                                NOT FOR PUBLICATION WITHOUT THE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-2953-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RANDOLPH PALMER,

          Defendant-Appellant.


                   Submitted December 17, 2019 – Decided January 2, 2020

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Gloucester County, Indictment No. 18-06-
                   0512.

                   John P. Morris, attorney for appellant.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Regina M. Oberholzer, Deputy Attorney
                   General, of counsel and on the brief).

PER CURIAM
      Following denial of his motions to dismiss the indictment and challenge

the motor vehicle stop, defendant Randolph Palmer entered an open guilty plea

to fourth-degree operating a motor vehicle during a period of license suspension,

N.J.S.A. 2C:40-26(b), charged in a single-count Gloucester County indictment.

He also pled guilty to two motor vehicle summonses: driving while his license

was suspended, N.J.S.A. 39:3-40, and displaying obscured license plates,

N.J.S.A. 39:3-33. Defendant reserved the right to appeal the denial of his motion

to dismiss the indictment. 1

      On appeal, defendant challenges the denial of both motions, raising the

following points for our consideration:

                                    POINT I

            THE GRAND JURY PRESENTATION FOR THIS
            ONE[-]COUNT INDICTMENT WAS FLAWED AS
            THIS GRAND JURY WAS NOT ADVISED AS TO
            WHETHER THE LICENSE SUSPENSION WAS
            ADMINISTRATIVE OR JUDICIAL IN ORIGIN.



1
   Pursuant to Rule 3:5-7, defendant was permitted to challenge on appeal the
stop of his motor vehicle. Although the State contends, in part, that the Rule
applies only to motions to suppress "physical evidence," a motor vehicle stop is
a seizure within the meaning of the United States and New Jersey Constitutions.
U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7; see Delaware v. Prouse, 440 U.S.
648, 653 (1979); State v. Dickey, 152 N.J. 468, 475 (1998). We therefore reject
the State's procedural objection and consider defendant's contentions on the
merits.
                                                                         A-2953-18T2
                                          2
                                   POINT II

            THE     DEPTFORD      POLICE      OFFICER'S
            INTERPRETATION OF N.J.S.A. 39:3-33 WAS NOT
            AN OBJECTIVELY REASONABLE MISTAKE OF
            LAW. THIS STATUTE IS NOT AMBIGUOUS, AND,
            IN ANY EVENT, A REASONABLE MISTAKE OF
            LAW SHOULD NOT BE COUTENANCED IN THIS
            STATE'S CONSTITUTIONAL REGIME. IN SHORT,
            HEIEN V. NORTH CAROLINA[, 574 U.S. 54 (2014)]
            SHOULD NOT BE BINDING CONSTITUTIONAL
            LAW IN NEW JERSEY.

We are unpersuaded by these arguments and affirm.

      At the grand jury hearing, the State presented the testimony of the

arresting officer. A sergeant and eleven-year veteran of the Deptford Police

Department, the officer stopped the car defendant was driving at the intersection

of Route 55 and Clements Bridge Road because "a clear cover frame . . . was

obstructing" the rear license plate. Following the stop, the officer determined

defendant was driving with a suspended license. Referencing defendant's driver

history abstract, the officer told the grand jury defendant had seven prior

convictions for driving while intoxicated and refusal between 1986 and 2015,

less than two years before the stop.

      The same officer testified at the suppression hearing, detailing his law

enforcement background, particularly regarding Title 39 violations, and the

reason he stopped defendant's car. The officer was on routine patrol in a marked

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vehicle when he noticed defendant's car traveling in the left lane of the two-lane

highway. The officer followed the car because – as evidenced by "a bunch of

signs" along the roadway – vehicles must keep right except to pass. It was

around 2:00 p.m., but the officer could not read the rear license plate due to "a

haze, a fog or a glare" caused by a plastic cover affixed to the tag. The license

plate was not readable until the officer was "less than a car length" from

defendant's car.

      Defendant identified himself and told the officer his license was

suspended. The officer issued motor vehicle summonses at the scene and later

learned the prosecutor's office determined defendant had been suspended for

multiple DWI offenses.

      Defendant briefly testified on his own behalf, adding nothing more than

his son, who was with him when the officer stopped his car, took photographs

of defendant's license plates after the officer left. Defendant authenticated those

photographs.

      Following oral decisions denying both motions, the judge issued a cogent

written opinion, expounding on his findings.

      Regarding defendant's motion to dismiss, the judge summarized the

guiding legal principles and determined the State established a prima facie case


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                                        4
that defendant violated N.J.S.A. 2C:40-26(b). Aptly analyzing the elements of

the offense, the judge rejected defendant's contention – renewed on appeal – that

the State failed to present evidence to the grand jury that defendant's license

suspension was court-ordered and not administratively imposed. Citing the

grand jury testimony, the judge noted the officer specifically testified that

defendant's "driver's license was suspended for a prior [DWI] conviction on

August 17th of 2015 . . . [and defendant] had seven previous convictions for

DWI."

       We review a trial court's decision denying a motion to dismiss an

indictment for abuse of discretion. State v. Saavedra, 222 N.J. 39, 55 (2015).

"[V]iewed in the light most favorable to the State, we determine whether the

trial court abused its discretion when it found that the State presented evidence

sufficient to establish a prima facie case on the elements of the relevant offenses

. . . ." Id. at 57.

       Citing State v. Perry, 439 N.J. Super. 514 (App. Div. 2015), defendant

argues on appeal that the State failed to instruct the grand jury and present

evidence that defendant was still subject to a judicially-imposed license

suspension. Unlike defendant in the present case, the seven defendants in

Perry's consolidated cases demonstrated they completed their ordered period of


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                                        5
suspension, but failed to administratively reinstate their licenses, which

remained suspended when they were stopped for a new traffic violation. Id. at

519-22. Considering the language of N.J.S.A. 2C:40-26(b), we observed:

            Subsection (b) provides that a driver commits the crime
            if he drives "during the period of license suspension"
            while his "license was suspended or revoked for a
            second or subsequent [DWI or refusal] violation." The
            Legislature made this section applicable solely to
            drivers with a license suspension for a second or
            subsequent DWI or refusal violation.

            [Id. at 525 (alteration in original) (citation omitted).]

      In so holding, we rejected the State's attempts to more broadly apply the

statute to encompass the period of administrative suspension. We concluded the

statute criminalizes the operation of a motor vehicle only during the court -

ordered period of suspension, not periods in which driving privileges coul d have

been restored but for the defendant's failure to complete the process for

administrative restoration. Id. at 531-32.

      Importantly, we applied the statutory requirements mandated by the

language "during the period of license suspension" in a different context than

that raised by defendant; we did not determine the State must advise a grand jury

that a defendant "was still subject to a [c]ourt[-]imposed license suspension as

opposed to an administrative suspension . . . ." Defendant does not contend the


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                                        6
State failed to present exculpatory evidence to the grand jury that his license

was administratively suspended. See State v. Hogan, 144 N.J. 216, 239 (1996)

(recognizing "only in the exceptional case will a prosecutor's failure to present

exculpatory evidence to a grand jury constitute grounds for challenging an

indictment"). Nor does he present any authority to support his argument that the

State should have informed the grand jurors that his license was suspended by

the court. We therefore discern no basis to disturb the motion judge's decision

to deny defendant's motion to dismiss the indictment.

      Turning to defendant's motion challenging the stop, our review is "highly

deferential." State v. Gonzales, 227 N.J. 77, 101 (2016). "An appellate court

reviewing a motion to suppress evidence in a criminal case must uphold the

factual findings underlying the trial court's decision, provided that those

findings are supported by sufficient credible evidence in the record." State v.

Boone, 232 N.J. 417, 425-26 (2017) (citation and internal quotation marks

omitted). We do so "because those findings are substantially influenced by [an]

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

a reviewing court cannot enjoy." State v. Gamble, 218 N.J. 412, 424-25 (2014)

(alteration in original) (citation and internal quotation marks omitted). We owe

no deference, however, to conclusions of law made by trial courts in suppression


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                                        7
decisions, which we instead review de novo. State v. Watts, 223 N.J. 503, 516

(2015).

      Having had the opportunity to see and hear the testimony of the witnesses

and the photographs depicting plastic covers over both license plates, the judge

determined "N.J.S.A. 39:3-33 requires that license plates shall not be concealed

or otherwise obscured, and N.J.A.C. 13:20-32.4(b) prohibits the use of glass or

plastic covers on license plates." The judge correctly concluded the plastic

cover affixed to the license plates on defendant's vehicle gave rise to a

"reasonable and articulable suspicion" that a violation of the motor vehicle law

had been committed.     State v. Bacome, 228 N.J. 94, 103 (2017) (citation

omitted). Indeed, reasonable suspicion may arise even where a minor traffic

offense is committed. Ibid.; see also State ex rel. D.K., 360 N.J. Super. 49, 52,

(App. Div. 2003) (officer properly stopped vehicle with tinted plastic cover on

license plate); State v. Murphy, 238 N.J. Super. 546, 554 (App. Div. 1990)

(officer properly stopped vehicle with diagonally positioned plate).

      In sum, defendant's license plate was obscured by a plastic cover, which

prevented the officer from reading the plate in broad daylight. The officer's

eyewitness observation was sufficient to legitimize a traffic stop on that basis.

See Bacome, 228 N.J. at 103. Defendant's argument that the officer acted


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                                       8
unreasonably is therefore unavailing. Defendant's remaining mistake-of-law

argument lacks sufficient merit to warrant discussion in our written opinion,

Rule 2:11-3(e)(2).

      Affirmed.




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