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Full Opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1665-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ORION BYRD, a/k/a
BYRD ORION, TORRES
ORLANDO, RICHARD
SIMMONS, RICHARD
SIMMONS TORRES, and
ORLANDO TORRES,
Defendant-Appellant.
__________________________
Argued February 27, 2024 – Decided April 21, 2025
Before Judges Gooden Brown and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 17-06-0471
and 17-06-0472.
Morgan A. Birck, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer N. Sellitti,
Public Defender, attorney; Morgan A. Birck and Marcia
Blum, Assistant Deputy Public Defender, of counsel
and on the briefs).
Amanda G. Schwartz, Deputy Attorney General,
argued the cause for respondent (Matthew J. Platkin,
Attorney General, attorney; Amanda G. Schwartz, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Following a jury trial, defendant Orion Byrd was convicted of second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1), and fourth-
degree possession of a defaced firearm, N.J.S.A. 2C:39-9(e). After the trial,
defendant entered a guilty plea to second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b)(1), and was sentenced to an aggregate extended
term of thirteen years in prison, with a six-and-one-half-year parole disqualifier.
The charges stemmed from a motor vehicle stop of defendant's vehicle
while it was being driven by defendant's then girlfriend who consented to a
search of the car and made statements incriminating defendant when contraband
was found inside. The search uncovered controlled dangerous substances (CDS)
under the driver's seat and a defaced handgun in the trunk. At trial, defendant
was tied to the gun by STRmix DNA analysis. He was also connected to the
crimes by a recorded phone conversation with a Middlesex County Prosecutor's
A-1665-21
2
Office (MCPO) detective, during which defendant admitted ownership of the
contents of the impounded vehicle in an attempt to retrieve his property.
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS BECAUSE
THE POLICE DID NOT HAVE THE REQUISITE
PARTICULARIZED SUSPICION TO STOP THE
BLACK BMW. [1]
POINT II
THE TRIAL COURT ERRED IN ALLOWING THE
STATE TO INTRODUCE IN EVIDENCE THE
RECORDED PHONE CALL WHERE DEFENDANT
WAS ATTEMPTING TO RETRIEVE HIS
PROPERTY FROM POLICE.
POINT III
THE HANDGUN PERMIT APPLICATION PROCESS
AT THE TIME OF DEFENDANT'S ALLEGED
POSSESSION OF THE HANDGUN CONTAINED A
REQUIREMENT THAT UNCONSTITUTIONALLY
PRECLUDED HIM FROM BEING ELIGIBLE TO
RECEIVE SAID PERMIT. ACCORDINGLY, HIS
CONVICTION FOR FAILING TO COMPLY WITH A
FACIALLY UNCONSTITUTIONAL PERMITTING
PROCESS CANNOT STAND. (NOT RAISED
BELOW)
1
Defendant made the same argument in a pro se supplemental brief.
A-1665-21
3
POINT IV
BECAUSE POSSESSION OF A DEFACED
FIREARM IS PROTECTED CONDUCT UNDER THE
SECOND AMENDMENT AND [ITS
CRIMINALIZATION] IS INCONSISTENT WITH
HISTORICAL TRADITION AT THE TIME OF THE
FOUNDING, THE STATUTE IS
UNCONSTITUTIONAL AND DEFENDANT'S
CONVICTION MUST BE REVERSED. (NOT
RAISED BELOW)
POINT V
BECAUSE STRMIX IS A NOVEL FORENSIC
TESTING METHOD WHOSE RELIABILITY AND
GENERAL ACCEPTANCE, BOTH IN GENERAL
AND AS APPLIED, HAVE NOT BEEN ACCEPTED
IN NEW JERSEY, THIS COURT MUST REMAND
FOR A HEARING TO DETERMINE ITS
RELIABILITY. (NOT RAISED BELOW)
A. STRmix Is Dramatically Different
Than Traditional DNA Analysis and Its
Reliability Has Never Been Established in
New Jersey.
B. The Appellate Division Has Already
Recognized That a Frye[2] Hearing Is
Necessary for Probabilistic Genotyping
Systems That Have Not Yet Been Found
Admissible in New Jersey.
2
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
A-1665-21
4
POINT VI
THE SENTENCE OF [THIRTEEN] YEARS WITH A
[SIX-AND-ONE-HALF]-YEAR PAROLE BAR IS
EXCESSIVE.
By leave granted, in a supplemental brief, defendant raises the following
additional point for our consideration:
THE PERSISTENT-OFFENDER EXTENDED-TERM
IMPOSED UNDER N.J.S.A. 2C:44-3[(a)] IS
ILLEGAL AND UNCONSTITUTIONAL AND MUST
BE VACATED. (NOT RAISED BELOW)
Having reviewed the record, the parties' arguments, and the applicable legal
principles, we affirm.
I.
We glean these facts from the trial record. MCPO Detective Sean Sullivan
testified that at about 1:30 p.m. on July 28, 2016, local law enforcement officers
conducted a motor vehicle stop of a 2006 black BMW registered to defendant.
The stop occurred in the parking lot of an apartment complex in Piscataway.
Courtney Ragland, defendant's girlfriend at the time, was driving the BMW.
Ragland testified that the car belonged to defendant and defendant had asked her
to travel to the location "[t]o drop off . . . [d]rugs." Ragland was specifically
instructed by defendant to collect money in exchange for the drugs and to call
or text him upon her arrival at the location.
A-1665-21
5
Once she arrived at the apartment complex, Ragland contacted defendant
who told her to remove the drugs, which were in a "red rag," from "the trunk,"
"put [the drugs] . . . under the seat," and await further instructions from him.
However, as soon as Ragland "got the red rag out of the trunk and put it in the
front seat," two police officers approached and started questioning her. Initially,
Ragland told the officers "[she] was there to meet a friend." Ultimately, Ragland
admitted to the officers "that there [were] narcotics in the car" and consented to
a search of the vehicle. A mobile video recording (MVR) from one of the patrol
cars recorded the entire encounter and was played for the jury. Text messages
between Ragland and defendant that were admitted into evidence corroborated
Ragland's testimony that she was in contact with defendant during the time in
question, including when she was approached by the officers and consented to
the search of the car. In the texts, Ragland told defendant the officers were
"searching" the car and she was "going to jail."
A K-9 unit assisted with the search of the vehicle, which yielded "a red
cloth rag" under the driver's seat with "a clear plastic bag" that contained a
"white powdery substance," believed to be cocaine. 3 Sullivan also found a
3
Subsequent lab testing confirmed that the substance was cocaine.
A-1665-21
6
loaded handgun in the vehicle's trunk. The handgun was described as a Kel-Tec
Model P11, nine-millimeter, semiautomatic Luger with a defaced serial number.
Ragland denied knowing that the gun was in the car and denied ever seeing the
gun before, but knew that defendant had a gun because he had previously
admitted to her that he owned a gun. The parties stipulated that a search by the
New Jersey State Police revealed that defendant never applied for nor was issued
a permit to carry or purchase a handgun.
Sullivan testified that based on the evidence discovered in the vehicle, the
officers arrested Ragland and transported her to the local police department.
Law enforcement officers collected the CDS, the rag, the handgun, and the
ammunition as evidence, and impounded the vehicle.
MCPO Lieutenant James Napp testified that his office processed the
handgun by completing "a visual inspection" and "fingerprint analysis" but
found "no prints." Although a ballistics expert testified that he could not restore
the serial number that had been defaced, ballistics testing revealed that the
handgun was operable. Wet and dry swabs for DNA testing were taken from
"the grips," "the slide," and "the magazine" of the handgun and sent to the lab.
The lab separately compared the DNA from the swabs against the known DNA
A-1665-21
7
profiles of defendant and Ragland using visual inspection and the STRmix
software program.
Frank Basile, a forensic scientist and DNA analyst for the MCPO, was
qualified as a DNA expert and testified for the State that STRmix returns "a
statistic that gives weight to a comparison, . . . known as a likelihood ratio." He
explained the ratio "compares two possible explanations for the evidence" and
returns a number value reflecting the likelihood of whether the DNA came from
the suspect DNA "and one other individual" or "two unrelated individuals ."
According to Basile, "given the DNA profile obtained from the wet and dry
swabs from the grips of the pistol, it was . . . approximately 16.4 trillion times
more likely" to be a "mixture of [defendant] and [an] unknown individual[]
than . . . a mixture of two unknown individuals." Basile explained that this
result was "very strong support that [defendant was] a contributor to the mixture
of DNA obtained from th[e] item." "[N]o conclusions could be reached
regarding the likelihood that the DNA[ was] a mixture of Courtney Ragland and
an unknown individual versus it being two unknown individuals."
On September 15, 2016, Napp received a phone call at the MCPO from
defendant "asking for some of the stuff" that was seized during the July
investigation and arrest. On January 13, 2017, Napp recorded his phone
A-1665-21
8
conversation with defendant "to see what [defendant] would say" about the car's
contents and whether he would admit to possession of the personal property
inside the car. During the recorded conversation, which was played for the jury,4
among other things, defendant confirmed his name and Social Security Number
as well as the vehicle year, make, and model. Defendant also confirmed that
everything inside the vehicle belonged to him and he was "the only one who
use[d] th[e] car."
On June 28, 2017, defendant was charged in a five-count Union County
indictment with third-degree conspiracy to possess CDS with intent to distribute,
N.J.S.A. 2C:35-5(b)(3) and N.J.S.A. 2C:5-2 (count one); third-degree
possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.
2C:35-5(b)(3) (count two); second-degree possession of a firearm while
possessing CDS with intent to distribute, N.J.S.A. 2C:39-4.1(a) (count three);
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count
four); and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-9(e)
(count five). Ragland was similarly charged in the same indictment. She pled
guilty to counts one and two and agreed to testify truthfully against defendant
4
During her trial testimony, Ragland identified the voice in the recorded
conversation as defendant's.
A-1665-21
9
in exchange for the prosecutor's recommendation of a probationary sentence .5
In a separate one-count indictment returned on the same date, June 28, 2017,
defendant was charged with second-degree certain persons not to have weapons,
N.J.S.A. 2C:39-7(b)(1).
After pre-trial motion practice and a multi-day jury trial conducted on
various dates in August and September 2021, the jury convicted defendant of
counts four and five and acquitted him of the remaining counts in the five-count
indictment.6 Following the trial, defendant pled guilty to the certain persons
charge in the one-count indictment. After defendant was sentenced, the trial
judge entered memorializing judgments of conviction on December 16, 2021,
and this appeal followed.
II.
In Point I, defendant argues the judge erroneously denied his motion to
suppress the evidence seized without a warrant because "there was no
particularized suspicion in the record for the stop of the particular black BMW,"
and therefore "the stop was illegal." Specifically, defendant contends
5
Ragland's plea agreement was revealed to the jury during her trial testimony.
6
At the close of the State's case, defendant's motion for judgment of acquittal,
R. 3:18-1, as to all counts was denied by the trial judge.
A-1665-21
10
information police obtained from a confidential source that led to the traffic stop
"was completely untested" and law enforcement "failed in their surveillance to
corroborate any evidence of criminal activity before stopping the BMW ."
Because the record contains no evidence showing when police determined the
car was registered to defendant, he posits "any two-door black BMW in the
vicinity . . . could have been subject to a motor vehicle stop."
At the suppression hearing, Sullivan was the sole witness for the State.
Sullivan, who had participated in approximately seventy-five narcotics
investigations in his law enforcement career, testified that on July 28, 2016,
while assigned to the MCPO's Gangs, Guns, and Drugs Task Force, he received
information from a confidential informant (CI) with whom neither he nor, to his
knowledge, "any other law enforcement agency [had] previously worked."
According to the CI, "a [B]lack male with a short haircut," nicknamed "O," was
distributing CDS, "mainly cocaine," "throughout Middlesex County." The CI
claimed to have "previously purchased narcotics from O" and told Sullivan that
"O" "operated a two-door black BMW with tinted windows." The CI also said
the BMW had possible hidden compartments to hide narcotics and "O" was
generally "known to maintain or carry a handgun."
A-1665-21
11
According to Sullivan, other task force officers identified "O" as
defendant as he had been "the subject in various [narcotics] investigations"
known to the officers. As a result of a database search, Sullivan also determined
that defendant had "a black two-door" "2006 BMW" with tinted windows
registered in his name. The database search revealed the license plate number
of the BMW and matched the physical description of defendant with that
provided by the CI.
Sullivan testified that the CI gave him the phone number he had used to
contact "O" in the past. After Sullivan received "authorization for a consensual
intercept" to record a conversation between the CI and "O", the same day, July
28, 2016, the CI contacted "O" by text message to arrange for the purchase of
fourteen grams of cocaine. Through the text exchanges, which were admitted
into evidence for purposes of the hearing, the CI and "O" agreed that a woman
would meet with the CI at about 1:30 p.m. at an apartment complex on
Birchview Drive in Piscataway to make the sale.
At the pre-arranged time and location, officers from the task force as well
as the Piscataway Police Department (PPD) observed a vehicle matching the
description of defendant's vehicle. At Sullivan's request, PPD officers made "a
motor vehicle stop of th[e] vehicle." Officers questioned the operator and sole
A-1665-21
12
occupant of the vehicle, who was later identified as Ragland. Ragland
confirmed that she was operating defendant's vehicle and told the officers that
defendant had asked her to come to the location "to sell . . . drugs." Ragland
also admitted that drugs were located under the driver's seat but denied knowing
the type or quantity. The entire encounter was captured on the patrol vehicle's
MVR.
A K-9 unit was summoned to assist and indicated the "presence of the
odor of [CDS] in several places" inside the vehicle, including the passenger door
side and the trunk. As a result, Sullivan asked Ragland for consent to search the
vehicle and she agreed, executing a consent to search form. The search revealed
a rag under the driver's seat containing a glassine bag with a white powdery
substance, believed to be cocaine, and a loaded nine-millimeter handgun in the
trunk.
Following the hearing, the judge denied defendant's motion, finding that
"[t]he State ha[d] met its burden . . . and established that the . . . stop and
subsequent search of . . . defendant's vehicle was lawful." In an oral opinion,
the judge recited the parties' arguments, credited Sullivan's testimony "in all
regards," and applied the relevant case law. Critically, the judge concluded that
A-1665-21
13
the State "demonstrated [that] the law enforcement officers had . . . specific and
articulable facts . . . justifying the stop of the vehicle."
Noting that defendant was not contesting the consent to search the vehicle,
the judge focused on the validity of the motor vehicle stop and the "independent
corroboration of the informant's tip," reasoning:
We do[ not] have a controlled buy here. What we
do have here are, based on the totality of the
circumstances, reasonable suspicion . . . corroborated
by the police that exists to support the [Terry7] stop of
. . . defendant's vehicle, the approach.
. . . Here the informant . . . advised the officers
that somebody named O[] was distributing cocaine in
Middlesex County and that the person was known to
have a gun in his possession, was a [B]lack male with
short hair who used the phone number [ending in]
. . . 9555, and drove a black two-door BMW with tinted
windows and had a possible hidden compartment to
conceal narcotics.
. . . [I]nformation like . . . defendant's nickname,
which was corroborated by the police prior to the
approach of the vehicle, a telephone number that he
use[d], a detailed description of . . . defendant's car,
including registration information, . . . and when th[e]
vehicle w[ould] be arriving at a certain location, all of
which was corroborated, amounts to a stronger showing
that the informant obtained the information from a
reliable source.
7
Terry v. Ohio, 392 U.S. 1 (1968).
A-1665-21
14
. . . [M]any facts were corroborated by the police
before they actually approached th[e] vehicle,
including . . . when the officers went to that pre-
arranged location[] [and] observed a car matching the
informant's description registered to . . . defendant pull
up at th[e] parking spot.
Upon their approaching the vehicle they observed
a woman to be behind the wheel of the vehicle, further
corroborating what the informant had provided,
information exchanged between . . . defendant and the
informant, including my lady will be there in about
[thirty], will be bringing it, thus, a female would be
operating the car.
So . . . this independent corroboration of the
informant's tip ratified the informant's veracity[ and]
established the information was reliable.
Our standard of review on a suppression motion is well settled. "'When
reviewing a trial court's decision to grant or deny a suppression motion,
appellate courts "[ordinarily] defer to the factual findings of the trial court so
long as those findings are supported by sufficient evidence in the record."'"
State v. Smart, 253 N.J. 156, 164 (2023) (alteration in original) (quoting State
v. Dunbar, 229 N.J. 521, 538 (2017)). "We defer to those findings of fact
because they 'are substantially influenced by [an] opportunity to hear and see
the witnesses and to have the "feel" of the case, which a reviewing court cannot
enjoy.'" State v. Hubbard, 222 N.J. 249, 262 (2015) (alteration in original)
(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). As such, "[w]e will set
A-1665-21
15
aside a trial court's findings of fact only when such findings 'are clearly
mistaken.'" Dunbar, 229 N.J. at 538 (quoting Hubbard, 222 N.J. at 262). "We
accord no deference, however, to a trial court's interpretation of law, which we
review de novo." Ibid.
Turning to the substantive legal principles, "[a] warrantless search is
presumed invalid unless it falls within one of the recognized exceptions to the
warrant requirement." State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State
v. Cooke, 163 N.J. 657, 664 (2000), overruled on other grounds by State v. Witt,
223 N.J. 409 (2015)). "[T]he State bears the burden of proving by a
preponderance of the evidence that a warrantless search or seizure 'falls within
one of the . . . exceptions . . . .'" State v. Elders, 192 N.J. 224, 246 (2007)
(quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)).
Motor vehicle or investigatory stops, also called Terry stops, are seizures
for Fourth Amendment purposes. State v. Sloane, 193 N.J. 423, 429-30 (2008).
The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution both require that "ordinarily, a
police officer must have a reasonable and articulable suspicion that the driver of
a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal
or disorderly persons offense to justify a stop." State v. Scriven, 226 N.J. 20,
A-1665-21
16
33-34 (2016). Unless the totality of the circumstances satisfies the reasonable
and articulable suspicion standard, the investigatory stop "is an 'unlawful
seizure,' and evidence discovered during the course of an unconstitutional
detention is subject to the exclusionary rule." Elders, 192 N.J. at 247 (citing
State v. Rodriguez, 172 N.J. 117, 132-33 (2002)).
The reasonable suspicion standard requires "some minimal level of
objective justification for making the stop." State v. Nishina, 175 N.J. 502, 511
(2003) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). As such, "raw,
inchoate suspicion grounded in speculation cannot be the basis for a valid stop ."
Scriven, 226 N.J. at 34. That said, "[a]lthough reasonable suspicion is a less
demanding standard than probable cause, '[n]either "inarticulate hunches" nor
an arresting officer's subjective good faith can justify infringement of a citizen's
constitutionally guaranteed rights.'" State v. Nyema, 249 N.J. 509, 527-28
(2022) (second alteration in original) (quoting State v. Stovall, 170 N.J. 346,
372 (2002) (Coleman, J., concurring in part and dissenting in part)).
"Determining whether reasonable and articulable suspicion exists for an
investigatory stop is a highly fact-intensive inquiry that demands evaluation of
'the totality of circumstances surrounding the police-citizen encounter,
balancing the State's interest in effective law enforcement against the
A-1665-21
17
individual's right to be protected from unwarranted and/or overbearing police
intrusions.'" Id. at 528 (quoting State v. Privott, 203 N.J. 16, 25-26 (2010)).
"The principal components of a determination of reasonable suspicion . . . [are]
the events which occurred leading up to the stop . . . , and then the decision
whether these historical facts, viewed from the standpoint of an objectively
reasonable police officer, amount to reasonable suspicion . . . ." Stovall, 170
N.J. at 357 (alterations in original) (quoting Ornelas v. United States, 517 U.S.
690, 696 (1996)). Thus, "[i]t is fundamental to a totality of the circumstances
analysis of whether reasonable suspicion exists that courts may consider the
experience and knowledge of law enforcement officers." Id. at 363.
"An informant's tip is a factor to be considered when evaluating whether
an investigatory stop is justified." State v. Golotta, 178 N.J. 205, 213 (2003).
When evaluating a tip,
[a]n informant's "veracity" and "basis of knowledge"
are two highly relevant factors under the totality of the
circumstances. A deficiency in one of those factors
"may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other,
or by some other indicia of reliability." An informant's
veracity may be established in a variety of ways. For
example, the informant's past reliability will contribute
to the informant's veracity. With regard to the
informant's basis of knowledge, if the informant does
not identify the basis of knowledge, a reliable basis of
knowledge may nonetheless be inferred from the level
A-1665-21
18
of detail and amount of hard-to-know information
disclosed in the tip. Finally, independent corroboration
of hard-to-know detail in the informant's tip may also
greatly bolster the tip's reliability.
[State v. Zutic, 155 N.J. 103, 110-11 (1998) (citations
omitted) (first quoting State v. Smith, 155 N.J. 83, 93
(1998); then quoting Illinois v. Gates, 462 U.S. 213,
233 (1983); and then citing Smith, 155 N.J. at 93, 95).]
See also State v. Sullivan, 169 N.J. 204, 212 (2001) ("[C]ourts consider an
informant's veracity and his or her basis of knowledge to be the two most
important factors in evaluating the informant's tip." (citing Smith, 155 N.J. at
93)).
"[I]f police corroborate 'information from which it can be inferred that the
informant's tip was grounded on inside information, this corroboration is
sufficient to satisfy the basis of knowledge prong' as well as the veracity prong."
Smith, 155 N.J. at 95-96 (quoting Gates, 462 U.S. at 270 n.22 (White, J.,
concurring in the judgment)). Indeed, "courts have found no constitutional
violation when there has been 'independent corroboration by the police of
significant aspects of the informer's predictions[.]'" Rodriguez, 172 N.J. at 127-
28 (alteration in original) (quoting Alabama v. White, 496 U.S. 325, 332
(1990)). Moreover, "[f]acts that might seem innocent when viewed in isolation
can sustain a finding of reasonable suspicion when considered in the aggregate,
A-1665-21
19
so long as the officer maintains an objectively reasonable belief that the
collective circumstances are consistent with criminal conduct." State v.
Birkenmeier, 185 N.J. 552, 562 (2006) (quoting Nishina, 175 N.J. at 511).
Applying these principles, we agree with the judge's decision denying
defendant's suppression motion and affirm substantially for the reasons stated in
the judge's well-reasoned oral opinion. The judge's fact finding is supported by
sufficient credible evidence in the record and his legal conclusions comport with
the law. We are satisfied that the independent corroboration by the police of
significant aspects of the untested informant's tip was sufficient to satisfy the
basis of knowledge and veracity requirements under Sullivan. The police
corroboration included the officers' identification of "O" as defendant based on
various narcotics investigations; the database search revealing that a car
registered in defendant's name as well as defendant himself matched the CI's
description; defendant's car arriving at the predetermined location at the
prearranged time; and the fact that a woman was operating the vehicle as
described in the text exchanges between defendant and the CI. In the totality of
the circumstances, the independently corroborated CI tip provided reasonable
and articulable suspicion of criminal activity to justify the motor vehicle stop.
A-1665-21
20
III.
In Point II, defendant argues the admission of the recorded phone call
between defendant and Napp "during the State's case-in-chief forced [defendant]
to choose between his Fifth Amendment right against self-incrimination in a
criminal matter and his right[] to due process under the Fourteenth Amendment."
He submits that because law enforcement possessed his impounded property,
the use of the recorded call presented him with the "Hobson's choice" of
obtaining his seized property or incriminating himself. We disagree.
The Fifth Amendment to the United States Constitution protects an
individual from being called as a witness against oneself in a criminal
prosecution and being forced to "answer official questions put to [the individual]
in any other proceeding, civil or criminal, formal or informal, where the answers
might incriminate [the individual] in future criminal proceedings." Lefkowitz
v. Turley, 414 U.S. 70, 77 (1973). In State v. Melendez, our Supreme Court
addressed the provision in the civil forfeiture statute, N.J.S.A. 2C:64-3(d),
requiring a person who wishes to assert a claim to an asset seized by law
enforcement to timely respond to the State's forfeiture complaint or risk losing
the property. 240 N.J. 268, 272, 279 (2020).
A-1665-21
21
The Court explained that persons facing criminal charges related to the
property
face an untenable choice: to forfeit their property or
incriminate themselves. To defend against a forfeiture
complaint, claimants who are also criminal defendants
must file an answer that states their interest in the
property. In other words, to assert their constitutional
right not to be deprived of property without due
process, they have to link themselves to alleged
contraband and give up their constitutional right against
self-incrimination. Alternatively, they can refuse to
answer and lose their property.
[Id. at 282.]
The Court concluded this was an "untenable situation," id. at 272, because "a
defendant's choice to file an answer under those circumstances is not freely
made" but "is fraught with coercion," id. at 282.
Here, unlike Melendez, defendant identifies no statute compelling him to
file a response to retrieve his impounded property seized as part of the criminal
investigation. Instead, he claims that the use of the recorded conversation
between himself and Napp is a constitutional violation requiring him to choose
between self-incrimination and his due process rights in his property. However,
defendant's contention is unavailing. Cf. State v. Covil, 240 N.J. 448, 453-54
(2020) (distinguishing the defendant in Melendez "who was required to serve an
answer in the civil forfeiture action in order to defend his interest in the disputed
A-1665-21
22
property" from the defendant in Covil who "was not compelled to file any
pleadings in the civil forfeiture action against him when he served his motion
for a writ of replevin because the forfeiture action had been stayed").
During a Rule 104 hearing on the State's motion to admit the recorded
conversation, Napp testified consistent with his trial testimony. After the
hearing, the judge credited Napp's testimony and ruled that the recorded call was
admissible as a statement by a party opponent under N.J.R.E. 803(b)(1) , but
decided to instruct the jurors that they were to decide for themselves whether
they believed it was defendant on the call and whether the statement was
credible. In rejecting defendant's hearsay and Miranda8 objections, the judge
found that "defendant was not in custody," and, although Napp had initiated the
call, he did so only because "defendant had called twice before inquiring about
the return of his property." The judge further found that "[t]he conversation was
civil" and "cordial," with no "pressure brought to bear on . . . defendant by . . .
[N]app" and "no coercion." We discern no abuse of discretion in the judge's
ruling. See State v. Garcia, 245 N.J. 412, 430 (2021) ("We defer to a trial court's
evidentiary ruling absent an abuse of discretion." (citing State v. Nantambu, 221
N.J. 390, 402 (2015))).
8
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1665-21
23
On appeal, relying on Melendez, defendant raises a new argument that
was not presented to the judge. However, when the call occurred, defendant was
not yet charged with any criminal conduct related to the vehicle stop. Even if
he had been charged at the time, no state law or action required him to make the
request for his property or the admissions he made when he did. Cf. Covil, 240
N.J. at 453-54.
IV.
In Point III, defendant argues for the first time on appeal that the
imposition of criminal sanctions under N.J.S.A. 2C:39-5(b)(1) for failure to
comply with this State's handgun permitting process under N.J.S.A. 2C:58-4 is
a violation of the Second Amendment pursuant to the United States Supreme
Court's decision in N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 11
(2022). According to defendant, because the permitting process is "facially
unconstitutional," he had "no obligation to apply for a permit he knew
beforehand he could not obtain due to an unconstitutional limitation" and
therefore his conviction on count four must be reversed. Defendant's
interpretation of Bruen's effect on our State's permitting laws is misguided.
As a threshold matter, when a party does not properly preserve an issue
for appeal, we may nonetheless consider whether it rises to the level of plain
A-1665-21
24
error under Rule 2:10-2. State v. Clark, 251 N.J. 266, 286-87 (2022). Such a
high bar "requir[es] reversal only where the possibility of an injustice is 'real'
and 'sufficient to raise a reasonable doubt as to whether the error led the jury to
a result it otherwise might not have reached.'" State v. Trinidad, 241 N.J. 425,
445 (2020) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Here, we discern
no such error.
Under New Jersey law, "[a]ny person who knowingly has in his [or her]
possession any handgun . . . without first having obtained a permit to carry the
same as provided in [N.J.S.A. 2C:58-4], is guilty of a crime of the second
degree." N.J.S.A. 2C:39-5(b)(1). A person with a valid permit to carry is
authorized by statute to carry a handgun in any part of the State, subject to
certain restrictions not relevant here. N.J.S.A. 2C:58-4(a) (1981). 9 To obtain a
permit to carry a handgun, among other requirements, an individual must apply
to the municipality's chief of police, or the superintendent of the State Police in
certain circumstances, and have fingerprints taken and checked against the
9
We refer to the versions of statutes in effect at the time of defendant's offense.
As relevant here, the permit requirements under subsection (a) and the
application requirements of subsection (c) in the current version of N.J.S.A.
2C:58-4 are largely unchanged. The current statutory bars against obtaining a
firearm permit, N.J.S.A. 2C:58-3(c), and purchasing, owning, possessing, or
controlling a firearm, N.J.S.A. 2C:39-7(b)(1), also remain largely unchanged.
A-1665-21
25
records of the municipality, county, State Bureau of Identification, and Federal
Bureau of Investigation. N.J.S.A. 2C:58-4(c) (1981).
At the time of defendant's offense, State law mandated that:
No application shall be approved by the chief
police officer or the superintendent unless the applicant
demonstrates that he [or she] is not subject to any of the
disabilities set forth in [N.J.S.A. 2C:58-3(c)], . . . is
thoroughly familiar with the safe handling and use of
handguns, and . . . has a justifiable need to carry a
handgun.
[N.J.S.A. 2C:58-4(c) (1981).]
Under N.J.S.A. 2C:58-3(c), a person is statutorily barred from obtaining
a permit if he or she "has been convicted of any crime, or a disorderly persons
offense involving an act of domestic violence as defined in [N.J.S.A. 2C:25-19],
whether or not armed with or possessing a weapon at the time of such offense."
N.J.S.A. 2C:58-3(c) (2013). In addition, under N.J.S.A. 2C:39-7(b)(1) (2004),
individuals previously convicted of certain offenses are wholly disqualified
from purchasing, owning, possessing or controlling a firearm.
In Bruen, the United States Supreme Court addressed whether New York's
firearms "licensing regime," which required applicants to show a "special need"
for concealed carry, violated the Second Amendment. 597 U.S. at 8-11. The
Court struck down New York's "special need" requirement, id. at 70-71, and
A-1665-21
26
explicitly noted that New Jersey's "justifiable need" requirement, then codified
at N.J.S.A. 2C:58-4(c), was analogous to New York's unconstitutional standard,
id. at 15 n.2. N.J.S.A. 2C:58-4 has since been amended to delete the "justifiable
need" provision rendered unconstitutional in Bruen, while retaining the
"licensing regime" that otherwise regulated the permitting process. L. 2022, c.
131, § 3 (codified at N.J.S.A. 2C:58-4); see State v. Wade, 476 N.J. Super. 490,
510 (App. Div. 2023) ("The Legislature deleted the justifiable need provision
but left in and revised various other criteria for obtaining a permit to carry a gun
in New Jersey." (citing N.J.S.A. 2C:58-4)).
After Bruen was decided, the New Jersey Attorney General issued
guidance on the subject. See Off. of the Att'y Gen., Law Enf't Directive No.
2022-07, Directive Clarifying Requirements for Carrying of Firearms in Public
(June 24, 2022) (the Directive). The Directive acknowledged that Bruen
"prevents us from continuing to require a demonstration of justifiable need in
order to carry a firearm, but it does not prevent us from enforcing the other
requirements in our law." Id. at 1. Although Bruen's unconstitutional holding
precipitated a significant change to the criteria used to determine whether to
issue a firearm carry permit in this State, it did not eliminate the need to obtain
a permit before carrying a loaded handgun in public. See Wade, 476 N.J. Super.
A-1665-21
27
at 509-10 (concluding this State's handgun permitting statutes were severable
because our Legislature "intended to enforce the valid provisions of the statutes
regulating guns if any provision was found to be unconstitutional" (citing
N.J.S.A. 1:1-10)).
Bruen took aim at laws that it deemed unconstitutional, not public policies
meant to advance public safety by limiting access to firearms by those who are
deemed to be qualified and obtain the proper license. See Matter of M.U.'s
Application for a Handgun Purchase Permit, 475 N.J. Super. 148, 184 (App.
Div. 2023) ("[I]t is well-rooted in the nation's history and tradition of firearm
regulation that persons convicted of crimes, regardless of whether their crimes
involved violence, are not protected by the Second Amendment"). Thus,
contrary to defendant's claim, Bruen does not stand for the proposition that the
Second Amendment permits the wholesale and unlimited right to carry in
flagrant disregard for valid state permitting laws. "The Supreme Court's
repeated characterization of Second Amendment rights as belonging to 'law-
abiding' citizens supports this conclusion." M.U., 475 N.J. Super. at 193-94
(quoting Bruen, 597 U.S. at 9).
Instead, Bruen and its progeny
make[] clear that carrying guns in public can still be
regulated and subject to a permit requirement.
A-1665-21
28
Consequently, at a minimum, New Jersey's gun-permit
statutes were and continue to be constitutional in
requiring background checks to confirm that the
applicant is not a convicted felon or does not have a
mental disability and to ensure that the applicant has
reasonable training in the safe handling of guns.
[Wade, 476 N.J. Super. at 510-11 (citing Bruen, 597
U.S. at 38 n.9).]
Here, the record is clear that defendant never applied for a permit and did
not have a permit to carry at the time of the present offense. Furthermore, given
defendant's prior criminal history, he was statutorily barred from obtaining a
permit pursuant to N.J.S.A. 2C:58-3(c). In Wade, we held that a defendant has
no standing to challenge the gun-permit statutes without first having applied for
a permit. Id. at 511. We reach the same conclusion here. Nonetheless, even
considering defendant's constitutional challenge on the merits, we hold that
because "the justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018) was
severable and the remaining provisions of N.J.S.A. 2C:58-4 (2018), as well as
N.J.S.A. 2C:39-5(b)(1), were constitutional and enforceable," Wade, 476 N.J.
Super. at 511, defendant was properly prosecuted and convicted for violating
N.J.S.A. 2C:39-5(b)(1) as charged in count four.
A-1665-21
29
V.
We likewise reject defendant's Point IV, also raised for the first time on
appeal, in which he challenges the constitutionality of N.J.S.A. 2C:39-9(e). He
argues that Bruen renders unconstitutional this State's prohibition on possession
of a firearm without a serial number or that is otherwise defaced. He asserts the
statute "is unconstitutional facially and as applied to [him]."
Under N.J.S.A. 2C:39-9(e), "[a]ny person who knowingly buys, receives,
disposes of or conceals a defaced firearm, except an antique firearm or an
antique handgun, is guilty of a crime of the fourth degree." Under the same
provision, "[a]ny person who defaces any firearm is guilty of a crime of the third
degree." Ibid.
In Bruen, the Supreme Court renounced its previous two-step test to
determine the constitutionality of a firearm regulation statute in the face of a
Second Amendment challenge. 597 U.S. at 19. Instead, "when the [U.S.
Constitution's] Second Amendment's plain text covers an individual's conduct ,
the Constitution presumptively protects that conduct." Id. at 17. "Only if a
firearm regulation is consistent with this Nation's historical tradition may a court
conclude that the individual's conduct falls outside the Second Amendment's
A-1665-21
30
'unqualified command.'" Ibid. (quoting Konigsberg v. State Bar of Cal., 366
U.S. 36, 49 n.10 (1961)).
The Bruen Court asked three questions to resolve this inquiry: (1) whether
the petitioners were "part of 'the people' whom the Second Amendment
protects"; (2) whether the weapons regulated by the challenged regulation were
"'in common use'" for a lawful purpose; and (3) whether the Second Amendment
protected the petitioners' "proposed course of conduct." Id. at 31-32 (quoting
District of Columbia v. Heller, 554 U.S. 570, 580, 625, 627 (2008) ("[T]he
Second Amendment does not protect those weapons not typically possessed by
law-abiding citizens for lawful purposes . . . .")).
Defendant's challenge to N.J.S.A. 2C:39-9(e) appears to be a matter of
first impression for this court. However, our State's statute is analogous to 18
U.S.C. § 922(k), except for the requirement that the firearm be in the stream of
interstate commerce. Compare N.J.S.A. 2C:39-9(e) with 18 U.S.C. § 922(k).10
Federal courts have repeatedly held that 18 U.S.C. § 922(k) remains
constitutional post-Bruen. See, e.g., United States v. Price, 111 F.4th 392, 397
10
Section 922(k) provides, in relevant part, that "[i]t shall be unlawful for any
person knowingly . . . to possess . . . any firearm which has had the importer's
or manufacturer's serial number removed, obliterated, or altered and has, at any
time, been shipped or transported in interstate or foreign commerce."
A-1665-21
31
(4th Cir. 2024) ("We conclude that the conduct regulated by § 922(k) does not
fall within the scope of the right enshrined in the Second Amendment because a
firearm with a removed, obliterated, or altered serial number is not a weapon in
common use for lawful purposes."); United States v. Serrano, 651 F. Supp. 3d
1192, 1210 (S.D. Cal. 2023) (finding that "the Second Amendment's plain text
does not cover the conduct regulated by" § 922(k) because "[a] law requiring
that firearms have serial numbers simply does not infringe [on] a law-abiding
citizen's right to keep and bear arms for self-defense and other lawful
purposes"); United States v. Avila, 672 F. Supp. 3d 1137, 1144 (D. Colo. 2023)
(holding that "the kinds of firearms § 922(k) prohibits are not 'Arm[s]' within
the meaning of the Second Amendment" (alteration in original)); United States
v. Trujillo, 670 F. Supp. 3d 1235, 1241 (D.N.M.) (holding that "the conduct
proscribed by § 922(k) is not protected by the text of the Second Amendment
because the type of firearms prohibited by § 922(k) are not those typically
possessed by law-abiding citizens for lawful purposes"), appeal dismissed, 2023
WL 5093358 (10th Cir. 2023); United States v. Holton, 639 F. Supp. 3d 704,
708 (N.D. Tex. 2022) (holding that § 922(k) "pass[es] constitutional muster
under the Bruen framework").
A-1665-21
32
The same holds true for N.J.S.A. 2C:39-9(e), our State's counterpart to 18
U.S.C. § 922(k). Because it is hard to conceive of any common-sense reason
why a law-abiding citizen would want to use a firearm with an obliterated or
defaced serial number and there is no evidence in the record that defaced
firearms are nonetheless commonly lawfully used, we conclude that firearms
with defaced serial numbers are not in common use for a lawful purpose and
therefore fall outside the scope of the Second Amendment's protection. "[T]he
presence of a serial number does not impair the use or functioning of a weapon
in any way, . . . and a person is just as capable of defending [oneself] with a
marked firearm as with an unmarked firearm." United States v. Marzzarella,
614 F.3d 85, 94 (3d Cir. 2010), abrogated on other grounds by Bruen, 597 U.S.
1. Thus, N.J.S.A. 2C:39-9(e) does not violate the Second Amendment.
VI.
In Point V, defendant challenges the use of STRmix, the "software used
for analyzing DNA . . . in this case," claiming it was improperly admitted
without first conducting a Frye hearing. Defendant asserts that because
"STRmix has never been found reliable or admissible in New Jersey," the case
should be remanded "for a testimonial Frye hearing." Because defendant raises
A-1665-21
33
this issue for the first time on appeal, we again review for plain error. R. 2:10-
2; Clark, 251 N.J. at 286-87.
STRmix is a version of probabilistic genotyping software that "is designed
to address intricate interpretational challenges of testing low levels or complex
mixtures of DNA." State v. Pickett, 466 N.J. Super. 270, 277 (App. Div. 2021).
It "utilizes and implements an elaborate mathematical model to estimate the
statistical probability that a particular individual's DNA is consistent with data
from a given sample, as compared with genetic material from another, unrelated
individual from the broader relevant population." Ibid. "The software in the
end helps to measure the probability that a mixture of DNA includes a given
individual's DNA." United States v. Gissantaner, 990 F.3d 457, 461 (6th Cir.
2021). For that reason, "probabilistic genotyping software[] marks a profound
shift in DNA forensics." Pickett, 466 N.J. Super. at 277.
Still, "DNA testing is an evolving science," State v. Harvey, 151 N.J. 117,
155 (1997), and DNA testing, by multiple methodologies, has been accepted by
our courts for decades. See generally State v. Deloatch, 354 N.J. Super. 76 (Law
Div. 2002) (discussing multiple DNA testing methodologies, including
restriction fragment length polymorphism analysis, the amplification process
known as polymerase chain reaction, the DQ Alpha Test, Polymarker Test, and
A-1665-21
34
STR Testing). "The Frye test requires trial judges to determine whether the
particular science underlying the proposed expert testimony has 'gained general
acceptance in the particular field in which it belongs.'" Pickett, 466 N.J. Super.
at 302 (quoting Frye, 293 F. at 1014). 11 Although STRmix remains relatively
new to our courts, its admissibility and reliability have been tested by state and
federal courts and withstood the rigors of a Frye hearing.12
In People v. Bullard-Daniel, 163 N.Y.S.3d 726, 728-29 (App. Div.), leave
to appeal denied, 191 N.E.3d 396 (N.Y. 2022), a New York appeals court
concluded that "the evidence introduced at the Frye hearing . . . established that
the methods employed in the STRmix program were generally accepted as
reliable within the relevant scientific community at the time the DNA evidence
was analyzed." The hearing also elucidated "that the STRmix program had been
the subject of numerous peer-reviewed journal articles and had been evaluated
and approved by the National Institute of Standards and Technology." Id. at
728. In addition, the hearing revealed that "the STRmix program was being used
11
When this case was tried, New Jersey courts "continued to rely on the Frye
standard to assess reliability." State v. J.L.G., 234 N.J. 265, 280 (2018).
12
Notwithstanding the parties' motion practice to supplement the record with a
transcript of a 2018 Middlesex County trial court hearing on the admissibility
of STRmix in an unrelated case, we decline to consider the transcript.
A-1665-21
35
by numerous forensic testing agencies and laboratories in New York, California,
the United States Army, Australia, and New Zealand." Ibid.
In Gissantaner, 990 F.3d at 460, 470, the Sixth Circuit reversed the district
court, holding that it erred when it "excluded the STRmix evidence as
unreliable." Addressing its general acceptance in the scientific community, the
court pointed out that STRmix
has garnered wide use in forensic laboratories across
the country. More than [forty-five] laboratories use it,
including the FBI and many state law enforcement
agencies. At this point, STRmix is the "market leader
in probabilistic genotyping software."
Consistent with this reality, numerous courts
have admitted STRmix over challenges to its general
acceptance in the relevant scientific community.
[Id. at 466 (citation omitted).]
The court added that STRmix has a "low error rate," "is testable and refutable[,]"
and "more than [fifty] published peer-reviewed articles had addressed [it]." Id.
at 464-66. The court therefore concluded "STRmix satisfies Rule 702 [of the
Federal Rules of Evidence] and the case law construing it." Id. at 467.
Here, during the trial, defendant vigorously cross-examined Basile, the
State's DNA expert who testified about STRmix in general and its application to
this case in particular. However, defendant never objected to the foundation of
A-1665-21
36
the expert's opinion or the reliability or general acceptance of STRmix. Neither
did defendant request a Frye hearing. Given the acceptance of STRmix across
the country by other state and federal courts and the absence of an objection by
defense counsel on reliability grounds, we are satisfied that admitting the
STRmix analysis and Basile's corresponding testimony did not rise to the level
of plain error.
VII.
In Point VI, defendant argues that his aggregate extended term thirteen-
year sentence, with six-and-one-half years of parole ineligibility, was
excessive.13 He asserts the weight the judge accorded to aggravating factor nine,
N.J.S.A. 2C:44-1(a)(9), was improper and constituted "impermissible double
counting."
We review sentences "in accordance with a deferential standard," State v.
Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute
[our] judgment for those of our sentencing courts,'" State v. Cuff, 239 N.J. 321,
347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will
13
Defendant received an extended term of thirteen years in prison, with a six-
and-one-half-year period of parole ineligibility, on the unlawful possession of a
firearm charge; a concurrent eighteen-month sentence on the defaced firearm
charge; and a concurrent five-year sentence, with a five-year period of parole
ineligibility, on the certain persons charge.
A-1665-21
37
affirm the sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating
factors found by the sentencing court were not based
upon competent and credible evidence in the record; or
(3) "the application of the guidelines to the facts of [the]
case makes the sentence clearly unreasonable so as to
shock the judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Under New Jersey's penal code, "a sentencing court first must determine,
pursuant to N.J.S.A. 2C:44-1(a) and (b), whether aggravating and mitigating
factors apply. After balancing the factors, the trial court may impose a term
within the permissible range for the offense." State v. Bieniek, 200 N.J. 601,
608 (2010). "[W]hen the aggravating factors preponderate, sentences will tend
toward the higher end of the range." Case, 220 N.J. at 64-65 (quoting State v.
Natale, 184 N.J. 458, 488 (2005)). "In their application of the N.J.S.A. 2C:44-
1 factors, sentencing courts are cautioned to avoid 'double counting'
circumstances that the Legislature has already incorporated as an element of the
offense." State v. Lawless, 214 N.J. 594, 608 (2013).
Here, after granting the State's application, the judge determined
defendant was eligible for sentencing under the persistent offender statute,
N.J.S.A. 2C:44-3(a). In imposing sentence, the judge found aggravating factors
three, six, and nine based on the high risk of re-offense, the extent of defendant's
A-1665-21
38
prior criminal history, and the need for deterrence, respectively. See N.J.S.A.
2C:44-1(a)(3), (6), (9). The judge found no mitigating factors and determined
that "the aggravating factors clearly and substantially outweigh[ed] the non-
existent mitigating factors." We discern no abuse of discretion in the judge's
sentencing decision, which comports with the sentencing guidelines, is amply
supported by credible evidence in the record, and does not shock the judicial
conscience.
Defendant argues the judge "double counted when weighing aggravating
factor [nine]." We disagree. Aggravating factor nine requires a sentencing court
to consider "[t]he need for deterring the defendant and others from violating the
law." N.J.S.A. 2C:44-1(a)(9). In that regard, the judge expounded:
There[ is] an overwhelming need to deter . . . defendant
and others from unlawfully possessing handguns.
There[ is] no allegation of course here that . . .
defendant used the weapon that was found secreted in
the trunk of his car during the commission of a separate
crime but I think most people would agree that guns do
cause serious injury and certainly guns cause death.
New Jersey has strong gun laws for a reason, to
deter people [from] the unlawful possession of
handguns and to protect its citizens. So [a]ggravating
[f]actor [number nine] is a very substantial one to the
[c]ourt.
A-1665-21
39
"'Deterrence has been repeatedly identified in all facets of the criminal
justice system as one of the most important factors in sentencing,' and 'is the key
to the proper understanding of protecting the public.'" Fuentes, 217 N.J. at 78-
79 (quoting State v. Megargel, 143 N.J. 484, 501 (1996)). "For purposes of
N.J.S.A. 2C:44-1(a)(9), deterrence incorporates two 'interrelated but
distinguishable concepts,' the sentence's 'general deterrent effect on the public
[and] its personal deterrent effect on the defendant.'" Id. at 79 (alteration in
original) (quoting State v. Jarbath, 114 N.J. 394, 405 (1989)). "The need for
public safety and deterrence increase proportionally with the degree of the
offense." State v. Carey, 168 N.J. 413, 426 (2001) (citing Megargel, 143 N.J. at
500).
Here, the judge commented that these were defendant's eleventh and
twelfth indictable convictions, noting that defendant had "multiple" drug-related
convictions, "including convictions for possessing drugs with the intent to
distribute same within 1,000 feet of school property, posing a danger to the
community, and more importantly, to those attending school." The record
supports the judge's determination that deterrence was a substantial factor based
on New Jersey's strict gun control laws as well as defendant's extensive criminal
history, the nature and type of offenses in that troubling history, "and the fact
A-1665-21
40
that prison ha[d] not deterred further [criminal] conduct" by defendant.14
(Emphasis added).
VIII.
Finally, in his supplemental brief, defendant argues the extended term
imposed pursuant to N.J.S.A. 2C:44-3(a) on count four (unlawful possession of
a firearm) must be vacated given our recent decision in State v. Carlton, 480
N.J. Super. 311 (App. Div. 2024). We reject defendant's argument.
Carlton comes on the heels of Erlinger v. United States, in which the
United States Supreme Court held that "the Fifth and Sixth Amendments
generally guarantee a defendant the right to have a unanimous jury find beyond
a reasonable doubt any fact that increases his [or her] exposure to punishment."
602 U.S. 821, 828, 833-34 (2024). The Supreme Court further stated that
"[v]irtually 'any fact' that '"increase[s] the prescribed range of penalties to which
14
The judge also recounted defendant's juvenile history consisting of
adjudications for criminal mischief, possession of CDS, possession of CDS with
intent to distribute, and violation of probation. As an adult, in addition to
municipal court convictions, defendant was convicted four times of possession
of CDS with intent to distribute within 1,000 feet of school property, twice for
possession of CDS with intent to distribute, escape, certain persons, possession
of CDS, possession of a prohibited weapon, possession of a synthetic drug, and
forgery. The judge pointed out that over the years, defendant has served several
prison sentences, has "violated probation as a juvenile," and has violated "parole
as an adult."
A-1665-21
41
a criminal defendant is exposed"' must be resolved by a unanimous jury beyond
a reasonable doubt (or freely admitted in a guilty plea)." Id. at 834 (second
alteration in original) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490
(2000)).
Under N.J.S.A. 2C:44-3(a), upon application of the prosecuting attorney,
a person may be sentenced to an extended term of imprisonment if the individual
"has been convicted of a crime of the first, second or third degree and is a
persistent offender." The statute defines a "persistent offender" as:
[A] person who at the time of the commission of the
crime is [twenty-one] years of age or over, who has
been previously convicted on at least two separate
occasions of two crimes, committed at different times,
when he [or she] was at least [eighteen] years of age, if
the latest in time of these crimes or the date of the
defendant's last release from confinement, whichever is
later, is within [ten] years of the date of the crime for
which the defendant is being sentenced.
[Ibid.]
In Carlton, we acknowledged that Erlinger abrogates the rule that had
allowed a sentencing court to determine the factual predicates for eligibility for
enhanced sentencing under the persistent offender statute. 480 N.J. Super. at
326. We held that "a unanimous jury must find beyond a reasonable doubt that
all five of the above-enumerated factual predicates are present, or the defendant
A-1665-21
42
must admit these predicates as part of a knowing and voluntary waiver of the
right to a jury trial with respect to extended-term eligibility." Id. at 328-29. We
noted that
the parties may enter into a negotiated post-conviction
agreement to avoid the need to convene a jury to decide
whether defendant is eligible for an extended term as a
persistent offender. If any such post-conviction
agreement contemplates that defendant may be
sentenced to an extended term as a persistent offender,
the defendant must admit to the facts establishing
persistent-offender eligibility in a manner consistent
with the entry of a knowing and voluntary guilty plea
pursuant to Rule 3:9-2, including the requirement for
the defendant to acknowledge the "factual basis" for the
plea.
[Id. at 356.]
Here, post-conviction, defendant waived his right to a jury trial and
pleaded guilty to second-degree certain persons not to possess a firearm. In his
plea allocution, defendant admitted that he had two prior convictions for
offenses that took place on at least two separate occasions when he was at least
eighteen years old, that he was at least twenty-one years old when he committed
the present offense, and that his most recent crime or release from confinement
was within ten years of the present offense. See N.J.S.A. 2C:44-3(a); Carlton,
480 N.J. Super. at 327-28. We are satisfied that defendant "freely admitted in
A-1665-21
43
[his] guilty plea" the relevant facts rendering him eligible for an extended term
sentence. Erlinger, 602 U.S. at 834.
Affirmed.
A-1665-21
44
Case Information
- Court
- N.J. Super. Ct. App. Div.
- Decision Date
- April 21, 2025
- Status
- Precedential