                        NOT FOR PUBLICATION WITHOUT THE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-0575-14T4



STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CLYDE GAYLE,

     Defendant-Appellant.
________________________________________

              Submitted February 28, 2017 – Decided March 17, 2017

              Before Judges Yannotti and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              12-08-2273.

              Law Offices of Edward J. Crisonino, attorneys
              for appellant (Edward J. Crisonino, on the
              brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney   for   respondent   (Jason   Magid,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant was tried before a jury and found guilty of certain

persons not to possess a firearm, contrary to N.J.S.A. 2C:39-7(b),
and other weapons-related offenses. The trial judge sentenced

defendant on the certain persons offense to an extended term of

fourteen   years   of    incarceration,   with   seven   years    of    parole

ineligibility,     and   imposed   concurrent    sentences   on   the    other

offenses. Defendant appeals from the judgment of conviction dated

August 22, 2014. We affirm.

                                     I.

     Defendant was charged under a Camden County indictment with

second-degree unlawful possession of a weapon, specifically, a .38

caliber handgun, N.J.S.A. 2C:39-5(b) (count one); fourth-degree

unlawful possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f)

(count two); and second-degree certain persons not to possess

weapons, N.J.S.A. 2C:39-7(b) (count three). Defendant filed a

motion to suppress evidence obtained from a car in which defendant

was a back-seat passenger, and the trial court conducted an

evidentiary hearing on the motion.

     At the hearing, Sergeant Raphael Thornton of the Camden County

Police Department, who for the prior seventeen years worked for

the City of Camden's Police Department (CCPD),1 testified that in

March 2012, he was assigned to the CCPD's Real Time Tactical

Operations Command Center, which is the department's technological


1
  The CCPD was replaced by the Camden County Police Department on
January 1, 2013. Redd v. Bowman, 223 N.J. 87, 102 (2015).

                                     2                                 A-0575-14T4
arm. Thornton testified that on March 24, 2012, at approximately

4:30 a.m., he was conducting a virtual patrol using a video camera

located in an area around Louis and Sycamore Streets. Thornton

observed     four    individuals   talking         to   a   male,   who   was     later

identified     as    defendant.    Thornton        described     defendant       as    an

African-American male, who was wearing a white t-shirt and dark

jeans.

       Thornton said defendant was on the porch of a residence

speaking with four persons. Thornton observed two of the four

individuals walk away, and a man and a woman remained. Defendant

left   the   porch    and   approached       the    two     individuals.   Thornton

testified that defendant and the male began having a very violent

argument.

       Thornton said he observed the woman try to grab the man's arm

in an effort to get him to leave, but he evaded her and she walked

away. Defendant and the man continued to argue. The woman returned

and again grabbed the man. They both walked away, out of the range

of the camera.

       Then, according to Thornton, ShotSpotter, the CCPD's gunshot-

alert system, was activated. Thornton explained that ShotSpotter

is a system that the military developed. He said the system

             was used for snipers in Iraq to pinpoint a
             sniper. We use it now in the city to pinpoint
             firearms. It lets us pinpoint or close down

                                         3                                      A-0575-14T4
           an area where a firearm is being fired. It's
           four acoustic systems set up throughout the
           city and they intertwine. And when a firearm
           is fired, [ShotSpotter will] pinpoint it by
           echoing the sounds off the acoustic systems.

Thornton stated that ShotSpotter provides the address where a shot

was fired, whether it was fired in the back or front yard of a

residence, or whether the shot came directly out of a house.

Defense counsel did not object to Thornton's testimony regarding

ShotSpotter.

     Thornton further testified that he then observed defendant

run back onto the porch and into the house. Several seconds later,

defendant exited the house with several other individuals. As

defendant exited the house, Thornton noticed that defendant's hand

was on the right-side of the waistband of his pants. Thornton

testified, "it looked like he was positioning something or holding

something. Once he got comfortable, he took his hand off his right

waistband and began to walk."

     Thornton stated that when defendant "got to the foot of the

steps on the sidewalk, he gave another check[.]" Defendant then

walked   toward   a   black   Saturn.   Thornton   suspected   that   the

unidentified male and/or woman had fired a gun at defendant, which

prompted defendant to go into the house and retrieve a gun for his

own protection.



                                    4                            A-0575-14T4
     Thornton believed that defendant was in possession of a

handgun, based upon the way defendant walked and adjusted his

hand. Thornton thought defendant's movements indicated he was

positioning a firearm in the waistband of his pants. Thornton

directed officers in the area to respond to the scene. He gave the

officers a description of defendant and told them defendant may

be in possession of a firearm.

     Officer Harry Welch of the CCPD immediately responded to the

area near the intersection of Haddon Avenue and Sycamore Street.

He observed an African-American male in a white t-shirt entering

the black Saturn. Welch identified defendant as the person he

observed.   Welch   testified   that   the   area   was   well-lit   with

streetlights, and he had a clear view of defendant.

     As Welch approached the Saturn, the occupants of the vehicle

noticed him coming towards them. Welch observed defendant sitting

in the backseat of the car behind the driver. He testified, "I saw

the defendant scurrying, like, bending over, like, grumbling [sic]

about, you know, just doing something behind the backseat of the

driver's side."

     Welch ordered the occupants to show their hands. Other CCPD

officers arrived at the scene, and they began to ask the occupants

to exit the vehicle, one at a time. Defendant got out of the car,

after the officers instructed him to do so. As the occupants exited

                                  5                              A-0575-14T4
the Saturn, one of the officers saw a weapon underneath the

driver's seat.

      The officer told Welch he saw a weapon. After Welch secured

one   of   the   occupants,   he   looked   and   noticed   the   weapon.   He

testified, "I know what a handgun looks like. I could see the

actual gun. You could see the gun underneath the seat. It wasn't

completely under the seat, but you could see it." After the

occupants were secure, Welch seized the weapon. The officers

secured the gun and determined that it contained hollow-point

bullets.

      After the officers testified, a video recording of the stop

and seizure of the weapon was played. The judge observed that it

was not the best of recordings. The judge said he could see a

"flurry of activity," but he could not determine whether there was

anything in the record that was inconsistent with the officers'

testimony.

      The judge then placed his decision on the record. The judge

noted that the officers had acted in "a fast-moving situation" in

which there were reports of a gun and gunfire. The judge stated

this was "the most lethal emergent situation that the police face

on the criminal front."

      The judge rejected defendant's contention that the officers

made the investigatory stop based solely on the report of gunfire.

                                      6                              A-0575-14T4
The judge noted that the officers also had acted on the basis of

their observations of defendant. The judge pointed out that the

officers had observed defendant being involved in and/or around a

shooting.

     The judge found that defendant was conducting himself in a

manner consistent with an individual who possessed a handgun. The

judge also noted that defendant was only wearing a t-shirt. The

judge observed that this was unusual attire for an early-March

morning, which is typically a cold time of the year. The judge

said one of the officers saw defendant engage in suspicious conduct

inside the car.

     The judge concluded that the investigatory stop was valid

because the officers had reasonable suspicion of illegal conduct.

The judge also concluded that the officers validly seized the

weapon   pursuant   to   the   plain   view   exception   to   the   warrant

requirement. Accordingly, the judge denied defendant's motion to

suppress the evidence found in the vehicle.

     Thereafter, defendant was tried before a jury. At the trial,

Thornton and Welch presented testimony that was essentially the

same as the testimony they gave at the suppression hearing. On

cross-examination, Welch acknowledged receiving a call informing

him that shots had been fired in the area. The following colloquy

ensued between defense counsel and Welch:

                                       7                             A-0575-14T4
          Q. And you're aware of something               called
          ShotSpotter, is that right?

          A. Yes.

          Q. And ShotSpotter, it pinpoints where a shot
          was fired, is that right?

          A. It is supposed to.

          Q. Supposed to, okay. And you testified         that
          it was the area — the area that you were        told
          was the area of Haddon and Sycamore, is         that
          right? So you were dispatched to that           area
          because there was a shot fired?

          A. I was dispatched to that area, yes.

          Q. Okay. And you were dispatched to that area,
          but were you told where the ShotSpotter went
          off?

          A. Negative.

    In addition, Thornton testified that in March 2012, he was

assigned to a unit that conducts virtual patrols of areas of the

city,   using   approximately     fifty    surveillance     cameras     and

ShotSpotter.    Thornton   was   asked    to   explain   ShotSpotter.    He

testified that ShotSpotter

          is a system developed by the military. It was
          originally developed to help our soldiers
          combat snipers. It basically is a series of
          microphones that triangulate soundwaves and
          give you a grid coordinate. And if you can
          imagine soundwaves intercepting in the sky,
          and [it will] give you a longitude and
          latitude of where that sound wave came from.




                                   8                              A-0575-14T4
Thornton added that ShotSpotter is "designed to pick up gunshots."

He said the system is capable of pinpointing the place where a

shot was fired, within a city block.

     Certain stipulations and evidence were then placed on the

record. They included a ShotSpotter report; an affidavit from the

State Police indicating that defendant did not have a permit for

the weapon; documents pertaining to the Saturn; a report from the

State Police indicating that no identifiable fingerprints had been

found on the gun or the ammunition magazine; and a State Police

affidavit stating that the handgun was "safely capable of firing."

     Defendant elected not to testify, and he did not call any

witnesses on his behalf.

     The   jury   found   defendant       guilty   on   all   counts   of   the

indictment. Thereafter, the court granted the State's motion for

imposition of an extended term. The court then sentenced defendant

on count three (certain persons not to possess weapons) to an

extended term of fourteen years of incarceration, with seven years

of parole ineligibility. The court imposed concurrent sentences

on the other counts, and entered a judgment of conviction dated

August 22, 2014. Defendant's appeal followed.

     On appeal, defendant argues:

           POINT ONE
           THE TESTIMONY CONCERNING THE SHOTSPOTTER
           SHOULD NOT HAVE BEEN ADMITTED AT TRIAL OR AT

                                      9                                A-0575-14T4
          THE [HEARING ON THE] SUPPRESSION MOTION (NOT
          RAISED BELOW).

          POINT TWO
          THE DEFENDANT'S SUPPRESSION MOTION SHOULD HAVE
          BEEN GRANTED.

          POINT THREE
          THE DEFENDANT SHOULD NOT HAVE BEEN SENTENCED
          TO AN EXTENDED TERM.

                                 II.

     We turn first to defendant's argument that the testimony

about ShotSpotter should not have been admitted at the suppression

hearing or at the trial because Thornton was not qualified as an

expert witness, and there was never a hearing to determine whether

the ShotSpotter system is scientifically reliable.

     As we noted previously, defendant did not object to Thornton's

testimony regarding ShotSpotter, either at the suppression hearing

or at trial. Moreover, at the trial, defendant agreed to the

admission of the ShotSpotter report. We therefore consider whether

the admission of the testimony regarding ShotSpotter constituted

plain error, that is, an error "clearly capable of producing an

unjust result." R. 2:10-2.

     Here,   the   officers   conducted   an   investigatory   stop    of

defendant, which is permitted if the officer has reasonable and

particularized suspicion that an individual has engaged in, or was

about to engage in, criminal activity. Terry v. Ohio, 392 U.S. 1,


                                  10                            A-0575-14T4
21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). In assessing

whether the officer had reasonable suspicion, the court must

consider the totality of the circumstances. State v. Stovall, 170

N.J. 346, 356 (2002) (citing Terry, supra, 392 U.S. at 21, 88 S.

Ct. at 1880, 20 L. Ed. 2d at 906).

      The admission of the testimony regarding ShotSpotter at the

suppression hearing was not erroneous. The State was not required

to have Thornton qualified as an expert. His testimony about

ShotSpotter was largely factual. His opinion that ShotSpotter

produces reliable results was proper lay opinion testimony under

N.J.R.E. 701. It was rationally based on his own perceptions.

      Moreover,    the    State    was    not       required    to    establish     that

testimony      about    ShotSpotter      was    scientifically         reliable      for

admission      under    N.J.R.E.   702.       The    State     only   presented      the

testimony to show the source of Thornton's knowledge that a shot

had been fired at approximately 4:30 a.m. on March 24, 2012, in

the area of Louis and Sycamore Streets in the city.

      As noted previously, Thornton testified that ShotSpotter is

a   reliable    means    for    detecting      gunshots      and     their    location.

Thornton's     testimony       about   ShotSpotter       provided      a     sufficient

foundation for its admission on the question of whether Thornton

reasonably believed a shot had been fired in the area under

surveillance.

                                         11                                     A-0575-14T4
       Therefore, the testimony regarding ShotSpotter was admissible

at the suppression hearing. See State v. Doriguzzi, 334 N.J. Super.

530,    546   (App.   Div.   2000)   (noting   that   the   horizontal    gaze

nystagmus test is not sufficiently reliable for admission as proof

the defendant was driving under the influence of alcohol, which

was    "qualitatively    different"    from    admitting    the   evidence   to

establish probable cause to arrest).

       We also reject defendant's contention that the admission at

trial of the ShotSpotter testimony constituted plain error. Even

if we agreed that testimony about ShotSpotter should not have been

admitted unless the State established that the ShotSpotter system

is scientifically reliable, the admission of the testimony was not

"clearly capable of producing an unjust result." R. 2:10-2.

       Defendant was not charged with shooting the weapon. He was

tried on charges related to the possession of a handgun and hollow-

point bullets. The ShotSpotter testimony was not presented as

proof of any of the elements of the charged offenses.

       Rather, the testimony regarding ShotSpotter was background

information, which had no direct bearing on whether defendant was

guilty of the charged offenses. The testimony was only presented

to show the reasons the officers stopped defendant, and to explain

how they came to seize the weapon and the ammunition. Furthermore,

even without the evidence regarding ShotSpotter, the State had

                                      12                              A-0575-14T4
presented more than enough evidence to show that defendant was

guilty of the charged offenses, beyond a reasonable doubt.

      Thus, even if the admission of the ShotSpotter testimony was

erroneous, the error was harmless. See State v. Macon, 57 N.J.

325, 336 (1971) (noting that an error is harmless if it does not

"raise a reasonable doubt as to whether the error led the jury to

a result it otherwise might not have reached").

                                      III.

      Next, defendant argues that the trial court erred by denying

his motion to suppress the firearm and the hollow-point bullets

seized   from   the   vehicle.   Defendant     again   contends   that    the

testimony regarding ShotSpotter should not have been admitted at

the   suppression     hearing.   He   also   argues    that,   without   such

evidence, Welch did not have reasonable and articulable suspicion

of criminal activity to conduct the investigatory stop, and the

seizure of the firearm and ammunition was unlawful.

      We are required to uphold the factual findings of the trial

court on a suppression motion if "those findings are 'supported

by sufficient credible evidence in the record.'" State v. Elders,

192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463,

474 (1999)). We must defer to the trial court's findings "which

are substantially influenced by [the court's] opportunity to hear

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

                                      13                             A-0575-14T4
reviewing court cannot enjoy." Id. at 244 (quoting State v.

Johnson, 42 N.J. 146, 161 (1964)).

       As stated previously, a law enforcement officer may conduct

an    investigatory      stop   where    the   officer   has   reasonable    and

articulable suspicion that the person has engaged or was about to

engage in unlawful activity. Terry, supra, 392 U.S. at 21, 88 S.

Ct. at 1880, 20 L. Ed. 2d at 906. In deciding whether the officer

had reasonable suspicion, the court considers the totality of the

circumstances. Stovall, supra, 170 N.J. at 356-57 (2002) (citing

Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at

906).

       Here, there is sufficient credible evidence in the record to

support the trial court's determination that the officers had

reasonable articulable suspicion that defendant had engaged in,

or was about to engage in, criminal activity. As we have concluded,

the     testimony   regarding     ShotSpotter      was   admissible   at     the

suppression hearing. Thornton determined, based on the activation

of the ShotSpotter system, that a shot had been fired from a gun

in the area under surveillance.

       Using the surveillance camera, Thornton observed defendant

leave    a   residence    and   engage    in   actions   consistent   with    an

individual who is in possession of a handgun. Thornton testified

that he had reached this conclusion based on the way defendant

                                        14                             A-0575-14T4
walked out of the house, the way defendant had positioned his

hand, and the belief that defendant had "just been fired at."

Thornton thought defendant may have retrieved the weapon for his

own protection, because defendant did not know if the individual

who fired the shot at him would return.

      Furthermore, Thornton dispatched Welch to the area of Haddon

Avenue     and   Sycamore     Street,   and    he   provided   Welch    with     a

description of defendant. Thornton described the clothes defendant

was wearing, including the white t-shirt. Welch testified that he

observed defendant enter a black Saturn. Defendant was sitting

behind the driver in the rear passenger seat. Welch saw defendant

"scurrying,"     "bending     over,"    and   "doing   something   behind      the

backseat of the driver's side." He was engaging in actions Welch

thought suspicious.

      The evidence therefore supports the trial court's finding

that, based on the totality of the circumstances, the officers had

reasonable and articulable suspicion that defendant had engaged

in,   or   was   about   to   engage    in,   criminal   activity.     There    is

sufficient credible evidence in the record to support the trial

court's determination that the investigatory stop was proper.

      We note that defendant does not argue that the seizure of the

handgun was unlawful. In any event, the testimony presented at the

hearing shows that the weapon was lawfully seized pursuant to the

                                        15                              A-0575-14T4
plain view doctrine. See State v. Bruzzese, 94 N.J. 210, 236 (1983)

(citing Coolidge v. New Hampshire, 403 U.S. 443, 465-70, 91 S. Ct.

2022, 2037-40, 29 L. Ed. 2d 564, 582-84 (1971)).

                                    IV.

     Defendant   further   argues    that   he   should   not   have   been

sentenced to an extended term as a persistent offender pursuant

to N.J.S.A. 2C:44-3(a). He contends the trial judge failed to

undertake the analysis required to determine if an extended-term

sentence is appropriate.

     An appellate court's review of the trial courts' "sentencing

decisions is relatively narrow and is governed by an abuse of

discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010).

We consider "whether the trial court has made findings of fact

that are grounded in competent, reasonably credible evidence and

whether the 'factfinder [has] appl[ied] correct legal principles

in exercising its discretion.'" Ibid. (alterations in original)

(quoting State v. Roth, 95 N.J. 334, 363 (1984)).

     We may not set aside a trial court's sentence unless (1) the

trial court did not follow the sentencing guidelines; (2) the

court's findings of aggravating and mitigating factors were not

based upon sufficient credible evidence in the record; or (3) the

court's application of the sentencing guidelines to the facts of

the case "shock[s] the judicial conscience." State v. Bolvito, 217

                                    16                             A-0575-14T4
N.J. 221, 228 (2014) (alteration in original) (quoting State v.

Roth, 95 N.J. 334, 364-65 (1984)).

     Here,   the   trial   judge    found   aggravating    factors    three,

N.J.S.A. 2C:44-1(a)(3) (risk that defendant will re-offend); six,

N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal record and the

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

nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others

from violating the law). The judge observed that defendant had

four prior Superior Court convictions and two previous municipal

court convictions. The judge found no mitigating factors.

     The judge also found that, based on his prior criminal

convictions, defendant was eligible for an extended term pursuant

to N.J.S.A. 2C:44-3(a) as a persistent offender. The judge imposed

an extended term of fourteen years of incarceration on count three

(second-degree certain persons not to possess a weapon), with a

seven-year   period   of   parole   ineligibility.   The    judge    imposed

concurrent sentences on the other counts.

     On appeal, defendant argues that, in deciding to impose the

extended-term sentence, the trial judge failed to engage in the

analysis prescribed in State v. Dunbar, 108 N.J. 80 (1987). Dunbar

requires the sentencing judge to determine whether the defendant

is eligible for an extended term; decide whether an extended term

should be imposed; weigh the aggravating and mitigating factors

                                    17                               A-0575-14T4
to determine the base term of the sentence; and decide whether to

impose a period of parole ineligibility. Dunbar, supra, 108 N.J.

at 89.

      Here, the trial judge provided sufficient reasons for the

imposition    of     the   extended     term.   The    judge's     findings       of

aggravating    factors      were    supported     by   sufficient         credible

evidence, including defendant's prior criminal record. Moreover,

the   judge   weighed      the   aggravating    factors   and    lack      of   any

mitigating factors in determining the base term of the sentence.

The   judge   also     found     that   a    seven-year   period     of     parole

ineligibility was warranted. Simply put, the judge performed the

required analysis when imposing the extended-term sentence.

      Affirmed.




                                        18                                 A-0575-14T4
