                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-1028-13T2


STATE OF NEW JERSEY,
                                            APPROVED FOR PUBLICATION
            Plaintiff-Respondent,
                                                   August 7, 2015

    v.                                          APPELLATE DIVISION

AMIR RANDOLPH,

          Defendant-Appellant.
_____________________________________

            Submitted February 25, 2015 – Decided August 7, 2015

            Before Judges Ashrafi, Kennedy and O'Connor.

            On appeal from the Superior Court of New
            Jersey,   Law   Division,  Hudson County,
            Indictment No. 12-02-0279.

            Joseph E. Krakora, Public Defender, attorney
            for appellant (Emily A. Kline, Designated
            Counsel, on the brief).

            Gaetano T. Gregory, Acting Hudson County
            Prosecutor,    attorney    for    respondent
            (Gioiella A. Mayer, Special Deputy Attorney
            General/Acting Assistant Prosecutor, on the
            brief).

            The opinion of the court was delivered by

KENNEDY, J.A.D.

    Following     a    jury   trial,   defendant    was   found     guilty   of

various controlled dangerous substance (CDS) offenses and was

sentenced   in   the   aggregate   to   seven    years    of   imprisonment,
subject     to   three     years        of    parole    ineligibility.       Defendant

appeals and raises the following arguments:

             POINT I: THE TRIAL COURT ERRED IN FAILING
             TO GRANT DEFENDANT'S MOTION TO SUPPRESS
             WHERE THE EVIDENCE SEIZED WAS IN VIOLATION
             OF DEFENDANT'S FOURTH AMENDMENT RIGHT.


             POINT II: THE COURT COMMITTED PLAIN ERROR BY
             CHARGING THE JURY ON FLIGHT.


             POINT III: THE COURT ERRED IN FAILING TO
             GIVE   A  REQUESTED   INSTRUCTION  ON  "MERE
             PRESENCE" AS AN ESSENTIAL PART OF THE
             DEFINITION OF CONSTRUCTIVE POSSESSION.


             POINT IV: THE SENTENCE WAS EXCESSIVE BECAUSE
             THE   TRIAL   JUDGE    FAILED  TO   CONSIDER
             APPLICABLE MITIGATING FACTORS.


We have considered these arguments in light of the record and

applicable       law,     and     for        reasons    expressed    hereinafter,    we

reverse defendant's conviction and we remand for a new trial.

                                              I.

       We   initially       address            the     Law   Division's    denial    of

defendant's motion to suppress evidence.                        We discern the facts

that    follow     from     the     record          developed   at   the   suppression

hearing.1


1
  "'[O]n appeal, we may only consider whether the motion to
suppress was properly decided based on the evidence presented at
that time.'" State v. Robinson, 200 N.J. 1, 15 (2009) (citation
                                                     (continued)


                                                2                             A-1028-13T2
        On September 19, 2011, at about 10:00 a.m., Jersey City

Detective Anthony Goodman was conducting a surveillance of the

area at Grant Avenue and Martin Luther King Drive in Jersey City

–   a   known    high      crime     area.         From    his    unmarked     patrol    car,

Goodman observed a group of men standing on the sidewalk in

front of a three-story apartment building on Grant Avenue (the

building).           As     the    group     dispersed,          one   individual,      later

identified as co-defendant, Markees King, entered the building.

Approximately fifteen minutes later, Goodman saw an older man,

later identified as co-defendant, Edward Wright, standing across

the street from the building who appeared to be watching one of

the     upper   level       windows.       Goodman        noticed      King   watching   the

street from a window on the building's second floor.

        Shortly thereafter, King exited the front entrance of the

building, met briefly with Wright, and engaged in what Goodman

believed    to       be    a     narcotics    transaction.             Goodman   continued

watching        as        King     participated           in     another      hand-to-hand

transaction with another individual. King then went back into

the building.



(continued)
omitted); see also State v. Tavares, 364 N.J. Super. 496, 501-02
(App. Div. 2003) (on appeal from a judge's decision regarding
the justification of a warrantless search, parties generally
cannot rely on factual testimony or other proof not submitted as
part of the record at the suppression hearing).



                                               3                                   A-1028-13T2
        Goodman    alerted    perimeter        police    units   that       he   "had     a

sale" and provided a description of Wright.                      Sergeant Stephen

Trowbridge was with a perimeter unit and he stopped Wright a

short   distance     from    the    building.       Trowbridge        recovered        one

glassine bag containing heroin from Wright's pants pocket and

placed him under arrest.              At this time, Goodman watched King

leave the building, and he requested his perimeter units to stop

and arrest him. Officers in the perimeter units quickly stopped

and arrested King as he walked toward Martin Luther King Drive.

A search of King revealed a small amount of marijuana and $132

in small denominations.

    Following       the     arrests      of     Wright     and   King,      Trowbridge

decided    to    "close    in,"    and    began    moving    from     his    perimeter

location toward the building.             However, before Trowbridge got to

the front door, a man later identified as Andrew Bentley left

the building and began walking toward the vehicle from which

Goodman was conducting his surveillance.                   Goodman testified that

Bentley was using a cell phone and he heard Bentley state, "They

are at the front door. They’re coming in."

        Having    arrived    at     the       building's     locked     front       door,

Trowbridge knocked repeatedly on the door and the first floor

windows,    until    the    first     floor     tenant     opened     the    door      and

permitted him to enter the building.                 While in the first floor




                                           4                                     A-1028-13T2
vestibule, Trowbridge heard someone "running" from the second to

the third floor, and saw a barbeque grill situated near the

staircase.       He opened the lid to the grill and found a handgun.

Within a minute, another Jersey City officer arrived in the

vestibule.       Trowbridge gave him the handgun and walked up the

staircase to the second floor.

      From the hallway in the second floor, Trowbridge observed

one   of   the    doors   to   the   second    floor   apartment   was   open.

Peering into the apartment from the hallway, Trowbridge could

see "debris thrown about" inside, a couch, and nothing else.                 He

concluded that the apartment was "vacant" or "abandoned," and

entered to see if there were "any additional actors in there."

      The apartment door opened directly into the living room.

Trowbridge walked through the apartment from the back to the

front and found no one inside.                During this walk-through, he

observed in various rooms of the apartment, an open backpack and

a pair of shoes near the front door, clothing draped over the

couch, a television, and a gaming console.              Trowbridge also saw

marijuana, empty glassine bags and a small amount of cash on the

floor next to the gaming console.             Before leaving the apartment,

Trowbridge found a silver box containing glassine envelopes of

heroin and a Newport cigarette box containing additional amounts

of marijuana.




                                       5                             A-1028-13T2
      A few pieces of mail were also on the floor near the gaming

console, one of which was addressed to defendant, Amir Randolph,

on Mallory Avenue in Jersey City.                          At this point, Trowbridge

left the apartment and walked downstairs where he encountered

members     of     the     U.S.        Marshals       Fugitive         Task     Force,     who,

unbeknownst      to      the    Jersey     City       police      officers,       were     also

watching the building at the time.

         The federal agents advised Trowbridge they had a warrant

for defendant’s arrest for an alleged homicide, and believed he

either    resided     there       or    was    staying       at    the    building.           The

federal     agents       then    proceeded          directly      to     the    third     floor

apartment where defendant was found hiding in a closet.                                 A woman

and young child also occupied the third floor apartment.                                 No one

from the Narcotics Unit was present when defendant was arrested,

and   the   Marshals        subsequently            took    defendant          into    custody.

Bentley was also taken into custody by federal agents.

      Following       the       State's       presentation         at    the     suppression

hearing, at which only Trowbridge and Goodman testified, the

judge denied an application by defendant to call Jersey City

Detective    Matthew        Stambuli.           Defense      counsel       indicated       that

Stambuli     had      "investigated"           Bentley's          cellphone       and     would

testify it was "inoperable."                        The State opposed the motion,

arguing     that    the     defense       had       indicated      it    would        offer   no




                                                6                                      A-1028-13T2
witnesses, and proffered that cellphone records showed the phone

was   "on   and    working"   on    September   19,   and   had    first   been

cancelled on September 25.           The judge then denied defendant's

application       and   explained     that   there    was    "no    testimony

indicating that that phone call was actually made . . ." and

that "it's irrelevant to what the police officers did at the

time."

      The judge denied the motion to suppress and explained, in

part, that:

            The door to the second floor apartment was
            open, and from his vantage point, Sergeant
            Trowbridge observed that the apartment was
            vacant.

            Sergeant Trowbridge entered the apartment to
            search for additional actors.    He observed
            drugs, debris and paperwork scattered on the
            floor of the apartment.   Finding no actors,
            he chose to return to the first floor where
            he met with U.S. Marshals who informed
            Sergeant Trowbridge that they had been
            investigating the premises as the residence
            of Mr. Randolph.

                   . . . .

            In regards to the search of [the apartment],
            none of the defendants have provided any
            evidence that they had an expectancy of
            privacy in the first floor hallway where the
            gun was recovered, in the second floor
            vacant apartment where narcotics, narcotic
            paraphernalia and paperwork was recovered,
            or in the third floor apartment where Mr.
            Randolph was arrested.




                                       7                              A-1028-13T2
              As an overall rule, social and legal norms
              dictate whether . . . an expectation of
              privacy will be held to exist and/or be
              reasonable     in    particular    factual
              circumstances.

                     . . . .

              Absent any evidence, this Court does not
              find an expectation of privacy, and as such,
              the search of [the apartment] is valid. See
              State versus Linton, 356 New Jersey Super.
              at 255, at page 256, Appellate Division
              2002, holding a defendant who hid his drugs
              in someone else's vacant property had no
              reasonable expectation of privacy.

The    judge    then          entered      an    order    denying      the    motion    for

suppression.

       On appeal, defendant relies upon State v. Brown, 216 N.J.

508 (2014), and argues that the Law Division erred in concluding

that   defendant         had       no    reasonable      expectation    of    privacy    in

"someone else's vacant apartment" and that, in making such a

finding, the judge improperly imposed a burden of proof upon

defendant.      The State argues that defendant has no standing to

object    to    the       search         because     police    had     an    "objectively

reasonable belief" that the apartment was abandoned, and that,

even     if    the       judge's         legal   conclusions       were      flawed,    the

warrantless      search            was    nonetheless      valid     because     "exigent

circumstances        .    .    .    required     immediate     police       action."      In

making the latter argument, the State relies, in part, on the

alleged fact that "Bentley called [defendant]" to advise police



                                                 8                                A-1028-13T2
were entering the building as Trowbridge had gained access to

the first floor hallway.

      Under       the     Fourth     Amendment     of        the    United       States

Constitution        and   Article    I,    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) (citing

State v. Alston, 88 N.J. 211, 230 (1981)).                    The same is true of

the warrantless seizure of a person or property.                    Terry v. Ohio,

392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889,

904-06 (1968) (seizure of a person); State v. Hempele, 120 N.J.

182, 216-17 (1990) (seizure of property).                    It is the burden of

the State to show by a preponderance of the evidence that the

search      falls    within     a   recognized    exception        to    the    warrant

requirement and that the search was permissible. Brown, supra,

216 N.J. at 527.

      In the case before us, it appears that the Law Division

concluded     the     apartment     on    the   second   floor      was    vacant       or

abandoned and that, consequently, defendant had no reasonable

expectation of privacy therein.                 In reaching this conclusion,

the judge apparently found that defendant had a burden of proof

to   show    he     had   a   reasonable    expectation       of   privacy      in    the




                                           9                                    A-1028-13T2
premises.         In       reaching    these          conclusions,        the    Law   Division

erred.

       In New Jersey, "a criminal defendant [has standing] to

bring a motion to suppress evidence obtained in an unlawful

search     and    seizure       if    he        has    a   proprietary,         possessory      or

participatory          interest       in    either         the    place   searched      or    the

property seized." Alston, supra, 88 N.J. at 228; accord Brown,

supra, 216 N.J. at 528-29.                      "[S]tanding to seek suppression of

evidence"        is    a    "separate       issue"         from    "the     existence      of    a

reasonable expectation of privacy," which pertains to the merits

of   the   police          action.     State          v.   Hinton,    216       N.J.   211,     235

(2013).           Defendant's         automatic            standing       to     contest      the

constitutional validity of the seizure "does not equate to a

finding that he . . . has a substantive right of privacy in the

place searched that mandates the grant of that motion."                                    Ibid.

"'[A]lthough we do not use a reasonable expectation of privacy

analysis for standing purposes in criminal cases, we do apply

that analysis to determine whether a person has a substantive

right of privacy in a place searched or an item seized.'"                                  Ibid.

(quoting State v. Johnson, 193 N.J. 528, 547 (2008)).                                    "[T]he

objective        reasonableness            of     the      defendant's      expectation         of

privacy in that property, for purposes of Article I, Paragraph




                                                  10                                    A-1028-13T2
7, turns in large part on his or her legal right to occupy the

property at issue."       Id. at 236.

       A defendant cannot successfully "challenge a search if an

officer had an objectively reasonable basis to believe he was a

trespasser."      Brown, supra, 216 N.J. at 535.                   "That follows

because a trespasser, by definition, does not have a possessory

or proprietary interest in property where he does not belong —

where he does not have permission or consent to be."                             Ibid.

Thus, "a trespasser who hides drugs in someone else's vacant and

unsecured     property"      does    not     have       a   "'constitutionally-

reasonable    expectation     of    privacy'"      in   that    vacant    property.

Id. at 537 (quoting State v. Linton, 356 N.J. Super. 255, 259

(App. Div. 2002)).

       In State v. Smith, 291 N.J. Super. 245, 250-52 (App. Div.

1996), rev'd on other grounds, 155 N.J. 83, 102, cert. denied,

525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998), for

example, the defendant was storing drugs in an apartment without

the permission of the tenant, who was in the hospital.                       We held

that    because   the     "defendant       had     no   right     to     enter     the

apartment," the "defendant lacked a sufficient privacy interest

in   the   apartment    to   support   the       conclusion     that   the    search

violated his constitutional rights."              Id. at 261.




                                       11                                    A-1028-13T2
       "Establishing     an    abandonment    of   real     property    is    'a

difficult standard to meet.'"             Brown, supra, 216 N.J. at 530

(quoting United States v. Harrison, 689 F.3d 301, 309 (3d Cir.

2012)).    "'Before the government may cross the threshold of a

home without a warrant, there must be clear, unequivocal and

unmistakable evidence that the property has been abandoned.'"

Id. at 530-31 (internal citations omitted).               The test is one of

objective reasonableness, State v. Edmonds, 211 N.J. 117, 132

(2012),    and   turns    on   whether,    given   the     totality    of    the

circumstances, an objectively reasonable police officer would

believe the property is abandoned.           Harrison, supra, 689 F.3d at

308.    Because the officer’s subjective beliefs are irrelevant to

this    inquiry,   a     police   officer’s    sincere,      good-faith      but

unreasonable belief that real property is abandoned will not

justify a warrantless search when a defendant has an apparent

possessory interest in that property.          Brown, supra, 216 N.J. at

531.

       In Brown, the Supreme Court identified a number of factors

to be considered in determining whether a police officer has an

objectively reasonable basis to believe a property is abandoned:

           In deciding whether a building is abandoned,
           or a person is a trespasser, one reasonable
           step an officer might take is to examine
           readily available records on ownership of
           property.   Deeds are kept in the county
           recording office and provide the address of



                                     12                                A-1028-13T2
the property owner.     See 13A New Jersey
Practice, Real Estate Law and Practice §
33.2 at 502, § 33.10(4) at 508 (John A.
Celentano, Jr. (2d ed. 2002).

     . . . .

Moreover, utility records, which can be
secured by a grand jury subpoena, will
reveal not only the name of the property
owner, but also whether electricity has been
used in the premises.     Such record checks
are not the exclusive means of determining
whether property is abandoned, but just one
factor in assessing whether a police officer
acted in an objectively reasonable manner.

Other factors to consider in assessing
whether a building is abandoned is the
property’s    condition    and    whether   the
putative owner or lessee has taken measures
to secure the building from intruders.
There are impoverished citizens who live in
squalor   and    dilapidated    housing,   with
interiors in disarray and in deplorable
condition, and yet these residences are
their homes. As succinctly stated, there is
not a "'trashy house exception' to the
warrant requirement." Harrison, supra, 689
F.3d at 311.    Yet, a police officer may be
familiar with an unoccupied building with
missing doors and broken windows, and an
interior in utter shambles and lacking
electricity, and reasonably conclude that
the structure is abandoned.        The decrepit
condition of the exterior and interior of a
building    is     a    factor,     but   other
circumstances will necessarily come into
play.   For example the boarding of windows
and bolting of doors of a shabby-looking
building will suggest an intent to keep
people out by a person exercising control
over the property and therefore may be
evidence that conflicts with abandonment.

     . . . .



                      13                          A-1028-13T2
           A Home is not deemed 'abandoned' merely
           because a person is dealing drugs from it.

           Id. at 533-34.

Finally, the legitimacy of a search will not depend on what was

learned by the police after entry into the home.                     Wong Sun v.

United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415, 9 L. Ed.

2d 441, 453 (1963)("A search unlawful at its inception may [not]

be validated by what it turns up.").

       The State relies on Linton, supra, 356 N.J. Super. 255, to

validate   the   reasonableness       of    Trowbridge's      belief   that      the

apartment was abandoned.        In Linton, two police officers were

informed that a man was selling drugs from a certain address in

the municipality.     Id. at 257.           Upon arriving at that address,

the officers observed garbage in the front and back yards, a

broken lock on the front door, a broken front window, a living

room littered with garbage and damaged furniture, and no lights

on in the residence.       Ibid.      Additionally, the officers had not

seen anyone at the residence for a month despite frequently

patrolling   the   area.      Ibid.        We   reversed     the   trial   court's

suppression of drugs that the officers had found hidden in a

torn   couch,    concluding    that    there      was   no    Fourth   Amendment

violation because "a defendant who hides drugs in someone else's




                                       14                                  A-1028-13T2
vacant property has no constitutionally-reasonable expectation

of privacy."      Id. at 259.

       Linton is not persuasive here.              First, in the case before

us, the State offered only a few, equivocal observations about

the condition of the apartment. Trowbridge merely saw a couch

and what he characterized as "debris" on the floor, when he

peered into the open door.              The windows in the apartment were

intact; one needed a key to enter the locked building; King

apparently had a key to get into the locked building; other

tenants lived in the building, one of whom permitted Trowbridge

to enter; and the door to the apartment itself did not appear to

have   been    forced    open.     In   Linton,    by    contrast,    the     police

offered much more detail respecting the property at issue.

       Second,    in   Brown,    supra,    the    Supreme     Court   opined     that

"whether the evidence of abandonment in Linton meets our current

Article I, Paragraph 7 jurisprudence is certainly debatable."

216 N.J. at 538.          In Brown, the Supreme Court affirmed our

decision upholding the trial court's order suppressing evidence,

concluding that the following facts did not objectively support

the conclusion that a property was abandoned: one of two front

windows   to     the   residence    was    broken;      the   front   door     had    a

padlock; the rear door was off the hinges and propped closed;

trash bags filled with old clothes and soda cans littered the




                                          15                                 A-1028-13T2
living room; and the electric meter was missing. Unlike the

neighboring houses, the residence in question was not boarded

up. Id. at 523.         The Supreme Court explained also that nothing

in the record showed that some basic research into the ownership

of     the   property     "would   have      been       difficult      or    unduly

cumbersome."     Id. at 542.2

       We conclude that, in the circumstances of this case, the

fact that the apartment appeared to contain only one couch and

"debris" was seen on the floor is an insufficient basis on which

to reasonably conclude that the apartment was vacant, unrented

or abandoned.     The fact that the door to the apartment was left

open does not warrant a contrary conclusion.                    The law is clear

that    "[t]he   Fourth    Amendment    does      not   .   .   .    protect    only

hermetically     sealed   residences"       and   the   rule     prohibiting      the

police from entering a residence to conduct a warrantless search

applies even if the door to the residence is left open.                        State

v. Penalber, 386 N.J. Super. 1, 11-12 (App. Div. 2006) (quoting

United States v. Oaxaca, 233 F.3d 1154 (9th Cir. 2000)).

       In the circumstances of this case, the State cannot argue

credibly that defendant had no expectation of privacy in an

apartment    where   he   was   allegedly      conducting       an   illegal    drug

2
  Goodman testified that while it appeared to him that the
landlord was not renting the unit at the time, he "didn't speak
to the landlord to verify that."



                                       16                                   A-1028-13T2
distribution       operation.         In    fact,     at    one     point,    the    judge

determined that the presence of a letter addressed to defendant

found inside the apartment was "sufficient evidence" that he

"occupied the area."         Trowbridge testified that he assumed the

apartment was "not rented out" but conceded no effort had been

made to ascertain from the landlord or building superintendent

whether that was so.

       Beyond this, the apartment had furniture inside, as well as

a gaming console, other electronic equipment, clothing, bags,

Nike sneakers and Timberland boots.                  This is not consistent with

an apartment being abandoned or vacant, and, more importantly,

does   not   suggest    in   any      manner       that    the    apartment    is    being

occupied by a trespasser.             Given these proofs, the Law Division

erred in finding that defendant had no reasonable expectation of

privacy in the apartment.

       The   Law    Division       compounded         its        error   by   requiring

defendant to meet a burden of proof demonstrating his reasonable

expectation of privacy.            Defendant has no such burden, however.

"[T]he State bears the burden of proving by a preponderance of

the    evidence"     that,      "in        light     of    the     totality     of     the

circumstances, a police officer had an objectively reasonable

basis to conclude that . . . a defendant was a trespasser before




                                            17                                  A-1028-13T2
the officer entered or searched the home."                            Brown, supra, 218

N.J. at 529, 535-36.

       Now, the State argues that even if the judge's reasoning in

denying the suppression motion was flawed, we should nonetheless

uphold the order denying suppression on grounds of exigency or

protective sweep.             While it is true that            "we affirm or reverse

judgments and orders, not reasons[,]" State v. Maples, 346 N.J.

Super. 408, 417 (App. Div. 2002), we decline to do so on the

basis       of   this    record,     and,       given   our     holding     hereinafter

reversing defendant's judgment of conviction. Instead, we elect

to vacate the order of suppression and remand the issue to the

Law Division for further hearing.3

       In    part,      our    decision     to    order    a    further     hearing     on

suppression is prompted by our conclusion that the Law Division

erred in refusing to grant defendant's application for leave to

call    Detective        Stambuli    as     a    witness       with    respect   to     the

operability       of     Bentley's    cell       phone.         Indeed,    we    find    it

3
  On remand for a rehearing of a pretrial motion to suppress
physical evidence, the second trial judge is not bound by the
findings of fact or conclusions of law reached by the trial
judge in the first instance. State v. Hale, 127 N.J. Super. 407
(App. Div. 1974)(explaining that "law of the case" doctrine most
commonly applies to the binding nature of appellate decisions
upon a trial court on remand for further proceedings).
Accordingly, on remand, the trial court may conduct an expanded
hearing to gather additional information relevant to the issue
of suppression. State v. Henderson, 208 N.J. 208, 300 (2011).




                                            18                                   A-1028-13T2
especially ironic that the State now urges us to accept as a

fact that Bentley called "[defendant] and indicated, 'they're at

the front door. They are coming in[,]'" when, in fact, the judge

made   no   such    finding   and    explicitly    found   the     claim     to   be

"irrelevant," partially at the urging of the State.

       "Where there is a dispute as to material facts on a motion

to suppress . . . the trial court should not restrict the State

or defendant in the presentation of all relevant evidence so

that, if appellate review is had, the record will be complete,

and a final adjudication can be made."              State v. Hope, 85 N.J.

Super. 551, 555 (App. Div. 1964); see also State v. Wilson, 178

N.J. 7, 14 (2003); State v. Gaudiosi, 97 N.J. Super. 565, 568-69

(App. Div. 1967).

       In this case, the Law Division denied defendants' motion to

suppress without hearing all of the evidence because the judge

concluded    that     potentially     key   evidence       was    "irrelevant."

Indeed, even if such reasoning were correct, the judge should

not have precipitously aborted the hearing without allowing the

defense to complete its case.           It is not self-evident that the

telephonic    transmission     was    irrelevant    to   the     suppression      of

evidence discovered in the apartment.              Moreover, such evidence

was at least pertinent to the issue of the credibility of the

testifying officer.       While we express no opinion regarding the




                                       19                                  A-1028-13T2
significance of this evidence, the complexities attendant upon

the   issues    of   exigency    and     protective   sweeps      underscore    the

point that the judge should not have undertaken to decide the

motion to suppress without hearing all the evidence.

      Whether    there   were     exigent      circumstances      sufficient     to

justify   a    warrantless      search    or   seizure   is   a   "highly    fact-

sensitive" inquiry.       State v. Alvarez, 238 N.J. Super. 560, 568

(App.   Div.    1990)(internal     quotes      omitted);   see     also   Johnson,

supra, 193 N.J. at 552.         The pertinent factors include:

              the degree of urgency and the amount of time
              necessary   to   obtain    a  warrant;   the
              reasonable belief that the evidence was
              about to be lost, destroyed, or removed from
              the scene; the severity or seriousness of
              the offense involved; the possibility that a
              suspect was armed or dangerous; and the
              strength or weakness of the underlying
              probable cause determination.

              [State v. Walker, 213 N.J. 281, 292 (2013).]

"[E]xigent circumstances will be present when inaction due to

the time needed to obtain a warrant will create a substantial

likelihood that the police or members of the public will be

exposed to physical danger or that evidence will be destroyed or

removed from the scene."         Johnson, supra, 193 N.J. at 553.

      A protective sweep of the home may only occur when:

              (1) police officers are lawfully within
              private premises for a legitimate purpose,
              which may include consent to enter; and (2)
              the officers on the scene have a reasonable



                                         20                               A-1028-13T2
            articulable suspicion that the area to be
            swept harbors an individual posing a danger.
            Where those substantive conditions are met,
            as a matter of procedure, the sweep will be
            upheld only if (1) it is conducted quickly;
            and (2) it is restricted to places or areas
            where the person posing a danger could hide.

            [State v. Davila, 203 N.J. 97, 102 (2010).]

When the sweep is performed in the non-arrest setting, and "not

due to the execution of an arrest warrant, the legitimacy of the

police presence must be probed."             Id. at 126.      It is obvious,

therefore, that both issues are exquisitely fact-sensitive and

require the court's most discerning analysis.

    In     addition,   it     is   unclear   whether    the   State   and    the

defense    presented    all    evidence      relevant    to   the   issues    of

exigency and a protective sweep – issues that, in any event,

were not considered by the Law Division.                Therefore, the State

should be afforded the opportunity to present any additional

evidence it may have relevant to these issues.                Defendant also

should be afforded the opportunity to present evidence regarding

the claimed exigency and protective sweep.

    Accordingly,       the    order    granting    defendants'      motion    to

suppress is reversed, and the matter is remanded to the trial

court     for   such    further       hearings    it     determines,      after

consultation with the parties, are appropriate.




                                       21                              A-1028-13T2
                                     II.

       We turn now to the trial itself and we address defendant's

argument that he was denied a fair trial as a consequence of the

court's charge to the jury on flight, and the court's refusal to

give a "mere presence" charge.

       The trial testimony of Trowbridge and Goodman was, in large

measure, similar to their testimony at the suppression hearing.

However, at trial, both testified in greater detail respecting

the alleged cellphone call made by Bentley.                  Goodman testified

that   as    Trowbridge     was   knocking    on    the    front     door    of    the

building, Bentley, who had left the building moments earlier,

walked near the surveillance vehicle with a cellphone held to

his face and said, "They're at the door, they're coming in now."

He conceded that he could not ascertain who Bentley was speaking

to at the time, and that Bentley was not arrested by Jersey City

police officers.         He added that Bentley was taken from the scene

by "another agency."

       Trowbridge testified that he "believe[d]" Goodman relayed

his purported conversation with Bentley over the radio and that

he   heard    the   transmission.         Moreover,       although    he    had    no

awareness that there was anyone inside the apartment on the

second   floor,     he    decided   to   enter     that    apartment       based   on

Goodman's transmission, and the fact that he had heard someone




                                         22                                 A-1028-13T2
running on the second floor.                  He conceded he could not identify

the person he heard running upstairs, and that defendant did not

have a cellphone at the time he was arrested.

       Trowbridge      also        testified        that   "alerting          individuals

involved in drug activity that there are police present" is a

crime; however, he explained that Bentley was not arrested in

connection with the narcotics investigation because Bentley's

phone call could have been made "for — the reason the other

agency   was    there      for     or    it   could    have     been    for    what    [the

narcotics officers] were there for.                   [He] didn’t determine that.

The    other    agency       at    the    time      took   [Bentley]        with     them."

Sergeant Trowbridge added, "I couldn’t determine if [Bentley]

was    notifying      them    that,       you      know,   as    part    of    the     drug

investigation,        or     the    other       investigation        that     was     being

conducted."      The nature of the "other investigation" – that the

U.S.   Marshals       were    pursuing        defendant    on    a     warrant      for   an

alleged homicide — was not revealed at trial.

       During   the    charge      conference,        defense     counsel      asked      the

judge to give the jury a "mere presence" charge, in view of the

fact that the only link between defendant and the second floor

apartment was the presence of a letter bearing defendant's name.

That letter had a different address than the building where it

was found.      The only other fact was that defendant was arrested




                                              23                                   A-1028-13T2
in the apartment on the third floor.               The judge declined to give

the charge because, in his view, "there is no such charge."

      Additionally, the judge gave the jury an instruction on

flight as evidence of guilt. Model Jury Charges, Criminal—Flight

(May 2010).         The instruction given by the judge on the issue of

flight,      while     otherwise    consistent     with     the    Model    Charge,

nonetheless was untethered to any facts developed at trial.                       The

judge stated only that "some evidence" had been elicited at

trial from which the jury "may infer" that defendant fled.

      During     the     State's     closing   statement,         the   prosecutor

argued, "You can consider the fact that [defendant] ran from the

second floor to the third floor as consciousness of guilt. . . .

He   was     putting     distance    between      himself    and    those    police

officers, who he knew, based upon Mr. Bentley's phone call, were

on   their    way    into   [the    building]."      This   argument       was   made

without objection by defendant.

      At the beginning of the first full day of deliberations,

the jury asked the court:

             What happens if we are not unanimous about
             the decision of one of the Defendants? Was
             there   statements    provided   about    the
             relationship between Randolph and tenant,
             Randolph and Markees, Markees and tenant?

                     . . . .




                                         24                                 A-1028-13T2
            Where in the third floor                   apartment was
            Randolph arrested from and                 where was he
            hiding?

In response, the trial court instructed the jurors that they

should rely upon their own memory of the testimony at trial,

"use [their] own good common sense[,]" and to send a note if

they wanted a read-back of particular testimony.                          As we have

noted, the jury subsequently returned a guilty verdict on all

counts of the indictment.

       Addressing first defendant's argument that the trial judge

erred in refusing to charge "mere presence," we hold that, in

the circumstances of this case, the judge's refusal to craft

that    charge     and     instruct     the     jury    with     respect        to    its

applicability      was      prejudicial       error,     despite        the     judge's

comprehensive      charge        to   the     jury     on   the     principle          of

"constructive possession."

       "Clear and correct jury instructions are essential for a

fair trial." State v. Brown, 138 N.J. 481, 522 (1994).                                "'A

[jury] charge is a road map to guide the jury, and without an

appropriate      charge,     a   jury   can     take    a   wrong    turn       in    its

deliberations.'"         State   v.   Nelson,    173    N.J.     417,     446    (2002)

(quoting State v. Martin, 119 N.J. 2, 15 (1990)).                       Trial courts

have a sua sponte obligation to provide correct charges, State

v.     Robinson,    136     N.J.      476,    489      (1994),      and       erroneous




                                         25                                     A-1028-13T2
instructions are "poor candidates for rehabilitation under the

harmless error philosophy." State v. Loftin, 146 N.J. 295, 412

(1996)(quoting State v. Simon, 79 N.J. 191, 206 (1979)).

        "Mere    presence"      at   the   place      where    the   contraband        is

located is insufficient to establish constructive possession.

State   v.   Whyte,     256   N.J.     Super.   518,     523     (App.   Div.    1992).

There must "be circumstances beyond mere presence" that permit a

reasonable inference of the defendant's intention and capacity

to   exercise     control       over    the     object     and     the    defendant's

knowledge of what the object is.                   Ibid.; see also State v.

Palacio, 111 N.J. 543, 551-54 (1988), and State v. Shipp, 216

N.J. Super. 662, 664-65 (App. Div. 1987).

     We   recognize      that    ordinarily      the     model    jury    instruction

leaves no "room to doubt that 'mere presence' [is] insufficient

to   bring      about   a     finding      of   the      necessary       elements      of

possession."       State v. Montesano, 298 N.J. Super. 597, 612-15

(App. Div.), certif. denied, 150 N.J. 27 (1997).                         However, we

have also held that in limited circumstances the jury charge

must be tailored to ensure that the jury understands that "mere

presence" will not suffice.

     In Montesano, we held that an accurate and complete charge

on possession and constructive possession, read "as a whole, . .

. left no room to doubt that 'mere presence' was insufficient to




                                           26                                   A-1028-13T2
bring about a finding of the necessary elements of possession."

Ibid.      However, in the case before us, given the paucity of

proofs connecting defendant to the CDS found in the apartment,

and the jury question suggesting that jurors had concerns about

the issue, it was incumbent upon the judge to clearly apprise

the jury on the law pertaining to defendant's "mere presence" in

the   building.      The    failure    to   do   so    invited      the   jury   to

speculate about a legal issue that required a clear instruction

by the judge.

      "When a jury requests clarification, the trial judge is

obligated to clear the confusion."               State v. Conway, 193 N.J.

Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984).

"A question . . . means that one or more jurors need help and

that the matter is of sufficient importance that the jury is

unable to continue its deliberations until the judge furnishes

that help."       State v. Parsons, 270 N.J. Super. 213, 221 (App.

Div. 1994).       Here, the jury's question, reasonably understood,

sought guidance from the court respecting the relationship of

defendant to the apartment.            That question had an unambiguous

and well-settled legal answer, which is that defendant's mere

presence     in    the     building,    without       more,    is     a   legally

insufficient      basis    to   support     a    finding      of    constructive

possession, and that "all of the surrounding circumstances" must




                                       27                                 A-1028-13T2
be   considered           in     their    "totality"           in   evaluating       whether         the

State     has       established          that    a    defendant       was     in    constructive

possession           of    contraband.          Palacio,        supra,      111     N.J.    at       547

(quoting        the       jury     charge       given      by       the     trial    court        with

approval).

         In Shipp, supra, we concluded that the defendant's mere

presence,           without      more,     in    a    vehicle       where     a     passenger         is

carrying drugs does not necessitate the conclusion that "he was

sharing        in    the       international         control        and   dominion         over      the

contraband."              216 N.J. Super. at 666.                     In Montesano, supra,

while we concluded that it was not reversible error for the

trial judge to refuse defendant's request to charge the jury on

"mere presence," 298 N.J. Super. at 614, we noted that unlike

Shipp, the defendant was the driver of a car containing CDS,

that he made inculpatory statements after the drugs were found,

and that he also had the same drug in his bag which he admitted

belonged to him.               Thus "the charge, combined with the evidence .

.    .   and    the       jury    charge    taken         as    a   whole,    resulted          in   an

accurate statement of the law."                            Montesano, supra, 298 N.J.

Super. at 615.

         In    Palacio,          supra,    the       Supreme        Court    approved       a     jury

charge which is instructive here.                              There, a large quantity of

cocaine was found hidden in a secret compartment in a vehicle




                                                     28                                     A-1028-13T2
behind the seat.   111 N.J. at 545.      Both the driver and the

defendant, a passenger, were arrested.     Ibid.   At trial, the

judge instructed the jury that:

         the fact that the defendant was an occupant
         of a vehicle, which undoubtedly contained
         cocaine, . . . the status of the defendant
         in relation to the vehicle, how long . . .
         the defendant [was] in the vehicle, . . .
         the proximity of the defendant to the drugs
         that were ultimately found in the vehicle, .
         . . whether or not those drugs were easily
         accessible to him, . . . his demeanor when
         he was confronted by the police, his
         nervousness, if any, [and] his feigning lack
         of knowledge of the English language, if
         any.

              . . . .

         [The jury may also] consider whether or not
         it was reasonable for him to be an innocent
         occupant of the motor vehicle, and . . . any
         other evidence or lack of evidence that has
         a bearing upon the elements in this case,
         [including] anything that might have, or
         might   not    have   been   found   of    an
         incriminatory nature on the defendant's
         person, [and proximity or lack thereof] . . .
         of the defendant's personal articles . . .
         to where the drugs were located.

         [Id. at 547-48.]

The Court explained that the large quantity of cocaine, the

value of the drugs, and the conduct of the defendant as the

drugs were being seized were evidence that the defendant had

"guilty knowledge of the presence of the drugs."     Id. at 552.




                                  29                     A-1028-13T2
In the present case, however, the judge gave no instructions to

the jury which explicated the significance of its fact-finding.

    The   judge    should   have   provided    direction     focusing     the

jurors' attention on relevant circumstances — the placement and

accessibility of the contraband in the apartment and defendant's

access to and connection with the apartment and its occupants.

Ibid.

    We recognize that the model jury charge on constructive

possession does not include a charge on mere presence, but the

instruction given by the trial court and quoted by the Supreme

Court in Palacio illustrates how a court can fashion one that

gives   the   jurors   guidance    in    considering   the   facts   of    a

particular case.

    The difficulty here is that by directing the jurors, in

essence, to resolve a question about the law by using "their own

good common sense," the judge misinformed them. The question of

guilt was for the jury's determination based on their "common

sense" consideration of the evidence, but the legal sufficiency

of "mere presence" is a matter of law, not a question committed

to the common sense of the jurors deciding individual cases.

The court's response to the jurors' question, read as whole, was

clearly capable of leading the jurors to conclude that they were

free to infer that the State proved defendant's constructive




                                    30                            A-1028-13T2
possession by showing that he was in the building.                              Because we

have serious doubt about whether the jurors' verdicts are based

on a misunderstanding of the law, we reverse his conviction and

remand for a new trial.               R. 2:10-2; State v. Macon, 57 N.J. 325,

335-36 (1971).

       We   shall    briefly         address    the    judge's      charge     on   flight,

although, given our conclusion above, it is not necessary to do

so. Because the issue may arise again at trial, and because we

do not wish our failure to address the issue as signaling our

approval     of     the    judge's       instruction          here,      we   provide      the

following brief exegesis on the issue of flight.

       It   is    well-established          that       certain      conduct       after    the

commission of a crime may indicate a defendant's consciousness

of guilt.         State v. Phillips, 166 N.J. Super. 153, 159 (App.

Div.    1979),      certif.       denied,       85     N.J.    93     (1980).        To     be

admissible, the conduct must be "intrinsically indicative of a

consciousness       of     guilt,       such    as     unexplained        flight,     or    an

unusual exhibition of remorse for the victim of the crime, or

the switching of clothes with a cell mate before a lineup."

State v. Pindale, 249 N.J. Super. 266, 283 (App. Div. 1991)

(quoting    Phillips,          supra,    166    N.J.    Super.      at    160).      If    the

alleged     conduct       is   not    intrinsically       self-inculpatory           but    is

admitted to show culpability, there is the risk a jury will




                                               31                                   A-1028-13T2
impermissibly "speculate, unaided by any evidential base, as to

defendant's motive in so conducting himself."                    Phillips, supra,

166 N.J. Super. at 160.

    The most common example of conduct that can give rise to an

inference    of    consciousness      of    guilt   is    flight.    Flight   from

custody or the scene of a crime is generally admissible to draw

an inference of guilt, State v. Mann, 132 N.J. 410, 418 (1993),

if done with the purpose of avoiding apprehension, prosecution,

or arrest.        Id. at 418-19; State v. Ingram, 196 N.J. 23, 46

(2008); State v. Wilson, 57 N.J. 39, 49 (1970). "Mere departure"

is not enough.      State v. Long, 119 N.J. 439, 499 (1990).

    "For departure to take on the legal significance of flight,

there must be circumstances present and unexplained which, in

conjunction with the leaving, reasonably justify an inference

that it was done with a consciousness of guilt and pursuant to

an effort to avoid an accusation based on that guilt."                     Ingram,

supra,   196      N.J.   at   46.          Accordingly,     an    adequate     jury

instruction on flight would require the jury to find not only a

departure, but also "a motive for the departure, such as an

attempt to avoid arrest or prosecution, that would turn the

departure into flight."         Mann, supra, 132 N.J. at 421.

    Although evidence of flight is generally admissible, "[t]he

potential    for    prejudice    to    the    defendant     and     the   marginal




                                       32                                 A-1028-13T2
probative value of evidence of flight," requires the court to

carefully      consider      the   manner      in    which   such       evidence     is

presented to a jury.          Id. at 420. The probative value of flight

evidence depends on:

              the degree of confidence with which four
              inferences can be drawn: (1) from the
              defendant's behavior to flight; (2) from
              flight to consciousness of guilt; (3) from
              consciousness of guilt to consciousness of
              guilt concerning the crime charged; and (4)
              from consciousness of guilt concerning the
              crime charged to actual guilt of the crime
              charged.

              [Ibid. (quoting United States v. Myers, 550
              F.2d 1036, 1049 (5th Cir. 1977)).]

Even    in    those   instances      where      evidence     of     a    defendant's

consciousness of guilt is admitted for another purpose, such

evidence must be accompanied by a limiting instruction advising

the jury that the evidence is probative for only that other,

limited purpose and may not be used to draw any inference of

defendant's consciousness of guilt.                 See State v. Williams, 190

N.J. 114, 134 (2007).

       The conclusion we draw from examining precedent on flight

is that such evidence must unequivocally support a reasonable

inference that the actor's conduct following the commission of a

crime   may    be   relied    upon   as   evidence     of    the   actor's    guilt.

Given the indirect value of such evidence, and its potential for

profound prejudice to a defendant, we do not permit equivocal



                                          33                                 A-1028-13T2
evidence   to    be    utilized   by   a      jury    in   this   manner,   and    we

carefully craft a charge to the jury explaining the proper uses

and   limits    of    such   evidence.        On     re-trial,    the   judge   must

carefully consider whether it is appropriate to charge flight,

and, if so, must tailor the charge to the facts of the case to

prevent juror confusion.

      Finally, given our holdings as set forth above, we need not

address defendant's challenge to the sentence imposed.

      Reversed and remanded.




                                         34                                 A-1028-13T2
