                                NOT FOR PUBLICATION WITHOUT THE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-3296-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KENNETH K. COOK, a/k/a
KEITH COOK, JACQUE BOOKER,
JACQUES J. BOOKER, and KEITH
ROBERSON,

     Defendant-Appellant.
______________________________

                    Submitted September, 11, 2019 – Decided September 27, 2019

                    Before Judges Koblitz and Gooden Brown.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 15-06-1457.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Amira R. Scurato, Designated Counsel, on
                    the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Emily M. M. Pirro,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).
PER CURIAM

      Following the denial of his motion to suppress evidence seized without a

warrant, defendant Kenneth Cook entered a negotiated guilty plea to second-

degree eluding, N.J.S.A. 2C:29-2(b), and two counts of third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(5)(a).   The charges stemmed from a multi-car

police pursuit of a vehicle driven by defendant with one other occupant. The

chase ended when defendant's car struck a police vehicle, injuring the two

officers inside, and both defendant and the passenger were apprehended when

they allegedly attempted to flee the scene. The pursuit began when police

attempted to conduct a motor vehicle stop of defendant's vehicle based on erratic

driving, and because the car allegedly matched the description of a vehicle

involved in a nearby armed robbery. After the collision, inside the car, officers

allegedly observed two black masks, three black surgical gloves, and a plastic

bag containing $319 in currency on the rear seat. Officers also allegedly found

ten envelopes containing suspected heroin in the center console.

      Defendant was sentenced in accordance with the plea agreement to an

aggregate term of six years' imprisonment, and the remaining drug and weapons

related charges contained in the nine-count indictment returned against him were




                                                                         A-3296-17T3
                                       2
dismissed.1      On appeal, defendant raises the following points for our

consideration:

              POINT I

              THE TRIAL JUDGE ERRED IN FINDING NO
              FACTUAL DISPUTE AT THE MOTION TO
              SUPPRESS.

              POINT II

              THE SEARCH AND SEIZURE IN THIS CASE DID
              NOT   FALL   WITHIN   THE    PLAIN-VIEW
              EXCEPTION TO THE WARRANT REQUIREMENT
              AND THEREFORE THE POLICE SEIZURE OF THE
              EVIDENCE WITHOUT FIRST OBTAINING A
              WARRANT WAS UNCONSTITUTIONAL.

              POINT III

              THE TRIAL JUDGE ERRED IN FAILING TO FIND
              MITIGATING FACTORS.

      The State concedes that because defendant "raise[d] a dispute of material

fact regarding the search and seizure of the car . . . at the motion hearing[,]" the


1
  The remaining six counts consisted of third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a); third-degree possession of
CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third-degree
possession of CDS with intent to distribute within 1000 feet of school property,
N.J.S.A. 2C:35-7(a); second-degree possession of CDS with intent to distribute
within 500 feet of certain public property, N.J.S.A. 2C:35-7.1(a); fourth-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The passenger was also
charged in the drug related counts of the indictment.
                                                                            A-3296-17T3
                                         3
motion judge erred when he failed to conduct an evidentiary hearing. See R.

3:5-7 (providing that when a defendant files a motion "claiming to be aggrieved

by an unlawful search and seizure[,]" R. 3:5-7(a), if "material facts are disputed,

testimony thereon shall be taken in open court[,]" R. 3:5-7(c)). The State

acknowledged defendant disputed fleeing the vehicle "after the collision," to

"rebut the State's contention that he abandoned the evidence seized[,]" and "cited

to the absence of any mention of CDS on the dispatch recording" to dispute "that

the heroin was . . . in plain view in the center console." Thus, we remand for an

evidentiary hearing in accordance with Rule 3:5-7(c).

      With regard to defendant's claim that the sentencing judge did not consider

appropriate mitigating factors, we point out that "[a]ppellate review of the length

of a sentence is limited[,]" State v. Miller, 205 N.J. 109, 127 (2011), and "[a]

sentence imposed pursuant to a plea agreement is presumed to be reasonable."

State v. Fuentes, 217 N.J. 57, 70 (2014). Thus, we review a sentence for abuse

of discretion, State v. Pierce, 188 N.J. 155, 166 (2006), and we will affirm a

sentence so long as the sentencing judge "properly identifies and balances

aggravating and mitigating factors that are supported by competent credible

evidence in the record." State v. Natale, 184 N.J. 458, 489 (2005) (quoting State

v. O'Donnell, 117 N.J. 210, 215 (1989)).


                                                                           A-3296-17T3
                                        4
      Here, the judge noted defendant's extensive juvenile and adult criminal

history, consisting of "ten juvenile delinquency adjudications[,]" and "[eleven]

prior indictable convictions," many of them for "drug related offenses" dating

"all the way back to 1993[.]" The judge also pointed out that defendant had

served "several probation terms and four prison terms[,]" and admitted that he

abused CDS. As a result, the judge found aggravating factors three, six, and

nine. N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another

offense"); N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant's prior criminal

record and the seriousness of the offenses of which he has been convicted");

N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the defendant and others from

violating the law").

      The judge found no mitigating factors, rejecting defendant's claims that

his apology and remorse as well as the birth of his child supported finding the

applicable mitigating factors.    As to the latter, the judge pointed out that

defendant's claim that he now had a three-year-old child conflicted with his

statement during the "[p]re-[s]entence investigation" interview that he had no

children. The judge concluded the aggravating factors outweighed the non-

existent mitigating factors, and sentenced defendant accordingly.




                                                                          A-3296-17T3
                                        5
      Because there is substantial credible evidence in the record supporting the

judge's specific findings and balancing of the aggravating and mitigating factors,

we reject defendant's argument on appeal that the judge failed to "adequately

consider[] and weigh[]" mitigating factors 2, 8, 9, and 11. N.J.S.A. 2C:44-

1(b)(2) ("defendant did not contemplate that his conduct would cause or threaten

serious harm"); N.J.S.A. 2C:44-1(b)(8) ("[t]he defendant's conduct was the

result of circumstances unlikely to recur"); N.J.S.A. 2C:44-1(b)(9) ("[t]he

character and attitude of the defendant indicate that he is unlikely to commit

another offense"); and N.J.S.A. 2C:44-1(b)(11) ("[t]he imprisonment of the

defendant would entail excessive hardship to himself or his dependents").

      Thus, in the event defendant does not prevail on his suppression motion,

we affirm the sentence.     We are satisfied the sentence imposed is neither

inconsistent with sentencing provisions of the Code of Criminal Justice ,

unsupported by the record, nor so "'unreasonable . . . as to shock the judicial

conscience.'" Fuentes, 217 N.J. at 70 (quoting State v. Roth, 95 N.J. 334, 364-

65 (1984)).

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




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