                        NOT FOR PUBLICATION WITHOUT THE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-1880-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RASHEED ELEY,

     Defendant-Appellant.
————————————————————————————————

              Argued September 19, 2017 – Decided October 18, 2017

              Before Judges Hoffman and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 14-
              01-0024.

              Margaret McLane, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Ms. McLane, of counsel and on the briefs).

              Emily R. Anderson, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney; Ms.
              Anderson, of counsel and on the brief;
              Jennifer E. Kmieciak, Deputy Attorney General,
              on the brief).

PER CURIAM
       Following the denial of his motion to suppress, defendant

Rasheed Eley pled guilty to second-degree unlawful possession of

a handgun, N.J.S.A. 2C:39-5(b).                 In accordance with his plea

agreement, the court sentenced defendant to a five-year state

prison term with a forty-two month period of parole ineligibility;

on January 29, 2016, the court amended defendant's prison term to

forty-two months.        Defendant now appeals, challenging a March 30,

2015 Law Division order denying his motion to suppress. We affirm.

                                              I.

       An Essex County grand jury charged defendant with second-

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

(count one), and fourth-degree resisting arrest, N.J.S.A. 2C:29-

2(a)   (count    two).      Thereafter,        defendant   filed   a   motion    to

suppress.       The court conducted an evidentiary hearing on the

motion.

       At the hearing, the State presented testimony from Detective

Carlos    Alvarado   of    the   Newark       Police   Department's    Gangs    and

Narcotics Unit.      According to Detective Alvarado, he and a partner

were on a "proactive patrol" on the evening of November 5, 2013.

At approximately 8:45 p.m., he noticed a parked car with its engine

idling and two occupants.         He further stated he believed the car

had illegal tinted windows, so he activated his overhead lights



                                          2                               A-1880-15T2
and sirens and pulled behind the vehicle.       Three other detectives

also stopped to assist.

     According   to    Detective   Alvarado,   as   he   approached    the

vehicle, defendant opened his door, at which point the detective

requested defendant produce his driving credentials.           Defendant

then attempted to leave the vehicle, but the detective ordered him

to remain inside.     Detective Alvarado then directed his flashlight

into the car and saw a handgun in the center console.        He signaled

this discovery to his fellow detectives, and then retrieved the

gun as the other detectives arrested defendant. Detective Alvarado

further   testified   that   another    detective   issued   defendant    a

summons for the tinted windows.

     A.W., a friend of defendant for ten years, testified on behalf

of the defense and provided a markedly different account from

Detective Alvarado.     According to A.W., defendant was coming to

visit him.   As defendant parked his car across the street from his

house, A.W. said "like five or six police cars pulled up next to

him. . . .   I just seen the cops jump out with [their] guns and

told him and the guy he was in the car with, 'Get out.'"        He stated

the detectives then removed defendant and his passenger from the

car, "started searching the car," and ultimately found "the gun"

in defendant's trunk.



                                    3                             A-1880-15T2
     In her oral opinion, the motion judge found the State met its

burden in demonstrating, by a preponderance of the evidence, that

the detectives performed a lawful motor-vehicle stop, and pursuant

to the stop, found the handgun in plain view.                  Accordingly, the

judge denied defendant's motion to suppress.                 While the judge did

not make an express finding as to credibility, this court infers

the judge implicitly credited Detective Alvarado's testimony over

A.W.'s.1    Before finding the State had met its burden, the judge

reviewed in detail the factors to consider in making credibility

findings.      The    judge    also   made    clear    she    found   "no    actual

contradiction     between      Detective       Alvarado's       written      report

memorializing what happened that night and his testimony before

this court."    Based upon our review of the judge's entire opinion,

we   are    satisfied    the    judge       credited    Detective     Alvarado's

testimony.

     This appeal followed, with defendant arguing:

            POINT I

                 THE COURT ERRED IN DENYING THE
                 MOTION TO SUPRESS. THE STATE FAILED
                 TO ESTABLISH THAT THE CAR'S TINTED
                 WINDOWS WERE ILLEGAL, POSSESSION OF
                 A HANDGUN WAS NOT ILLEGAL AT THE

1
  "[A] trial court's factual findings . . . should not ordinarily
be disturbed where 'there is substantial evidence to support [its]
implicit finding[s].'" State v. Locurto, 157 N.J. 463, 471 (1999)
(quoting Meshinsky v. Nichols Yacht Sales, Inc. 110 N.J. 464, 475
(1988)).

                                        4                                   A-1880-15T2
                TIME THE GUN WAS SEIZED, AND THERE
                WAS NO JUSTIFICATION TO SEIZE THE
                HANDGUN FROM INSIDE MR. ELEY'S CAR.

We reject these contentions and affirm.

                                II.

     Our review of a trial judge's decision on a motion to suppress

is limited.   State v. Adubato, 420 N.J. Super. 167, 176 (App. Div.

2011), certif. denied, 209 N.J. 430 (2012).   In reviewing a motion

to suppress evidence, we must uphold the judge's factual findings,

"so long as those findings are supported by sufficient credible

evidence in the record."   State v. Lamb, 218 N.J. 300, 313 (2014)

(citing State v. Elders, 192 N.J. 224, 243 (2007)).   Additionally,

we defer to a trial judge's findings that are "substantially

influenced by [the trial judge's] opportunity to hear and see the

witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy."   State v. Rockford, 213 N.J. 424, 440 (2013)

(quoting State v. Robinson, 200 N.J. 1, 15 (2009)).     We do not,

however, defer to a trial judge's legal conclusion, which we review

de novo. State v. K.W., 214 N.J. 499, 507 (2013) (citing Manalapan

Realty, LP v. Twp Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Applying these standards, we discern no reason to disturb the

judge's ruling.




                                 5                          A-1880-15T2
                                A.

        The United States and New Jersey Constitutions permit a

brief investigative stop of a vehicle based on reasonable suspicion

"that an offense, including a minor traffic offense, has been or

is being committed."   State v. Amelio, 197 N.J. 207, 211 (2008)

(quoting State v. Carty, 170 N.J. 632, 639-40, modified by 174

N.J. 351 (2002), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173

L. Ed. 2d 1297 (2009)).   An investigatory stop "is valid if it is

based on specific and articulable facts which, taken together with

rational inferences from those facts, give rise to a reasonable

suspicion of criminal activity."       State v. Mann, 203 N.J. 328, 338

(2010) (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)).          "The

burden is on the State to demonstrate by a preponderance of the

evidence that it possessed sufficient information to give rise to

the required level of suspicion."       Amelio, supra, 197 N.J. at 211

(citing Pineiro, supra, 181 N.J. at 19-20).

     Reasonable suspicion of "[a] motor[-]vehicular violation, no

matter how minor, justifies a stop [even] without any reasonable

suspicion that the motorist has committed a crime or other unlawful

act."    State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div.

2011).    "To satisfy the articulable and reasonable suspicion

standard, the State is not required to prove that the suspected

motor-vehicle violation occurred."        Locurto, supra, 157 N.J. at

                                   6                            A-1880-15T2
470.   That is "the State need prove only that the police lawfully

stopped the car, not that it could convict the driver of the motor-

vehicle offense."        State v. Heisler, 422 N.J. Super. 399, 413

(App. Div. 2011) (quoting State v. Williamson, 138 N.J. 302, 304

(1994)) (superseded by Rule 3:23-8(a), which regards the Law

Division's review of municipal appeals).

       The State must also show that an officer has an objective

belief that a traffic violation actually occurred. State v. Puzio,

379 N.J. Super. 378, 383-84 (App. Div. 2005).            However, "the fact

that information an officer considers is ultimately determined to

be inaccurate . . . does not invalidate a seizure."                 State v.

Pitcher, 379 N.J. Super. 308, 318 (App. Div. 2005), certif. denied,

186 N.J. 242 (2006).

       Here, Detective Alvarado testified he stopped defendant's car

because he observed the vehicle had tinted front and side windows,

which he described as "a motor[-]vehicle infraction."               Notably,

this court held in State v. Cohen, 347 N.J. Super. 375, 380 (App.

Div. 2002), "that N.J.S.A. 39:3-74 prohibits the use of tinted

windows [that] fail to meet the applicable standard now set forth

in N.J.A.C. 13:20-33.7."          Moreover, "it matters not whether the

equipment used violates N.J.S.A. 39:3-74, because the fact that a

defendant   is   later    found    not   guilty   does   not   denigrate   the

propriety of the initial stop so long as it is based upon a

                                         7                            A-1880-15T2
reasonable articulable suspicion that a motor[-]vehicle violation

has occurred."     Ibid.

     As such, the State need not establish that the car's windows

were tinted with "non-transparent material," as defendant argues.

Rather, the State need only demonstrate, as the record reflects,

that Detective Alvarado had a reasonable suspicion the car's

windows were illegally tinted.    Accordingly, defendant's argument

lacks merit, and we affirm the trial court's holding regarding the

stop's legality.

                                  B.

     A warrantless search is presumptively invalid unless the

State demonstrates the search "falls within a recognized exception

to the warrant requirement."     State v. Wright, 221 N.J. 456, 468

(2015).   Here, the detectives justified their seizure of the

handgun using the plain view exception.      The rationale for the

plain view doctrine is that "a police officer lawfully in the

viewing area" need not "close his [or her] eyes to suspicious

evidence in plain view."    State v. Johnson, 171 N.J. 192, 207

(2002) (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983),

overruled in part by State v. Gonzales, 227 N.J. 77 (2016)).     For

the plain view exception to apply, the State must show that "the

officer [was] lawfully . . . in the area where he [or she] observed

and seized the incriminating item or contraband, and it must be

                                  8                         A-1880-15T2
immediately apparent that the seized item is evidence of a crime."

State v. Evans, 449 N.J. Super. 66, 82-83 n.7 (App. Div.) (quoting

Gonzales, supra, 227 N.J. at 101) certif. granted, ____ N.J. ____

(2017).

     Here, defendant argues his possessing the handgun did not

immediately evidence a crime because New Jersey's gun amnesty law, 2

which allowed those in possession of illegal guns to legally

dispose of them within 180 days, shielded him.     L. 2013, c. 117.

Notably, defendant raises this issue for the first time on appeal.

Our Supreme Court recently addressed this issue in Harper, and

held, "A defendant . . . has the burden to raise the defense at

trial."     Harper, supra, 229 N.J. at 241.   Defendant's failure to

raise this issue in the trial court constitutes a waiver of this

defense.3



2
  "The Legislature passed an amnesty bill in 2013 that, 'for a
period of not more than 180 days from the effective date of [the]
act,' L. 2013, c. 117, enabled people to dispose of guns they
possessed illegally. During that time, the law allowed individuals
to transfer or voluntarily surrender firearms." State v. Harper,
229 N.J 228, 231-32 (2017).
3
  Even if defendant had invoked this defense in the Law Division,
it did not present defendant with a viable defense since it is
illegal to transport a firearm if it is not, "unloaded and
contained in a closed and fastened case, gunbox, securely tied
package, or locked in the trunk of the automobile in which it is
being transported." N.J.S.A. 2C:39-6g.



                                  9                          A-1880-15T2
     In contrast, the record before us supports the motion judge's

findings confirming the existence of the revised plain view factors

under Gonzales.4 The judge's determination of Detective Alvarado's

credibility is sufficient to establish that he was lawfully in the

viewing area investigating the car's tinted windows.   Furthermore,

the illicit nature of the handgun was immediately obvious to

Detective Alvarado, based on his training and experience as a

police detective.   Accordingly, we find that the motion judge

correctly denied defendant's motion to suppress evidence.

     Affirmed.




4
  "In Gonzales, . . . our Supreme Court reviewed the plain view
exception to the warrant requirement under Article I, Paragraph 7
of the New Jersey Constitution [and] discarded the prior
requirement that evidence be discovered inadvertently to conform
to federal jurisprudence." Evans, supra, 449 N.J. Super. at n.7
(citing Gonzales, supra, 227 N.J. at 95-97, 99-101).

                               10                           A-1880-15T2
