                                NOT FOR PUBLICATION WITHOUT THE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-5274-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

REGINALD PIERRE, a/k/a
ANDRES TADEO,

     Defendant-Appellant.
____________________________

                    Submitted November 14, 2018 – Decided November 30, 2018

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 15-12-2922.

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

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Stephen A.
                    Pogany, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      After the court denied his motion to suppress evidence from the

warrantless search of his car, and for admission to the Pretrial Intervention (PTI)

program, defendant Reginald Pierre conditionally pled guilty to one count of

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).              In

exchange for his guilty plea, the State agreed to dismiss count two of the

indictment which charged him with fourth-degree possession of a large capacity

ammunition magazine, N.J.S.A. 2C:39-3(f), and recommend a non-custodial

sentence of probation. Defendant appeals and raises the following arguments:

            POINT I

            BECAUSE THERE WERE NUMEROUS DISPUTES
            OF MATERIAL FACTS, INCLUDING WHETHER
            DEFENDANT VIOLATED THE OBSTRUCTION
            STATUTE – THE SOLE BASIS ASSERTED FOR
            THE STOP – THE TRIAL JUDGE WAS REMISS IN
            FAILING TO CONDUCT AN EVIDENTIARY
            HEARING. ALTERNATIVELY, EVEN UNDER THE
            STATE'S VERSION OF THE INCIDENT, THE
            PLAIN VIEW DOCTRINE DID NOT AUTHORIZE
            ENTRY INTO THE CAR.

               A. BY    FAILING  TO   CONDUCT AN
                  EVIDENTIARY HEARING TO RESOLVE
                  NUMEROUS FACTUAL DISPUTES, THE
                  TRIAL JUDGE ERRED .

               B. EVEN IF THE POLICE HAD REASONABLE
                  SUSPICION TO STOP DEFENDANT'S CAR,
                  THE PLAIN VIEW DOCTRINE DID NOT

                                                                           A-5274-16T1
                                        2
     PERMIT ENTRY INTO THE      CAR   TO
     RECOVER THE HANDGUN.

POINT II

DEFENDANT'S REJECTION FROM PTI FOR HIS
FIRST OFFENSE, POSSESSION OF A WEAPON HE
LEGALLY     PURCHASED      IN    FLORIDA,
CONSTITUTED A PATENT AND GROSS ABUSE
OF DISCRETION.

  A. DEFENDANT          DEMONSTRATED
     EXTRAORDINARY CIRCUMSTANCES TO
     OVERCOME THE PRESUMPTION AGAINST
     PTI.

  B. THE   PROSECUTOR     ABUSED    HER
     DISCRETION BY PLACING UNDUE WEIGHT
     ON FACTORS INHERENT IN EVERY
     UNLICENSED POSSESSION CASE AND
     PENALIZING DEFENDANT BECAUSE THE
     OFFENSE OCCURRED IN NEWARK, A CITY
     "OVERWHELMED BY GUN RELATED
     VIOLENCE."

  C. DESPITE OVERWHELMING EVIDENCE TO
     THE CONTRARY, THE PROSECUTOR'S
     RELIANCE ON DEFENDANT'S PURPORTED
     GANG MEMBERSHIP, WHICH WAS BASED
     ON A HEARSAY STATEMENT, WAS AN
     ABUSE OF DISCRETION.

  D. THE     PROSECUTOR'S     REPEATED
     REFERENCES TO PRIOR DISMISSED
     MUNICIPAL CHARGES VIOLATED THE
     SUPREME COURT'S STRICT PROHIBITION
     ON   CONSIDERING     ARRESTS    OR


                                            A-5274-16T1
                    3
                  DISMISSED          CHARGES          FOR         ANY
                  PURPOSES.

               E. DEFENDANT'S REJECTION FROM PTI
                  SUBVERTS THE PURPOSES OF THE
                  PROGRAM AND IS A CLEAR ERROR IN
                  JUDGMENT.

      Having reviewed defendant's arguments in light of the record and

applicable law, we affirm.

                                     I.

      The charges against defendant arose out of a motor vehicle stop in

Newark. According to the State, on July 13, 2015, at approximately 8:40 p.m.,

detectives from the Newark Violence Reduction Initiative and Gang

Enforcement Unit were patrolling an area known for drug and gang activity and

gun violence. Detectives reported observing a black Chevrolet Camaro with

Florida license plates stopped in the middle of the road, obstructing traffic with

its car doors wide open. Detectives claimed they observed defendant arguing

with a man near the Camaro and, believing a carjacking might occur, moved

closer to investigate. Defendant shouted to the other individual, "[l]et's get the

fuck out of here," and entered the driver's seat of the Camaro.

      The detectives then parked one of their cars on the driver's side of the

Camaro and the other unmarked vehicle parked slightly ahead. The detectives


                                                                          A-5274-16T1
                                          4
reported observing defendant fumbling with an object between his legs. As

detectives approached the Camaro from both sides with their flashlights, the y

observed a black handgun protruding from under the driver's seat on the

floorboard. After removing defendant and the passenger from the vehicle, the

police seized a 9 mm handgun with one live 9 mm gold ball round in the chamber

and fourteen, 9 mm gold ball rounds in the magazine.         A box of 9 mm

ammunition was also seized from the vehicle's center console.

      After defendant failed to provide a valid permit to carry the handgun, he

was arrested and, in addition to the two counts in the indictment, was issued a

motor vehicle summons for obstruction of traffic, N.J.S.A. 39:4-67.

Subsequently, defendant provided the State with a copy of a New Jersey

Firearms Purchaser Identification Card, issued on November 18, 2013, and a

receipt from a firearms store in Florida, showing that the handgun was lawfully

purchased.   A search of the Firearms Investigation Unit records revealed,

however, that defendant did not possess a firearm carry permit and the handgun

was not registered.

      Defendant disputed the State's version of events and contended that the

warrantless search lacked probable cause and exigency, and the seizure of the




                                                                       A-5274-16T1
                                      5
evidence1 "was not justified by the plain view exception."        In his counter

statement of facts, defendant maintained that: (1) when the police stopped him,

he "was safely double[-]parked on a quiet street and was in no way obstructing

traffic;" (2) his car's doors were not wide open but only the "front passenger car

door was ajar;" (3) he was not engaged in an argument and the individual he was

speaking with was a friend; (4) he was not "fumbl[ing] with a gun;" and (5)

when the police exited their cars he was sitting in his vehicle and was

"immediately ordered . . . out of his car."

      The court denied defendant's motion based on the parties' submissions.

The court concluded that an evidentiary hearing was unnecessary because

defendant "readily admit[ted] to . . . [a] motor vehicle violation" and "the

balance of defendant's counter statement of facts . . . [were] not relevant to the

disposition of [the] case." The court explained that the defendant's admission

of being "double[-]parked on a public street . . . provided a reasonable,

articulable basis or cause to conduct an investigatory stop," and "the officer's

observations and subsequent seizure of the handgun was permissible pursuant



1
  On appeal, defendant does not address the ammunition seized from the console
and we therefore consider any objections to that evidence waived. See N.J. Dep't
of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015)
("An issue that is not briefed is deemed waived upon appeal.").
                                                                          A-5274-16T1
                                        6
to the plain view doctrine and, accordingly, not a violation of defendant's

constitutional rights . . . ."

       The prosecutor denied defendant's request for admission in the PTI

program and explained the bases for that decision in a detailed May 10, 2016

letter that addressed the factors listed in N.J.S.A. 2C:43-12(e). The court upheld

the prosecutor's determination and concluded in its oral ruling that the

prosecutor's decision did not represent a patent and gross abuse of discretion or

misapplication of the statutory criteria.

                                      II.

       Defendant first maintains that the court erred in denying his motion to

suppress without conducting an evidentiary hearing. We review a trial court's

denial of an evidentiary hearing for an abuse of discretion. State v. Broom-

Smith, 406 N.J. Super. 228, 239 (App. Div. 2009).

       When a defendant moves to suppress evidence obtained in a warrantless

search, Rule 3:5-7(b) requires the State to file "a brief, including a statement of

the facts as it alleges them to be." The defendant must then file "a brief and

counter statement of facts." R. 3:5-7(b). That counter statement of facts must

present "something more than the naked conclusion that the warrantless search

was illegal, in order to obtain an evidentiary hearing pursuant to [Rule] 3:5-


                                                                           A-5274-16T1
                                            7
7(c)," State v. Hewins, 166 N.J. Super 210, 215 (Law Div. 1979), and the facts

must be "sufficiently definite, specific, detailed, and nonconjectural." Ibid.

(quoting United States v. Ledesma, 499 F.2d 36, 39 (9th Cir. 1974)). "[O]nly

when the defendant's counter statement places material facts in dispute [is] an

evidentiary hearing . . . required." State v. Green, 346 N.J. Super. 87, 90 (App.

Div. 2001).

      We disagree with defendant's argument that an evidentiary hearing was

required because his car was allegedly "safely double[-]parked" on a quiet

Newark street with only the passenger door slightly ajar, and thus he was not

"interfere[ing] with or interrupt[ing] the passage of other . . . cars or vehicles . .

. " as proscribed by the obstruction statute. N.J.S.A. 39:4-67. As the court

correctly noted, defendant admitted to a separate motor vehicle violation when

he stated that he was double-parked. See N.J.S.A. 39:4-138(m) ("[e]xcept when

necessary to avoid conflict with other traffic or in compliance with the directions

of a traffic or police officer or traffic sign or signal, no operator of a vehicle

shall . . . park the vehicle . . . [o]n the roadway side of any vehicle stopped or

parked at the edge or curb of a street). That violation "provided a reasonable,

articulable basis . . . [for the detectives] to conduct an investigatory stop." See

State v. Carty, 170 N.J. 632, 639-40 (2002) ("A lawful stop of an automobile


                                                                              A-5274-16T1
                                          8
must be based on reasonable and articulable suspicion that an offense, including

a minor traffic offense, has been or is being committed."); see also State v.

Amelio, 197 N.J. 207, 211-12 (2008). Thus, a hearing was not required to

resolve immaterial factual disputes regarding whether defendant's vehicle was

actually impeding traffic or if defendant was arguing with his friend before the

detectives approached his car.2

      Defendant also admitted he was sitting in his vehicle when the detectives

approached. He did not allege "definite, specific [and] detailed" facts, Hewins,

166 N.J. Super at 215, disputing that the detectives, without entering his car,

illuminated the interior of his vehicle with their flashlights, and observed the

gun under the driver's seat on the floorboard. Thus, whether or not defendant

was "fumbling with his gun" was irrelevant.




2
   We acknowledge that the trial court seemed to credit statements and
observations by the detectives, disputed by defendant, that his double-parked
vehicle was obstructing traffic. Because we have concluded an evidentiary
hearing was not required in light of defendant's admission that he was double-
parked, we need not address whether a hearing was necessary to establish if
defendant's car was obstructing traffic or if the detectives had a basis to stop
defendant's vehicle because they reasonably believed defendant was engaged in
criminal activity.


                                                                        A-5274-16T1
                                       9
                                     III.

      We also disagree with defendant's contention that even if the detectives

had reasonable suspicion to stop him, they were not permitted by the plain view

doctrine to seize the handgun. Under the United States Constitution and the

New Jersey Constitution, individuals have the right to be free of unreasonable

searches and seizures. U.S. Const., amend. IV; N.J. Const. art. I, ⁋ 7. "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). The plain view doctrine is a recognized exception to the

warrant requirement. State v. Bruzzese, 94 N.J. 210, 235-38 (1983). The State

bears the burden, by a preponderance of the evidence, to establish that the

warrantless search or seizure was justified in light of the totality of the

circumstances. State v. Mann, 203 N.J. 328, 337-38 (2010).

      For the plain view doctrine to apply, the State must establish three

elements. Bruzzese, 94 N.J. at 236-37. First, the officer "must be lawfully in

the viewing area." Id. at 236. Second, the officer must "inadvertently" 3 discover


3
   In State v. Gonzales, 227 N.J. 77, 99 (2016), our Supreme Court "reject[ed]
the inadvertence prong of the plain view doctrine because it requires an inquiry
into a police officer's motives and therefore is at odds with the standard of
objective reasonableness that governs [the Court's] analysis of a police officer's


                                                                          A-5274-16T1
                                       10
the evidence, "meaning that he did not know in advance where evidence was

located nor intend beforehand to seize it." Ibid. This requirement is intended

to "prevent the police from engaging in planned warrantless searches." State v.

Damplias, 282 N.J. Super. 471, 478 (App. Div. 1995). Third, the officer must

have "probable cause to associate the property with criminal activity."

Bruzzese, 94 N.J. at 237 (quoting Texas v. Brown, 460 U.S. 730, 741-42 (1983)).

      Here, when detectives approached defendant’s double-parked car at 8:40

p.m., they were in a lawful position when they shined their flashlights in

defendant's car and observed the handgun. Second, there was no evidence

before the court to conclude the detectives had prior knowledge of the gun’s

existence or location or an intent to seize it. Finally, under the circumstances,

the detectives had probable cause to associate a loaded handgun located under

the driver's seat of a defendant's vehicle with criminal activity.




conduct . . . ." Because the Gonzales Court's holding was applied prospectively,
and the search here occurred before the Supreme Court's decision, we assess the
propriety of the seizure in accordance with the pre-existing, three-prong criteria.
Under the previous standard, the inadvertence prong was satisfied if the
detectives "did not know in advance where evidence was located nor intend
beforehand to seize it." Bruzzese, 94 N.J. at 236.
                                                                           A-5274-16T1
                                       11
                                     IV.

      We also conclude that the trial court did not commit reversible error in

affirming the prosecutor's decision to deny defendant's admission into the PTI

program. The court appropriately determined that the prosecutor's decision was

not a patent and gross abuse of discretion.

      A prosecutor's decision to admit or reject a defendant from a PTI program

is given "extreme deference," State v. Kraft, 265 N.J. Super. 106, 112 (App. Div.

1993), and a trial or appellate court must find "a patent and gross abuse of

discretion" to overturn a prosecutor's decision.     Ibid.   The court may not

"substitute [its own] discretion for that of the prosecutor," even if the decision

appears harsh.   Id. at 112-13 (alteration in original).     Further, it must be

presumed that a prosecutor "considered all relevant factors before rendering a

decision." Id. at 112 (quoting State v. Dalglish, 86 N.J., 503, 509 (1981).

      PTI is a "[statewide] diversionary program through which certain

offenders are able to avoid criminal prosecution by receiving early rehabilitative

services expected to deter future criminal behavior." State v. Nwobu, 139 N.J.

236, 240 (1995). In assessing a defendant's fitness for PTI, a prosecutor must

comply with Rule 3:28 and consider the factors enumerated in N.J.S.A. 2C:43-




                                                                          A-5274-16T1
                                       12
12(e), which include the details of the case and defendant's past criminal record.

State v. Roseman, 221 N.J. 611, 621 (2015).

      The purpose of the PTI program is to "offer an alternative to prosecution

and to promote deterrence through rehabilitation for qualified applicants." State

v. K.S., 220 N.J. 190, 197 (2015) (citing N.J.S.A. 2C:43-12). Extreme deference

is given to the prosecutor's decision because: 1) a prosecutor's "fundamental

responsibility" is to "decide whom to prosecute," and 2) "a primary purpose of

PTI [is] to augment, not diminish, a prosecutor's options." Kraft, 265 N.J. Super.

at 111.

      The PTI guidelines provide that defendants "charged with first or second-

degree offenses [are] presumptively ineligible for admission" to PTI. Pressler

& Verniero, Current N.J. Court Rules, cmt. 2 on R. 3:28-1 (2018). To overcome

this presumption, a defendant must demonstrate compelling extraordinary

circumstances or "something 'idiosyncratic' in his or her background." Nwobu,

139 N.J. at 252 (quoting State v. Jabbour, 118 N.J. 1, 7 (1990)).

      Defendant contends that his legal purchase of the handgun in Florida

should overcome the presumption against admission into the PTI program. He

also claims that his immigration from Haiti as a child without either parent,

graduation from high school, completion of one year of college, former


                                                                          A-5274-16T1
                                       13
employment, and acceptance to college establishes the necessary extraordinary

circumstances warranting admission. We disagree.

      As defendant committed a second-degree offense, he was presumptively

ineligible for PTI and was required to demonstrate compelling extraordinary

circumstances to over this presumption. The prosecutor correctly determined

that defendant "has not shown anything unusual and compelling justifying his

admission" and concluded that defendant's admittance would "depreciate the

seriousness of his Graves Act offense."

      Defendant next argues that the prosecutor improperly placed undue weight

on the nature of his offense when considering the N.J.S.A. 2C:43-12(e) factors.

Specifically, he maintains that the prosecutor's assessment of certain

aggravating factors "all rel[ied] on the same generic characteristics of every

second-degree unlicensed gun possession offense," and undue weight was

placed on the location of his offense and the neighborhood crime rates.

Defendant's claim is without merit. The prosecutor thoroughly and correctly

discussed the relevant factors in her May 10, 2016 letter, which included a

specific analysis of seven aggravating and four mitigating factors.

      Defendant also argues that the prosecutor improperly relied on the

detectives' allegation that defendant identified himself as a member of a Haitian


                                                                         A-5274-16T1
                                      14
gang. Defendant claims that the prosecutor was obliged to consider defendant's

denial of gang membership and the possible language barrier that may have

caused the detectives to incorrectly report that defendant volunteered himself as

a member. We are satisfied that the prosecutor examined all relevant facts and

evidence when she exercised her discretion in rejecting defendant's application.

Under such circumstances, she was "free to disbelieve statements presented by

defense witnesses and to instead credit the anticipated contrary testimony of the

State's witnesses." State v. Lee, 437 N.J. Super 555, 568 (App. Div. 2014).

      Defendant next argues that the prosecutor improperly considered his prior

dismissed municipal charges contrary to K.S., 220 N.J. 190.         In K.S., our

Supreme Court held an applicant's "prior dismissed charges may not be

considered for any purpose" where the facts related to the arrest are in dispute,

or have not been determined after a hearing. Id. at 199. From our review of the

prosecutor's May 10, 2016 letter, it is clear that she alluded to defendant's

dismissed charges to rebut his claims that his then-current charges

"represent[ed] [his] first contact with the criminal justice system" and did not

serve as a basis for his rejection.

      Indeed, when discussing mitigating factor nine (the applicant's criminal

record and the extent he presents a substantial danger to others), the prosecutor


                                                                         A-5274-16T1
                                      15
specifically acknowledged that defendant's municipal charges were dismissed .

The prosecutor also stated that despite the dismissals, and defendant's

possession of a loaded handgun, "the State . . . consider[s] defendant's lack of

criminal convictions or adjudications as a mitigating factor." Further, when

discussing mitigating factor twelve (history of physical violence towards

others), the prosecutor again noted the dismissal of defendant's municipal

charges and concluded "defendant does not have a history of the use of physical

violence towards others."

      Finally, defendant argues that the prosecutor's decision "subvert[s] the

goals of [PTI]." He claims criminal sanctions will harm his future education

and employment prospects and are too burdensome for a first-time offender with

a lawfully purchased gun. While the prosecutor noted that defendant "may

possess some positive qualities," she determined that defendant's circumstances

were not extraordinary to overcome the presumption against PTI.               The

prosecutor's decision was not a patent and gross abuse of discretion.

      To the extent not addressed, defendant's remaining arguments lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                          A-5274-16T1
                                        16
