STATE OF NEW JERSEY v. ALBERTO MARTINEZ

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1063-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALBERTO MARTINEZ,
a/k/a ALBERTO MILLER, and
ALBERTO MARTINEZ, JR.,
Defendant-Appellant.
__________________________
Argued September 18, 2023 — Decided October 4, 2023
Before Judges Sabatino and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 19-09-
1452.
Colin Sheehan, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Colin Sheehan, of counsel
and on the briefs).
Erin M. Campbell, Assistant Prosecutor, argued the
cause for respondent (Yolanda Ciccone, Middlesex
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.
2 A-1063-21
County Prosecutor; Erin M. Campbell, of counsel and
on the briefs).

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
Defendant Alberto Martinez appeals from a December 21, 2020 order
denying his motion to suppress evidence from a warrantless vehicle search and
challenges fact witness testimony, which led a jury to convict him of controlled
dangerous substance (CDS) offenses. He also challenges his sentence. We
reverse and remand for the reasons expressed in this opinion.
A Middlesex County grand jury indicted defendant on: second-degree
conspiracy to possess heroin and/or fentanyl with intent to distribute, N.J.S.A.
2C:5-2, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(2) (count one); third-
degree possession of heroin and/or fentanyl, N.J.S.A. 2C:35-10(a)(1) (count
two); second-degree possession with intent to distribute heroin and/or fentanyl,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count three); third-degree
distribution of heroin and/or fentanyl, N.J.S.A. 2C:35-5(b)(3) (count four);
third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count nine);
second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count ten); and third-degree financial
facilitation of criminal activity, N.J.S.A. 2C:21-25(a) (count eleven).
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The trial judge conducted an evidentiary hearing on the suppression
motion. The State's witness was Sergeant Christopher Sorber, a fourteen-year
veteran of the Edison Police Department. Sergeant Sorber testified he was
trained for "[h]igh level investigations for narcotics, trafficking[,] and
distribution." During his career, he made approximately thirty-to-fifty arrests
involving drug interdiction, primarily of heroin and cocaine. He was also a part
of the Edison Narcotics Bureau Task Force and engaged in more than one
hundred arrests.
On or about June 19, 2019, Sergeant Sorber received an anonymous tip
from a concerned citizen, alleging defendant distributed heroin from a Dunkin'
Donuts parking lot on Woodbridge Avenue in Edison. The tipster stated
defendant worked at an adjacent Mavis Discount Tire and would frequently
"walk over or drive . . . into the lot of the Dunkin' Donuts throughout the day
. . . in a silver Chevy Impala." Sergeant Sorber performed a motor vehicle
records search and confirmed the vehicle belonged to defendant.
On July 3, 2019, at approximately 4:30 p.m., the sergeant and two officers
conducted surveillance in separate, unmarked vehicles near the Dunkin' Donuts
and Mavis parking lots. An hour later, Sergeant Sorber saw defendant leave
Mavis, enter the Impala, and pull into a spot near the Dunkin' Donuts parking
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lot. Codefendant Joseph Benko approached and entered defendant's vehicle.
Sergeant Sorber was not able to "physically see their bodies in the car" because
defendant's vehicle had tinted windows; however, he was advised defendant and
Benko were in the vehicle, which was confirmed by the other officers via radio.
Less than a minute later, Benko exited the Impala and "walked over two spots
in the same parking lot" and approached the driver side door of a white GMC
van. Benko "handed the individual in [the GMC] something through the
window."
Almost immediately, defendant reversed his vehicle from the Dunkin'
Donuts lot. Sergeant Sorber blocked defendant's vehicle with his police vehicle,
preventing it from exiting the lot. He ordered defendant to exit the vehicle and
arrested him.
At the same time, another officer held the GMC driver at gunpoint and
saw that Benko tossed an item under an adjacent vehicle. The officer arrested
Benko and Michael Iacobacci, who was the driver of the GMC, and recovered
two bundles of heroin stamped "Mike Tyson." Subsequently, Sergeant Sorber
searched defendant's vehicle and found a bookbag containing a digital scale,
$1,800 cash, plastic "baggies," heroin, cocaine, and defendant's Mavis pay stub.
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The trial judge credited Sergeant Sorber's testimony, and made the
following findings:
Based on the officer's training and experience and
based on the totality of the circumstances, including the
concerned citizen's tip, [Sergeant Sorber] believed that
what he observed was a drug transaction. . . .
The search of the vehicle did not occur at that
point in time, but rather it occurred after the police then
found on the ground in the area where they observed
. . . Benko . . . throw . . . [t]wo bricks of heroin.
So, it was at that point in time that [Sergeant
Sorber] testified that he believed he had probable cause
to search the vehicle and that he was then permitted to
do so. And the legal justification provided by the State
is . . . , one, there was clearly probable cause, but . . .
secondly[,] there was no need for a warrant under the
guidelines of State v. Witt[, 223 N.J. 409 (2015)].
The judge made supplemental written findings stating: "The encounter
between police and . . . [d]efendant as an investigatory stop [was] justified by
reasonable suspicion." He noted Sergeant Sorber "observed Benko exit
[d]efendant's vehicle, walk over to codefendant Iacobacci's vehicle, and hand
Iacobacci an item."
Based on this observation, [Sergeant] Sorber testified
that he believed, based on his considerable training and
experience, that a drug transaction had just occurred.
As a result, in this case, the State presented evidence
that not only corroborated the innocent details of the tip
(the type of car and location) but also the illegality
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asserted in the tip (drug trafficking). Based on the
totality of these circumstances[,] it was proper for an
investigatory stop to occur.
The judge also found "[p]olice had probable cause to search [d]efendant's
vehicle without a warrant pursuant to the [a]utomobile [e]xception to the
[w]arrant [r]equirement." Also, "[p]olice lawfully seized [two bundles of
heroin] because by throwing it on the ground, Benko voluntarily abandoned it,
thereby giving up his privacy interest in it."
Further, the judge found warrantless search of defendant's vehicle was
justified because "the circumstances giving rise to probable cause were
spontaneous and unforeseeable for four different reasons." The judge noted the
tip was two weeks old, and police did not have any expectations that day because
the tipster did not provide a specific timeframe when defendant engaged in drug
transactions. The events in the parking lot quickly unfolded and "the incident
occurred in less than a minute's time . . . . [T]wo of [the] three [d]efendants
were in a mobile vehicle and could presumably leave the scene at any point."
The "incident did not occur in a quiet area away from the general public" but
instead during rush hour in a parking lot near a highly travelled corridor and "the
urgency of protecting officer and citizen safety was present at the scene . . . ."
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Defendant's trial lasted for five days. The State's witnesses were Sergeant
Sorber, Iacobacci, Benko, and Sergeant Joseph Celentano from the Middlesex
County Prosecutor's Office (MCPO), Special Prosecutions Division. Defendant
testified on his own behalf.
Sergeant Sorber described his qualifications and the underlying facts of
the case consistently with his testimony at the suppression motion hearing.
Relevant to this appeal, the following exchange took place when the State
inquired about his observations after Benko entered defendant's vehicle:
[SGT. SORBER:] After a very short amount of time,
the front seat passenger exited the vehicle, and then, he
walked two cars over to a white GMC work van.
[STATE:] Now, you say a short period of time. . . .
[C]an you estimate how long that other individual was
inside the Chevy Impala?
[SGT. SORBER:] Thirty seconds.
[STATE:] At that point, did that give you suspicion?
[SGT. SORBER:] Yes.
[STATE:] Why?
[SGT. SORBER:] As a narcotics detective, short
meetings in public places . . . sets off bells for me,
because it screams some type of criminality, because
you don't want to meet for long period of times if you're
doing anything illegal. You want to make it as brief
and as short as possible.
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The sergeant then described the search of defendant's vehicle and the
discovery of a digital scale located inside a backpack. He explained the
relevance of the scale as follows: "[T]hrough my training and experience as a
narcotics detective, typically, an individual that is carrying around a digital scale
and has drugs on them . . . in my eyes, it's a form of distribution. They're
packaging, and they're weighing it out to distribute." Sergeant Sorber also made
the following remarks at trial, which are subject to this appeal: (1) "[T]he
totality of everything I observed was a money for drug transaction[;]" (2)
"[O]nce the drug would be weighed out on the scale, it needs to be packaged,
and it would be put into the plastic bag for sale[;]" (3) "[T]ypically, cell phones
are used to communicate . . . between a drug dealer and the user to set up a
deal[;]" (4) "[C]ash is at least the preferred method of transacting[;]" and (5)
[W]ax folds are . . . typically cut with . . . another
substance that could make it more potent, such as
fentanyl, or a derivative of. So, because of that . . . type
of substance, the most minute amount of it that either
seeps into your skin or goes airborne by just picking up
a bag can kill you.
Iacobacci recounted the events leading up to his arrest. He testified he
was a recovering opioid addict and Benko had texted him to purchase heroin and
meet at the Dunkin' Donuts. He drove to the Dunkin' Donuts and waited
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approximately ten minutes for Benko to arrive. Once Benko arrived, he entered
Iacobacci's vehicle, and discussed purchasing two bundles of heroin for $100.
After Iacobacci gave Benko the money, Benko left the white GMC and entered
defendant's vehicle, which was parked near the Dunkin' Donuts lot. Benko
remained in defendant's vehicle for approximately a minute and a half, then
returned to the GMC, and both were apprehended. Iacobacci also saw defendant
being arrested near the Impala.
Benko testified he was also a recovering opioid addict and planned to meet
with Iacobacci to purchase four bundles of heroin. Benko also agreed to meet
defendant at the Dunkin' Donuts parking lot. He described the drug transaction
and arrest in the same manner as Iacobacci.
Sergeant Celentano testified he served twenty-two years as a law
enforcement officer. He explained his background and experience with the
Middlesex County Sheriff's Department, involvement with the narcotics task
force, and employment with the MCPO. The court qualified him as an expert in
the field of illegal drug use and distribution. He described the process for
cocaine and heroin distribution, primarily packaging and branding stamps, and
the amount of drugs generally contained in glassine envelopes, "balls[,]" and
10 A-1063-21
bundles of heroin. He also explained the surveillance process and how narcotics
are commonly sold.
Defendant claimed the items seized from his car belonged to Benko and
denied he was involved in any drug sale. He could not explain why his pay stub
was found in the bag, but suggested police planted it during their search.
The jury convicted defendant on all non-dismissed counts.1 At
sentencing, the State moved for a mandatory extended term based on defendant's
prior convictions. N.J.S.A. 2C:43-6(f). Defense counsel acknowledged
defendant was mandatory extended-term eligible. The trial judge granted the
State's application.
The judge gave considerable weight to aggravating factors three, six, and
nine, and found no mitigating factors. On counts three, four, and ten, defendant
was sentenced to a concurrent sixteen-year term, with an eight-year period of
parole ineligibility. Regarding count eleven, defendant was sentenced to a four-
year prison term, which ran consecutive to counts three, four, and ten.
Defendant's aggregate sentence totaled twenty years, subject to eight years of
parole ineligibility.
1 The court dismissed count one on defendant's motion, following the close of
the State's case.
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Defendant raises the following points on appeal:
POINT I
THE EVIDENCE SEIZED IN THE WARRANTLESS
SEARCH OF [DEFENDANT]'S CAR MUST BE
SUPPRESSED BECAUSE THE PROBABLE CAUSE
DID NOT ARISE FROM UNFORESEEABLE AND
SPONTANEOUS CIRCUMSTANCES AS
REQUIRED BY STATE V. WITT.
POINT II
THE ADMISSION OF [SERGEANT] SORBER'S
UNQUALIFIED AND PREJUDICIAL "EXPERT"
TESTIMONY ON THE ULTIMATE ISSUE OF
[DEFENDANT]'S GUILT WAS REVERSIBLE
ERROR. (Not raised below).
A. [Sergeant] Sorber's lay opinion was
unqualified expert testimony, was
unhelpful to the jury, and intruded on the
jury's function.
B. Allowing [Sergeant] Sorber, as the
arresting officer, to opine on [Defendant]'s
guilt was particularly prejudicial.
POINT III
THE ADMISSION OF [SERGEANT] SORBER'S
IRRELEVANT, PREJUDICIAL, AND REPUDIATED
OPINION THAT INCIDENTAL FENTANYL
EXPOSURE IS FATAL WAS REVERSIBLE ERROR.
(Not Raised Below).
POINT IV
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THE TRIAL COURT IMPROPERLY USED
[DEFENDANT]'S DEFENSE OF HIS INNOCENCE
AT TRIAL AGAINST HIM TO IMPOSE A HARSHER
SENTENCE. (Not Raised Below).
While this appeal was pending, we directed the parties to file supplemental
briefs to address the Supreme Court's recent opinion in State v. Smart, 253 N.J.
156 (2023). Defendant's supplemental brief asserts Smart supports the
arguments raised in Point I above and requires reversal of the suppression
motion order. The State's brief argues Smart is distinguishable.
I.
"Generally, on appellate review, a trial court's factual findings in support
of granting or denying a motion to suppress must be upheld when 'those findings
are supported by sufficient credible evidence in the record.'" State v. A.M., 237
N.J. 384, 395 (2019) (quoting State v. S.S., 229 N.J. 360, 374 (2017)). Factual
findings will not be disturbed on appeal unless they are "so clearly mistaken
'that the interests of justice demand intervention and correction.'" State v.
Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Elders, 192 N.J. 224, 244
(2007)). However, legal conclusions drawn from those facts are reviewed de
novo. State v. Radel, 249 N.J. 469, 493 (2022); see also S.S., 229 N.J. at 380.
Defendant argues any evidence obtained by police should be suppressed
because they should have obtained a warrant to search his vehicle. He asserts
13 A-1063-21
the warrantless search was invalid because police were surveilling his activities
for two weeks to obtain evidence of him dealing drugs in the Dunkin' Donuts
parking lot, rendering the circumstances of the search "foreseeable and far from
spontaneous circumstances . . . ."
Defendant concedes "police developed probable cause for a search after
recovering the tossed bundles of heroin[,]" but lacked probable cause based on
a traffic violation or the plain view exception. He asserts the trial judge's
"reliance on the 'urgency of protecting officer and citizen safety' is . . .
misplaced." He argues a warrant was required to search his vehicle because it
was "parked in the Dunkin' [Donuts] parking lot, [and] did not pose the same
safety concerns of a car stopped on the side of a highway or even a road."
The Fourth Amendment of the United States Constitution, as well as
Article I, Paragraph 7 of the New Jersey Constitution, guarantees "[t]he right of
the people to be secure . . . against unreasonable searches and seizures." U.S.
Const. amend. IV; N.J. Const. art. I, ¶ 7. A warrantless search is presumed to
be unreasonable and therefore invalid. State v. Valencia, 93 N.J. 126, 133
(1983). "Warrantless searches are 'permissible only if "justified by one of the
few specifically established and well-delineated exceptions to the warrant
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requirement."'" State v. Robinson, 228 N.J. 529, 544 (2017) (quoting Witt, 223
N.J. at 422).
Where evidence is seized during a vehicle stop without a warrant, "[t]he
State has the burden of proof to demonstrate by a preponderance of the evidence
that the warrantless seizure was valid." State v. Atwood, 232 N.J. 433, 437-38
(2018) (alteration in original) (quoting State v. O'Neal, 190 N.J. 601, 611
(2007)). Where the State fails to show the search falls within one of the
exceptions to the warrant requirement, the exclusionary rule requires
suppression of the evidence. Id. at 449.
When a motor vehicle is subject to an investigatory stop "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, 33-34 (2016)
(citing State v. Locurto, 157 N.J. 463, 470 (1999)); see also State v. Rosario,
229 N.J. 263, 276 (2017). A suspicion of criminal activity is reasonable only if
it is based on "some objective manifestation that the person [detained] is, or is
about to be engaged in criminal activity." State v. Pineiro, 181 N.J. 13, 22
(2004) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
15 A-1063-21
In reviewing the facts of an investigatory stop, the court considers the
"totality of the circumstances." Ibid. This includes a police officer's
"background and training," and their ability to "make inferences from and
deductions about the cumulative information available to them that 'might well
elude an untrained person.'" State v. Nelson, 237 N.J. 540, 555 (2019) (quoting
United States v. Arvizu, 534 U.S. 266, 273 (2002)). "[P]olice may rely on
behavior that is consistent with innocence as well as guilt in finding reasonable
and articulable suspicion to conduct an investigatory stop." Pineiro, 181 N.J. at
25.
Under the automobile exception to the warrant requirement, a vehicle may
be searched without a warrant where: (1) "the police have probable cause to
believe that the vehicle contains contraband or evidence of an offense," and (2)
"the circumstances giving rise to probable cause are unforeseeable and
spontaneous." Witt, 223 N.J. at 447; see also State v. Rodriguez, 459 N.J. Super.
13, 22 (App. Div. 2019). Recently, our Supreme Court in Smart and State v.
Cohen upheld the longstanding principle that the State must prove the ripening
of probable cause was both "unforeseeable and spontaneous." See Smart, 253
N.J. at 480; Cohen, 254 N.J. 308, 319-20 (2023).
16 A-1063-21
"Probable cause exists if at the time of the police action there is 'a well-
grounded' suspicion that a crime has been or is being committed." State v.
Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87
(1972)). A court must consider whether the totality of the facts presented to the
arresting officer would support "a [person] of reasonable caution in the belief
that an offense has been or is being committed." State v. Sims, 75 N.J. 337, 354
(1978) (quoting Draper v. United States, 358 U.S. 307, 313 (1959)).
"Probable cause requires 'a practical, common-sense decision whether,
given all the circumstances . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.'" State v. Demeter, 124
N.J. 374, 380-81 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
An officer's actions must be considered in conjunction with "the specific
reasonable inferences which [they are] entitled to draw from the facts in light of
[their] experience." Terry v. Ohio, 392 U.S. 1, 27 (1968).
Sergeant Sorber received the tip two weeks prior to defendant's arrest.
The tipster provided defendant's name, place of employment, and the type of
automobile he operated, allowing the sergeant to search motor vehicle records
and confirm defendant's ownership. The tipster also described how defendant
traveled to the Dunkin' Donuts and the type of drugs defendant sold.
17 A-1063-21
Police surveilled defendant's vehicle, and although they could not see into
it, they observed Benko exit defendant's car just thirty seconds after he entered
and give Iacobacci "something" prior to entering the GMC van. Based on these
facts and circumstances as well as Sergeant Sorber's experience, background,
and training, there was sufficient reasonable suspicion for him to believe a drug
transaction occurred and he could conduct an investigatory stop.
However, we part ways with the trial judge that the circumstances allowed
police to conduct a warrantless search of defendant's vehicle. The judge relied
on the fact Benko tossed a bundle of heroin underneath an adjacent vehicle, but
this arguably unpredictable discrete act did not validate the warrantless search
of defendant's vehicle.
The weeks-old tip, the subsequent surveillance of defendant at work, and
the surveillance of the drug transaction at the Dunkin' Donuts parking lot,
demonstrate the circumstances that gave rise to probable cause were foreseeable.
The facts also do not convince us of spontaneity, but rather show police
reasonably anticipated finding drugs in defendant's vehicle. The police should
have impounded the vehicle and secured a warrant. Smart, 253 N.J. at 173-74;
see also Rodriguez, 459 N.J. Super. at 23 (stating Witt "afford[s] police officers
at the scene the discretion to choose between searching the vehicle immediately
18 A-1063-21
if they spontaneously have probable cause to do so, or to have the vehicle
removed and impounded and seek a search warrant later"). For these reasons,
the order denying the suppression motion is reversed. Accordingly, defendant's
conviction, which was in part founded upon the seized evidence admitted at trial,
must be reversed.
II.
Next, although it is not essential to do so, we address the problematic
aspects of the testimony the State elicited from Sergeant Sorber to avoid their
repetition in the future. Defendant claims the sergeant's testimony prejudiced
the outcome of the case and that he provided expert testimony even though the
State offered him solely as a fact witness.
Lay witnesses may offer opinions if "rationally based on the witness'
perception" and helpful to "understanding the witness' testimony or determining
a fact in issue." N.J.R.E. 701. The opinion "must be the product of reasoning
processes familiar to the average person in everyday life." State v. Brockington,
439 N.J. Super. 311, 322 (App. Div. 2015) (quoting United States v. Garcia, 413
F.3d 201, 215 (2d Cir. 2005)). Police officers testifying as lay witnesses may
not opine that they witnessed a narcotics sale, as this would create "an
opportunity for police officers to offer opinions on defendants' guilt." Id. at 323
19 A-1063-21
(quoting State v. McLean, 205 N.J. 438, 461 (2011)). However, "[c]ourts in
New Jersey have permitted police officers to testify as lay witnesses, based on
their personal observations and their long experience in areas where expert
testimony might otherwise be deemed necessary." State v. LaBrutto, 114 N.J.
187, 198 (1989).
In McLean, an officer testified he observed the defendant engage in two
drug transactions. Id. at 443-44. Over defense counsel's objection, the
prosecutor asked the officer: "So based on your own experience sir, and your
own training, what did you believe happened at that time?" Id. at 446. The trial
court permitted the officer, as a lay witness, to testify that he believed he had
observed a drug transaction. Ibid. On appeal, the Court held the police officer's
statement was inadmissible because it was an expression of a belief in the
defendant's guilt, and offered an opinion on matters that were not beyond the
understanding of the jury. Id. at 463; see also N.J.R.E. 701. The Court further
noted that admissible fact testimony by a police officer cannot express what the
officer "'believed,' 'thought,' or 'suspected.'" Id. at 460.
Sergeant Sorber's testimony the events in the parking lot "scream[ed]
some type of criminality[,]" and that he "observed . . . a money for drug
transaction" contravened McLean. His testimony also exceeded the parameters
20 A-1063-21
of lay opinion testimony under N.J.R.E. 701 because he discussed methods of
packaging, distribution, and paraphernalia use; testimony commonly reserved
for a qualified narcotics expert. Because this testimony was prejudicial and
encroached on the jury's factfinding function, defendant's convictions must be
reversed.
Likewise, Sergeant Sorber's testimony about: the digital scale found in
defendant's vehicle being a form of paraphernalia commonly used by drug
dealers to divide certain drugs; the manner of drug packaging; how dealers use
cell phones to make a deal; and how cash is "the preferred method" of payment
in drug transactions, exceeded the proper scope of his role as a fact witness.
Even though the sergeant's vocational experience was the basis for his
testimony, he was not qualified as an expert. Nor was his testimony
accompanied by an instruction advising the jury they were free to accept or
reject his opinion testimony, as occurred with Sergeant Celentano who was
qualified as a law enforcement drug expert. For these reasons, it was error to
permit this testimony.
We reach a different conclusion regarding Sergeant Sorber's testimony
related to his department's protocol for handling fentanyl. While explaining his
handling of the materials taken from defendant's vehicle, the sergeant testified
21 A-1063-21
"we have an order that we're supposed to handle [fentanyl] as hazardous
material" because "the most minute amount of [fentanyl] that seeps into your
skin or goes airborne by just picking up a bag can kill you."
Taken in context, Sergeant Sorber's testimony regarding fentanyl was not
probative of defendant's guilt. It is evident he was explaining his department's
protocol for handling a certain type of evidence. The admission of this
testimony did not constitute reversible error.
III.
Finally, although we have reversed defendant's convictions, we address
his sentencing arguments for sake of completeness. Defendant challenges his
sentence, arguing the trial judge improperly assumed he lied when defending
himself at trial and used it to give considerable weight to aggravating factor
three. He points to the following passage from the sentencing:
[W]hen you factor in [defendant's] . . . willingness to
clearly lie after taking an oath in a courtroom, it . . .
collectively and . . . in the totality of the circumstances
demonstrates a meaningful and substantive disregard
for the rule of the law and the importance of the rule of
law, which in this [c]ourt's opinion exacerbates the risk
to reoffend.
Our review of a sentencing court's decision is for an abuse of discretion.
State v. Fuentes, 217 N.J. 57, 70 (2014). We consider whether:
22 A-1063-21
(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."
(alteration in original) (quoting State v. Roth, 95 N.J.
334, 364-65 (1984)).
"An appellate court is bound to affirm a sentence, even if it would have
arrived at a different result, as long as the trial court properly identifies and
balances aggravating and mitigating factors that are supported by competent
credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989)
(citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, 95 N.J. at 364-65).
Our Supreme Court has expressed its disapproval of "a practice of calling
routinely upon defendants at sentencing to disavow their stance of innocence."
State v. Poteet, 61 N.J. 493, 497-98 (1972); see also State v. Marks, 201 N.J.
Super. 514, 539-40 (App. Div. 1985); N.J.S.A. 2C:44-1(c)(1) ("A plea of guilty
by a defendant or failure to so plead shall not be considered in withholding or
imposing a sentence for imprisonment.").
As to aggravating factor three, the risk a defendant will reoffend, N.J.S.A.
2C:44-1(a)(3), a defendant does have the option to continue to deny his guilt
and show no remorse for an offense he denies committing. See Poteet, 61 N.J.
23 A-1063-21
at 493. A sentencing judge's reference to a defendant's failure to admit his guilt
does not warrant reversal unless there is evidence suggesting the failure to admit
guilt enhanced the defendant's sentence. See id. at 499 ("[T]he trial court did
not ask [the defendant] to concede his guilt, and nothing in the transcript
suggests that his sentence was enlarged because he did not confess."); see also
Marks, 201 N.J. Super. at 540 ("[T]he trial judge's brief allusion to defendant's
failure to candidly admit his guilt does not require a reversal . . . .").
We discern no error in the trial judge's consideration of the aggravating
and mitigating factors. In his analysis of aggravating factor three, the judge
neither made a passing reference to defendant's failure to admit guilt, nor
requested him to admit guilt. There is also no indication he amplified the
sentence because defendant maintained his innocence. Rather, the judge
considered defendant's prior criminal history and the nature of his current
convictions. He concluded defendant's conduct was "much more involved and
more complex than one prior drug conviction . . . which rendered him eligible
for an extended term[,]" and "demonstrate[d] a meaningful and substantive
disregard for the rule of law and the importance of the rule of law" by lying on
the stand given the weight of the evidence.
The judge acknowledged,
24 A-1063-21
lying itself on the witness stand is not necessarily an
aggravating factor, but in the context of this case, his
version of events, that it was . . . Benko's drugs and
money, in this [c]ourt's opinion, based on the ability of
this [c]ourt to observe the credibility and demeanor of
. . . [d]efendant as well as . . . [Benko], that version of
events was to this [c]ourt preposterous.
The sentencing analysis was more nuanced than defendant suggests. He
was not punished for defending his innocence, but rather due to his lack of
credibility, which pointed to a propensity to reoffend. The judge did not abuse
his discretion.
Finally, defendant asserts the judge mistakenly imposed a mandatory
extended term for a non-violent drug offense. Citing Attorney General Law
Enforcement Directive No. 2021-4, Directive Revising Statewide Guidelines
Concerning the Waiver of Mandatory Minimum Sentences in Non-Violent Drug
Cases Pursuant to N.J.S.A. 2C:35-12 (Apr. 19, 2021),2 which revised statewide
guidelines and provided waivers for non-violent drug offenses, he claims the
State ignored the directive and erroneously moved for a mandatory extended
term. Ibid. He claims when appellate counsel applied for the waiver pursuant
2 https://www.nj.gov/oag/newsreleases21/AG-Directive-2021-4_Mandatory-
Minimum-Drug-Sentences.pdf.
25 A-1063-21
to the directive, the State rejected the application because defendant's sentence
included an extended term as a persistent offender.
Following its receipt of defendant's reply brief, which raised the waiver
issue, the State advised us it consents to a remand for resentencing pursuant to
the directive. For these reasons, but for our reversal of the suppression ruling
and defendant's convictions, the sentence would be remanded for
reconsideration,
Reversed and remanded for further proceedings. We do not retain
jurisdiction.