant,

who had previously been convicted of burglary, was reporting to

probation on September 24, 2014.         Before walking through a metal

detector, defendant was told to empty his pockets.           In response,

he stated that that he had nothing in them.          When defendant walked

through the metal detector, he set off the alarm.           A "wanding" of

defendant had the same result, at which time defendant removed

from his pocket a small piece of paper wrapped in foil that he

threw on the ground.       A sheriff's detective directed him to pick

it up, and after complying defendant swallowed the wrapped paper.

At the ensuing hearing          before the grand jury, the detective

testified that based on his training and experience the item's

appearance   indicated     it    contained   "some   sort   of   controlled

dangerous substance [(CDS)]."       Based on the detective's testimony,

the grand jury issued its indictment.

     The   same   motion    judge   considered   defendant's     motion    to

dismiss the indictment.         At the hearing, defense counsel argued

that there was no evidence that the small wrapped paper contained

any CDS and that defendant complied with the detective's only

                                     9                              A-2373-15T1
instruction, which was to pick up what he threw down.                   Counsel

argued   those   facts    were   insufficient   to    establish     defendant

committed an act of tampering.        The prosecutor disagreed, arguing

that once the metal detector alarm went off, an investigation

commenced and that defendant's swallowing of the item evinced an

"inten[tion] to destroy the evidence."

     The motion judge concluded there was sufficient evidence to

support the charge and denied defendant's motion.                 In her oral

decision, the judge concluded that defendant was familiar with the

process of going through the metal detectors and knew that if the

metal    detector     alarm   went   off   "there    is   going    to   be     an

investigation, that he is going to be wanded and probed further."

Turning to the elements of the offense, the judge observed that

passing through the detector was not an "official proceeding" but

was "certainly . . . an investigation pending or about to be

instituted."

     Defendant pled guilty to the two offenses, and the judge

sentenced him in accordance with his plea agreement.              This appeal

followed.

     On appeal, defendant argues:

            POINT I

            THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
            DENIED DEFENDANT'S SUPPRESSION MOTION BECAUSE
            THE   POLICE   SUBJECTED   DEFENDANT   TO   A

                                     10                                 A-2373-15T1
             WARRANTLESS   SEARCH  AND   SEIZURE          WITHOUT
             CONSTITUTIONAL JUSTIFICATION.

                  A.   Officer Mantz Did Not Have A
                  Constitutional Basis To Stop and
                  Question Mr. Cure.

                  1.   Officer Mantz's Initial Stop
                  of the Defendant Went Beyond the
                  Scope of a Field Inquiry.

                  2.   Officer Mantz Conducted            An
                  Investigatory   Stop  Without            A
                  Constitutional Basis.

                  B.   Officer Mantz Did Not Have A
                  Constitutional Basis To Conduct A
                  [Terry] Search Of The Defendant.

             POINT II

             THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
             DENIED DEFENDANT'S MOTION TO DISMISS THE
             INDICTMENT.

      We turn first to defendant's challenge to the denial of his

motion to suppress.      We review a motion judge's factual findings

in a suppression hearing with great deference.            State v. Gonzales,

227 N.J. 77, 101 (2016).       In our review of a "grant or denial of

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. Gamble, 218 N.J. 412, 424 (2014); see also State v.

Rockford, 213 N.J. 424, 440 (2013).         We defer "to those findings

of the trial judge which are substantially influenced by his


                                     11                              A-2373-15T1
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. 223, 244 (2007) (quoting State v. Johnson, 42

N.J. 146, 161 (1964)).      We owe no deference, however, to the trial

court's   legal    conclusions    or       interpretation    of    the     legal

consequences that flow from established facts.           Our review in that

regard is de novo.        State v. Watts, 223 N.J. 503, 516 (2015);

State v. Vargas, 213 N.J. 301, 327 (2013).

     Applying     this    standard     of     review,   we   conclude        that

defendant's arguments relating to the denial of his suppression

motion are without merit.     We affirm substantially for the reasons

expressed by the motion judge.         We add the following comments.

     The constitutional requirements for a field inquiry and an

investigatory stop are different.           "A field inquiry is essentially

a voluntary encounter between the police and a member of the public

in which the police ask questions and do not compel an individual

to answer."     State v. Rosario, ____ N.J. ____,____ (2017) (slip

op. at 17).       A field inquiry is the least "intrusive[] . . .

encounter[] with police."      Ibid.; see also State v. Pineiro, 181

N.J. 13, 20 (2004).      Indeed, "[t]he individual does not even have

to listen to the officer's questions and may simply proceed on

[his or] her own way."      Id. at 18.        "The test of a field inquiry

is   'whether     [a]    defendant,    under      all   of   the    attendant

                                      12                                 A-2373-15T1
circumstances, reasonably believed he [or she] could walk away

without   answering    any   of   [the    officer's]   questions."     Ibid.

(alteration in original) (quoting State v. Maryland, 167 N.J. 471,

483 (2001)).    So long as the officers "questions were put in a

conversational manner, if he [or she] did not make demands or

issue orders, and if his [or her] questions were not overbearing

or harassing in nature," id. at 21 (quoting State v. Davis, 104

N.J. 490, 497 n.6 (1986)), the interaction "could be treated as

[a] field inquiry."     Ibid.

     Unlike a field inquiry, an investigatory stop, also referred

to as a Terry stop, is characterized by a detention in which the

person approached by a police officer "would feel 'that his or her

right to move has been restricted,'" even though the encounter

falls short of a formal arrest.             Id. 17-18 (quoting State v.

Rodriguez, 172 N.J. 117, 126 (2002)); see also Terry, supra, 392

U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904.                      An

investigatory   stop   "is    a   temporary   seizure   that   restricts     a

person's movement"; accordingly, "it must be based on an officer's

reasonable and particularized suspicion . . . that an individual

has just engaged in, or was about to engage in, criminal activity."

Id. at 18-19 (quoting State v. Stovall, 170 N.J. 346, 356 (2002)).

"During such a stop, if the police officer believes that the

suspect 'may be armed and presently dangerous,' then he may conduct

                                     13                              A-2373-15T1
a pat down" for the officer's safety.               State v. Williams, 192 N.J.

1, 18 (2007) (quoting Terry, supra, 392 U.S. at 30, 88 S. Ct. at

1884, 20 L. Ed. 2d at 911).

     Applying these principles, we agree that defendant's initial

encounter with Mantz amounted to no more than a field inquiry and

escalated to an investigatory stop once the officer observed the

metal object protruding from defendant's pocket and inquired about

whether defendant possessed any weapons.                  See State v. Contreras,

326 N.J. Super. 528, 540 (App. Div. 1999) (asking the defendants

whether they were in possession of contraband escalated field

inquiry into an investigative detention); State ex rel. J.G., 320

N.J. Super. 21, 25, 31-32 (App. Div. 1999) (asking juvenile if

there was "anything on him that he shouldn't have" converted field

inquiry into a Terry stop).              The officer's observation of the

metal object and defendant's behavior and demeanor in an area

known   to   be    a   high    crime    location,         provided   the   objective

observations       needed     to    support   the    officer's       suspicion       that

defendant might be in possession of a weapon and warranted the

detention    and    search     of    defendant      and    seizure    of   the     metal

knuckles.

     We part company with the judge as to her decision to deny

defendant's motion to dismiss the tampering indictment.                    We review

a trial court's decision to deny a motion to dismiss an indictment

                                         14                                      A-2373-15T1
for a clear abuse of discretion.          State v. Zembreski, 445 N.J.

Super. 412, 424 (App. Div. 2016).          "However, if a trial court's

discretionary decision is based upon a misconception of the law,

a reviewing court owes that decision no particular deference."

Ibid. (quoting State v. Lyons, 417 N.J. Super. 251, 258 (App. Div.

2010)).

       In our review of the motion judge's decision, we recognize

that granting a motion to dismiss an indictment should occur only

in limited circumstances.     As we have stated:

            One of the guiding principles to be followed
            by a court when considering a motion to
            dismiss an indictment is that "a dismissal of
            an indictment is a draconian remedy and should
            not be exercised except on the clearest and
            plainest ground." State v. Williams, 441 N.J.
            Super. 266, 271 (App. Div. 2015) (alteration
            omitted) (quoting State v. Peterkin, 226 N.J.
            Super. 25, 38 (App. Div.), certif. denied, 114
            N.J. 295 (1988)).    Therefore, once returned
            by a grand jury, an indictment should be
            disturbed "only when [it] is manifestly
            deficient or palpably defective."     State v.
            Hogan, 144 N.J. 216, 228-29 (1996).

            [Zembreski, supra, 445 N.J. Super. at 424-25.]

       With those cautionary instructions in mind, we are still

compelled to find that the motion judge misapplied her discretion

in this case because there was a lack of evidence as to all of the

elements required for tampering.          A criminal "tampering" occurs

when    a   person,   "believing   that    an   official   proceeding    or


                                   15                             A-2373-15T1
investigation is pending or about to be instituted, . . . [a]lters,

destroys,   conceals    or   removes    any   article,     object,   record,

document or other thing of physical substance with purpose to

impair   its   verity   or   availability      in   such    proceeding      or

investigation."    N.J.S.A. 2C:28-6(1) (emphasis added).             "To be

found guilty of this offense, a person must be found to have not

simply hidden criminal contraband or evidence but to have engaged

in conduct that resulted in 'the permanent alteration, loss or

destruction of the evidence.'"     State v. Kennedy, 419 N.J. Super.

475, 479 (App. Div.) (quoting State v. Mendez, 175 N.J. 201, 212

(2002)), certif. denied, 208 N.J. 369 (2011).                Moreover, the

person's purpose in engaging in such conduct must have been "to

impair [the physical evidence's] verity or availability in [an

official] proceeding or investigation."             Ibid. (alteration in

original) (emphasis added) (quoting N.J.S.A. 2C:28-6(1)).              Where

the physical evidence is alleged to be CDS, the "statute does not

require the State to prove that the object [destroyed] was [CDS],

only that it was an 'article, object, record, document or other

thing of physical substance[,]' in addition to the other elements

enumerated under [the statute]."        Mendez, supra, 175 N.J. at 214.

     Unlike the motion judge, we do not include in the definition

of a "proceeding or investigation" the public's contact with law

enforcement at a security checkpoint before entering a public

                                   16                                A-2373-15T1
building.    That type of encounter is a far cry from a defendant

being pursued by officers who suspect him of having committed a

crime.    See id. at 204-07 (affirming a conviction for tampering

with evidence where a defendant discarded and destroyed cocaine

during a police car chase by emptying a clear bag of white powder

while police watched).          A police pursuit obviously places a

defendant on notice that he is the subject of an investigation;

whereas, an encounter with a security guard tasked with preventing

weapons   from   entering   a   building   would   not.3   Moreover,   the


3
    We note that defendant was not charged with hindering his own
apprehension under N.J.S.A. 2C:29-3(b)(1), which does not include
as an element a defendant's belief that an official proceeding or
investigation involving his conduct is or is about to be pursued
by law enforcement. That statute states in pertinent part:

                 b. A person commits an offense if, with
            purpose   to   hinder  his   own   detention,
            apprehension,   investigation,   prosecution,
            conviction or punishment for an offense or
            violation . . . he [or she]:

                 (1) Suppresses, by way of concealment or
            destruction, any evidence of the crime . . .
            which   might  aid   in   his  discovery   or
            apprehension or in the lodging of a charge
            against him . . . .

            [Ibid.]

To convict a defendant of the offense, the State is required to
prove:

            (1) that defendant knew he/she could/might be
            charged with [an offense];


                                    17                           A-2373-15T1
officer's response following defendant tossing the object to the

floor, which was simply to ask him to pick it up, does not support

the inference that defendant was then aware that he was the subject

of an investigation.    Because there was no evidence that defendant

believed that an official proceeding or investigation was about

be   instituted   against   him,   the   tampering   conviction   must    be

reversed.

      Affirmed in part; reversed and remanded in part for entry of

an order vacating defendant's indictment, conviction and sentence

for tampering, N.J.S.A. 2C:28-6(1). We do not retain jurisdiction.




                 (2) that [] defendant suppress[ed], by
            way of concealment or destruction, any
            evidence of the crime . . . which might aid
            in his[/her] discovery or apprehension or in
            the lodging of a charge against him; and

                 (3) that [] defendant acted with purpose
            to hinder his/her own detention, apprehension,
            investigation, prosecution, conviction, or
            punishment.

            [Model Jury Charge (Criminal), "Hindering
            One's   Own Apprehension or   Prosecution"
            (2014).]

                                    18                             A-2373-15T1
