                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1207-13T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,              APPROVED FOR PUBLICATION

v.                                             May 18, 2015

                                          APPELLATE DIVISION
JAMES L. LEGETTE,
a/k/a JAMES LEGGETTE, JR.,
a/k/a JAMES LEGETTE,

     Defendant-Appellant.

_______________________________________

         Argued September 22, 2014 – Decided May 18, 2015

         Before Judges Sabatino,1 Guadagno and Leone.

         On appeal from the Superior Court of New
         Jersey,   Law  Division,    Atlantic County,
         Indictment Nos. 12-04-0932.

         A. Harold     Kokes   argued    the     cause    for
         appellant.

         John J. Santoliquido, Assistant Prosecutor,
         argued the cause for respondent (James P.
         McClain,    Atlantic    County    Prosecutor,
         attorney; John Vincent Molitor, Assistant
         Prosecutor, of counsel and on the brief).

     The opinion of the court was delivered by

LEONE, J.A.D.


1
  Judge Sabatino did not participate in oral argument. He joins
the opinion with the consent of the parties. R. 2:13-2(b).
       Defendant James Legette was properly detained by a police

officer conducting an investigatory stop.                      Defendant sought to

get    his   identification        by    entering     his     apartment,      which     the

officer permitted on the condition that the officer accompany

him.     While in his apartment, defendant attempted to conceal the

sweatshirt he was wearing which contained a firearm, but he was

thwarted by the officer.                Defendant appeals the denial of his

motion    to      suppress   the     handgun,    contending         that    the   officer

should not have been allowed to accompany him to the apartment.

       The Fourth Amendment of the United States Constitution, and

Article      I,     paragraph      7    of   the      New     Jersey       Constitution,

"guarantee        the   right   of      people   to    be    free    of     unreasonable

searches and seizures in their homes."                      State v. Lamb, 218 N.J.

300, 314 (2014).          Both the United States Supreme Court and the

New Jersey Supreme Court have found that when individuals under

arrest seek to enter their residence to obtain identification,

clothing, or other items, it is reasonable and permissible for

the police to accompany them to prevent them from escaping or

endangering the police.            Washington v. Chrisman, 455 U.S. 1, 102

S. Ct. 812, 70 L. Ed. 2d 778 (1982); State v. Bruzzese, 94 N.J.

210, 234 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295,

79 L. Ed. 2d 695 (1984).




                                             2                                    A-1207-13T3
       We   apply      those    decisions         to   the    situation    here.        The

officer     had     valid     authorization         to   detain    defendant      for     an

investigatory          stop   based    on   reasonable        suspicion,    and     had    a

reasonable belief that defendant was armed and dangerous.                                 We

hold   that       an    officer   in    that       situation      may   accompany       the

detainee      who       chooses   to        enter      his    residence     to     obtain

identification or other personal items.                      Accordingly, we affirm.

                                             I.

       At the suppression hearing, Officer Richard Dill testified

to the following facts.               Dill was a uniformed K-9 officer with

ten years of experience in the Patrol Unit of the Somers Point

Police Department.             On the night of January 17, 2012, he was

dispatched to investigate a noise complaint in a high-crime,

high-narcotics apartment complex he patrolled regularly.                             As he

drove through the complex, Dill saw defendant and another man

standing on a common porch of the apartment building.                            Entering

the building from another direction using a common hallway, Dill

heard the two men yelling to people in an apartment where there

was loud talking and music.                 After Dill neared the door to the

common porch, defendant opened the door about twelve inches.

Officer Dill smelled an overpowering odor of burnt marijuana

coming through the open doorway.




                                              3                                   A-1207-13T3
       Suspecting      defendant        was      committing          a    criminal      act

involving marijuana, Officer Dill walked onto the common porch

and    identified      himself.         Defendant           immediately      turned     and

started walking at a fast pace into the parking lot.                             Dill told

defendant to stop and asked where he was going.                           Defendant said

he was going to his car.                 Dill asked if defendant had any

identification.        Defendant said his identification was up in his

apartment, immediately volunteered to go into his apartment to

get his ID, and started walking back to the apartment building.

       Officer Dill told defendant, "I have to come with you to

get [the ID]."         Defendant did not protest and continued to walk

into   the   building.       As    defendant          was    walking,      Officer     Dill

noticed a bulge in the pocket of the grey hooded sweatshirt

defendant was wearing.          Dill was concerned it could be a weapon

or contraband that defendant was attempting to conceal.                                Dill

went with defendant because "he's a suspect at this point and I

wasn't    going   to    allow     him    out     of    my    sight       where   he   could

possibly     discard     evidence       of    the     crime     being      committed     or

possibly get any sort of weapon" that would endanger officer

safety.

       Accompanied      by   Officer          Dill,         defendant      entered      the

apartment, went into the bedroom, picked up a wallet, removed

his identification, and handed it to Dill.                        Neither defendant




                                             4                                    A-1207-13T3
nor the woman in the apartment protested Dill's accompanying

defendant.     Defendant and Dill went into the living room, where

Dill radioed in the information from defendant's identification.

       As Officer Dill was radioing, defendant took off his grey

sweatshirt, handed it to the woman, and told her to put it in

the bedroom.     His suspicions further aroused, Dill stopped his

radio transmission and told defendant: "we're going to need that

sweatshirt."     Defendant and Dill followed the woman back into

the bedroom.     Although she put the grey sweatshirt on the floor,

defendant stepped over the grey sweatshirt and grabbed another

sweatshirt from the closet.            Dill picked up the grey sweatshirt

from the floor, and said to defendant: "this is the sweatshirt

you were wearing.       We need this one."         Defendant's attempts to

get rid of the grey sweatshirt further raised Officer Dill's

concern for his safety and the preservation of evidence.

       Reentering the living room with defendant, and holding the

grey   sweatshirt,     Officer   Dill    resumed   calling   in   defendant's

identification    to   check     for   outstanding   warrants.     Defendant

became extremely nervous, repeatedly looked at the sweatshirt,

and his demeanor became uncooperative.

       Increasingly concerned for his safety, Officer Dill asked

defendant to step back outside, where Dill's patrol vehicle, K-9

dog, and backup Officer Mark McElwee were.             Once outside, Dill




                                        5                            A-1207-13T3
asked defendant to have a seat on the building steps.                       Defendant

started tying his shoe, causing concern he was preparing to

flee.     Dill placed the sweatshirt on the ground.               Defendant kept

looking at the sweatshirt and looking around nervously, so Dill

informed him he was handcuffing and detaining him during the

investigation, but was not arresting him.

    When Officer Dill's warrant inquiry came back negative, he

asked if he could check the sweatshirt, but defendant declined

to consent.     Dill said he would conduct a canine sniff of the

sweatshirt,    and   to    keep       him   from   provoking   the    K-9    dog,    he

placed defendant in the back of the patrol vehicle.                         Dill got

another    sweatshirt      and    a    towel    from   his   police    vehicle      and

placed them alongside the grey sweatshirt, but the dog put his

nose in the grey sweatshirt, grabbed it in his mouth, and threw

it to the pavement.              It landed making a metal "clank" that

sounded like a weapon.            Dill picked up the sweatshirt, for the

first time manipulated the pocket, and felt a metal handgun.

The officer seized the loaded handgun.

    Defendant        was     indicted           for    second-degree         unlawful

possession of a handgun without a permit, N.J.S.A. 2C:39-5(b),

and second-degree possession of a weapon by a convicted person,

N.J.S.A. 2C:39-7.       He filed a suppression motion.                After hearing

the testimony and receiving supplemental briefing and argument,




                                            6                                A-1207-13T3
the trial court denied the motion.         Defendant pled guilty to

possession of a weapon by a convicted person, and was sentenced

to a negotiated term of five years in prison without eligibility

for parole.2   The trial court denied bail pending appeal.

     Defendant   appeals   the   October      11,    2013    judgment     of

conviction, raising the following issues:

          POINT I.       THE     COURT   ERRED    IN
          DETERMINING DEFENDANT IS LIKELY TO FLEE IF
          ALLOWED BAIL PENDING APPEAL.

          POINT II.      DEFENDANT     DOES    NOT    POSE    A
          DANGER TO COMMUNITY.

          POINT III.     THERE     ARE      SUBSTANTIAL
          QUESTIONS OF FACT AND LAW THAT WERE RAISED
          IN DEFENDANT'S MOTION TO SUPPRESS.

          POINT IV.        INVALID TERRY STOP.

          POINT V.       SUBSEQUENT WARRANTLESS             HOME
          INTRUSION AND FOURTH AMENDMENT.

          POINT VI.      PLAIN VIEW,       PROBABLE       CAUSE
          AND EXIGENT CIRCUMSTANCES.

          POINT VII.     WARRANTLESS    UNLAWFUL      SEIZURE
          AND ARREST OF DEFENDANT.

          POINT VIII.    OFFICER DILL'S TESTIMONY WAS
          NOT CREDIBLE AND WAS UNRELIABLE.

          POINT IX.      TRIAL COURT RULED           ON   FACTS
          THAT WERE OUTSIDE OF RECORD.




2
  Defendant's sentence was concurrent to a three-year sentence
for an unrelated drug possession charge, and a one-year sentence
for an unrelated obstruction charge.



                                 7                                 A-1207-13T3
                                         II.

      We must hew to our "deferential standard of review."                        State

v. Rockford, 213 N.J. 424, 440 (2013).                   "[A]n appellate court

reviewing a motion to suppress must uphold the factual findings

underlying the trial court's decision so long as those findings

are supported by sufficient credible evidence in the record."

Ibid.   (internal     quotation       marks      omitted).         "Those    findings

warrant     particular     deference           when   they   are     substantially

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

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

reviewing court cannot enjoy."                 Ibid. (alteration in original;

internal quotation marks omitted).

      Here, the trial court found Officer Dill's testimony "very

credible and reliable."          Defendant argues the court should have

discredited Dill because of differences in wording between his

testimony    and    report,     and    a       discrepancy   between        his   time

estimate    and    that   of   Officer     McElwee.      However,      "[i]t      is   a

deeply rooted principle of our jurisprudence that '[a]ppellate

courts should defer to trial courts' credibility findings that

are influenced by matters such as observations of the character

and demeanor of witnesses and common human experience that are

not transmitted by the record.'"                State v. Segars, 172 N.J. 481,

500-01 (2002) (citation omitted).                 Defendant has not shown the




                                           8                                 A-1207-13T3
suppression court's findings were "'so clearly mistaken that the

interests    of    justice    demand      intervention      and    correction.'"

State v. Robinson, 200 N.J. 1, 15 (2009) (citation omitted).

      Defendant    also     notes   the       trial   court's     letter   opinion

contained    certain      factual      details        not   reflected      in    the

suppression hearing testimony.            We will base our determinations

solely on the facts in the testimony, and consider the validity

of each stage of Officer Dill's encounter with defendant.

                                       A.

      Defendant does not dispute that Officer Dill had the right

to   enter   the   common    hallway      of    the    apartment     building      to

investigate the noise complaint.              State v. Walker, 213 N.J. 281,

296 (2013); State v. Smith, 37 N.J. 481, 496 (1962); State v.

Brown, 282 N.J. Super. 538, 547 (App. Div.), certif. denied, 143

N.J. 322 (1995).

      When defendant opened the door of the common porch, Officer

Dill detected the overwhelming odor of burnt marijuana.                         "'New

Jersey courts have recognized that the smell of marijuana itself

constitutes probable cause "that a criminal offense ha[s] been

committed and that additional contraband might be present."'"

Walker, supra, 213 N.J. at 290 (quoting State v. Nishina, 175

N.J. 502, 516-17 (2003) (quoting State v. Vanderveer, 285 N.J.

Super. 475, 479 (App. Div. 1995))).




                                          9                                A-1207-13T3
    In Vanderveer, a police officer encountered two individuals

on an outdoor porch and detected the odor of burnt marijuana.

Vanderveer, supra, 285 N.J. Super. at 477, 479.                       We held the

marijuana    odor   gave   rise    to    probable       cause   "to    conduct     a

warrantless search of the persons in the immediate area from

where the smell has emanated."           Id. at 481.       Thus, Officer Dill

had the right to search defendant.

                                        B.

    Officer    Dill   chose   to   take      a   more    restrained     approach,

simply entering the common porch to speak to defendant.                         See

State v. Johnson, 171 N.J. 192, 209 (2002).                     When defendant

tried to hurry away, Dill stopped him.             The trial court properly

found reasonable suspicion justifying this investigatory stop of

defendant.

    At a suppression hearing, "'the State bears the burden of

proving by a preponderance of the evidence that a warrantless

search or seizure falls within one of the few well-delineated

exceptions to the warrant requirement.'"                  State v. Mann, 203

N.J. 328, 337-38 (2010) (citation omitted).               "One such exception

is denominated an investigatory stop or a Terry stop."                     Id. at

338 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.

2d 889 (1968)).     An investigatory stop "'is valid if it is based

on specific and articulable facts which, taken together with




                                        10                                A-1207-13T3
rational inferences from those facts, give rise to a reasonable

suspicion of criminal activity.'"            Ibid. (citation omitted).

    As      "'the    smell    of     burnt    marijuana    under    the      total

circumstances create[s] a heightened and reasonable suspicion

that an offense was being committed,'" Dill was justified in

stopping defendant.          Walker, supra, 213 N.J. at 290 (quoting

State v. Judge, 275 N.J. Super. 194, 202 (App. Div. 1994)).                      In

addition, given the evidence that defendant just committed a

marijuana    offense,    his       hurried    departure    when    the    officer

appeared "'reasonably justif[ied] an inference that it was done

with a consciousness of guilt and pursuant to an effort to avoid

an accusation based on that guilt.'"              State v. Tucker, 136 N.J.

158, 169 (1994) (citation omitted).

    Moreover,       Officer    Dill    appropriately      asked   defendant      to

produce   identification.           "[I]t    is   well   established     that    an

officer may ask a suspect to identify himself in the course of a

Terry stop."        Hiibel v. Sixth Judicial Dist. Court, 542 U.S.

177, 186, 124 S. Ct. 2451, 2457, 159 L. Ed. 2d 292, 303 (2004);

Michigan v. Summers, 452 U.S. 692, 700 n.12, 101 S. Ct. 2587,

2593, 69 L. Ed. 2d 340, 348 (1981).                "[T]he ability to . . .

check identification in the absence of probable cause promotes

the strong government interest in solving crimes and bringing

offenders to justice."         United States v. Hensley, 469 U.S. 221,




                                        11                                A-1207-13T3
229, 105 S. Ct. 673, 680, 83 L. Ed. 2d 604, 612 (1985); see

State v. Sirianni, 347 N.J. Super. 382, 390-91 (App. Div.),

certif. denied, 172 N.J. 178 (2002).

                                          C.

       When Officer Dill asked defendant for his identification,

defendant     said    his    ID    was   up    in     his    apartment,    immediately

volunteered to go get it, and started walking to the apartment.

Dill   told    defendant      he    would      have     to     accompany       defendant.

Defendant claims the officer violated his rights by accompanying

him into the apartment.3

       The   facts    of    this   case   strongly          resemble     the    facts   in

Chrisman.      There, a police officer saw a college student with

alcohol and stopped him and asked for identification.                           Chrisman,

supra, 455 U.S. at 3, 102 S. Ct. at 815, 70 L. Ed. 2d at 783.

The student said that his ID was in his dormitory room and asked

if the officer would wait while he went to retrieve it.                             Ibid.

The officer answered that, under the circumstances, he would

have to accompany the student.                Ibid.

       The   United   States       Supreme     Court        held   the   officer    could

properly accompany the student into his dorm room, and upheld

his plain view seizure of the drugs he saw in the room.                            Id. at


3
  At oral argument on appeal, defendant conceded the officer had
not violated his rights prior to that time.



                                          12                                     A-1207-13T3
7-9, 102 S. Ct. at 817-18, 70 L. Ed. 2d at 785-86.                   The Court

ruled that "the officer had placed [the student] under lawful

arrest, and therefore was authorized to accompany him to his

room for the purpose of obtaining identification.                The officer

had a right to remain literally at [the student's] elbow at all

times; nothing in the Fourth Amendment is to the contrary."                  Id.

at 6, 102 S. Ct. at 816, 70 L. Ed. 2d at 784 (footnote omitted).

       The Court "h[e]ld therefore that it is not 'unreasonable'

under the Fourth Amendment for a police officer, as a matter of

routine, to monitor the movements of an arrested person, as his

judgment dictates, following the arrest."             Id. at 7, 102 S. Ct.

at 817, 70 L. Ed. 2d at 785.            "The officer's need to ensure his

own safety—as well as the integrity of the arrest—is compelling.

Such   surveillance    is    not   an    impermissible    invasion     of    the

privacy   or   personal     liberty     of   an   individual   who   has    been

arrested."     Ibid.

       In Bruzzese, our Supreme Court "adopt[ed] the Chrisman rule

as the law of New Jersey."            Bruzzese, supra, 94 N.J. at 234.4


4
  The Court noted that "our lower courts also have followed the
Chrisman approach."   Ibid. (citing, e.g., State v. Brown, 132
N.J. Super. 180, 184 (App. Div. 1975)).   The Court disapproved
the sole exception, State v. Seiss, 168 N.J. Super. 269 (App.
Div. 1979), to the extent it "denies a police officer the
unequivocal right to accompany a person he has lawfully
arrested," ibid., and reversed the suppression court and panel
majority which had relied on Seiss. Id. at 216, rev'g State v.
                                                    (continued)


                                        13                            A-1207-13T3
There, when officers went to the defendant's house to execute an

arrest warrant, the defendant said he wanted to put on shoes and

a   jacket      before      going     outside.           The    officers,         "[w]ithout

invitation,"      followed      the    defendant         upstairs      to    his    bedroom,

saying they had to accompany him.                    Id. at 215.                 Our Supreme

Court upheld their actions, "rul[ing] that once a defendant is

placed under lawful arrest, the arresting officer has the right

to remain at his side and to follow him wherever he chooses to

go."   Id. at 232.

       Our   Supreme     Court      found    "the        reasons       advanced        by    the

Supreme      Court    for     its     holding      [in     Chrisman]         are       equally

applicable      in    New    Jersey."            Ibid.         Both    Courts       stressed

"'[e]very arrest must be presumed to present a risk of danger to

the arresting officer. . . .                Moreover, the possibility that an

arrested     person      will    attempt      to     escape       if     not      proper[ly]

supervised is obvious.'"              Id. at 231 (quoting Chrisman, supra,

455 U.S. at 7, 102 S. Ct. at 817, 70 L. Ed. 2d at 785).

       "[T]he    concerns       [Chrisman        found]        present      in    an     arrest

situation may also be present in an investigatory detention."

Servis v. Commonwealth, 371 S.E.2d 156, 162 (Va. Ct. App. 1988).


(continued)
Bruzzese, 187 N.J. Super. 435, 438-40 (App. Div. 1982); see also
id. at 453, 455 (Milmed, P.J.A.D., dissenting) (following
Chrisman and Brown and finding the right to accompany "well
embedded in the law").



                                            14                                         A-1207-13T3
Both the United States and New Jersey Supreme Courts have found

the    danger     of       "'an   on-the-street       or   roadside     investigatory

encounter'" to be comparable to "'[t]he risk of danger in the

context of an arrest in the home.'"                     State v. Jones, 179 N.J.

377, 406 (2004) (quoting Maryland v. Buie, 494 U.S. 325, 333,

110 S. Ct. 1093, 1098, 108 L. Ed. 2d 276, 285 (1990)).                                  Our

Supreme    Court       has     likened   the     public    interest    in    preventing

flight from an attempted arrest and an attempted investigatory

stop    because        a    "defendant's     refusal       to   obey   the    officer's

command to stop [can] set off a chase along with the attendant

danger    of     escalating       violence       no   different    than      if   he    had

disobeyed a command to submit to an arrest."                      State v. Crawley,

187 N.J. 440, 457, cert. denied, 549 U.S. 1078, 127 S. Ct. 740,

166 L. Ed. 2d 563 (2006).

       Federal Courts of Appeals have recognized that "[a]lthough

the Supreme Court [in Chrisman] refers to the student as having

already been placed under arrest when the officer accompanied

him back to his dorm room to retrieve identification, we do not

think     that    this         characterization       makes     Chrisman      any      less

applicable"       to       a   pre-arrest      situation.         United     States       v.

Roberts, 612 F.3d 306, 308, 310 n.4 (5th Cir.) (officers waiting

for a defendant to get identification before executing an arrest

warrant could accompany the defendant into his apartment), cert.




                                            15                                    A-1207-13T3
denied, 562 U.S. 1116, 131 S. Ct. 839, 178 L. Ed. 2d 570 (2010).

Thus, where an officer has probable cause, but no plan to arrest

the detainee unless he is unable to provide identification, "it

is reasonable for police to keep him in view to ensure that

credentials are the only object of the expedition."                  United

States v. Garcia, 376 F.3d 648, 651-52 (7th Cir. 2004).             Indeed,

"several courts have since applied Chrisman's reasoning to allow

a   police   officer   to   accompany   a   suspect    into   dwellings     in

situations in which probable cause existed but formal arrests

had not yet occurred."       Hoover v. Dir., N.D. Dep't of Transp.,

748 N.W.2d 730, 737 (N.D. 2008); State v. Diercks, 674 S.W.2d

72, 79 (Mo. Ct. App. 1984).

      Other courts have applied Chrisman to Terry stops where the

officer   has   reasonable    suspicion     and   a   reasonable   belief    a

suspect is "potentially dangerous."          Conway v. Commonwealth, 407

S.E.2d 310, 313-15 & n.3 (Va. Ct. App. 1991) (en banc); Johnson

v. State, 662 P.2d 981, 984, 987 (Alaska Ct. App. 1983); Servis,

supra, 371 S.E.2d at 162.       Some courts required only reasonable

suspicion.      State v. Mayfield, 694 P.2d 915, 917-18 (Kan. Ct.

App. 1985); State v. Lupek, 712 S.E.2d 915, 920-21 (N.C. Ct.

App. 2011); Washington v. Commonwealth, 509 S.E.2d 512, 516-17

(Va. Ct. App. 1999); Commonwealth v. Daniels, 421 A. 2d 721,

724-25 (Pa. Super. Ct. 1980) ("the police had sufficient grounds




                                   16                               A-1207-13T3
to   enter   the   bedroom   [with   the    detainee]   under   the   Terry

analysis alone").     All of these cases hold that an officer can

accompany a person detained in an investigatory stop who seeks

to retrieve personal items from his residence.          Our research has

found no published case to the contrary.5

      We agree an officer who has lawfully detained a suspect in

an investigatory stop, like an officer who has lawfully arrested

a subject, need not let the suspect out of his sight or presence

during the detention.        Rather, if the detained person seeks to

obtain identification or other items from his residence, the

officer may accompany the detainee to prevent escape or danger

to the officer and others.       Such monitoring is justified by the

normal authority of an officer conducting a lawful Terry stop

"'to take such steps as [are] reasonably necessary to protect

[his and others'] personal safety and to maintain the status quo

during the course of the stop.'"           Servis, supra, 371 S.E.2d at

162 (quoting Hensley, supra, 469 U.S. at 235, 105 S. Ct. at 683-

84, 83 L. Ed. 2d at 616).

5
  Cf. Commonwealth v. Johnson, 777 S.W.2d 876, 879-80 (Ky. 1989),
cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952
(1990) (where a person was neither arrested nor detained upon
reasonable suspicion, but was simply tagging along with officers
executing a warrant to search his car, the court was "not
persuaded that the police are authorized, in anticipation of
executing a search warrant upon a person's property in another
location, to constantly observe him at a time at which he is not
under arrest").



                                     17                           A-1207-13T3
       We recognize there are differences between a detention and

an arrest.      "[T]he privacy rights of an individual who is placed

under lawful arrest are diminished."                     Bruzzese, supra, 94 N.J.

at 232.     Moreover, arrestees are more likely to want to retrieve

items such as clothing or footwear because they are being taken

to a police station.            On the other hand, investigatory stops,

like   arrests,       are    "encounters         with    the     police       in    which     a

person's freedom of movement is restricted,"                        State v. Elders,

192 N.J. 224, 246 (2007), and the detainee may be subjected to

the "invasion of privacy that occurs in a pat-down of a person's

body," State v. Smith, 134 N.J. 599, 619 (1994).                                   Moreover,

detainees    have     not    yet    been    searched       and   may    not        have   been

frisked.        Thus,       there   is     a     greater    risk       that    detainees,

particularly unfrisked detainees, have on their persons weapons

they could access, or contraband or evidence they could conceal

or destroy, if left unaccompanied.                      A Terry stop "'involves a

police investigation "at close range" . . . when the officer

remains particularly vulnerable in part because a full custodial

arrest    has   not    been    effected.'"          State      v.   Carter,         235   N.J.

Super. 232, 239 n.4 (App. Div. 1989) (citation omitted); Servis,

supra, 371 S.E.2d at 162.                  By accompanying the detainee, the

officer can better act "at the first indication that he was in

danger, or that evidence might be destroyed," Chrisman, supra,




                                            18                                       A-1207-13T3
455 U.S. at 9, 102 S. Ct. at 818, 70 L. Ed. 2d at 786, and

better "prevent [the detainee's] escape," Bruzzese, supra, 94

N.J. at 234.

       Moreover,          as    the     high     courts     observed       in     Chrisman     and

Bruzzese,           permitting     such     monitored       movement        may    benefit     the

suspects who desire to get identification, clothing, or similar

items.        "Indeed, were the rule otherwise, it is doubtful that an

arrested        person         would     ever     be   permitted      to     return      to    his

residence, no matter how legitimate the reason for doing so.

Such      a    rule       would    impose        far   greater      restrictions         on    the

personal liberty of arrested individuals than those occasioned

here."        Chrisman, supra, 455 U.S. at 7 n.4, 102 S. Ct. at 817,

70   L.       Ed.    2d   at    785;     see     Bruzzese,    supra,        94    N.J.   at    234

(finding "the Chrisman rule offers a sensible middle ground").

Such monitored movement may benefit detainees even more than

arrestees           because       it     could     enable    them      to       dispel    police

suspicions.            Many detainees would "welcome the opportunity to

find      their       driver's         licenses    and    thus   avoid       full    custodial

arrest."        Garcia, supra, 376 F.3d at 651.

       The      Supreme        Courts     in     Chrisman     and    Bruzzese        held     that

officers can accompany arrestees as a matter of course, without

a special showing.                 "The absence of an affirmative indication

that an arrested person might have a weapon available or might




                                                  19                                     A-1207-13T3
attempt    to     escape     does     not    diminish         the    arresting      officer's

authority       to    maintain        custody         over     the    arrested       person."

Chrisman, supra, 455 U.S. at 6, 102 S. Ct. at 816-17, 70 L. Ed.

2d at 785.        "The officer need not posit any special need for the

accompaniment         so    long    as    the     arrest      is    lawful."        Bruzzese,

supra, 94 N.J. at 232.                   "'There is no way for an officer to

predict reliably how a particular subject will react to arrest

or   the   degree      of    the    potential         danger,'"       and   there    is   "the

constant risk that the arrested defendant will seek to escape."

Id. at 231, 234 (quoting Chrisman, supra, 455 U.S. at 7, 102 S.

Ct. at 817, 70 L. Ed. 2d at 785).                      The same could be said about

Terry stops.

      Here, the circumstances justified Officer Dill accompanying

defendant.        Dill clearly had reasonable suspicion that defendant

engaged in a marijuana offense.                        Defendant's attempt to evade

Dill by rushing off to his car gave reason to believe defendant

would      flee      if      allowed        to        head    toward        his     apartment

unaccompanied.

      Moreover, after defendant started walking to his apartment,

the officer noticed a bulge in the pocket of defendant's grey

sweatshirt.          "The bulge in the [defendant's] jacket permitted

the officer to conclude that [he] was armed and thus posed a

serious     and      present       danger    to       the    safety    of    the    officer."




                                                 20                                  A-1207-13T3
Pennsylvania v. Mimms, 434 U.S. 106, 111-12, 98 S. Ct. 330, 334,

54 L. Ed. 2d 331, 337-38 (1977).                    "Indeed, a bulge alone has

been held sufficient to validate a protective pat-down."                       Smith,

supra, 134 N.J. at 621.

       Thus, the circumstances here provided not only reasonable

suspicion defendant was involved in crime, but also reasonable

suspicion that he was armed and dangerous.                       The circumstances

clearly      justified    Officer       Dill   in     accompanying     defendant    to

prevent him from escaping, accessing a possible weapon in his

sweatshirt or his residence, or concealing or destroying the

possible contraband in the sweatshirt.

       Because     both   types    of    reasonable      suspicion     are   present

here, we need not decide whether reasonable suspicion that a

detainee was involved in crime is itself sufficient to justify

accompanying the detainee.              However, we do not believe probable

cause is necessary to justify accompanying a detainee in a Terry

stop to prevent attack or escape.                   "'The Fourth Amendment does

not    require     a   policeman        who    lacks     the   precise    level     of

information necessary for probable cause to arrest to simply

shrug his shoulders and allow a crime to occur or a criminal to

escape.'"      State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Adams

v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923, 32 L. Ed.

2d    612,   616   (1972)).       Instead,      the    officer    is   permitted    to




                                          21                                 A-1207-13T3
detain    the     defendant    during        the    Terry    stop     and     prevent   his

escape.

      Defendant stresses Officer Dill was investigating a noise

complaint       and   a   marijuana         offense.        However,     an    "officer's

authority to maintain custody over" a defendant is not "altered

by the nature of the offense."                 Chrisman, supra, 455 U.S. at 6-7

& n.3, 102 S. Ct. at 816-17, 70 L. Ed. 2d at 784-85.                            Moreover,

the   officer's       authority        to    maintain       custody    allows     him    to

accompany the defendant "as a matter of routine"; the Court

rejected defendant's claim that "'exigent circumstances'" are

required.        Id. at 6-7, 11, 102 S. Ct. at 816-17, 819, 70 L. Ed.

2d at 785, 788 (citation omitted).

      For the reasons above, we apply Chrisman and Bruzzese and

conclude Officer Dill's action of accompanying defendant to his

apartment "was reasonable, and hence, constitutional, under both

the   Fourth      Amendment    of      the    United    States        Constitution      and

Article     I,     paragraph       7   of     the    New     Jersey     Constitution."

Bruzzese, supra, 94 N.J. at 235.                    We note that "the police did

not create the scenario that prompted defendant to return to his

[apartment]."         Ibid.    "It was the defendant himself who decided

to go [there]."            Ibid.       "The police did not order or even




                                              22                                  A-1207-13T3
suggest that defendant" do so.            Ibid.6      "[T]he policeman's act of

following      defendant    [to     his        apartment]       was   a     reasonable

consequence of defendant's own voluntary choice to go" there to

get his identification.        Ibid.

      We emphasize that a detainee may choose not to enter his

residence once he becomes aware an officer must accompany him.

As Bruzzese stated, "even after the police told the defendant

they would have to accompany him, he could have declined to go

[into his apartment] or asked [a third party] at that point to

get his [identification]."          Ibid.        If defendant had elected not

to enter his apartment, "the officers could not have entered

[it] without a search warrant."            Ibid.

      Thus,    a   defendant      holds    the       key   to   whether      there   is

accompanied entry into the residence, because it is based on his

own   entry,    and   it   cannot   occur       if    he   decides    not    to   enter

accompanied.       Here, defendant turned that key by continuing into

his apartment after learning that the officer would have to

accompany him.




6
  Nothing in the record suggests Dill accompanied defendant "to
conduct an exploratory search of his [apartment]."    Ibid.   In
any   event,   "the   proper   inquiry   for   determining   the
constitutionality of a search-and-seizure is whether the conduct
of the law enforcement officer who undertook the search was
objectively reasonable, without regard to his or her underlying
motives or intent." Id. at 219.



                                          23                                  A-1207-13T3
       Given that the defendant holds the key, our Supreme Court

in Bruzzese authorized officers to accompany an arrestee into

his    home   even    though    "one    of       this    country's        most    protected

rights throughout history has been the sanctity and privacy of a

person's home," and that courts have "applied a more stringent

standard . . . to searches of a residential dwelling."                                 Id. at

217.     The Court emphasized that "the touchstone of the Fourth

Amendment is reasonableness," and that the officer's action in

following     the    defendant       into    his    home          "was   reasonable,        and

hence, constitutional, under both the Fourth Amendment of the

United States Constitution and Article I, paragraph 7 of the New

Jersey Constitution."          Id. at 217, 235.

       We similarly recognize that "'physical entry of the home is

the chief evil against which the wording of the Fourth Amendment

is    directed.'"       State    v.    Vargas,          213   N.J.       301,   313    (2013)

(quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313,

92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)).                                      "The

Fourth    Amendment     and    the    New    Jersey       Constitution           assure     the

'highest degree of protection to privacy interests within the

home.'"       State v. Coles, 218 N.J. 322, 337 (2014) (citation

omitted).       "Both    protect       against          unreasonable        searches        and

regard    the       warrantless       entry       into        a     person's       home      as

'presumptively unreasonable.'"               Ibid. (citation omitted).




                                            24                                        A-1207-13T3
       Nonetheless,           like    the   Supreme       Court      in    Bruzzese,      "we

balance,     as    we    must        in   all    search      and    seizure    cases,     the

interests of public safety, in this instance the protection of

policemen, against the intrusion."                     Bruzzese, supra, 94 N.J. at

232.      We similarly conclude the "officer is entitled to the

protection he or she would receive under this rule," and that it

is "reasonable to permit policemen to keep [detained] persons in

sight and within reach to prevent their escape."                              Id. at 232,

234.      This is particularly true where, as here, there is a

reasonable belief they may be armed and dangerous.

                                                D.

       Once defendant entered his apartment, he provided Officer

Dill further grounds for believing his grey sweatshirt contained

a   weapon    or     other      contraband.            Defendant      removed      the   grey

sweatshirt and instructed his female companion to put it in the

bedroom      while      the    officer      was      busy,    and    then     suspiciously

stepped over the grey sweatshirt to grab another sweatshirt from

the closet.        Given this indication that defendant was trying to

conceal      evidence,         Dill       "had       unrestricted         access    to    the

[apartment]" to prevent it.                 Chrisman, supra, 455 U.S. at 9, 102

S. Ct. at 818, 70 L. Ed. 2d at 786.

       Indeed, Officer Dill would have been justified in seizing

and searching the sweatshirt "under the well-recognized 'plain




                                                25                                  A-1207-13T3
view' exception to a warrantless seizure of property under the

Fourth Amendment."            Bruzzese, supra, 94 N.J. at 235-36, 239

(upholding the plain view seizure and inspection of boots).                             The

officer was "lawfully in the viewing area."                     Id. at 236.          As set

forth     below,      he     had    "'probable      cause       to     associate       the

[sweatshirt]        with     criminal     activity'"         based      on      what    he

"'reasonably knew at the time of the seizure.'"                       Johnson, supra,

171    N.J.    at   213    (quoting    Bruzzese,       supra,    94    N.J.     at    237).

Finally,       Dill       "discover[ed]       the   evidence          'inadvertently,'

'meaning that he did not know in advance where evidence was

located       nor   intend    beforehand       to   seize    it.'"        Id.    at     206

(quoting Bruzzese, supra, 94 N.J. at 236).                      Because he "did not

know    in    advance      that    evidence    would    be   found      in"   the      grey

sweatshirt before he first encountered defendant, he did not use

"the plain-view doctrine only as a pretense" to avoid getting a

warrant in advance of the encounter.                    Id. at 211-13; see also

State v. Padilla, 321 N.J. Super. 96, 109 & n.7 (App. Div.

1999), aff'd o.b., 163 N.J. 3 (2000).

       Once again, Officer Dill chose a more restrained approach

and simply secured the grey sweatshirt rather than immediately

searching it.         Invalidating his actions "would have the perverse

effect of penalizing the officer for exercising more restraint




                                          26                                     A-1207-13T3
than was required under the circumstances."              Chrisman, supra,

455 U.S. at 8, 102 S. Ct. at 817, 70 L. Ed. 2d at 786.

     Moreover,    Officer     Dill's        monitoring    of     defendant's

movements was "conducted in an objectively reasonable fashion."

Bruzzese, supra, 94 N.J. at 234.           He did not "'lead the accused

from place to place and attempt to use his presence in each

location to justify a search'" of the apartment.               Id. at 234-35

(citation omitted).      Instead, he simply insisted that defendant

keep the sweatshirt he had been wearing, and accompanied him to

retrieve it.     Dill also did not "direct [defendant] to go to

another area without a legitimate reason grounded in the safety

of the police or the public."             Ibid.   Instead, when defendant

became extremely nervous, repeatedly looked at the sweatshirt,

and became uncooperative, Dill directed defendant back outside

of the apartment where the stop could be conducted with greater

safety for the officer.7

                                     E.

     Defendant's increasing nervousness, uncooperativeness, and

apparent   preparation   to   flee   led     Officer   Dill,   whose    backup

officer was leaving to investigate another person, to handcuff

7
  Officer Dill estimated they had spent only about three minutes
in the apartment.   Officer McElwee said it "was probably five,
ten minutes." Neither time period suggests, and defendant does
not contend, that his detention exceeded the permissible
duration of a Terry stop.



                                     27                                A-1207-13T3
defendant.     Dill then conducted a canine sniff of defendant's

sweatshirt, placing him in the police car to prevent him from

triggering any protective efforts by the police dog.                  The metal

clank resulting from the canine sniff gave further proof that

the   sweatshirt      contained    a   weapon,   as    the    subsequent    search

confirmed.

      The   trial     court    properly      found    these   precautions      were

reasonable      and      not    unnecessarily         intrusive     under        the

circumstances.        "The touchstone of a court's analysis under the

Fourth Amendment is, as always, '"the reasonableness in all the

circumstances       of   the   particular      governmental     invasion      of    a

citizen's personal security."'"              Smith, supra, 134 N.J. at 614

(quoting Mimms, supra, 434 U.S. at 109, 98 S. Ct. at 332, 54 L.

Ed. 2d at 335 (quoting Terry, supra, 392 U.S. at 19, 88 S. Ct.

at 1878-79, 20 L. Ed. 2d at 904)).             "Authorities must be allowed

'to graduate their response to the demands of any particular

situation.'"       United States v. Montoya De Hernandez, 473 U.S.

531, 542, 105 S. Ct. 3304, 3311, 87 L. Ed. 2d 381, 392 (1985)

(citation omitted).

      Defendant contends the officer's precautions exceeded the

scope of a Terry stop.            "'[A]n investigative stop becomes a de

facto arrest when the officers' conduct is more intrusive than

necessary for an investigative stop.'"                  State v. Dickey, 152




                                        28                                 A-1207-13T3
N.J.    468,   478      (1998)    (citation       and   other    internal       quotation

marks     omitted).        "'[F]actors       that   may      weigh   in   favor       of   an

arrest     are     subjecting        a   suspect        to     unnecessary          delays,

handcuffing him, or confining him in a police car.'"                           Id. at 479

(citation omitted).              However, handcuffing does not necessarily

"establish[] the fact of an arrest."                    Id. at 483.       Further, our

Supreme Court has refused "to hamstring the police officers' on-

the-scene determination to keep defendant detained in the patrol

car" during a Terry stop if their investigation requires them to

divert their attention from the defendant.                       Coles, supra, 218

N.J. at 347.

       Moreover, "conducting a dog sniff [does] not change the

character of a [Terry] stop that is lawful at its inception and

otherwise      executed        in    a   reasonable          manner,"      because          it

"generally       does    not     implicate    legitimate        privacy    interests."

Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S. Ct. 834, 837-

38, 160 L. Ed. 2d 842, 847 (2005); see also State v. Cancel, 256

N.J. Super. 430, 434-37 (App. Div. 1992), certif. denied, 134

N.J. 484 (1993).            Officer Dill had reasonable suspicion that

defendant's sweatshirt contained drugs or a weapon, and the K-9

dog trained to detect drugs was immediately available to conduct

a   dog    sniff     for   drugs.        Indeed,        an   officer      in    a    lawful

investigatory stop may conduct a dog sniff even if it "prolongs




                                             29                                     A-1207-13T3
the stop" to a reasonable extent needed to complete the dog

sniff    procedure,     so   long   as     the   officer   has   "reasonable

suspicion" of drug possession.            Rodriguez v. United States, 575

U.S. __ , __ S. Ct. __ , __ L. Ed. 2d __ (2015) (slip op. at 6-

8); State v. Baum, 393 N.J. Super. 275, 290 (App. Div. 2007),

aff'd as modified, 199 N.J. 407 (2009).8

       Even if Officer Dill's actions of handcuffing defendant and

placing him in the police vehicle converted the investigatory

stop    into   a   de   facto   arrest,    those   actions   are   valid   if

"supported by probable cause."            Coles, supra, 218 N.J. at 346.

As set forth above, "the smell of marijuana itself constitutes

probable cause 'that a criminal offense had been committed.'"

Walker, supra, 213 N.J. at 290 (citations omitted).9                Indeed,




8
  The resulting clanking noise made by the gun was the product of
a legal canine sniff, regardless of whether the dog was trained
to search for a gun.
9
  "Possession of . . . marijuana" remains an offense. N.J.S.A.
2C:35-10(a)(3)-(4);   see   N.J.S.A.   2C:35-2,   24:21-5(e)(10)
(defining marijuana as a Schedule I controlled dangerous
substance).     Neither party has invoked the New Jersey
Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to -
16, which seeks "to protect from arrest, prosecution, property
forfeiture, and criminal and other penalties, those [registered
qualifying] patients who use marijuana to alleviate suffering
from debilitating medical conditions."     N.J.S.A. 24:6I-2(e).
Moreover, there is no claim or evidence here that defendant or
anyone using marijuana on the porch was an "authorized holder of
an appropriate registration, permit or order form" under that
Act, which is an affirmative defense.    N.J.S.A. 2C:35-18; see
                                                     (continued)


                                     30                             A-1207-13T3
this   probable    cause      arguably    gave     the    officer      the   right    to

arrest    defendant     for    committing      a   marijuana         offense   in    his

presence.    See id. at 295-96.10

       Defendant's      hurrying      away     from      the    officer      suggested

defendant had committed that offense, and arguably "converted

articulable suspicion into probable cause."                    State v. Ramos, 282

N.J.   Super.     19,   22    (App.   Div.     1995).          The   high    level     of

suspicion was only increased by the bulge in defendant's grey

sweatshirt, his attempt to conceal the grey sweatshirt, and his

suspicious act of stepping over this grey sweatshirt to get

another     sweatshirt.          Considering          "the      totality       of    the

circumstances," there was "'a well grounded suspicion that a

crime has been or is being committed'" before Dill secured the

sweatshirt in the apartment.             State v. Basil, 202 N.J. 570, 585,

589 (2010) (citation omitted).                 Defendant only added further



(continued)
N.J.S.A. 24:6I-3, -4, -5, -6(e); N.J.A.C. 8:64-2.5,                                 -3.1.
Accordingly, we need not address the effect of that Act.
10
   N.J.S.A. 40A:14-152.1 allows "arrest for any crime committed
in [an] officer's presence." N.J.S.A. 40A:14-152 allows "arrest
[of] any disorderly person or any person committing a breach of
the peace" "upon view," ibid., that is, "in the presence of the
arresting officer."    State v. Dangerfield, 171 N.J. 446, 460
(2002); see Walker, supra, 213 N.J. at 286. "The 'in presence'
requirement . . . is satisfied by the [officer's] use of his
sense of smell in much the same manner as if he had used his
sight or hearing or touch[.]" Judge, supra, 275 N.J. Super. at
203.



                                          31                                   A-1207-13T3
suspicion by his escalating nervousness and preparation to flee.

Therefore, there was plainly probable cause to arrest defendant

before     he    was     handcuffed     or    confined,        and       even       before   Dill

secured the sweatshirt in the apartment.

      It    is      "'irrelevant'"           whether         Officer          Dill     had    the

subjective belief he had probable cause to arrest.                                     State v.

O'Neal, 190 N.J. 601, 613-14 (2007) (citation omitted).                                           As

Bruzzese        held,    "[i]n   determining           whether       a   police        officer's

actions are constitutional, we do not rely on the officer's own

subjective       appraisal,      but    upon      an       objective      evaluation         by    a

neutral judicial authority."                 Bruzzese, supra, 94 N.J. at 219-

20.   "Although an officer may testify to his or her subjective

intent, the crucial inquiry is whether the officer's conduct was

objectively reasonable."               O'Neal, supra, 190 N.J. at 614.                       "'An

action is reasonable under the Fourth Amendment, regardless of

the   individual          officer's     state       of       mind,       as     long    as    the

circumstances, viewed objectively, justify [the] action.'"                                    Id.

at 613-14 (quoting Brigham City v. Stuart, 547 U.S. 398, 404,

126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650, 658 (2006) (internal

quotation marks omitted)).

      "[T]he fact that the officers did not believe there was

probable        cause    and    proceeded      on      a    consensual         or    Terry-stop

rationale        would    not    foreclose      the        State     from      justifying         [a




                                             32                                         A-1207-13T3
defendant's] custody by proving probable cause."                         Florida v.

Royer, 460 U.S. 491, 507, 103 S. Ct. 1319, 1329, 75 L. Ed. 2d

229, 242 (1983) (plurality opinion) (citing Sibron v. New York,

392 U.S. 40, 66-67, 88 S. Ct. 1889, 1904, 20 L. Ed. 2d 917, 936-

37    (1968)).      Thus,     in   O'Neal,    our   Supreme      Court    upheld     a

purported Terry stop because "objectively, [the officers] had

probable cause," and "could have immediately placed him under

arrest, searched him, and seized the bag of drugs as a search

incident to a lawful arrest."              O'Neal, supra, 190 N.J. at 607,

611, 613-14.       Similarly, even if Officer Dill's precautions made

this a de facto arrest, probable cause justified arrest, the

search of defendant's sweatshirt, and the seizure of the gun.

See id. at 613-14.

                                        F.

       At the suppression hearing, the parties cited Chrisman and

Bruzzese,      which   the    State   urged    authorized     Officer      Dill    to

accompany defendant into his apartment.               The trial court agreed

"the    police     acted     within   their   authority     in    following       the

Defendant into the apartment."             However, in its appellate brief,

the    State     without     explanation     abandoned   that     position,       and

instead argued that we should uphold the denial of suppression

on the grounds of inevitable discovery.




                                        33                                  A-1207-13T3
    At oral argument, the State clarified it was not confessing

error in the trial court's ruling, but merely offering a new,

alternative basis for affirmance.             Regardless, any confession of

error would not be binding on this court.                 State v. Josey, 290

N.J. Super. 17, 32 (App. Div.), certif. denied, 146 N.J. 497

(1996).     "[A] confession of error by the State must be taken

into account by an appellate court but is not a controlling

factor," and "'does not relieve this [c]ourt of the performance

of the judicial function.'"             Ibid. (quoting Young v. United

States, 315 U.S. 257, 258, 62 S. Ct. 510, 511, 86 L. Ed. 832,

834-835 (1942)).        The trial court has made a ruling, and "'our

judicial    obligations    compel   us       to   examine    independently       the

errors confessed.'"       Id. at 32 (quoting Young, supra, 315 U.S.

at 258-59, 62 S. Ct. at 511, 86 L. Ed. at 835).                     Our analysis

finds no error by the trial court.

    Thus,     we   do    not   consider       the   State's       new   inevitable

discovery   argument,     which   was    raised     for     the   first   time    on

appeal, without the necessary facts being developed in the trial

court.     State v. Bradley, 291 N.J. Super. 501, 516 (App. Div.

1996); see State v. M.A., 402 N.J. Super. 353, 358 n.1 (App.

Div. 2008); see generally State v. Robinson, 200 N.J. 1, 18-22

(2009).




                                        34                                A-1207-13T3
                                        III.

      Defendant's appellate brief also challenged the sentencing

court's denial of bail pending appeal.                   He did not file a motion

in this court seeking bail pending appeal under Rule 2:9-4.                              A

defendant requesting bail pending appeal should raise that issue

by motion filed promptly after filing the appeal, to bring the

request to our attention earlier.                 At this point, the appeal is

no longer pending before us and the issue is moot.

      In any event, a defendant may only receive bail pending

appeal   "if   it   appears     that    the       case   involves    a    substantial

question that should be determined by the appellate court, that

the   safety   of   any    person      or    of    the   community       will   not    be

seriously threatened if the defendant remains on bail and that

there is no significant risk of defendant's flight."                       Ibid.       The

sentencing court found that the safety of the community would be

seriously threatened given defendant's firearm conviction and

criminal   history,       and   that    there      was    a   significant       risk    of

flight as he was facing a substantial prison sentence.

      "The setting of bail is vested in the sound discretion of

the trial court, and we consequently review the trial court's

decision for an abuse of discretion."                State v. Steele, 430 N.J.

Super. 24, 34 (App. Div.), appeal granted, 214 N.J. 233 (2013),




                                            35                                  A-1207-13T3
appeal dismissed, __ N.J. __ (2014).   Even assuming the appeal

presents a substantial question, we find no abuse of discretion.

    Affirmed.




                               36                        A-1207-13T3
