                            NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3707-15T3
                                                                 A-0060-16T3

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

MALCOLM A. BRADLEY, a/k/a HOOP
BRADLEY, MALCOLM H. BRADLEY,
MALCOM BRADLEY, and MALCOM
A. BRADLEY,

     Defendant-Appellant.
____________________________________

                Argued September 12, 2018 – Decided September 28, 2018

                Before Judges Sabatino and Sumners.

                On appeal from Superior Court of New Jersey, Law
                Division, Union County, Indictment No. 11-10-1031;
                and Middlesex County, Indictment No. 11-07-1083.

                James K. Smith, Jr., Assistant Deputy Public Defender,
                argued the cause for appellant (Joseph E. Krakora,
                Public Defender, attorney; James K. Smith, Jr., of
                counsel and on the briefs).
              Jane C. Schuster, Deputy Attorney General, argued the
              cause for respondent (Gurbir S. Grewal, Attorney
              General, attorney; Sarah C. Hunt, Deputy Attorney
              General, of counsel and on the brief in A-3707-15; Jane
              C. Schuster, of counsel and on the brief in A-0060-16).

PER CURIAM

        These back-to-back appeals 1 concern a homicide prosecution in Union

County (A-3707-15) and a separate narcotics/firearms possession prosecution in

Middlesex County (A-0060-16). The two cases involve the same warrantless

search by police of a house in Edison in Middlesex County. Through the

tracking of his girlfriend's cell phone, the police found defendant Malcolm A.

Bradley at the house several days after a fatal shooting in Plainfield in Union

County of Curtis Stroud.

        According to the State's proofs, defendant and Stroud had an argument on

the evening of March 15, 2011. The shooting occurred later that night when a

rented Toyota being driven by defendant pulled up at a stoplight next to an Acura

in which Stroud was a back-seat passenger. Words were exchanged between the

young men, and a gunshot was fired that hit Stroud in the chest and killed him.

        The State contends the fatal shot was fired by defendant, whereas

defendant claims Stroud was accidently shot by Stroud's brother Kenneth


1
    We consolidate the appeals for purposes of this combined opinion.
                                                                         A-3707-15T3
                                        2
Roberts, a front-seat passenger in the Acura. After the gunfire, defendant sped

away in the Toyota with his cousin Jamie Scott, who was in a relationship with

Roberts.

      The Acura driver, Dashaun Randolph, drove Stroud to the hospital with

Roberts. Randolph and Roberts then got back into the Acura and drove away.

They were stopped by police and taken to the police station. The police found

five nine-millimeter bullet cartridges in Roberts' pocket, containing bullets

which a ballistic expert found to be "very, very similar, if not identical to" the

lethal bullet recovered from the rear seat of the Acura. The recovered projectile

was determined to be a ".38 caliber class" bullet, meaning that it could have

been fired from several different types of handguns. However, since the gun

that fired the fatal shot was never recovered, the projectile could not be matched

to the actual handgun.

      Roberts denied shooting Stroud, and eventually described the shot as

having been fired from the Toyota. Randolph testified he heard a "firecracker"

sound and smelled and saw smoke coming from outside of the Acura after the

Toyota had pulled alongside. Scott stated she did not see who shot Stroud, and

specifically denied seeing defendant fire a gun.




                                                                          A-3707-15T3
                                        3
      Ten days after the shooting, homicide investigators obtained two

Communications Data Warrants ("CDW") and traced the cell phone of

defendant's girlfriend, Nicole Timmons, to the Edison residence. The police had

a warrant to arrest defendant, but not a warrant to search the residence. Later

that evening, more than ten law enforcement officers converged at the Edison

house, after several of them had met at a nearby diner to plan their entry. The

Toyota was parked about a block away.

      Several of the officers approached the house. The lead detective rapped

on the front door. The officers entered the house after an occupant named Mikiel

Adl opened the door and stepped to the side. Once inside, the police saw

defendant on a couch. A handgun was found under defendant wedged between

the sofa cushions, although it was not the gun used to shoot Stroud. The police

also found drugs in plain view on a table near defendant.

      The police arrested and handcuffed defendant and took him outside to a

squad car. Defendant asked the police for his jacket, which was inside the house.

The police went inside and retrieved the jacket. At trial, Roberts testified that

defendant was wearing this jacket the night of the shooting.




                                                                         A-3707-15T3
                                       4
      Before being taken down to headquarters, defendant initiated a

conversation with one of the officers, Sergeant George R. Jiminez. He asked if

Jiminez had spoken "to the [unidentified] girl to get the whole story."

      Defendant was charged in Middlesex County with illegal possession of

the confiscated firearm and various drug offenses. He moved to suppress the

gun and drugs seized from the house without a warrant.

      The Middlesex County judge conducted a suppression hearing. The judge

heard what he found to be credible testimony by the lead detective describing

the activities of the police in the investigation and the search of the residence.

Following that hearing, the judge ruled the seized contraband was admissible.

Specifically, the judge found that Adl had given the police valid consent to enter

the house. The judge also found that Adl had apparent authority to provide such

consent.

      After losing the suppression motion in Middlesex County, defendant

entered into a negotiated guilty plea to second-degree unlawful possession of

the seized gun, N.J.S.A. 2C:39-5(b) and fourth-degree possession of the seized

marijuana with intent to distribute it, N.J.S.A. 2C:35-5. The Middlesex County

judge imposed a six-year custodial sentence on the gun charge, subject to a

three-year parole disqualifier. The judge also imposed a one-year consecutive


                                                                          A-3707-15T3
                                        5
term on the marijuana count, with a six-month period of parole ineligibility.

Pursuant to Rule 3:5-7(d), defendant preserved his right to appeal the Middlesex

County suppression ruling.

      Before trial in the Union County case, defendant moved to suppress the

jacket and his post-arrest statement to Sergeant Jiminez. With the consent of

the parties, the Union County judge considered a transcript of the Middlesex

County suppression hearing.       The Union County judge also considered

additional testimony, which included the lead detective's revelation about the

officers' planning session that had occurred at the diner before they entered the

Edison residence.

      The Union County judge upheld the warrantless entry of the Edison house

on different grounds than the Middlesex County judge. Rather than resting on

a theory of consent, the Union County judge concluded the search was justified

under the exigent circumstances doctrine. The Union County judge found the

police had reasonably believed defendant to be armed and dangerous, and on the

move. The judge concluded it was impracticable to obtain a search warrant

under the circumstances.

      The first trial in Union County in the fall of 2014 resulted in a hung jury.

The second trial, which lasted ten days in November 2015, resulted in defendant


                                                                          A-3707-15T3
                                        6
being convicted of murder, N.J.S.A. 2C:11-3(a)(1) and (2), possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and criminal restraint,

N.J.S.A. 2C:13-2.

      At sentencing, the Union County judge imposed a forty-two-year term on

the murder count, subject to a parole disqualifier under the No Early Release

Act ("NERA"), N.J.S.A. 2C:43-7.2, plus a concurrent four-year term on the

weapons count. The criminal restraint count merged into the murder count.

      In both of these appeals, defendant principally challenges the Middlesex

County and Union County judges' respective denials of his pretrial suppression

motions. Among other things, he maintains the United States Supreme Court's

opinion in Steagald v. United States, 451 U.S. 204 (1981), requires police to

obtain a search warrant in order to enter a third party's residence and execute a

warrant to arrest an occupant located inside the premises. Defendant also

contests the applicability of the consent and exigency exceptions to the warrant

requirement.

      Defendant further argues in the Union County appeal that a police witness

who testified at trial for the State gave improper opinion testimony about the

trajectory of the bullet found in the Acura seat cushions. Lastly, defendant

complains that the Union County judge should have issued, sua sponte, a jury


                                                                         A-3707-15T3
                                       7
charge on the concept of third-party guilt relating to defendant's theory that

Stroud had been shot by Stroud's brother Roberts.

      More specifically, defendant raises the following points in his brief in the

Union County case (A-3707-15):

            POINT I

            BECAUSE THE SEARCH WAS COMMITTED IN
            CLEAR VIOLATION OF STEAGALD v. UNITED
            STATES, 451 U.S. 204 (1981), AND BECAUSE
            NEITHER    THE     CONSENT,     APPARENT
            AUTHORITY, NOR EXIGENT CIRCUMSTANCES
            EXCEPTIONS APPLY, THE MOTION TO
            SUPPRESS THE JACKET AND THE DEFENDANT'S
            RESULTING ORAL STATEMENT SHOULD HAVE
            BEEN GRANTED.

            A. The Steagald Rule

            B. Mikiel Adl's Act Of "Stepping Aside" For The Police
            Did Not Equate To Consent To Enter.

            C. Adl's Act Of Answering The Door Did Not, By
            Itself, Provide The Police With A Reasonable Basis To
            Believe That He Had Apparent Authority To Consent
            To A Search Of The Premises.

            D. There Were No Exigent Circumstances To Justify
            The Entry Into [H.G.'s] House Some Ten Days After
            The Shooting.

            E. The Jacket Seized After Defendant's Arrest And
            Defendant's Subsequent Oral Statement Must Both Be
            Suppressed As Fruit Of The Poisonous Tree.


                                                                          A-3707-15T3
                                        8
                  1. The Seizure of the Jacket

                  2. The Oral Statement

            POINT II

            THE DEFENDANT WAS DENIED A FAIR TRIAL
            WHEN DET. ADRIAN GARDNER, WHO WAS NOT
            QUALIFIED AS AN EXPERT IN CRIME SCENE
            PROCESSING,  BALLISTICS,  OR    BULLET
            TRAJECTORY, WAS ALLOWED TO GIVE HER
            OPINION THAT THE FATAL SHOT HAD COME
            FROM THE AREA OF THE REAR PASSENGER
            SIDE WINDOW OF THE BLACK ACURA.

                  A. The Trial Testimony

                  B. Legal Argument

            POINT III

            BECAUSE THE DEFENSE OF THIRD[-]PARTY
            GUILT WAS THE ONLY DEFENSE PRESENTED,
            AND BECAUSE THE FACTS SUPPORTING THAT
            DEFENSE WERE CLEARLY INDICATED IN THE
            RECORD, THE TRIAL COURT COMMITTED
            PLAIN ERROR IN FAILING TO CHARGE THE
            JURY ON THAT DEFENSE. (Not raised below)

      In his brief in the Middlesex County case (A-0060-16), defendant repeats

verbatim the arguments set forth in Points I (A) through (D) of his brief in the

Union County case.

      Having considered these arguments in light of the applicable law and the

record, we affirm defendant's conviction in the Union County case. In doing so,

                                                                        A-3707-15T3
                                       9
we note our disagreement with the Union County judge's analysis of the

suppression issues and his reliance on the exigent circumstances exception.

Nevertheless, we conclude the erroneous suppression ruling was harmless, in

light of the independent evidence of defendant's guilt of the homicide and of the

other Union County charges.

      As to the Middlesex County case, we disagree with that judge's denial of

the suppression motion and, in particular, his conclusion that Adl provided valid

consent to allow the police to enter the residence. Because the gun and drugs

seized as a result of the warrantless police entry were an integral aspect of

defendant's negotiated guilty plea to the Middlesex County possessory offenses,

we vacate that judgment of conviction. We remand to allow defendant to

withdraw his plea in that case.

                                       I.

      The primary issue in both appeals is the constitutionality of the police

officers' entry into the Edison house without obtaining a search warrant to

authorize their entry. Given the importance of that issue, we recite in greater

depth the factual evidence developed concerning the search and seizure.




                                                                          A-3707-15T3
                                      10
                                       A.

      The Middlesex County Suppression Hearing

      Detective Sergeant Michael Triarsi of the Union County Prosecutor's

Office was the only witness to testify at the suppression hearing in Middlesex

County. Triarsi was the lead detective on the Stroud homicide case.

      Following Stroud's death, Triarsi's office suspected defendant of shooting

Stroud and obtained a warrant for defendant's arrest. Triarsi learned defendant

may have been with his girlfriend, Timmons, after the shooting.

      Triarsi's office obtained a CDW to track Timmons' cell phone in an effort

to locate defendant. After the phone was traced to the general area of Fox Road

in Edison, Triarsi obtained another CDW so that the State Police could assist

him in pinpointing the phone's precise location.

      With the aid of the CDW information, Timmons' phone was traced to a

certain house on Fox Road in Edison. On March 25, Triarsi and his fellow

officers "observed the vehicle which was a silver Toyota, which was known to

be involved in the homicide, parked approximately a block from the house."

Triarsi then "contacted [the] Edison Police Department, [and] we had them come

to the house. We then went to the house and knocked on the front door."




                                                                        A-3707-15T3
                                      11
      Triarsi initially testified that he rapped on the door around 11:30 p.m.

Although Triarsi was wearing plain clothes when he went to the door, he had a

badge around his neck or something identifying himself as a police officer.

Triarsi recalled there were other officers present at the house from the Union

County Prosecutor's Office and patrol officers from the Edison Police

Department.

      Triarsi estimated that about ten law enforcement officers had converged

on the house. He recalled about three to five officers were standing directly

around him when he knocked on the door.

      According to Triarsi, he "banged on the door, and eventually somebody

came to the door, which [he] subsequently found out was Mikiel Adl." Adl

opened the door. Triarsi asked Adl, "[W]here is he, where is he[?]" Adl then

stepped to the side, at which point the officers went into the house.

      When asked to clarify at the Middlesex County hearing whether he had

knocked or banged on the door, Triarsi testified that, "Banged is probably a

better description."   Triarsi could not recall if he identified himself as

"Detective" Triarsi at that time, but that he believed he identified himself as a

police officer.

      Triarsi described how he entered the home, as follows:


                                                                         A-3707-15T3
                                       12
             I banged on the door, Adl opened the door. The door
             opens inward, I guess it's inward to the right it would
             be. He was standing in front of the doorway. The door
             was here, he was standing – the door was to his right.
             So, [Adl] was standing in the doorway itself in place of
             the door, holding onto the – the door handle. So, as I –
             you know, I think I said something to the effect of
             where is he, where is he, or something to that effect. At
             that point Adl then steps to the side.

       Triarsi described Adl as "[k]ind of leaning his body and allowing us access

to the home." He recalled that the other law enforcement officers standing near

him were "all behind" him and that they went inside with him.

       The following exchange occurred concerning Triarsi's interaction with

Adl:

             Q     Did you request Mr. Adl's identification when
             you arrived, or did you simply go in as soon as he
             stepped to the side?

             A     Once Mr. Adl stepped to the side we went in the
             house.

             Q     Okay. Did you ask him who he was?

             A     No.

             Q     Did you present any documentation to him?

             A     No.

             Q    Did you ask Mr. Adl if the owner of the house
             was present?


                                                                          A-3707-15T3
                                       13
            A     No. You're talking initially when we came into
            the door?

            Q      Correct.

            A      No.

      Describing the entry into the house, Triarsi testified, "As you come in the

front door there's a small foyer, and then maybe three feet, four feet, and then

there's the front room, which I – which was what I would call a den, that had a

coffee table and a couch and something there. And that's where [defendant]

was." "We walked in the room, I believe [a] Sergeant . . . at the time was behind

me, he said, there he is. We then went over to the couch were [defendant] was.

At that point in time we took [defendant] into custody."

      Triarsi described defendant as laying on his back on the couch when the

officers entered. Once defendant was removed from the couch, the officers

found "a handgun, a 38 [caliber gun]" underneath him. The handgun "was kind

of wedged between [defendant] and the cushions." Triarsi did not need to move

the cushions to find the gun. In addition, Triarsi observed "drugs on the – on

the glass top table, which [wa]s situated in front of that chair – in front of that

couch."

      Triarsi acknowledged he had "no idea" who Adl was in relation to the

home when he entered. According to Triarsi, no one indicated to him that he

                                                                           A-3707-15T3
                                       14
could not enter the premises. He testified that no one asked for any information

when the police entered, and that Adl had moved to the side. Triarsi had no idea

who the owner of the home was until after he had entered it and spoke to the

occupants.

      Triarsi did not know if defendant lived at the Edison residence. He had

several possible addresses for defendant, and this was not one of them. Police

officers had checked "two or three" known locations they had for defendant, but

he had not been present at any of them. Triarsi stated he had no reason to believe

the Fox Road house was owned by defendant or Timmons, or that they were

living there.

      The Middlesex County Judge's Findings of Consent and Adl's Apparent

Authority

      The Middlesex County judge found Detective Triarsi's testimony credible.

Upon considering that testimony, the judge concluded that Adl's act of stepping

aside, as described by Triarsi, amounted to an "invitation" for the police to enter

the dwelling. As that judge perceived it:

                It is clear that there may not have been words used, but
                actions often speak louder than words. And the opening
                of the door, stepping aside in an answer to the question
                of 'where is he' is clearly, in the [c]ourt's mind, in
                finding an invitation to step into the dwelling. And
                upon stepping in the dwelling [the police officers]

                                                                           A-3707-15T3
                                          15
               observed the person whom they were seeking, Mr.
               Bradley, laying on the couch.

               [(Emphasis added).]

        Based on these findings, the Middlesex County judge denied the

suppression motion on consent grounds, concluding:

               This [c]ourt relies on State [v.] Suazo [2] . . . [an opinion
               which] recognize[d] that authority to consent arises
               from the mutual use of property, but persons generally
               having joint access or control for the most purposes.
               And in this case clearly the person who came to the door
               was exercising what could only be seen as [a] legitimate
               right to open that door and invite people in.

               [(Emphasis added).]

        Alternatively, the Middlesex County judge found that, even if Adl did not

have actual authority to consent to the police entry, he at least had the apparent

authority to do so. The judge noted in this regard, "[c]oming to the door,

opening the door, clearly was an invitation by somebody authorized, having

either direct legitimate authority or apparent authority to enter into the

premise[s]."

        The Middlesex County judge recognized the court's responsibility to

consider whether the officers' belief that Adl, a third party, had authority to



2
    State v. Suazo, 133 N.J. 315 (1993).
                                                                               A-3707-15T3
                                           16
consent to the police entry was "objectively reasonable in view of all the facts

and circumstances at the time of the search." Applying that test of objective

reasonableness, the judge concluded that Adl had both direct and apparent

authority to consent to the entry and search. Therefore, the judge denied the

motion to suppress the gun and drugs.

      Testimony at the Union County Suppression Hearing

      At the later suppression hearing in the homicide case, the Union County

judge obtained the parties' consent to allow him to consider the transcript of the

Middlesex County suppression motion, which was moved into evidence.

      Triarsi supplemented his testimony at the Union County hearing. His

testimony substantially echoed his earlier testimony from the Middlesex county

hearing, with certain variations and additions.

      At the Union County hearing, Triarsi elaborated more fully upon how the

police were monitoring the area around Fox Road, after they tracked Timmons'

phone to that general area. Triarsi explained:

            At that point in time we had – we had stayed in the area
            where [Timmons' cell] phone was continually pinging
            on and we would drive by different locations and look
            and – and we had one person watching the vehicle. In
            the event we saw somebody coming out of a house or
            that looked like [defendant], we knew what he looked
            like, so it was just a matter if we saw a car coming out
            of the general vicinity we would try to catch up to the

                                                                          A-3707-15T3
                                       17
             car, take a look in the car, see if it was [defendant] or
             Ms. Timmons or anybody you know that we knew
             running license plates, those type of things.

      Triarsi described what he and the other law enforcement officers did after

they spotted the Toyota involved in the shooting incident and found the exact

location of Timmons' cell phone. In particular, he recounted 3 that he and several

other officers met at a local diner to plan their entry into the residence:

             [The Union County officers] had been in contact with
             [the] Edison Police Department because it was
             happening in Edison. We had a meet[ing] at the diner
             which is down the street from – from this house. We
             had some other people watching the house in the event
             somebody were to leave. We explained to the Edison
             Police Department why we were there, that we had a
             search warrant, not a search warrant but we had an
             arrest warrant for [defendant] and that we were going
             to go knock on the door of [the house on] Fox Road that
             he was wanted for a homicide and you know everybody
             – make everybody apprised of what was going on.

             [(Emphasis added).]

      The diner was approximately two blocks away from the Fox Road house,

which the officers kept under surveillance. The meeting at the diner was to

discuss the officers' next steps and course of action. Triarsi testified that not all




3
 Notably, the diner meeting was not the subject of testimony at the Middlesex
County suppression hearing.
                                                                              A-3707-15T3
                                        18
of the officers left the house, but that he did, despite the fact that he was in

charge of the investigation.

        In his Union County testimony, Triarsi increased his estimate of the

number of police officers who were at the residence. "At the time we knocked

on the door I believe there w[ere] probably five or six people, some five to seven

people from my off—our office meaning the homicide and maybe seven or eight,

six or seven from [the] Edison Police Department."

        Triarsi elaborated how he and the other officers were able to get into the

house. According to Triarsi, he

              knocked on the door, waited a couple of seconds, you
              know, knocked. Inevitably after a short period of time
              somebody came to the door. A white male came to the
              door. He opened the door. He opened it. Stood in the
              doorway where it was opened and I said ["W]here is he,
              where is he [?"] or something to that effect. At that
              point in time he stepped I guess to – I guess his left foot
              backwards and allowed us into the house.

        After defendant was arrested inside the house and placed in handcuffs, he

was taken out of the house to Triarsi's vehicle. Triarsi testified that he did not

immediately speak with defendant, but rather issued him warnings using "a

Miranda4 [w]arnings card from [his] wallet." Triarsi testified that he explained



4
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                            A-3707-15T3
                                         19
to defendant "why he was under arrest . . . that [Triarsi] would like to talk to

him about the homicide but . . . didn't wish to do it at that particular point in

time." Triarsi further stated that, "At some point in the conversation between

[defendant] and [him] [defendant] explained to [him] that the gun that was found

underneath him and the drugs on the table were his. But everything – anything

else in that house was not his."

      According to Triarsi, defendant asked for his jacket because he was cold.

In response, Triarsi asked defendant what the jacket looked like, and defendant

apparently gave Triarsi a description of it and said it was inside the house in the

room where he had been arrested. Triarsi recalled that defendant described the

jacket as "either black or green and it had fur on the collar and . . . on the cuffs

also[.]"

      Triarsi entered the home to retrieve the jacket, which he found "on the

floor in the room where [defendant] was arrested." Triarsi checked the jacket

for weapons, brought it back to the car, and gave it to defendant by placing it

over his shoulders.

      Although Triarsi stated at one point during the Middlesex County

suppression hearing that he had "banged" on the door, at the Union County




                                                                            A-3707-15T3
                                        20
suppression hearing he modulated that description, stating that he had

"knocked." He asserted, "It was not an aggressive bang by any means."

        Triarsi reiterated at the Union County hearing that he had no basis for

believing that defendant or Timmons resided at the Fox Road residence. The

officers did not ask whose house they were in or who lived there, until after they

had entered and placed the occupants in handcuffs. After learning that another

woman, H.G., lived in the house and that her father owned it, the police asked

H.G. if she would consent to a search of the home. According to Triarsi, H.G.

refused to consent to such a search. After defendant and the other occupants of

the home were arrested, Triarsi applied for a search warrant. 5

        Sergeant Jiminez, who had not testified at the Middlesex County hearing,

testified for the State at the Union County suppression hearing.           Jiminez

principally described his post-arrest interaction with defendant in his patrol car.

As Jiminez recounted on direct examination:

              Q     When you transported [] defendant into your
              vehicle did he say anything to you?

              A      Yes, he did.

              Q      And what did he say to you?



5
    The fruits of any subsequent search of the house are not at issue on appeal.
                                                                           A-3707-15T3
                                         21
             A      We had a very brief conversation. He asked me
             questions about his charges. I told him to hang on, we
             were on our way to our office where I was going to put
             him on video tape and Mirandize him again on video
             and I could answer any questions he had. He continued
             to engage me in conversation, I told him a couple of
             times just hang on, we'll get into the office pretty soon,
             we'll go up to my office and I'll talk to you right away.

                    On the way in he mentioned that he was anemic
             and we spoke about that for a quick second, he then
             made reference to – he stated actually something along
             the lines did you speak to the girl to get the whole story.
             Again, I told him sit tight we'll be in our office in a
             couple of minutes and at that point I took him – once
             we arrived to our office I brought him upstairs to the
             homicide unit.

             [(Emphasis added).]

According to Sergeant Jiminez, he did not start any of this conversation with

defendant. Jiminez denied asking defendant any questions. In addition, Jiminez

did not answer defendant's questions, but rather told him "to sit tight, [and] wait

until we get to the office."

      After considering the testimony, the Union County judge denied

defendant's motion to suppress his jacket and defendant's post-arrest statement

to Jiminez about talking to "the girl." Unlike the Middlesex County judge, the

Union County judge upheld the police entry and search on exigency grounds




                                                                           A-3707-15T3
                                        22
rather than on a theory of consent. In his written opinion, the Union County

judge reasoned as follows:

            The defendant was charged with a brutal murder, an
            execution with a firearm after an argument at a KFC.
            The defendant was not at any of the usual[ ] places he
            lived or stayed. He was on the move. The defendant
            was known to use his girlfriend's silver Toyota on a
            regular basis. It was the car that allegedly was used in
            the murder and was parked near [the address on] Fox
            Road. The defendant was known to be frequently with
            his girlfriend Nicole Timmons. Prior to the arrest,
            Timmons' cell phone was moving. The defendant was
            not in any of the locations where he lived or stayed, he
            appeared to be on the move, the car he used was near
            the [house on] Fox Road, there was a direct hit that the
            phone was located [there], and the police had every
            reason to believe he would not be staying there on a
            permanent basis and was armed and dangerous.

                  Under these circumstances I find that the police
            had reason to believe the defendant was at [the house
            on] Fox Road, that he was dangerous, and that exigent
            circumstances justified their entry.

      In support of this analysis, the Union County judge cited to State v. Craft,

425 N.J. Super. 546, 554-55 (App. Div. 2012). The judge quoted a portion of

that opinion, which states:

            Whether exigent circumstances justify dispensing with
            the need for a search warrant must be determined on a
            case-by-case basis with the focus on police safety and
            preservation of evidence. In each case it is the
            circumstances facing the officers that tell the tale.
            While there is no magic formula, a court must consider

                                                                          A-3707-15T3
                                      23
            the totality of the circumstances to determine whether
            it was impracticable to secure a warrant prior to the
            search.

            [Ibid. (internal quotation marks and citations omitted).]

The Union County judge analogized the present case to the situation in Craft:

"As in Craft, . . . defendant [in this case] was potentially armed and dangerous,

and I therefore find it was impractical to get a warrant and the safety of the

officers dictated that they proceed in the manner in which they did."

                                       B.

      Under the Fourth Amendment of the United States Constitution and under

Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is

presumed invalid unless it falls within one of the recognized exceptions to the

warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000), overruled on

other grounds by, State v. Witt, 223 N.J. 409 (2015).        A defendant has a

constitutional right to be free from indiscriminate searches and seizures by

police without a warrant, unless one or more of the recognized exceptions to the

warrant requirement apply. Witt, 223 N.J. at 422 (citation omitted).

      In connection with these principles, defendant argues the Supreme Court's

opinion in Steagald v. United States, 451 U.S. 204, renders unconstitutional the

police entry into the Edison residence, without a search warrant, for the purpose


                                                                         A-3707-15T3
                                      24
of executing an arrest warrant on defendant, an occupant within the premises.

On the facts presented in Steagald, the Court held that the search violated the

Fourth Amendment because warrantless searches of homes are generally

impermissible, absent consent or exigent circumstances. Id. at 216.

      However, Steagald does not address the precise context presented in this

case. As this court recognized in State v. Miller, 342 N.J. Super. 474, 477, 489

(App. Div. 2001), in interpreting Steagald, the issue of whether evidence found

during a search "conducted upon execution of a . . . warrant for [a] defendant's

arrest, but without a search warrant," and "in a third-party's home" should be

suppressed is "a factual situation one step removed from Steagald [.]"

      To be sure, the first line of the Steagald opinion broadly reads, "The issue

in this case is whether, under the Fourth Amendment, a law enforcement officer

may legally search for the subject of an arrest warrant in the home of a third

party without first obtaining a search warrant." 451 U.S. at 205. Nevertheless,

the opinion later reflects that the discrete issue the Court actually decided in

Steagald was more limited in scope.

      As the Court clarified in Steagald, "the narrow issue before [the Court] is

whether an arrest warrant – as opposed to a search warrant – is adequate to

protect the Fourth Amendment interests of persons not named in the warrant,


                                                                          A-3707-15T3
                                      25
when their homes are searched without their consent and in the absence of

exigent circumstances." Id. at 212 (emphasis added). The Court expressly noted

that it was not addressing a situation in which a defendant is the subject of the

arrest warrant, but not a resident or owner of the searched premises. Id. at 219.

As the Court explained, "The issue here, however is not whether the subject of

an arrest warrant can object to the absence of a search warrant when he is

apprehended in another person's home, but rather whether the residents of that

home can complain of the search." Ibid. (emphasis added). Hence, Steagald is

not on point for the present case.

      That said, we agree with defendant that he has standing under New Jersey

case law to challenge the warrantless police entry into the Edison house, despite

the fact that he did not own the house or reside there and was not perceived by

the police to be an owner or resident. In Miller, we addressed an appeal that

arose from "the trial court's grant of [the] defendant's motion to suppress

evidence that was found . . . in a third-party's home in a search conducted upon

execution of a parole warrant for [the] defendant's arrest, but without a search

warrant." 342 N.J. Super. at 477. Miller is thus similar factually to the present

appeal.




                                                                         A-3707-15T3
                                      26
      We noted in Miller that "our principles of standing to bring a motion to

suppress evidence obtained in an unlawful search and seizure are broader than

those which govern the application of the standards developed under the Fourth

Amendment to the Constitution of the United States." Id. at 478 (citation

omitted). "Under State law, the motion may be brought by a defendant against

whom evidence is proffered 'if he has a proprietary, possessory or participatory

interest in either the place searched or the property seized.'" Ibid. (citation

omitted).

      The New Jersey Supreme Court recently reaffirmed these broader

standing principles under our State law in State v. Randolph, 228 N.J. 566, 585-

89 (2017), holding that when a defendant is charged with a possessory offense,

standing is automatic, unless the State can show the premises searched were

abandoned or the defendant was a trespasser. Moreover, the Court in Randolph

noted it has "roundly rejected hinging a defendant's right to challenge a search

based on 'a reasonable expectation of privacy' analysis." Id. at 583 (citations

omitted). Hence, even if a non-owner and non-resident occupant of a dwelling

does not have the same privacy interest in the premises as an owner or resident,

he or she nonetheless can object in our State courts to the constitutionality of a

warrantless police entry into the house.


                                                                          A-3707-15T3
                                       27
      Here, defendant was charged with, among other things, possession of the

gun found in the house underneath him on the sofa and the drugs found on the

table next to him. He therefore had a presumed possessory interest enabling him

to object to the seizure of those items.

      In addition, the jacket the police removed from the premises was used by

the State in the Union County case as evidence of defendant's participation in

the homicide. Accordingly, he had a participatory interest to support his motion

to suppress the jacket evidence. See State v. Mollica, 114 N.J. 329, 339-40

(1989) (explaining the concept of a defendant's "participatory interest" in

evidence of a crime, which can confer standing upon "a person who, challenging

the seizure and prosecutorial use of incriminating evidence, had some culpable

role, whether as a principal, conspirator, or accomplice, in a criminal activity

that itself generated the evidence").

      Thus, regardless of the inapplicability of Steagald, defendant has standing

under New Jersey law to move to suppress these physical items. Neither of the

exceptions to standing apply. There is no evidence that the Edison house was

abandoned, or that defendant was trespassing on the premises. Cf. Randolph,

228 N.J. at 583 (noting the exceptions for abandoned premises and trespassers).




                                                                         A-3707-15T3
                                        28
                                       C.

      We now turn to whether the State demonstrated that the consent or exigent

circumstances exceptions to the constitutional warrant requirement pertain here.

In doing so, we remain mindful of our scope of appellate review. We must defer

to the trial court's findings of fact "so long as those findings are supported by

sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015)

(internal citations omitted); see also State v. Gonzales, 227 N.J. 77, 101 (2016)

(recognizing factual findings will be upheld if there is sufficient credible

evidence in the record to support the findings).

      However, we owe no deference to the trial court's conclusions of law. See

State v. Hinton, 216 N.J. 211, 228 (2013) (internal citations omitted). Nor are

we "obliged to defer to clearly mistaken findings . . . that are not supported by

sufficient credible evidence in the record." State v. Gibson, 218 N.J. 277, 294

(2014).

      To a considerable extent, the respective rulings of both the Middlesex

County and Union County judges on the suppression motions embody a mixture

of factual and legal determinations, and the significance, under search -and-

seizure principles, of factual details that emerged at the two hearings. Our scope




                                                                          A-3707-15T3
                                       29
of review is therefore a mixed one, depending upon the particular facet of the

trial court's decision in question.

                                         1.

      We first consider the consent exception relied upon by the Middlesex

County judge. It is well-established that a resident of property may vitiate the

warrant requirement by consenting to a search by the police. State v. Domicz,

188 N.J. 285, 305 (2006); see also State v. Legette, 227 N.J. 460, 474-75 (2017)

(ruling the State failed to establish consent to justify the warrantless police entry

of a residence).

      An "essential element" of such consent to conduct a warrantless search is

the individual's "knowledge of the right to refuse [it]." State v. Johnson, 68 N.J.

349, 353-54 (1975); see also Legette, 227 N.J. at 475 (reversing a finding of

consent by a defendant who had been stopped by an officer on a reasonable

suspicion of illegal drug use, because the State had not shown the defendant

"thought he could refuse [the officer's] entry into his apartment").            In a

noncustodial setting such as the present one, the State does not necessarily have

to establish that police officers expressly advised the person who allowed their

entry of the right to refuse consent, but that burden remains on the State to

demonstrate that person's knowledge of right to refuse. Johnson, 68 N.J. at 354.


                                                                             A-3707-15T3
                                        30
      "[C]onsent to a warrantless search . . . must be shown to be unequivocal,

voluntary, knowing, and intelligent." State v. Sugar, 108 N.J. 151, 156 (1987).

Consent is a factual question determined by an examination of the totality of the

circumstances. State v. Koedatich, 112 N.J. 225, 264 (1988).

      Applying these legal standards, we respectfully disagree with the

Middlesex County judge's conclusion that Adl, who opened the front door of the

Edison house, gave the large group of assembled police officers valid consent

to enter and search the dwelling. The State did not offer any evidence that

Detective Triarsi or any of the other officers on the premises advised Adl of his

right to refuse consent. Nor did the State establish that Adl already was aware

of that right.

      The mere fact that Adl leaned aside after he encountered the officers at

the door is insufficient proof that he knowingly and voluntarily consented to

their entry into the dwelling. As described at the two hearings, Triarsi either

"knocked" or "banged" on the door. He was wearing garb that identified him as

a law enforcement officer. He was joined by three or more other officers

assembled behind him, with several other officers on site. Rather than identify

himself or converse with Adl, Triarsi immediately demanded to know "[W]here

is he[?]" referring to the suspect.


                                                                         A-3707-15T3
                                      31
      Although there is no proof in the record as to whether any of the officers

had their guns drawn, the totality of circumstances objectively would have been

intimidating or alarming for a citizen opening the door to this encounter. As the

Court observed in Johnson, "[m]any persons, perhaps most, would view the

request of a police officer to make a search as having the force of law." 68 N.J.

at 354. Hence, "[u]nless it is shown by the State that the person involved knew

that he had the right to refuse to accede to such a request, his assenting to the

search is not meaningful." Ibid.; see also State v. Rice, 115 N.J. Super. 128,

130-31 (App. Div. 1971) (ruling that where a police officer knocked on an

apartment door and entered, without any words being spoken between the officer

and the person who opened the door, the entry was not with knowing consent

and instead was, "[a]t best . . . permitted in submission to authority").

      Given the setting here, the Middlesex County judge's conclusion that Adl

voluntarily "invited" the group of officers to enter the house is unrealistic and

not supported by substantial credible evidence. We thus conclude the consent

exception does not apply.

      We likewise are unpersuaded the record suffices to establish Adl had

apparent authority to allow the officers into this private dwelling. The United

States Supreme Court has applied the apparent authority doctrine "when officers


                                                                            A-3707-15T3
                                       32
enter without a warrant because they reasonably (though erroneously) believe

that the person who has consented to their entry is a resident of the premises [.]"

Illinois v. Rodriguez, 497 U.S. 177, 186 (1990) (emphasis added); see also

Georgia v. Randolph, 547 U.S. 103, 109 (2006) (noting that police may

reasonably rely upon consent given by "a co-occupant whom the police

reasonably, but erroneously, believe to possess shared authority as an occupant"

(emphasis added)).

      The Court has warned in this context that Fourth Amendment rights must

not be "eroded . . . by unrealistic doctrines of 'apparent authority.'" Stoner v.

California, 376 U.S. 483, 488 (1964). The Middlesex County trial court's

analysis here threatens such an erosion. It is not objectively reasonable for

police to assume that whenever an adult answers a door to a dwelling, the adult

has the apparent authority to consent to the police entering.

      The officers did not ask Adl if he owned or lived in the house. They

obtained no information before entering about his reason for being on the

premises. Adl's conduct in opening the door in response to Triarsi's knocking

or banging, and in thereafter leaning his body away from the officers' path does

not provide sufficient objective indicia that he possessed the right to decide who

may enter the premises.


                                                                           A-3707-15T3
                                       33
      Indeed, the police appeared to know little about the Edison house other

than that it was the present location of Timmons' cell phone. They had no

information that defendant or Timmons lived there or whether Adl was their

relative or guest.     There simply is not enough evidence in this record to

conclude, as a matter of law, that Adl possessed the apparent authority to consent

to the police entry.

      Lastly, we note that it is somewhat instructive that the Union County

judge, who was supplied in advance of his own hearing with the suppression

transcript containing the Middlesex County judge's earlier oral ruling, did not

adopt a consent or apparent authority justification for the search. Instead, as we

discuss, infra in Part I(c)(2), the Union County judge rested his suppression

ruling on different grounds of exigent circumstances.

                                        2.

      The doctrine of exigent circumstances is a long-recognized exception to

the Fourth Amendment requirement that police obtain a search warrant in order

to gain non-consensual entry to a private residence. See Payton v. New York,

445 U.S. 573, 587-88 (1980). "To invoke [this] exception, the State must show

that the officers had probable cause and faced an objective exigency." State ex




                                                                          A-3707-15T3
                                       34
rel. J.A., 233 N.J. 432, 448 (2018) (citations omitted). The latter inquiry is fact-

sensitive. Id.

      Generally, our courts examine several factors in evaluating whether law

enforcement officials have sufficient exigent circumstances to enter a home

without a warrant. These factors typically include:

             (1) the degree of urgency involved and the amount of
            time necessary to obtain a warrant; (2) reasonable belief
            that the contraband is about to be removed; (3) the
            possibility of danger to police officers guarding the site
            of contraband while a search warrant is sought; (4)
            information indicating the possessors of the contraband
            are aware that the police are on their trail; (5) the ready
            destructibility of the contraband and the knowledge that
            efforts to dispose of narcotics and to escape are
            characteristic behavior of persons engaged in narcotics
            traffic; (6) the gravity of the offense involved; (7) the
            possibility that the suspect is armed; (8) the strength or
            weakness of the facts establishing probable cause[;] and
            (9) the time of the entry.

            [State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div.
            1990) (citations omitted).]

These factors are "highly fact-sensitive." Ibid. (citation omitted). With respect

to the proper weight to assign to these respective considerations, the New Jersey

Supreme Court has recognized that "[p]olice safety and the preservation of

evidence remain the preeminent determinants of exigency." State ex rel. J.A.,

233 N.J. at 448 (citing State v. Dunlap, 185 N.J. 543, 551 (2006)).


                                                                            A-3707-15T3
                                        35
      "The determinative factor in many exigency cases is whether the location

could have been secured or placed under surveillance for the time period it

would have taken to obtain a warrant." Kevin G. Byrnes, New Jersey Arrest,

Search & Seizure, § 11:4-1(e) (2018-2019); see, e.g., State v. De La Paz, 337

N.J. Super. 181, 198 (App. Div. 2001) (ruling that the ability of the police to

secure the premises effectively weighed against a finding of exigency).

However, "[t]he ability to maintain security or surveillance is often

compromised if the suspects are aware of police activity, and that in itself can

constitute exigent circumstances sufficient to either conduct a full search or to

justify the entry onto premises to secure them pending a warrant." Byrnes, §

11:4-1(e); see, e.g., State v. Galvin, 161 N.J. Super. 524, 530, 542-43 (Law Div.

1978) (finding exigent circumstances justified police entering and securing a

second-floor apartment without a warrant, where they had intercepted a phone

call asking about cops in the area). Here, the record contains no evidence that

the persons inside of the Edison house were aware of the presence of the police

and the surveillance of the dwelling.

      Objectively assessed, the pertinent factors weigh against a conclusion of

exigency in this case. To be sure, the recent homicide was a grave and violent

offense. The person who shot the victim could reasonably be expected to be


                                                                         A-3707-15T3
                                        36
dangerous and armed, since the gun used in the shooting had not been recovered.

There was probable cause that a serious crime had been committed, and the

police had reason to suspect that defendant, who had been seen arguing earlier

with the victim, was the culpable shooter.

      On the other hand, the urgent necessity of police to burst into the house

without first attempting to obtain a telephonic warrant is not fairly supported by

the record.   The State admits that the police were not in "hot pursuit" of

defendant. See State ex rel. J.A., 233 N.J. at 449 (defining hot pursuit as the

"immediate or continuous pursuit of the [suspect] from the scene of [a] crime."

(citations omitted)). In fact, the police were not confident that defendant was

actually inside of the house. There is no evidence that defendant or Timmons

had been seen going into the dwelling. It was uncertain whether any contraband

or evidence of the "drive-by" shooting that occurred ten days earlier was in the

house. Numerous law enforcement officers were assembled at the location,

monitoring whether someone would leave or enter the house, all poised to take

action.

      Perhaps the most significant fact that deflates the State's claim of exigency

is the revelation at the Union County suppression hearing that Detective Triarsi

and several of the officers had the time to meet at a local diner to discuss and


                                                                           A-3707-15T3
                                       37
plan their entry into the house. While that meeting was occurring, other officers

were back surveilling the house and securing the location. The length of the

diner meeting is not disclosed in the record, and we do not know if the officers

stayed long enough to have a meal or a beverage there. Regardless of the actual

duration, the State has failed to show why the time spent at the diner could not

have been used by one of the officers to contact an emergent duty judge and

seek a telephonic warrant. Notably, the Union County judge's written opinion

does not address the diner meeting, or its bearing upon the State's claim of

urgency. In addition, we note the police were able to obtain two CDW warrants

a few hours earlier without any apparent difficulty.

      In State v. Penalber, 386 N.J. Super. 1, 13 (App. Div. 2006), this court

recognized a distinction between "planned" arrests and unplanned arrests made

in the course of an ongoing investigation.       In Penalber, we faulted law

enforcement authorities for not arresting the defendant immediately after the

officer had purchased drugs from the defendant. Id. at 14. Instead, the officer

"walked back to the police station, met with the officers on his backup team,

which resulted in a decision to arrest [the defendant], and then returned to the

apartment house to make the arrest." Ibid. We noted that "[a] period of thirty

to forty-five minutes elapsed between the undercover purchase of cocaine and


                                                                         A-3707-15T3
                                      38
the officers' return to the apartment house, which would have provided ample

time to obtain a telephone warrant for [the defendant]'s arrest." Ibid. Thus, we

concluded the exigent circumstances exception to the warrant requirement did

not apply. Id. at 15. We noted in Penalber that:

            In determining whether a warrantless entry into a
            residence was justified by genuine exigent
            circumstances or was instead the product of a police-
            created exigency, a court should "appraise the
            [officers'] conduct during the entire period after they
            had a right to obtain a warrant and not merely from the
            moment when they knocked at the [suspect's] front
            door."

            Id. at 13 (citations omitted).

      As we have noted, the Union County judge analogized this case to the

scenario presented in State v. Craft, 425 N.J. Super. 546 (App. Div. 2012). Craft

is distinguishable from the present case. In Craft "the primary issue on appeal

[was] whether the police violated [the] defendant's constitutional rights when

they entered the bedroom in his mother's apartment without a search warrant,"

once the defendant's mother had already consented to the officers' entry into her

apartment. Id. at 552, 555. There, unlike the present case, law enforcement

personnel knew the defendant's family resided at the address, the defendant's

mother consented to the officers' entry, and officers had reason to believe the

defendant was in the next room when a cell phone started to ring just after the

                                                                         A-3707-15T3
                                       39
defendant's mother began to call her son's phone. Id. at 554-55. We noted the

arrest warrant arose from a shooting and therefore the defendant was viewed as

potentially dangerous. Id. at 555.

      Given the situation in Craft, we were satisfied "there was a compelling

need for immediate action to apprehend [the] defendant, and it was

impracticable for the officers to obtain a search warrant." Ibid. For the reasons

we have already set forth, including the time police spent planning at the diner

meeting, the large number of officers surveilling the house, and the apparent

ease in obtaining the CDWs, no comparable urgency or impracticability in

seeking a proper search warrant is shown by this record. The Union County

judge therefore erred in upholding the search and seizure based upon a premise

of exigent circumstances. 6

                                       D.

      Having concluded that neither the consent nor exigency exceptions to the

warrant requirement are supported by the record or the applicable law, we must

consider the ramifications of that conclusion.




6
  We add that the Middlesex County judge, by comparison, did not rely on the
doctrine of exigent circumstances, although the transcript of that suppression
hearing contains no such argument by the State.
                                                                         A-3707-15T3
                                      40
      With respect to the Middlesex County prosecution, it is clear that the

firearm and drugs police seized from the house after their illegal warrantless

entry were "fruits of the poisonous tree" and should have been suppressed.

Consequently, the Middlesex County case must be remanded to afford defendant

an opportunity to withdraw his guilty plea.

      The outcome differs in the Union County case. It is not readily apparent

that the jacket Detective Triarsi retrieved from the house at defendant's request

was the fruit of an illegal search. To be sure, the police should not have been

inside of the house in the first place without a search warrant.         But once

defendant had been arrested and brought outside, he initiated and requested the

re-entry of Triarsi in order to get his jacket. It is unclear whether defendant had

or lacked the authority to permit anyone into the residence. Even assuming he

did not have such authority, there is a substantial question, which we need not

resolve here, as to whether the jacket retrieval was sufficiently attenuated from

the original illegal intrusion to require its suppression. See, e.g., State ex rel.

J.A., 233 N.J. at 446-48 (delineating the contours of attenuation principles). As

the Union County judge noted, "This was nothing more than the police

complying with a reasonable request of a defendant in custody. The fact that

the police later realized that the jacket had some evidentiary value does not turn


                                                                           A-3707-15T3
                                       41
this into a search and seizure." The judge's observations, although not couched

with the term "attenuation," provide considerable support for such a legal

conclusion, although we need not decide that point here.

      In any event, we are satisfied that any possible error in the admission of

the jacket evidence at the Union County trial was harmless, in light of the

independent proofs of defendant's guilt. State v. Macon, 57 N.J. 325, 333

(1971). The jacket was, at best, a minor ingredient of the prosecution's case.

The heart of the dispute at trial was whether the victim had been shot from the

Toyota or from his brother in the front seat of the Acura. The jacket did not

prove which person was the shooter. At most, it simply helped confirm that

defendant had been driving the Toyota, a fact that was separately established by

other proof, including Scott, the Toyota passenger.

      We likewise discern no basis to grant defendant a new trial in the homicide

case because of the admission of his post-arrest statement to the sergeant. As

we have noted, the statement was blurted out by defendant without any

prompting from the officer. It was not a fruit of the illegal entry into the house.

The police already had a valid warrant to arrest defendant. If the police had

arrested defendant at another time and location, he conceivably might have tried




                                                                           A-3707-15T3
                                       42
to initiate a similar conversation with an arresting officer. In sum, the nexus

between the statement and the illegality of the house entry is highly attenuated.

      Moreover, the content of the statement, and its unspecified reference to

"the girl," is not clearly incriminatory. It was hardly a key ingredient of the

State's case, which was supported by considerable independent evidence.

Although we are mindful the jury in the first trial was hung and the jurors in the

second trial initially reported they were deadlocked, we do not regard the post-

arrest statement as "clearly capable" of producing any unjust result in the Union

County case. R. 2:10-2.

                                        II.

      We next consider defendant's arguments concerning testimony the State

elicited at the second Union County trial from Detective Adrian Gardner

concerning the direction of what is known as a "trajectory rod" she placed into

the bullet hole in the Acura's back seat cushion.

      The short portion of Gardner's testimony at the second trial that is the

focus of defendant's claim of reversible error is as follows:

            Q       [by Union County assistant prosecutor]
            Detective, if you had continued that trajectory rod
            several more feet, where would the trajectory rod have
            led to?



                                                                          A-3707-15T3
                                       43
            A     The trajectory rod was leading towards the rear
            passenger door at an upward angle towards the window.

Defendant argues it was improper for the court to have permitted Gardner to say

this without her being qualified as an expert witness under N.J.R.E. 702. H e

also maintains the testimony was unfairly prejudicial and the court was obligated

to exclude it under N.J.R.E. 403. We disagree.

      Gardner testified as a lay witness. Under N.J.R.E. 701, lay witnesses may

testify about relevant matters based on their personal knowledge. Lay witnesses

may also present certain opinion testimony, provided those opinions are

"rationally based on the perception of the witness" and "will assist in

understanding the witness' testimony or in determining a fact in issue." N.J.R. E.

701; see also State v. McLean, 205 N.J. 438, 463 (2011) (explaining these

concepts and noting the limitations of allowing police witnesses to present what

are essentially expert opinions in the guise of lay opinion).

      The State rightly notes that, at no point during the quoted exchange

concerning the trajectory rod does Gardner or the prosecutor refer to the bullet

that hit Stroud and passed through his body, including its trajectory or whether

the bullet's origin could be determined from the trajectory rod's orientation.

Gardner's testimony with respect to the rod, and identifying the direction in



                                                                          A-3707-15T3
                                       44
which it pointed, was based on her own factual observations of touch and sight.

Her brief testimony on the subject was not an expert opinion.

      Even if we were to deem Gardner's testimony to be in the nature of an

opinion, its admission into evidence did not violate the lay opinion rule. The

testimony was grounded on her personal knowledge. It was potentially helpful

to the jury as an aid to determine the source and direction of the fatal shot and

the identity of the shooter. We discern no violation of N.J.R.E. 701 nor the

limitations espoused in McLean.

      Nor do we conclude the trial judge abused his discretion in admitting this

testimony. Evidential rulings typically "should be upheld 'absent a showing of

an abuse of discretion, i.e., there has been a clear error of judgment.'" State v.

J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138, 147

(2001)). We detect no such clear error here. Although the ultimate probative

value of the trajectory rod evidence may be reasonably debated (since the bullet

passed through the victim's body and logically could have altered course before

striking the seat cushion), we are unpersuaded that the probative value was

"substantially outweighed" by defendant's contention of undue prejudice. See

N.J.R.E. 403. We therefore reject defendant's claim for a new trial on this

asserted basis.


                                                                          A-3707-15T3
                                       45
                                        III.

      Little needs to be said about defendant's final argument that the Union

County judge was obligated, sua sponte, to supply the jury with the model

instruction about third-party guilt. See Model Jury Charges (Criminal), "Third

Party Guilt Jury Charge" (approved Mar. 9, 2015). This instruction essentially

reinforces the more general instruction to the jurors, which was repeatedly

delivered by the judge, underscoring that the State always maintains the burden

of proof in a criminal trial and the defense has no obligation to prove anything

or present any evidence. The third-party guilt instruction simply ties those

general precepts to a context where, as here, a defendant is suggesting that some

other person is responsible for the harm he is alleged to have caused.

      Viewing, as we must, the charge as a whole in light of the record, we are

unpersuaded the court's omission of the unrequested third-party guilt charge was

likely to cause an unjust outcome in this case. "Plain error in the context of a

jury charge . . . [must be] sufficiently grievous . . . to convince the court that of

itself the error possessed a clear capacity to bring about an unjust result." State

v. Hyman, 451 N.J. Super. 429, 455 (2017) (quoting State v. Torres, 183 N.J.

554, 564 (2005)). "Under the plain error standard, 'defendant has the burden of

proving that the error was clear and obvious and that it affected his substantial


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rights.'" State v. Koskovich, 168 N.J. 448, 529 (2001) (citing State v. Morton,

155 N.J. 383, 421 (1998)).

      That burden is not met here.           The prosecutor did not suggest in

summations or otherwise that the defense had a burden to prove that Roberts,

rather than defendant, shot the victim, or that defendant was not allowed to re ly

on evidence from the State's case in chief to support such an alternative theory.

The third-party guilt charge was not needed here to defuse some misimpression

injected into the case. Nor is the situation even remotely akin to the omission

of a lesser-included offense instruction that is "clearly indicated" by the proofs.

Cf. State v. Jenkins, 178 N.J. 347, 361 (2004).

                                       IV.

      For these reasons, we affirm defendant's conviction in the Union County

case (A-3707-15) and reverse and remand in the Middlesex County case (A-

0060-16) to afford defendant an opportunity to withdraw his guilty plea and have

that judgment of conviction vacated.




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