                                NOT FOR PUBLICATION WITHOUT THE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-4142-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN J. CANTALUPO, a/k/a
JOHN J. CANTALUPO, JR.,

     Defendant-Appellant.
______________________________

                    Argued December 19, 2018 – Decided January 8, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 13-07-1772.

                    Thomas M. Cannavo argued the cause for appellant
                    (Steven W. Hernandez, attorney; Thomas M. Cannavo,
                    of counsel and on the brief).

                    William K. Meighan, Senior Assistant Prosecutor,
                    argued the cause for respondent (Bradley D. Billhimer,
                    Ocean County Prosecutor, attorney; Samuel
                    Marzarella, Chief Appellate Attorney, of counsel;
                    William K. Meighan, on the brief).
PER CURIAM

      Defendant John J. Cantalupo appeals from a March 29, 2017 order after a

bench trial in which he was found guilty of possession of a controlled dangerous

substance (CDS) in an automobile, N.J.S.A. 39:4-49.1; driving while intoxicated

(DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; failure to wear a

seatbelt, N.J.S.A. 39:3-76.2(f); failure to observe traffic signals, N.J.S.A. 39:4-

81; and third-degree possession of Phencyclidine (PCP), N.J.S.A. 2C:35-

10(a)(1). As part of his sentence, defendant received three years of probation

with 180 days in jail, but the court suspended 150 days of the jail time imposed.

We affirm the convictions, but reverse and remand the sentence in accordance

with this opinion.

      The following facts are taken from the record. On January 12, 2013, Toms

River Police Sergeant Daniel Sysol observed a vehicle operated by defendant

moving unusually slow and well below the speed limit, traveling southbound on

Vermont Avenue toward the intersection with Cox Cro Road. Sysol followed

the vehicle, which stopped briefly at a red light before making an illegal left-

hand turn on red.

      When Sysol stopped the vehicle he noted defendant was not wearing his

seatbelt. Defendant was moving slowly, fumbled his credentials, spoke with


                                                                           A-4142-16T2
                                        2
slurred speech, and his pupils were unusually constricted. Sysol requested

defendant exit the vehicle and observed he was moving slowly and having

difficulty standing and walking without falling or swaying from side -to-side.

Sysol requested a Drug Recognition Expert ("DRE") assist in the investigation.

      Officer Steven Schwartz, a DRE, responded.              He also observed

defendant's pupils were constricted and noted he had difficulty maintaining his

balance. Additionally, he detected a strong chemical odor on defendant's breath.

Schwartz requested defendant perform a field sobriety test.

      Schwartz had defendant perform a Horizontal Gaze Nystagmus ("HGN")

test. Schwartz testified defendant's eyes did not follow his finger smoothly and

his body swayed from side-to-side, which were signs of impairment. Schwartz

next conducted a walk-and-turn-test, which defendant also struggled to perform.

Defendant stumbled several times, had difficulty maintaining his balance, held

his arms out horizontally for balance, failed to touch his toe to heel as he took

each step, and took more steps than directed. Schwartz also directed defendant

to perform a one-leg-stand test, but he was unable to raise his foot off the ground

without losing balance.




                                                                           A-4142-16T2
                                        3
       Defendant was arrested for DWI, read his Miranda1 warnings, and placed

in a police vehicle. Prior to transporting defendant's vehicle from the scene,

Schwartz illuminated its interior and observed a small glass vial positioned

between the center console and the driver's seat. Schwartz testified the vial

looked similar to an eyedropper glass with a black cap, and believed it contained

CDS based on its appearance and the chemical odor on defendant's breath.

Schwartz observed the contents of the vial were a brown liquid substance with

floating vegetative matter. Subsequent laboratory testing on the vial revealed it

contained PCP.

       At the police station, defendant was read his Miranda warnings a second

time, and signed a waiver form. An Alcotest indicated a blood alcohol content

of 0.0. As a result, Schwartz performed a full DRE to determine the source of

defendant's impairment. He conducted another HGN test, which defendant

failed. He also conducted a lack of convergence ("LOC") test where defendant

was instructed to follow the officer's fingertip as it was moved toward

defendant's nose. Defendant's eyes remained focused straight ahead and did not

converge on the officer's fingertip, which was a sign of intoxication.




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-4142-16T2
                                        4
      Defendant was also asked to stand with his feet together, close his eyes,

tilt his head backward, and estimate the passage of thirty seconds without

counting aloud.    Although defendant was able to count for twenty-seven

seconds, he swayed in a circular motion throughout the test.

      Schwartz conducted another one-leg-stand test during which defendant

failed to maintain his balance. He also performed a dark room test to observe

how defendant's pupils adjusted to light. Defendant's pupil constriction was

slow. Defendant's blood pressure was elevated, and his body temperature was

below normal during the testing. However, his muscle tone was normal and he

showed no signs of injection sites or drug residue in the mouth or nose.

      Schwartz interviewed defendant as a part of the DRE.         He testified

defendant still had a chemical odor on his breath, spoke in slurred speech, and

admitted to smoking a cigarette dipped in PCP approximately fifteen minutes

before he was stopped. Defendant also admitted he had taken Percocet earlier

in the day because he was experiencing shoulder pain. Defendant consented to

providing a urine sample, which tested positive for oxycodone and PCP.

      We next recite the extensive pre-trial timeline and motion practice, which

occurred in this case, because it bears on the issues raised in the appeal.

Defendant incurred the motor vehicle charges in January 2013, and was indicted


                                                                           A-4142-16T2
                                       5
for the drug possession charge in July 2013. On July 25, 2013, the State offered

to recommend probation with 364 days in jail, in return for defendant's entry of

a guilty plea with respect to the DWI and CDS charges. Defendant did not enter

into a plea and was subsequently arraigned in September 2013.

        On June 23, 2014, the State hand-delivered the urinalysis report to

defendant. In January 2015, defendant filed a motion to dismiss the indictment

and the charges on speedy trial grounds. The motion was denied in February

2015.

        On March 18, 2015, the State requested a plea cutoff date and a trial date.

Five days later, defendant requested the State agree to a conditional plea, which

would have allowed him to plead guilty to the indictable offense while

preserving his right to appeal the denial of the speedy trial motion. The State

rejected the request.

        In April 2015, defendant filed a motion to stay the imposition of the

sentence and to set bail in the event of a conviction. In May 2015, defense

counsel advised the court defendant would likely plead guilty and requested the

motion be adjourned until after the plea.

        On May 18, 2015, defendant retained new counsel, who filed a motion to

suppress the urinalysis and field sobriety tests the following day. The court


                                                                           A-4142-16T2
                                         6
heard extensive testimony on the motion on October 15, October 28, and

November 12, 2015, and ultimately denied it on December 1, 2015.

      On January 4, 2016, defendant renewed the request for a conditional plea,

which the State rejected. On January 29, 2016, he filed a motion to compel the

conditional plea over the State's objection, which the court denied on February

22, 2016.

      A plea cutoff date was set for March 15, 2016, and a trial date was set for

September 13, 2016. A month before trial, defendant moved to sever the motor

vehicle offenses from the indictable charge. A day later he filed another motion

raising seven arguments, none of which are raised on appeal.

      On September 9, 2016, defendant made a third request for a conditional

plea, which was rejected. Because a new trial judge was assigned to the case,

the trial date was converted into a status conference with that judge, who set

trial for October 25, 2016.

      On September 15, 2016, defendant requested an adjournment of the trial

because his expert was unavailable to testify. On September 20, 2016, he filed

a motion for reconsideration of the conditional plea and the speedy trial

determinations. The motions were argued on October 11 and October 14, and

denied on October 26, 2016.


                                                                         A-4142-16T2
                                       7
     Defendant filed a motion for leave to appeal from the denial of

reconsideration. We denied the motion on December 19, 2016.

     Defendant waived his right to a jury trial.   The trial commenced in

February 2017 and continued into March 2017. The trial judge found defendant

guilty on all charges and sentenced defendant in May 2017.      This appeal

followed.

     Defendant raises the following points:

            POINT I – THE LAW DIVISION ERRED IN
            DENYING THE INITIAL SPEEDY TRIAL
            DISMISSAL MOTION. THUS, ALL CHARGES
            SHOULD BE DISMISSED.

            POINT II – EVEN IF THE INITIAL SPEEDY TRIAL
            MOTION WERE CORRECTLY DENIED, THE
            ADDITIONAL DELAY DUE TO THE STATE'S
            ARBITRARY      REFUSAL     TO    ALLOW    A
            CONDITIONAL PLEA VIOLATED DEFENDANT'S
            SIXTH AMENDMENT AND ART. 1, PAR. 10
            SPEEDY      TRIAL    RIGHTS,     MANDATING
            DISMISSAL OF ALL CHARGES WITH PREJUDICE.

            POINT III – GIVEN THE LACK OF REASONABLE
            SUSPICION TO PERFORM PSYCHOPHYSICAL
            TESTS AT THE SCENE PURSUANT TO STATE V.
            BERNOKEITS, THE LAW DIVISION ERRED IN
            FAILING TO SUPPRESS ALL EVIDENCE SEIZED
            OR OBSERVED AS FRUIT OF THE POISONOUS
            TREE.      THUS, DEFENDANT SHOULD BE
            ACQUITTED OF ALL CHARGES ARISING AFTER
            THE MOTOR VEHICLE STOP.


                                                                     A-4142-16T2
                                     8
            POINT IV – THE LAW DIVISION ERRED IN
            DENYING THE MOTION TO SUPPRESS THE CDS
            FOUND IN THE MOTOR VEHICLE UNDER THE
            DOCTRINE OF PLAIN VIEW.     THUS, THE
            DEFENDANT MUST BE ACQUITTED OF THIRD[-]
            DEGREE CDS POSSESSION.

            POINT V – THE LAW DIVISION ERRED IN
            DENYING THE MOTION TO SUPPRESS THE
            URINE TEST RESULTS AS A WARRANTLESS
            SEARCH INCIDENT TO ARREST.

            POINT VI – THE LAW DIVISION ERRED IN
            DENYING THE MOTION TO SUPPRESS THE
            WARRANTLESS SEIZURE AND TESTING OF
            DEFENDANT'S URINE PURSUANT TO EXIGENT
            CIRCUMSTANCES.

                                        I.

      Defendant challenges the trial court's denial of his motions to dismiss. He

argues the State violated his right to a speedy trial because nine months elapsed

before the State provided the urinalysis.

      We owe no special deference to the "trial court's interpretation of the law

and the legal consequences that flow from established facts." Manalapan Realty,

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

reverse the denial of a motion to dismiss a complaint on the grounds it violates

a defendant's constitutional right to a speedy trial only if it is "clearly




                                                                         A-4142-16T2
                                        9
erroneous." State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009) (citing

State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)).

      The Sixth Amendment of the United States Constitution affords a

defendant the right to a speedy trial on criminal charges; through the Due

Process Clause of the Fourteenth Amendment, that right is applicable in state

prosecutions. Klopfer v. North Carolina, 386 U.S. 213, 222-26 (1967); see State

v. Szima, 70 N.J. 196, 200-01 (1976).          The speedy-trial right protects a

defendant's interest in minimizing "pretrial incarceration," the accused's pretrial

"anxiety and concern," and delay that impairs the ability to present a defense.

Barker v. Wingo, 407 U.S. 514, 532-33 (1972). Alleged violations of the

speedy-trial right are assessed by balancing four factors set forth in Barker,

which "requires the court to consider: (1) the length of the delay, (2) the reasons

for the delay, (3) whether and how defendant asserted his speedy trial right, and

(4) the prejudice to defendant caused by the delay." State v. Townsend, 186 N.J.

473, 487 (2006); see also Barker, 407 U.S. at 530-34.

      In applying the four-part test, "[n]o single factor is a necessary or

sufficient condition to the finding of a deprivation of the right to a speedy trial."

Tsetsekas, 411 N.J. Super. at 10 (citing Barker, 407 U.S. at 533). "Rather, the

factors are interrelated," and a fact-sensitive analysis is necessary so that each


                                                                             A-4142-16T2
                                        10
factor is "considered in light of the relevant circumstances of each particular

case." Ibid. The significance of the length of delay will depend upon the factual

circumstances of the particular case, including the nature of the proceedings.

Barker, 407 U.S. at 530-31. Additionally:

                   Closely related to length of delay is the reason
            the government assigns to justify the delay. Here, too,
            different weights should be assigned to different
            reasons. A deliberate attempt to delay the trial in order
            to hamper the defense should be weighted heavily
            against the government. A more neutral reason such as
            negligence or overcrowded courts should be weighted
            less heavily but nevertheless should be considered since
            the ultimate responsibility for such circumstances must
            rest with the government rather than with the defendant.
            Finally, a valid reason, such as a missing witness,
            should serve to justify appropriate delay.

            [Id. at 531.]

      Here, defendant's argument is solely related to the length of the delay

prong of the Barker test. Defendant does not dispute the material facts of the

case, and instead asserts the court misinterpreted the applicable law.

      The trial court found as follows:

                  In the case at hand, [d]efendant was indicted in
            July 2013, [nineteen] months ago. The State provided
            discovery to the defense on July 16, 2013. Arraignment
            was held September 3, 2013, at which point the defense
            asserts it informed the State that they were missing
            urinalysis reports. The State hand-delivered those
            reports on June 23, 2014. Thus, the reports were

                                                                         A-4142-16T2
                                      11
            initially requested in September 2013[,] and were
            provided nine months later, in June 2014.

                  At oral argument, the prosecutor relied primarily
            on her brief. She asserted that she received a letter from
            defense counsel in November 2013[,] requesting
            additional discovery, and that the next court date was
            adjourned because the defendant wanted more time to
            prepare. The prosecutor also noted that a formal
            discovery request sent by defense counsel in January
            2014[,] never mentioned an outstanding urinalysis
            report.

                   Although defense counsel argued that he does not
            base his motion solely upon the delay in obtaining the
            urinalysis report, his claim does in fact center on that
            report. Defense counsel obtained other discovery items
            [he] requested during the time [he] waited for the
            urinalysis report. In the view of this [c]ourt, nine
            months is not an excessively long time to wait for the
            results of a laboratory test, as laboratories can often
            take several months to issue their reports.

      The trial court's fact-sensitive findings were sound and not clearly

erroneous. The court determined the delay in the return of the urinalysis results

was not excessive by acknowledging the pace at which such results are generally

returned can be unpredictable. Defendant cites no legal basis for us to conclude

the court erred as a matter of law.

      Next, defendant argues his speedy-trial right was violated because the

State was obligated to accept his request for a conditional plea. He asserts "the

conditional plea procedure is designed to prevent waste of defense, State[,] and

                                                                         A-4142-16T2
                                       12
judicial resources on needless trial[,]" and "the delay and expense of forcing a

trial with experts is the very harm and harassment of defendants which

constitutes prejudice in the speedy trial context." Defendant claims the court

should have "relaxed the conditional plea rule and allowed the procedure over

the State's objection and that the State's decision to reject a conditional plea was

arbitrary and prejudicial." He argues the length and reason for delay prongs of

the Barker test are satisfied because the delay in excess of one year was

attributable to the State, which compelled him to file three requests for a

conditional plea.

      "Generally, a guilty plea constitutes a waiver of all issues which were or

could have been addressed by the trial judge before the guilty plea." State v.

Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). The waiver even applies

to claims of certain constitutional violations. State v. Knight, 183 N.J. 449, 470

(2005) (citing State v. Crawley, 149 N.J. 310, 316 (1997)). However, there are

generally only three exceptions to the waiver rule. Id. at 471; see State v.

Wakefield, 190 N.J. 397, 417 n.1 (2007). Pertinent here, is the exception which

permits a defendant to appeal adverse decisions specifically reserved by a

conditional guilty plea entered in accordance with Rule 3:9-3(f). Knight, 183

N.J. at 471.


                                                                            A-4142-16T2
                                        13
      Rule 3:9-3(f) requires that a defendant satisfy several conditions before a

conditional guilty plea can be accepted. "[A] defendant may plead guilty while

preserving an issue for appellate review only with the 'approval of the court and

the consent of the prosecuting attorney.'" State v. Gonzalez, 254 N.J. Super.

300, 304 (App. Div. 1992) (emphasis added) (quoting R. 3:9-3(f)).            This

reservation of "the right to appeal from the adverse determination of any

specified pretrial motion" must be placed "on the record." R. 3:9-3(f). The Rule

imposes no affirmative obligation on the State to accept an offer of a conditional

guilty plea and does not permit the court to compel acceptance of such a plea

over the State's objection. Ibid.

      Here, the trial court addressed the issue and found as follows:

                   This court is bound by Rule 3:9-3(f). A
            conditional plea will only be accepted if the court
            approves it and the prosecutor trying the case has no
            objection. It has been made abundantly clear through
            plea negotiations, briefs, and oral arguments that the
            State is not willing to accept a conditional plea. The
            State has explicitly made clear that they wish to proceed
            to trial or alternatively accept a non-conditional plea.
            The court is guided by State v. Giddings, in that while
            the type of motion the [d]efendant seeks to reserve is
            the purpose of R[ule] 3:9-3(f) the court will not find it
            so unique as to excuse clear failure to comply with the
            rule.

                  This court understands the [d]efendant's request
            pursuant to R[ule] 1:1-2[,] but determines that R[ule]

                                                                          A-4142-16T2
                                       14
      3:9-3(f) is explicitly accepted. The [d]efendant does
      bring forth cases in which this rule was relaxed but the
      court agrees with the State that these cases are not
      applicable to the [S]uperior [C]ourt's decisions. Many
      of the cases cited by the [d]efendant refer to what
      happened due to the lack of a conditional plea as
      opposed to enforcing a conditional plea upon the State.
      As such, the rule remains explicitly accepted that unless
      both the court and the Prosecutor agree to a conditional
      plea, a conditional plea cannot be created while the
      Prosecutor objects.

On reconsideration the court elaborated further and stated

      the court is not persuaded that the New Jersey Court
      Rules grant[] the [c]ourt the authority to compel a
      conditional plea. In fact, the court acknowledges that
      any attempt to compel the State into acceptance of a
      conditional plea would be an improper invasion into the
      realm of the executive and a breach of the separation of
      powers doctrine. Accordingly, the [c]ourt finds the
      defendant's argument is without sufficient legal
      authority or merit.

            Additionally, this court has found no legal
      authority which would allow defendant to plea open-
      ended to all his charges and reserve his right to argue
      his speedy trial motion on appeal.           The court
      acknowledges the ruling in Knight, which provided
      only three exceptions to the general rule that all of a
      defendant's constitutional challenges are waived upon
      the entry of an open-ended guilty plea. The Knight
      exceptions are: [a]ppeals to the denial of Fourth-
      amendment based motions, appeals to the denial of
      admission into a pretrial intervention program, and
      appeals of issues that are preserved via the conditional
      plea process.      The court acknowledges that no


                                                                  A-4142-16T2
                                15
            conditional plea has been offered by the State nor can
            be compelled in this case.

      We agree with the court's assessment.        The law cited by defendant

pertained to instances where we relaxed Rule 3:9-3(f), pursuant to Rule 1:1-2,

to permit defendants to raise issues on appeal which would otherwise have been

prohibited for failure to enter a conditional plea.       We did not relax the

requirement that consent from the State and approval from the court were

necessary under Rule 3:9-3(f) for a conditional plea. See State v. J.M., 182 N.J.

402, 410 (2005).

      Since the State was not required to agree to a conditional plea, and the

trial court was not required to accept one over the State's objection, it follows

that defendant's speedy-trial rights were not violated. Indeed, as the trial court

noted:

            The State's refusal to consent to a conditional plea
            should not constitute an unreasonable delay of trial
            requiring dismissal. The court notes that the State has
            requested trial dates on [four] separate occasions,
            however each time trial is scheduled the defendant
            submits another motion. This should not constitute a
            delay by the State. The court does note that the delay
            attributable to [the prior judge]'s departure from the
            bench cannot be held against the defendant because it
            was not the defendant who caused this delay. The same
            can be said of the State, in that regard, therefore the
            delay caused by [the judge]'s departure cannot [b]e held
            against the State either. The court cannot force the

                                                                          A-4142-16T2
                                       16
            State into acceptance of a conditional plea, and the
            court is not persuaded that the State's refusal to grant
            consent constitutes an unreasonable delay for speedy
            trial purposes.

      For these reasons, the trial court's denial of defendant's request was not an

abuse of discretion.    Likewise, the court's failure to find a violation o f

defendant's speedy trial rights was not clearly erroneous.

                                        II.

      We next address defendant's challenge to the trial court's denial of the

motion to suppress the evidence seized from the DWI stop and his person. We

begin by recognizing that "[o]ur standard of review is whether there is sufficient

credible evidence present in the record to uphold the findings of the Law

Division." State v. Dispoto, 383 N.J. Super. 205, 217 (App. Div. 2006) (citing

State v. Johnson, 42 N.J. 146, 162 (1964)). "We review the trial court's findings

of fact on a motion to suppress deferentially, affirming whenever they are

supported by sufficient credible evidence in the record." State v. Dunbar, 434

N.J. Super. 522, 526 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)).

      "Generally, we afford substantial deference to a trial court's evidentiary

rulings." State v. Sessoms, 413 N.J. Super. 338, 342 (App. Div. 2010) (citing

State v. Covell, 157 N.J. 554, 564 (1999)). The trial court is "entitled to draw

inferences from the evidence and make factual findings based on his 'feel of the

                                                                           A-4142-16T2
                                       17
case,' and those findings [are] entitled to deference unless they [are] 'clearly

mistaken' or 'so wide of the mark' that the interests of justice require[] appellate

intervention." Elders, 192 N.J. at 245; see also State v. Locurto, 157 N.J. 463,

471 (1999) (quoting Johnson, 42 N.J. at 161-62). We "may not substitute [our]

own conclusions regarding the evidence, even in a 'close' case."           State v.

Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010) (quoting Locurto, 157 N.J.

at 471). "'[A]bsent a showing of an abuse of discretion, i.e., [that] there has

been a clear error of judgment,' an evidentiary ruling will stand." Sessoms, 413

N.J. Super. at 342 (alterations in original) (quoting State v. Brown, 170 N.J. 138;

147 (2001)).

                                        A.

      Defendant claims there was insufficient reasonable suspicion of

intoxication to justify his removal from the vehicle on the night of the stop. He

contends the State failed to meet its burden because it relied on the hearsay

testimony of Schwartz rather than Sysol, the officer who made the initial stop ,

to establish reasonable suspicion.

      The Fourth Amendment of the United States Constitution and the New

Jersey Constitution guarantee the right of people to be secure against

unreasonable searches and seizures, by requiring warrants issued upon probable


                                                                            A-4142-16T2
                                        18
cause. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Warrantless searches "are

presumptively unreasonable and invalid unless justified by a recognized

exception to the warrant requirement." State v. Bolte, 115 N.J. 579, 585 (1989).

      One such exception is an investigatory stop. See State v. Patino, 83 N.J.

1, 7 (1980) ("The warrant requirement . . . may be dispensed . . . in only a few

narrowly circumscribed exceptions.          The prima facie invalidity of any

warrantless search is overcome only if that search falls within one of the specific

exceptions created by the United States Supreme Court."); see also Terry v.

Ohio, 392 U.S. 1, 27 (1968); United States v. Hensley, 469 U.S. 221, 226 (1985)

(finding that police officers may stop a motor vehicle and detain its occupants

temporarily while they investigate a criminal offense). To subject a person to

an investigatory stop and detention, however, the police must have r easonable,

articulable suspicion of conduct that violates the law. State v. Bernokeits, 423

N.J. Super. 365, 371-72 (App. Div. 2011).

      A police officer may conduct an investigatory stop if, based on the totality

of the circumstances, there is reasonable suspicion to believe an individual has

just engaged in, or is about to engage in, criminal activity. State v. Maryland,

167 N.J. 471, 487 (2001) (citing Terry, 392 U.S. at 21). Our Supreme Court has

defined "reasonable suspicion" as "a particularized and objective basis for


                                                                           A-4142-16T2
                                       19
suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J.

346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).

Under the totality of the circumstances analysis, weight is given to the officer's

experience and knowledge, and the "rational inferences that could be drawn

from the facts objectively and reasonably viewed in light of the officer's

expertise."   State v. Todd, 355 N.J. Super. 132, 137-38 (App. Div. 2002)

(quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). In the context of a detention

to perform a field sobriety test, "our courts have consistently . . . upheld such

routine, standardized testing on the basis of a reasonable, articulable suspicion

of driver intoxication." Bernokeits, 423 N.J. Super. at 374 (citing State v.

Adubato, 420 N.J. Super. 167, 181 (App. Div. 2011)).

      Here, at the suppression motion hearing, Schwartz testified regarding the

information he received from Sysol during the traffic stop, namely, defendant's

erratic driving and conduct after the stop. However, Schwartz testified about

his own observations of defendant and justifications for the administration of

the field sobriety test, including the chemical odor on defendant's breath, his

slow and slurred speech, and his difficulty maintaining balance.

      The court provided a detailed explanation of the basis for reasonable

suspicion by explaining the totality of the circumstances. It concluded


                                                                          A-4142-16T2
                                       20
            the State established that . . . Sysol and . . . Schwartz
            did have an articulable reasonable suspicion that
            [d]efendant was driving while intoxicated in order to
            expand the scope of the initial traffic stop and detain
            [d]efendant for field sobriety testing. Specifically, first
            [d]efendant was stopped at 12:21 a.m. after making a
            left hand turn on red. His speech was slurred, his hand
            and head movements were slow, and his pupils were
            pinpoint. Even outside the vehicle, the [d]efendant
            moved slowly and had difficulty standing and walking
            without falling or swaying from side to side. In
            addition, the court notes that . . . Schwartz observed a
            strong "chemical" odor from the [d]efendant's breath
            and person. Given the totality of circumstances
            presented, the officer had a reasonable articulable
            suspicion that [d]efendant was driving while
            intoxicated and therefore, the [d]efendant's motion
            should be denied.

      The court also explained why there was no hearsay issue:

            Defendant's argument that the only information that . . .
            Schwartz had was hearsay is inaccurate. As previously
            mentioned, it was . . . Schwartz who had detected the
            chemical odor coming from the [d]efendant's breath.
            This observation, coupled with what . . . Sysol . . . told
            him about the [d]efendant's slurred speech, slow
            movements, and inability to stand on his own gave . . .
            Schwartz enough articulable reasonable suspicion to
            request the [d]efendant to do psychophysical testing.

      Notwithstanding, on appeal defendant cites State v. Bacome, 440 N.J.

Super. 228, 240 (App. Div. 2015) for the proposition that a "key fact" is not

permitted to be adduced entirely from hearsay and asserts the court here relied

on hearsay testimony and there was insufficient evidence to find a reasonable

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                                       21
articulable suspicion of defendant's intoxication to support his detention outside

the vehicle. We disagree.

      The issue in Bacome was whether police had a "heightened awareness of

danger" during a motor vehicle stop that necessitated ordering a passenger out

of a car for a seatbelt violation. 440 N.J. Super. at 237-38 (quoting State v.

Smith, 134 N.J. 599, 618 (1994)). There, the State relied on the testimony of an

officer that his partner observed the defendant moving forward and reaching

under his seat during the stop. Id. at 232, 239. On appeal, we reversed the order

denying the motion to suppress because the trial court made "no finding

regarding whether there was 'some fact or facts in the totality of the

circumstances that would create in a police officer a heightened awareness of

danger that would warrant an objectively reasonable officer securing the scene

in a more effective manner.'" Id. at 240 (quoting Smith, 134 N.J. at 618). We

noted the trial court failed to explain how the driver's movements suggested the

passenger posed a danger. Id. at 241.

      Our Supreme Court reversed, holding "the furtive movements inside the

car were 'specific and articulable facts' that warranted heightened caution to

order the passengers out of the vehicle." State v. Bacome, 228 N.J. 94, 108

(2017). The Court cited the hearsay testimony of the officer, stating "[a] key


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                                        22
element in our analysis is [the officer]'s testimony that, after the detectives

pulled the [vehicle] over, [his partner] observed [the] defendant reaching

forward under his seat. We defer to the motion judge's finding that [the officer]'s

testimony was credible." Id. at 107.

      Likewise, here, the trial court acknowledged hearsay evidence is

admissible during a suppression hearing, but also made specific findings about

Schwartz's testimony, which it found credible. Defendant does not dispute the

credibility of Schwartz's testimony.         The court found defendant's slow

movement, slurred speech, lack of coordination, and unusually constricted

pupils provided the reasonable suspicion of intoxication and a basis to detain

defendant outside the vehicle. These findings are supported by the substantial

credible evidence in the record and we decline to disturb them.

                                        B.

      Defendant challenges the seizure of the vial from his vehicle under the

plain view exception for a warrantless search.       He argues Schwartz lacked

probable cause to seize the vial because "his expertise was limited with regard

to PCP and other non-common drugs[,]" and he testified the vial resembled an

eye dropper. Defendant argues, even if there was probable cause to associate




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                                       23
the contents of the vial with contraband, there was no exigency and Schwartz

had sufficient time to obtain a search warrant.

      "'[P]lain view' provides grounds for seizure of an item when an office r's

access to an object has some prior justification under the Fourth Amendment."

Texas v. Brown, 460 U.S. 730, 738 (1983). "The seizure of property in plain

view involves no invasion of privacy and is presumptively reasonable, assuming

that there is probable cause to associate the property with criminal activity."

Payton v. New York, 445 U.S. 573, 587 (1980). Our Supreme Court has stated:

"We do not believe that a police officer lawfully in the viewing area must close

his eyes to suspicious evidence in plain view." State v. Bruzzese, 94 N.J. 210,

237 (1983). Therefore, for the plain view exception to apply:

            First, the police officer must be lawfully in the viewing
            area.

            Second, the officer has to discover the evidence
            "inadvertently," meaning that he did not know in
            advance where evidence was located nor intend
            beforehand to seize it.[2]

            Third, it has to be "immediately apparent" to the police
            that the items in plain view were evidence of a crime,
            contraband, or otherwise subject to seizure.

2
  Our Supreme Court has since excised the inadvertence requirement from the
plain view doctrine. State v. Gonzales, 227 N.J. 77, 82 (2016). However, the
reformulated doctrine is to be applied prospectively and is inapplicable to this
case. Ibid.
                                                                        A-4142-16T2
                                      24
            [Id. at 236 (citations omitted) (citing Coolidge v. New
            Hampshire, 403 U.S. 443, 465-68, 470 (1971)).]

      The "immediately apparent" prong requires an officer have probable cause

to associate the item with criminal activity or contraband. Id. at 237. "In

determining whether the officer has probable cause to associate the item with

criminal activity, the court looks to what the police officer reasonably knew at

the time of the seizure." Ibid.

            [P]robable cause is a flexible, common-sense standard.
            It merely requires that the facts available to the officer
            would "warrant a man of reasonable caution in the
            belief," Carroll v. United States, 267 U.S. 132, 162
            (1925), that certain items may be contraband or stolen
            property or useful as evidence of a crime; it does not
            demand any showing that such a belief be correct or
            more likely true than false. A "practical, nontechnical"
            probability that incriminating evidence is involved is
            all that is required. Brinegar v. United States, 338 U.S.
            160, 176 (1949).

            [Brown, 460 U.S. at 742.]

      Here, the trial court made the following findings regarding the plain view

search:

            The [o]fficer was outside of the vehicle when he viewed
            the contraband. There is no evidence to show that the
            officer did not come upon this evidence inadvertently.
            Finally, the [o]fficer stated on direct examination that
            although he was not sure of exactly the type of
            contraband, based on his knowledge he did believe it to
            be contraband. This information is enough to satisfy

                                                                         A-4142-16T2
                                       25
              the standard for the officer to seize the evidence under
              the plain view exception.

         We agree. Schwartz reasonably believed the vial was contraband based

on his experience as a DRE. His testimony was credible because it explained

the common usage and physical manifestations of PCP. Additionally, he saw

the vial after defendant exhibited signs of intoxication and failed field sobriety

tests.

         We also reject defendant's contention Gonzales requires the plain view

exception to be accompanied by justifiable exigency. In Gonzales the Court

concluded,

              [p]lain view, in most instances, will not be the sole
              justification for a seizure of evidence because police
              must always have a lawful reason to be in the area
              where the evidence is found. Thus, when necessary, the
              police will also be required to comply with the warrant
              requirement or one of the well-delineated exceptions to
              that requirement.

              [227 N.J. at 104 (emphasis added).]

         Here, for reasons we have noted, Schwartz had a lawful reason to be

standing beside defendant's vehicle. Moreover, the facts here demonstrate the

discovery of the vial was incident to a valid stop, inadvertent, and not pretextual

as found in Gonzales. Id. at 87.



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                                        26
                                          C.

         Defendant argues the urine test was an unconstitutional search and

seizure. Specifically, he argues the search incident to arrest and exigency

exceptions to the warrant requirement are inapplicable when a urine sample is

taken.

         As we noted, defendant was Mirandized on two separate occasions, once

when he was arrested at the scene of the traffic stop, and again at the station

house.      After defendant voluntarily signed a Miranda waiver, Schwartz

requested a urine sample to complete the DRE procedure, to which defendant

complied. Therefore, the search was constitutional and we decline to consider

the balance of defendant's arguments regarding the urine sample.

                                          III.

         Finally, although neither party raised the issue, at oral argument the State

agreed the sentence imposed for defendant's conviction for third-degree

possession of PCP was illegal, in that it imposed a jail term of 180 days, but

then suspended all but 30 days of the term. See State v. Scioscia, 200 N.J. Super.

28, 32, n. 2 (App. Div. 1985); State v. Cullen, 351 N.J. Super. 505, 507-08 (App.

Div. 2002). For these reasons, we reverse and remand the sentence for the PCP

possession for re-sentencing.


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                                         27
      Affirmed as to the conviction and reverse and remanded as to the sentence.

We do not retain jurisdiction.




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