                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0935-17T3
                                                                     A-2153-17T2
STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ALDABERTO VEGA,
a/k/a ADALBERTO VEGA,
ALBERTO VEGA, ALBERTA
BEGA, and TITO VEGA,

     Defendant-Appellant.
___________________________

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TIMOTHY L. BETHEA, a/k/a
L.R. ALLAH, TIM BETHEA
and I RULE,

     Defendant-Appellant.
___________________________

                    Submitted (A-0935-17) and Argued (A-2153-17)
                    December 4, 2019 – Decided December 27, 2019
            Before Judges Haas, Mayer and Enright.

            On appeal from the Superior Court of New Jersey, Law
            Division, Monmouth County, Indictment No. 15-06-
            1138.

            Joseph E. Krakora, Public Defender, attorney for
            appellant in A-0935-17 (Kevin G. Byrnes, Designated
            Counsel, on the brief).

            David A. Gies, Designated Counsel, argued the cause
            for appellant in A-2153-17 (Joseph E. Krakora, Public
            Defender, attorney; David A. Gies, on the brief).

            Christopher J. Gramiccioni, Monmouth County
            Prosecutor, attorney for respondent in A-0935-17 (Lisa
            Sarnoff Gochman, Assistant Prosecutor, of counsel and
            on the brief).

            Carey J. Huff, Assistant Prosecutor, argued the cause
            for respondent in A-2153-17 (Christopher J.
            Gramiccioni, Monmouth County Prosecutor, attorney;
            Lisa Sarnoff Gochman, of counsel and on the brief).

PER CURIAM

      In these back-to-back appeals, which we now consolidate for purposes of

this opinion only, defendants Timothy Bethea and Aldaberto Vega challenge

their convictions and sentences following a joint jury trial. We affirm in all

respects in both appeals.

      A Hudson County grand jury returned an indictment charging Bethea and

Vega each with two counts of third-degree possession of a controlled dangerous


                                                                      A-0935-17T3
                                      2
substance (CDS), namely heroin and cocaine, N.J.S.A. 2C:35-10(a)(1) (counts

one and five); two counts of third-degree possession of CDS with intent to

distribute, N.J.S.A. 2C:35-5(b)(3) (counts two and six); two counts of third-

degree possession of CDS with intent to distribute within 1,000 feet of school

property, N.J.S.A. 2C:35-7 (counts three and seven); and two counts of second-

degree possession of a CDS with intent to distribute within 500 feet of a public

park, N.J.S.A. 2C:35-7.1 (counts four and eight).      Additionally, Vega was

indicted on one count of fourth-degree hindering apprehension, N.J.S.A. 2C:29-

3(b)(1) (count nine).

      In May 2016, the motion judge conducted a hearing regarding defendants'

joint motions to suppress evidence seized with, and without, a warrant. He

denied both motions in June 2016. In April 2017, the judge granted the State's

motion to dismiss counts four and eight.

      Defendants were tried together and, at the close of the State's case, Vega

moved for a judgment of acquittal, pursuant to Rule 3:18-1, on counts one, two,

three, five, six and seven of the indictment. The trial judge (who also presided

over the suppression hearing and defendants' sentencings) denied the motion.

When the multi-day trial concluded in May 2017, a unanimous jury found

Bethea guilty on all counts and found Vega guilty on counts one, two, three, and


                                                                        A-0935-17T3
                                       3
nine, but acquitted him on those counts involving cocaine, i.e., counts five

through seven. In July 2017, Vega pled guilty to fourth-degree obstruction,

N.J.S.A. 2C:29-1, and simple assault, N.J.S.A. 2C:12-1A(1), under a separate

accusation.1

      On August 2, 2017, the trial judge sentenced both defendants. He granted

the State's motion to sentence Bethea to a mandatory extended term, under

N.J.S.A. 2C:43-6(f), on counts three and seven. The judge merged counts one

and two; count two was merged into count three. He also merged counts five

and six into count seven. Counts four and eight were dismissed. The judge

imposed concurrent sentences on counts three and seven, and sentenced Bethea

to an aggregate term of eight years with a minimum parole ineligibility period

of four years on both counts. Further, the judge suspended Bethea's driver's

license for forty-eight months on counts three and seven, with the suspensions

to run concurrent to one another.

      Vega was sentenced the same day as Bethea. He again moved for a

judgment of acquittal and for a new trial on counts one, two, three and nine at

sentencing. The trial judge denied his application and imposed sentence. He



1
  Neither Vega's convictions under the accusation, nor defendants' separate
convictions for summons complaint offenses, are the subject of this appeal.
                                                                       A-0935-17T3
                                      4
first merged counts one and two; count two was merged into count three. Counts

four, five, six, seven and eight were dismissed. The judge sentenced Vega to a

prison term of five years with a three-year period of parole ineligibility on count

three and imposed additional penalties and fees. Count nine was amended to a

disorderly persons hindering offense, and Vega was sentenced to fines only.

      The sentencing judge conducted a qualitative aggravating and mitigating

factor analysis for each defendant's sentence. He found aggravating factors

N.J.S.A. 2C:44-1(a)(3) (the risk of reoffense), N.J.S.A. 2C:44-1(a)(6) (a prior

criminal record), and N.J.S.A. 2C:44-1(a)(9) (the need to deter), as well as

mitigating factor N.J.S.A. 2C:44-1(b)(11) (imprisonment will result in excessive

hardship to defendant and his family). For Bethea's sentence, the judge found

"the aggravating factors clearly outweigh the mitigating factor[]"; for Vega's

sentence, the judge determined the aggravating factors outweighed the

mitigating factor.

      On appeal, defendant Bethea raises the following arguments:

            POINT ONE

            THE MOTION JUDGE'S LEGAL CONCLUSIONS
            REGARDING THE INITIAL DETENTION, THE
            PATROLMAN'S ENTRY INTO THE SUV WITHOUT
            CONSENT AND THE SUBSEQUENT SEARCH OF
            DEFENDANT'S PERSON WITHOUT A WARRANT
            ARE ERRONEOUS AND REQUIRE REVERSAL.

                                                                           A-0935-17T3
                                        5
A. THE PATROLMAN'S INITIAL DETENTION OF
THE TAHOE WAS AN INVESTIGATORY STOP
WHICH    WAS    THE   RESULT    OF   AN
INARTICULABLE SUSPICION THAT CRIMINAL
ACTIVITY WAS AFOOT.

B. THE PATROLMAN'S ENTRY INTO THE REAR
PASSENGER COMPARTMENT OF THE TAHOE
WAS WITHOUT CONSENT OR A REASONABLE
AND     ARTICULABLE   SUSPICION   THAT
DEFENDANT WAS ARMED.

 (i) The incriminating evidence inside the Tahoe seized
 without a search warrant was not in the patrolman's
 plain view.

 (ii) The incriminating evidence inside the Tahoe seized
 without a search warrant was not based on a reasonable
 and articulable suspicion that defendant was armed or
 dangerous.

 (iii) Conclusion.

C. THE SEARCH OF DEFENDANT AFTER HE WAS
IN CUSTODY CANNOT BE JUSTIFIED AS ONE
INCIDENT TO HIS ARREST.

D. CONCLUSION.

POINT TWO

THE EVIDENCE SEIZED FROM THE SUV WITH A
SEARCH WARRANT CANNOT BE ATTENUATED
FROM THE TAINT OF THE UNCONSTITUTIONAL
CONDUCT ON THE PART OF THE PATROLMAN.




                                                           A-0935-17T3
                          6
           POINT THREE

           THE SENTENCING JUDGE'S IMPOSITION OF A
           FOUR-YEAR PERIOD OF PAROLE INELIGIBILITY
           IS ERROR WHERE IT DID NOT FIND THAT THE
           AGGRAVATING    FACTORS   SUBSTANTIALLY
           OUTWEIGH THE MITIGATING FACTORS.

On appeal defendant Vega raises the following arguments:

           POINT I

           THE DEFENDANT-PASSENGER'S MOTION TO
           DISMISS DUE TO INSUFFICIENT EVIDENCE
           SHOULD HAVE BEEN GRANTED BECAUSE
           KNOWLEDGE (LET ALONE CONTROL) SHOULD
           NOT BE IMPUTED TO THE PASSENGER WHEN
           POLICE FIND DRUGS IN THE DRIVER'S
           GIRLFRIEND'S VEHICLE CONCEALED IN THE
           DRIVER'S GIRLFRIEND'S SWEATSHIRT.

           POINT II

           JURORS ASKED FOR CLARIFICATION AND A
           "LAY"  DEFINITION      OF    THE   LAW   OF
           CONSTRUCTIVE POSSESSION AND THE TRIAL
           COURT    MERELY      REREAD      THE   SAME
           INSTRUCTION, WITHOUT A FACTUAL CONTEXT,
           WHICH DID NOTHING TO ALLEVIATE THEIR
           CONFUSION. (Not Raised Below).

           POINT III

           THE DEFENDANT'S RIGHT TO DUE PROCESS OF
           LAW AS GUARANTEED BY THE FOURTEENTH
           AMENDMENT TO THE UNITED STATES
           CONSTITUTION AND ART. I, [¶]1 OF THE NEW
           JERSEY CONSTITUTION WAS VIOLATED BY THE

                                                           A-0935-17T3
                                     7
TRIAL COURT'S FAILURE TO INSTRUCT THE
JURORS ON ALL THE ESSENTIAL ELEMENTS OF
INTENT TO DISTRIBUTE CDS. (Not raised below).

POINT IV

THE CONVICTION FOR INTENT TO DISTRIBUTE
CDS SHOULD BE VACATED BECAUSE A POLICE
WITNESS IMPROPERLY AND PREJUDICIALLY
RENDERED AN OPINION THAT THE VEHICLE
OCCUPANTS WERE IN THE PARKING LOT
"ABOUT   TO    PERFORM        A     NARCOTICS
TRANSACTION." [(Not Raised Below).]

POINT V

THE DEFENDANT'S RIGHT TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES AS
GUARANTEED BY THE FOURTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
[ ¶] 7 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE WARRANTLESS SEARCH AND
SEIZURE.

A.   The Police Encounter Constituted an Illegal
     Detention.

1.   The Police Encounter was a Detention.

2.   The Police Lacked Articulable Facts Giving Rise to
     Reasonable Suspicion to Justify the Detention.

B.   The Warrantless Search of Clothes Inside the
     Vehicle was Unlawful.

POINT VI

THE SENTENCE IS EXCESSIVE.

                                                          A-0935-17T3
                          8
      After reviewing the record in light of the contentions raised by each

defendant on appeal, we affirm.

                                     I.

      To place these issues in their proper context, we begin by reciting the

salient facts pertaining to defendants' convictions and sentences, including facts

found by the motion judge after defendants' suppression hearing.

      On the evening of June 13, 2014, Officers Kaan Williams and Frank

Maletto, of the Neptune Township Police Department, went to a motel in

Neptune Township.      The motel was known as a high crime area. Officer

Williams testified at the suppression hearing that police made many arrests there

and that prior to the June 13 incident, a confidential informant notified him a

man known as "O.B." was conducting narcotics transactions out of a room at the

motel.

      When the police arrived at the motel on June 13, Officer Williams noticed

a Tahoe parked in the lot away from any of the doors to the motel, even though

there were several open spaces closer to the entrance of the motel. Officer

Williams noticed the Tahoe was occupied by two men. He recalled the driver,

an African American male later identified as Bethea, appeared to be using his




                                                                          A-0935-17T3
                                          9
cell phone. The passenger, a Hispanic male, later identified as Vega, was

looking out the window.

         After observing the men for several minutes, Officer Williams drove his

unmarked car and parked it in front of the Tahoe. He testified he did not block

in the Tahoe, whereas Bethea testified the Tahoe was blocked in so he could not

leave.     Officer Williams went to the driver's side of the car, while Officer

Maletto went to the passenger side. Each officer wore gear that said "police" in

large yellow lettering.

         When Officer Williams approached Bethea's side of the vehicle, he saw

Bethea move a gray sweatshirt off his lap and onto the center console. Officer

Williams asked Bethea why he was at the motel, and Bethea responded he was

there to "chill." Bethea later denied making this statement. Officer Williams

noted Bethea looked nervous and was sweating, even though the air conditioning

was on in the Tahoe. Officer Williams also saw Bethea's chest rising and falling

heavily as he was breathing. Further, the officer noticed two cell phones sitting

on the Tahoe's center console. One was an iPhone and the other was a flip

phone.

         While Officer Williams spoke to Bethea, the iPhone rang several times,

and Officer Williams asked Bethea not to answer it. The flip phone also rang,


                                                                         A-0935-17T3
                                       10
but both occupants of the Tahoe ignored it.     According to Officer Williams,

both men denied ownership of the flip phone. However, Bethea's testimony at

the suppression hearing contradicted this assertion, as he claimed he admitted to

police during the incident that he owned both phones.

      Officer Williams asked Bethea to exit the car, because he believed either

Bethea or the passenger was lying.       As Bethea exited the Tahoe, Officer

Williams saw him "elbow" the gray sweatshirt off the center console and onto

the floor in the rear of the vehicle. He deduced Bethea was attempting to conceal

the sweatshirt.

      After Bethea left the vehicle, Officer Williams conducted a brief pat down

for weapons and felt what he believed to be another cell phone in Bethea's right

pocket. He again asked Bethea why he was at the motel. This time, Bethea

answered he had dropped someone off there. Officer Williams asked for this

person's name and room number. Bethea said he did not know this information

and when asked how he could not know, Bethea did not respond. On cross-

examination, Bethea conceded he knew the name of the person he dropped off

and knew him "pretty well," but "didn't feel [he] had to share that much

information" with police at the time. While Bethea spoke to Officer Williams,

an African American male walked by, and did not make any eye contact with


                                                                         A-0935-17T3
                                      11
either Bethea or Vega. When Bethea was asked if the man who walked by was

the person Bethea dropped off, Bethea hung his head and answered

affirmatively.

      Officer Maletto questioned Vega. Vega initially told Officer Maletto his

name was Antonio Ayala. Vega testified at the suppression hearing he gave

police a fictitious name because he had active arrest warrants.

      During the incident, two additional officers arrived on scene. Because it

began it rain, Bethea asked for the sweatshirt and Officer Williams responded

he would have to search it for weapons. Officer Williams went to retrieve the

sweatshirt and Bethea tried to reach past him several times to get the sweatshirt.

Officer Williams told Bethea to step away from the car and put his hands where

they could be seen, but Bethea again reached for the sweatshirt.          Officer

Williams retrieved the sweatshirt and noticed a large bulge in its sleeve. He

testified that due to his training and experience, he knew immediately the bulge

constituted "bricks"2 of heroin. The heroin was stamped "Louis Vuitton" and

amounted to seven bricks and one bundle. At the suppression hearing, Bethea

testified the sweatshirt and Tahoe belonged to his girlfriend. He also denied



2
  Officer Williams confirmed ten bags of heroin equate to a "bundle" of heroin,
and a "brick" of heroin equates to fifty glassine bags.
                                                                          A-0935-17T3
                                       12
asking police for the sweatshirt, denied it had been on his lap, and denied he

moved it to the console or the rear of the vehicle.

      Vega was arrested once police determined he provided a fictitious name

and had outstanding warrants. Likewise, Bethea was arrested after police found

heroin in the sweatshirt. Bethea was searched incident to his arrest and police

noted he moved and impeded the search by tightening his buttocks. However,

the officer performing the search was able to detect a bulge in the crotch area of

Bethea's pants. Consequently, Officer Williams' supervisor ordered Bethea be

strip searched at the police station.

      During the strip search, the police found eleven plastic twists of crack

cocaine and seven glassine bags of heroin. These bags of heroin also were

stamped "Louis Vuitton." Bethea testified at the suppression hearing that he did

not know about the heroin in the sweatshirt but did know about the heroin found

on his person during the strip search.

      Before defendants were transported to police headquarters, Officer

Williams asked Bethea for consent to search the Tahoe and Bethea refused.

Bethea admitted during the suppression hearing that he refused consent, but he

claimed Officer Williams still searched the Tahoe.




                                                                          A-0935-17T3
                                         13
      It is undisputed Officer Williams requested a canine search of the Tahoe

and the dog alerted for narcotics in the Tahoe. Based on these circumstances,

police applied for and received a search warrant for the Tahoe. During the

warranted search, police found a clear plastic twist containing crack cocaine, as

well as a hypodermic needle and two cellphones.

                                      II.

      In Point I of Bethea's and Point V of Vega's brief, defendants argue the

trial court's denial of their motions to suppress evidence seized without and with

a warrant constituted error. We disagree.

      "A trial court's evidentiary rulings are entitled to deference absent a

showing of an abuse of discretion, i.e., there has been a clear error of judgment."

State v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J.

431, 439 (2012)). We assess whether there was a clear error in judgment in light

of the applicable law. State v. Rinker, 446 N.J. Super. 347, 358 (2016).

      To protect Fourth Amendment rights against unfounded invasions of

liberty and privacy, the United States Supreme Court has required that a neutral

and detached magistrate determine if probable cause existed for a search,

whenever possible. Gerstein v. Pugh, 420 U.S. 103, 112 (1975). Under the

Fourth Amendment of the United States Constitution and Article 1, Paragraph 7


                                                                           A-0935-17T3
                                       14
of the New Jersey Constitution, a warrantless search is presumed invalid, and

the State has the burden to prove the search "falls within one of the few well-

delineated exceptions to the warrant requirement," thus becoming valid. State

v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471

(2001)).

      It is well established that a field inquiry does not implicate a person's

Fourth Amendment rights as it is considered a significantly less intrusive

encounter than an investigatory detention. Pineiro, 181 N.J. at 20. Police

initiate a field inquiry when an officer approaches a person and asks if he or she

is willing to answer some questions. State v. Adubato, 420 N.J. Super. 167, 177

(App. Div. 2011) (citing Pineiro, 181 N.J. at 20). During a field inquiry, an

individual may decline to answer any questions and is free to leave at any time.

Ibid. "[A]bsent any impermissible reason for questioning defendant[s], the

officers [are] permitted to make a field inquiry 'without grounds for suspicion.'"

Maryland, 167 N.J. at 483 (quoting State v. Contreras, 326 N.J. Super. 528, 538

(App. Div. 1999)). Law enforcement does not violate the Fourth Amendment

"by merely approaching an individual on the street or in another public place

. . . by putting questions to him [or her] if the person is willing to listen . . . ."

Florida v. Royer, 460 U.S. 491, 497-98 (1983).


                                                                              A-0935-17T3
                                        15
      An investigatory stop is more intrusive than a field inquiry. Such a stop

occurs during a police encounter when "an objectively reasonable person" would

feel "that his or her right to move has been restricted." State v. Rosario, 229

N.J. 263, 272 (2017) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)).

"Because an investigative detention is a temporary seizure that restricts a

person's movement, it must be based on an officer's 'reasonable and

particularized suspicion . . . that an individual has just engaged in, or was about

to engage in, criminal activity.'" Ibid. (quoting State v. Stovall, 170 N.J. 346,

356 (2002)).

            The "articulable reasons" or "particularized suspicion"
            of criminal activity must be based upon the law
            enforcement officer's assessment of the totality of
            circumstances with which he [or she] is faced. Such
            observations are those that, in view of [an] officer's
            experience and knowledge, taken together with rational
            inferences drawn from those facts, reasonably warrant
            the limited intrusion upon the individual's freedom.

            [State v. Davis, 104 N.J. 490, 504 (1986).]

      Our Supreme Court has held that "there are some cases in which 'furtive'

movements or gestures by a motorist, accompanied by other circumstances, will

ripen into a reasonable suspicion that the person may be armed and dangerous

or probable cause to believe that the person possesses criminal contraband."

Ibid. (quoting State v. Lund, 119 N.J. 35, 48 (1990)).

                                                                           A-0935-17T3
                                       16
      An exception to the warrant requirement permits a police officer to detain

an individual for a brief period, and to pat that person down for safety reasons,

if a stop 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. Adubato, 420 N.J. Super. at 177-78 (quoting Terry v. Ohio,

392 U.S. 1, 21 (1968)). Under this standard, an investigatory stop is valid only

if the officer has a "particularized suspicion" based upon an objective

observation that the person stopped has been engaged or is about to engage in

criminal wrongdoing. Ibid. (citing Davis, 104 N.J. 490 (1986)).

      "To determine whether the State has shown a valid investigative detention

requires a consideration of the totality of the circumstances." State v. Elders,

192 N.J. 224, 247 (2007). "Such encounters are justified only if the evidence,

when interpreted in an objectively reasonable manner, shows that the encounter

was preceded by activity that would lead a reasonable police officer to have an

articulable suspicion that criminal activity had occurred or would shortly occur."

Davis, 104 N.J. at 505.

      A Terry stop can lead to an officer finding and seizing contraband in "plain

view." The plain view doctrine is another exception to the warrant requirement.

See State v. Reininger, 430 N.J. Super. 517 (App. Div. 2013); see also State v.


                                                                          A-0935-17T3
                                       17
Gonzales, 227 N.J. 77. "'[A] police officer lawfully in the viewing area' need

not 'close his eyes to suspicious evidence in plain view.'" Reininger, 430 N.J.

Super. at 535 (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983) (overruled in

part by Gonzales, 227 N.J. at 101)).

      Police may seize contraband in plain view and without a warrant if three

requirements are met, namely: (1) the officer must be lawfully in the viewing

area when making the observation, (2) the discovery of the evidence . . . must

be inadvertent, and (3) the incriminating nature of the evidence to be seized must

be immediately apparent to the police.      Gonzales, 227 N.J. at 91 (quoting

Coolidge v. New Hampshire, 403 U.S. 443, 466-68 (1971)). In Gonzales, the

New Jersey Supreme Court prospectively eliminated the inadvertence prong of

the plain-view test. Id. at 91. But, the Gonzales ruling was effective as of the

date of the opinion in November 2016, so it does not control here. Id. at 101.

      Another exception to the warrant requirement, the consent exception, may

be permissibly fulfilled by either express consent or implied consent. State v.

Koedatich, 112 N.J. 225, 262 (1988). Implied consent to search and express

consent to search are equally efficacious. Ibid. Consent may be implied by a

person's conduct. Ibid. "[T]he question whether a consent to a search was in

fact 'voluntary' or was the product of duress or coercion, express or implied, is


                                                                          A-0935-17T3
                                       18
a question of fact to be determined from the totality of all the circumstances."

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

      We are satisfied from the record the judge understood these principles

when deciding whether police initiated a field inquiry or an investigative

detention at the motel. After hearing from Officer Williams and defendants at

the suppression hearing, the motion judge concluded the "testimonies [were] so

divergent," that the issue came down to a credibility determination. The judge

stated he "clearly [found] that the story of Officer Williams is the more credible

of the two stories." The motion judge disbelieved Bethea's claim he did not

know about the heroin secreted in the sweatshirt since Bethea said he knew he

had heroin hidden in his clothing and both batches of heroin contained the same

"Louis Vuitton" stamp.     In assessing defendants' credibility against that of

Officer Williams, the judge also considered the officer's background,

defendants' criminal records and the fact Vega gave police a false name during

the incident.

      In concluding the police initiated a field inquiry when approaching the

Tahoe, the judge found police did not block in the Tahoe or activate their lights

when they approached defendants. Likewise, the judge found Officer Williams'

request for Bethea's identification was not determinative and did not transform


                                                                          A-0935-17T3
                                       19
the field inquiry into an investigative stop. In assessing and sanctioning the

nature of the officers' activity as it escalated from a field inquiry to an

investigative detention, the judge also considered the time of the incident, the

location of the stop in a high crime area, the multiple phones found at the scene,

the informant's tip, Bethea's conflicting reasons for being in the motel lot, and

Vega's decision to provide a fictitious name.            Given the totality of

circumstances, there is no basis to disturb the judge's finding nor his legal

conclusions about the initial phases of defendants' encounter with police.

      We also find no error with the judge's determination that police properly

asked defendants to exit the Tahoe and subjected Bethea to a pat-down after

defendants denied owning the flip phone spotted in the car. As the judge aptly

noted, Bethea gave Officer Williams incomplete answers about why he was at

the motel and Vega provided a fake name to police. During the pat-down,

Officer Williams noticed Bethea "had what felt like a cell phone" in his pocket.

Thus, before he arrested Bethea, Officer Williams identified two extra phones

in Bethea's possession. The judge credited Officer Williams' statement that

"from [the officer's] training and experience . . . people who are engaged in

narcotic activity usually have more than one cell phone on them."




                                                                          A-0935-17T3
                                       20
      Based on these proofs, the motion judge concluded police had a

"reasonable suspicion that defendants were engaging in criminal behavior . . .

[which justified] moving to an investigative stop, and ultimately the detention."

The judge explained:

            "Clearly the officers at that point for their safety and to
            confirm the versions . . . separate[d] co-defendants to
            speak with them . . . . [t]hen . . . the pat-down search of
            Mr. Bethea . . . based on those circumstances of what
            existed at that point I think were clear . . . . with regard
            to officer safety . . . ."

      The judge again credited Officer Williams' account regarding his

discovery of heroin in the gray sweatshirt. The judge believed that when it

began to rain during the incident, Bethea asked for "his sweatshirt," and Officer

Williams properly replied he could have it if the officer could first pat it down.

During the suppression hearing, Officer Williams explained he needed to pat

down the sweatshirt, "[b]ecause [of] the movement that [Bethea] made earlier.

And any time we give somebody an article of clothing . . . we make sure it

doesn't have any weapons in it, first." The judge also accepted Officer Williams'

testimony that when he opened the door to retrieve the sweatshirt, Bethea

attempted to reach past him and grab the sweatshirt and did not obey commands

to stand back. Again, the judge noted:



                                                                           A-0935-17T3
                                       21
            "the testimonies [were] so divergent with regard to
            what happened next with . . . reaching for the sweatshirt
            . . . . whether the plain view exception would apply is a
            determination of credibility . . . And I clearly find that
            the story of Officer Williams is the more credible of the
            two stories."

      Given the judge's determination that the sweatshirt was in plain view and

that police had implied consent to search it after Bethea requested it, we see no

reason to disturb his finding that police appropriately engaged in a protective

Terry search for weapons, considering Bethea's actions to that point.

      Next, we find Bethea's challenge to the strip search lacks merit. An officer

"may conduct a search of the person of the suspect . . . to protect the safety of

the officer and to preserve evidence that may be destroyed or removed." State

v. Bradley, 291 N.J. Super. 501, 509 (App. Div. 1996) (citations omitted).

Based on the suspected phone concealed in Bethea's groin area, and Bethea's

evasive actions at the scene, the police had probable cause to believe Bethea had

concealed contraband. State v. Toth, 321 N.J. Super. 609, 614-15 (App. Div.

1999). Further, Bethea's reliance on the Strip Search Act, N.J.S.A. 2A:161A -1,

in support of his contention the search was unlawful, is misplaced. The very

terms of the Act apply only to "[a] person who has been detained or arrested for

commission of an offense other than a crime. . . ." N.J.S.A. 2A:161A-1

(emphasis added). Clearly, the Strip Search Act and its corresponding Attorney

                                                                          A-0935-17T3
                                       22
General's Guidelines provide no appellate remedy for Bethea, as he was arrested

for indictable offenses. State v. Brown, 456 N.J. Super. 352, 364 (App. Div.

2018).

      We also are satisfied the judge properly found Officer Williams had

probable cause to arrest Bethea on suspicion Bethea had committed the crime of

possession of CDS. Not only did this officer detect three phones in Bethea's

possession, but he saw Bethea move a sweatshirt twice before it was retrieved

by police and found to contain heroin.

      Appellate review of a motion judge's factual findings in a suppression

hearing is highly deferential. Gonzales, 227 N.J. at 101 (citing State v. Hubbard,

222 N.J. 249, 262 (2015)). We are obliged to uphold the motion judge's factual

findings so long as sufficient credible evidence in the record supports those

findings. Ibid. (citations omitted); see State v. Dunbar, 229 N.J. 521, 538

(2017). Such factual findings are entitled to deference because the motion

judge, unlike an appellate court, has the "opportunity to hear and see the

witnesses and to have the 'feel' of the case, which a reviewing court cannot

enjoy." Gonzales, 227 N.J. at 101 (quoting State v. Johnson, 42 N.J. 146, 161

(1964)).




                                                                          A-0935-17T3
                                       23
      Here, the judge's credibility findings are amply supported by the record.

Thus, on the suppression motion involving the warrantless search and seizure of

evidence, we find his legal conclusions unassailable.

                                      III.

      Turning to Point III of his brief, Bethea maintains the initial warrantless

searches of the Tahoe and his person were unconstitutional and, therefore,

improperly led to the issuance of a search warrant. Accordingly, he insists any

evidence seized from the Tahoe after the search warrant issued "cannot be

attenuated from the taint of the unconstitutional conduct on the part of the

patrolman." He is mistaken.

      We acknowledge that evidence seized during an invalid search should be

suppressed at trial. If police obtain evidence due to illegal conduct, the resulting

evidence may be excluded as "fruit of the poisonous tree." State v. Holland, 176

N.J. 344, 353 (2003). This evidence is excluded to "ensure that the deterrent

aim of the exclusionary rule is realized." State v. Atwood, 232 N.J. 433, 448-

49 (2018). However, evidence may still be admissible under the doctrine of

attenuation if the "causal connection between the illegal conduct and obtaining

the evidence has become so attenuated as to dissipate the taint . . . ." State v.

James, 346 N.J. Super. 441, 453 (App. Div. 2002) (citing Nardone v. U.S., 308


                                                                            A-0935-17T3
                                        24
U.S. 338, 341 (1939)).      The relevant question is whether "the challenged

evidence was acquired by exploitation of the primary 'illegality or instead by

means sufficiently distinguishable to be purged of the primary taint.'" Id. at 453-

54 (quoting Wong Sun v. U.S., 371 U.S. 471, 487-88 (1963)).

      Nonetheless, a search based on a properly obtained warrant is presumed

valid. State v. Valencia, 93 N.J. 126, 133 (1983). When a search is conducted

pursuant to a warrant, the defendant has the burden of proving the invalidity of

that search, namely, "that there was no probable cause supporting the issuance

of the warrant or that the search was otherwise unreasonable."           Ibid.    In

reviewing such a challenge, "[w]e accord substantial deference to the

discretionary determination resulting in the issuance of the [search] warrant."

State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929 (1993).

      Given our deferential standard of review, we are satisfied the motion judge

properly found there was probable cause supporting the issuance of the warrant

and that the search of the Tahoe after the warrant issued was reasonable.

                                      IV.

      Turning to Point I of Vega's brief, he argues there was insufficient

evidence for his numerous CDS-related charges, as well as the hindering charge,




                                                                           A-0935-17T3
                                       25
to go before a jury, let alone lead to his conviction. Accordingly, he claims the

denial of his motions for judgment of acquittal constitutes error. We disagree.

      A trial court is to enter an order for a judgment of acquittal only "if the

evidence is insufficient to warrant a conviction." R. 3:18-1.

            [T]he question the trial judge must determine is
            whether, viewing the State's evidence in its entirety, be
            that evidence direct or circumstantial, and giving the
            State the benefit of all its favorable testimony as well
            as all of the favorable inferences which reasonably
            could be drawn therefrom, a reasonable jury could find
            guilt of the charge beyond a reasonable doubt.

            [State v. Reyes, 50 N.J. 454, 458-59 (1967).]

      We apply the same standard on appeal. State v. Kittrell, 145 N.J. 112, 130

(1996). Under Rule 3:18-1, we "confine our analysis of the adequacy of the

evidence to the State's case and the inferences to be derived therefrom." State

v. Samuels, 189 N.J. 236, 245 (2007). "If the evidence satisfied that standard,

the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

      A motion for judgment of acquittal may be denied even where a

defendant's proofs contradict those of the State; such contentions do not

necessarily "warrant the removal of the case from the consideration of the jury."

State v. Graziani, 60 N.J. Super. 1, 15-16 (App. Div. 1959).




                                                                         A-0935-17T3
                                      26
      Vega insists there was insufficient evidence to establish he was in

possession of a controlled dangerous substance, whether that possession be

actual or constructive. However, regarding possession of contraband, "it is

enough that [a] defendant have 'intentional control and dominion' over the

object." State v. Humphreys, 54 N.J. 406, 413-14 (1969) (quoting State v.

DiRienzo, 53 N.J. 360, 369 (1969)). "A person constructively possesses an

object when, although he lacks 'physical or manual control,' the circumstances

permit a reasonable inference that he has knowledge of its presence and intends

and has the capacity to exercise physical control or dominion over it during a

span of time." Spivey, 179 N.J. at 236-37 (citation omitted).

      Such an inference makes it more likely than not that the facts proven point

to the fact inferred. DiRienzo, 53 N.J. at 376. "An inference that a drug

smuggler carrying a very large quantity of drugs would travel with a

knowledgeable companion, and not an 'innocent' passenger or stranger, is not

only reasonable, it is likely." State in Interest of J.R., 244 N.J. Super. 630, 635

(App. Div. 1990) (quoting State v. Palacio, 111 N.J. 543, 554 (1988)).

      While "criminal possession may not be inferred from [a] defendant's mere

presence at the location where the contraband was found," State v. Shipp, 216

N.J. Super. 662, 665 (App. Div. 1987) (citation omitted), here, the judge


                                                                           A-0935-17T3
                                       27
determined a jury could find Vega was more than merely present at the scene.

Having presided over the suppression hearing, the motion judge knew Vega was

arrested in a high crime area known for narcotics transactions. Moreover, the

judge was aware the sweatshirt containing heroin was moved twice by Bethea

while Vega was seated next to Bethea in the Tahoe. Further, it is undisputed

Vega provided a fictitious name to police during the encounter. Also, the judge

found both defendants denied ownership of the flip phone found inside the

Tahoe.

      As the judge was compelled to give the State the benefit of all favorable

evidence presented, as well as the inferences to be derived therefrom, we are

satisfied the judge committed no error in denying Vega's motions for acquittal.

We have no reason to disturb his determination that a jury could reasonably infer

Vega had knowledge of the heroin's presence in the Tahoe, that he intended and

had the capacity to exercise physical control or dominion over it before police

approached him, and that Vega was not "merely present" in the Tahoe.

Likewise, we see no reason to disturb the judge's finding that a jury could

reasonably infer Vega hindered his apprehension when he provided a fictitious

name to police.




                                                                         A-0935-17T3
                                      28
                                      V.

      In Points II, III, and IV of his brief, Vega raises arguments that were not

raised below. He contends the trial judge did not properly instruct the jury

regarding the law of constructive possession and intent to distribute, and that the

judge improperly permitted Officer Williams to render an opinion while

testifying. As these arguments are raised for the first time on appeal, we review

them under the "plain error" standard. State v. Pressley, 232 N.J. 587, 593

(2018). Consistent with this standard, reversal is appropriate only if an error

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

      "[W]hen counsel does not make a timely objection at trial, it is a sign 'that

defense counsel did not believe the remarks were prejudicial . . . .'" Id. at 594

(quoting State v. Echols, 199 N.J. 344, 360 (2009)). Thus, "[d]efendant's lack

of objections . . . weighs against defendant's claim that errors were 'clear' or

'obvious.' Indeed, '[i]t [is] fair to infer from the failure to object below that in

the context of the trial the error was actually of no moment.'" State v. Nelson,

173 N.J. 417, 471 (2002) (second and third alterations in original) (quoting State

v. Macon, 57 N.J. 325, 333 (1971)). "The failure to object also deprives the

court of an opportunity to take curative action." State v. Frost, 158 N.J. 76, 84

(1999). Guided by these principles, we find no error, let alone plain error, with


                                                                            A-0935-17T3
                                        29
the judge's jury charges or his admission of Officer Williams' contested

statement. We add only a few brief comments.

      "[P]roper jury instructions are essential to ensuring a fair trial." State v.

Robinson, 165 N.J. 32, 40 (2000) (citing State v. Green, 86 N.J. 281, 287

(1981)). "It is the independent duty of the court to ensure that the jurors receive

accurate instructions on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either party."         State v.

Reddish, 181 N.J. 553, 613 (2004). A trial court's "failure to charge the jury on

an element of an offense is presumed to be prejudicial error, even in the absence

of a request by defense counsel," requiring reversal. State v. Federico, 103 N.J.

169, 176 (1986).

      "A trial court is vested with discretion in delivering the jury instructions

that are most applicable to the criminal matter before it." State v. Funderburg,

225 N.J. 66, 80 (2016) (citing State v. Ernst, 32 N.J. 567, 583-84 (1960)). To

assess the soundness of the jury instruction, an appellate court considers "how

and in what sense, under the evidence before them, and the circumstances of the

trial, would ordinary . . . jurors understand the instructions as a whole." State

v. Savage, 172 N.J. 374, 387 (2002) (alteration in original) (quoting Crego v.

Carp, 295 N.J. Super. 565, 573 (App. Div. 1996)).


                                                                             A-0935-17T3
                                        30
      Vega argues the trial judge improperly instructed the jury about

constructive possession when it requested clarification.           But the judge's

instructions on constructive possession were based on the applicable jury charge

and statutory definitions.     See Model Jury Charges (Criminal), "Unlawful

Possession of a Controlled Dangerous Substance" (N.J.S.A. 2C:35-10) (rev. Jan.

14, 2013); see also N.J.S.A. 2C:35-2. Moreover, the judge responded to the

jury's request for clarification, stating:

             Unfortunately, we are bound by the definitions that are
             contained in the model jury charges . . . . But I will
             reread certain portions to you . . . And as you know it's
             under . . . the unlawful possession of a [CDS] . . . . A
             person may possess—and I'll just say instead of heroin,
             it says here which is an illegal substance - even though
             it was not physically on the person at the time of the
             arrest - and it doesn't even have to be, it could be
             possession of anything, it doesn’t have to be an illegal
             substance. I will elaborate that far . . . if they have, in
             fact at some time prior to the arrest, control over it
             . . . . On the other hand, constructive possession means
             possession in which the possessor does not physically
             have the item on his or her person, but is aware that the
             item is present and is able to and had the intention to
             exercise control over it.

      We are satisfied the judge's instructions and subsequent clarifications

properly apprised the jury of the legal principles necessary to determine whether

Vega had constructive possession of heroin.            Indeed, the jury's verdict

demonstrates the jurors understood this information because they acquitted

                                                                           A-0935-17T3
                                         31
Vega on all counts involving cocaine, evincing their ability to distinguish

between those facts involving Vega's possession of heroin rather than cocaine.

      Vega next argues the judge did not fully instruct jurors on the essential

criminal elements of possession with intent to distribute CDS, and he improperly

included the word "attempt" in the charge without defining "attempt." However,

the judge outlined the elements of the crime of possession with intent to

distribute, explaining what constituted "intent" and he instructed:

            In regard to the third element[,] that the defendants had
            the intent to distribute . . . . Distribute means the
            transfer, actual, constructive, or [at]tempted from one
            person to another of a [CDS]. The intent must refer to
            the defendants' purpose to distribute . . . the [CDS] and
            not merely to possess the items . . . . Intent means a
            purpose to do something . . . . The intention may be
            gathered from a person[,] act, conduct . . . and from all
            the surrounding circumstances . . . . You may consider
            any evidence as to the quantity, purity and packaging
            ....

      The judge's charge tracked the pertinent Model Jury Charge. See Model

Jury Charge (Criminal), "Possession of a Controlled Dangerous Substance with

Intent to Distribute" (N.J.S.A. 2C:35-5) (rev. June 8, 2015). Moreover, Vega

has not demonstrated that by omitting a definition for the word, "attempt," while

charging the jury, the judge deprived jurors of fairly assessing the merits of

Vega's defense and caused the jury to reach a result it would not have otherwise


                                                                         A-0935-17T3
                                      32
reached. There is nothing in the record to suggest this case involved attempted

distribution. Accordingly, we find no error, much less plain error, with the

judge's jury charges.

      Turning to Vega's contention that Officer Williams usurped the role of the

jurors by stating defendants "had no legitimate reason to be [at the motel]" and

were "about to perform a narcotics transaction," we are satisfied this argument,

too, lacks merit.

      Permissible lay opinion testimony can be based on, and supported by

testimony about, the officer's personal perception and observation. State v.

McLean, 205 N.J. 438, 459 (2011). "[L]ay opinion testimony is limited to what

was directly perceived by the witness and may not rest on otherwise

inadmissible hearsay." Id. at 460. A witness may not "offer a lay opinion on a

matter 'not within [the witness's] direct ken . . . and as to which the jury is as

competent as he to form a conclusion[.]'" Id. at 459 (alterations in original)

(quoting Brindley v. Firemen's Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)).

      Here, Officer Williams' testimony about his initial observations of the

defendants simply provided an explanation for why he proceeded to conduct a

field inquiry. He did not opine on the ultimate issue of Vega's guilt, and the jury

was able to consider the evidence and conclude Vega was guilty on some counts


                                                                           A-0935-17T3
                                       33
and not others. Thus, Vega has not shown Officer Williams' explanation for

conducting further investigation was "'clearly and unmistakably improper' and

'so egregious' that it deprived [Vega] of the 'right to have a jury fairly evaluate

the merits of his defense.'" Pressley, 232 N.J. at 593-94 (quoting State v.

Wakefield, 190 N.J. 397, 437-38 (2007)).

                                      VI.

      Finally, each defendant claims the judge erred when imposing sentence.

In his Point III, Bethea argues the imposition of a four-year period of parole

ineligibility on each of his eight-year sentences was impermissible because the

judge did not conclude the applicable aggravating factors "substantially

outweighed" the one mitigating factor he found. On the other hand, Vega simply

maintains that his sentence is excessive. We are not persuaded by defendants'

arguments.

      As to Bethea's contention, we note the language set forth in subsection (b)

of N.J.S.A. 2C:43-6, provides:

             "where the court is clearly convinced that the
             aggravating factors substantially outweigh the
             mitigating factors, as set forth in subsections a. and b.
             of [N.J.S.A.] 2C:44-1, or the court finds that the
             aggravating factor set forth in paragraph (5) of
             subsection a. of N.J.S.[A.] applies, the court may fix a
             minimum term not to exceed one-half of the term set
             pursuant to subsection a., or one half of the term set

                                                                           A-0935-17T3
                                       34
            pursuant to a maximum period of incarceration for a
            crime set forth in any statute other than this code,
            during which the defendant shall not be eligible for
            parole . . . .

            [N.J.S.A. 2C:43-6(b).]

       However, Bethea was not sentenced under N.J.S.A. 2C:43-6(b). Instead,

he was sentenced as a repeat drug offender under subsection (f) of the statute,

and the discretionary language Bethea references in support of his argument

does not appear in subsection (f) of the statute.

       In State v. Thomas, 188 N.J. 137, 150 (2006), the Court made clear that

"when a prosecuting attorney makes application under N.J.S.A. 2C:43-6(f), the

sole determination for the sentencing court is to confirm that the defendant has

the predicate prior convictions to qualify for enhanced sentencing." Here,

Bethea does not question the judge was required to impose a mandatory

extended term with a minimum period of parole ineligibility equal to one -third

to one-half of the term, whichever was greater. N.J.S.A. 2C:43-6(f). The judge

was also required to fix the term "within the extended-term range based on

aggravating and mitigating factors found to be present. Thomas, 188 N.J. at

154.

       There was ample support in the record for the judge's finding that the

aggravating factors "clearly outweighed," the lone mitigating factor in Bethea's

                                                                        A-0935-17T3
                                       35
case. Moreover, as Bethea's prison terms were in the mid-range of his exposure

as a mandatory extended term eligible defendant, and the concurrent four-year

periods of parole ineligibility on the eight-year sentences were consistent with

the provisions of N.J.S.A. 2C:43-6(f), we see no basis to disturb Bethea's

sentence.

      Turning to Vega's sentencing argument, we do not agree his sentence is

excessive. Trial judges have broad sentencing discretion as long as the sentence

is based on competent credible evidence and fits within the statutory framework.

State v. Dalziel, 182 N.J. 494, 500 (2005). "Appellate review of sentencing is

deferential," and we therefore avoid substituting our judgment for the judgment

of the trial court. Id. at 65; State v. O'Donnell, 117 N.J. 210, 215 (1989); State

v. Roth, 95 N.J. 334, 365 (1984).

      To ensure a defendant enjoys meaningful appellate review, a sentencing

judge must identify and consider any relevant aggravating and mitigating factors

that apply to the case before a sentence is imposed. Further, judges must

"explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49,

65 (2014).

      Here again, the aggravating and mitigating factors found by the judge

were based on competent and reasonably credible evidence in the record.


                                                                          A-0935-17T3
                                       36
Further, we find the judge applied the correct sentencing guidelines enunciated

in the Code. Accordingly, we discern no basis to second-guess Vega's sentence.3

      Affirmed.




3
  As for the balance of any of defendants' arguments not expressly discussed
above, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
                                                                       A-0935-17T3
                                     37
