State of New Jersey v. Bernardo Rivera

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0054-24

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BERNARDO RIVERA, a/k/a BERNARDO ROACH, and JOSE TORRES,

Defendant-Appellant. ________________________

Submitted February 4, 2026 – Decided March 17, 2026

Before Judges Berdote Byrne and Jablonski.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 22-07- 0639 and 22-07-0640.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Zachary G. Markarian, Assistant Public Defender, of counsel and on the briefs).

Linda Estremera, Middlesex County Prosecutor, attorney for respondent (Hudson E. Knight, Assistant Prosecutor, of counsel and on the brief). PER CURIAM

This appeal arises out of the trial court's denial of defendant's motion to

suppress physical evidence, later resulting in his guilty plea and conviction. On

appeal, defendant argues New Brunswick police officers failed to wear their

statutorily required body-worn cameras (BWC) during a stop where they

discovered a handgun under defendant's car. Defendant argues N.J.S.A.

40A:14-118.5(q)(2) entitles him to a rebuttable presumption the BWC footage

that would have been captured would have favored the defense, and because the

trial court failed to consider this at the motion to suppress hearing, we must grant

a new hearing before a different judge. However, defendant did not raise this

argument throughout two days of the suppression hearing nor prior to the entry

of his guilty plea. Defendant raised the argument only at sentencing, fourteen

months after his motion hearing. After careful review, we affirm.

I.

From the record before us, we understand that during the late evening of

November 13, 2021, New Brunswick police officers, Kevin Sturmfels, Anthony

Flores, and Detective Sean Freeman were patrolling the area of Quentin Avenue

in an unmarked police car. The car did not have a Mobile Video Recorder

camera, and the officers were not wearing BWCs as the department did not yet

A-0054-24 2 have them. The officers patrolled the area in plainclothes but wore other police

identifiers, including vests with police insignia, pullovers with police insignia,

and police badges on lanyards around their necks.

Sturmfels testified they were patrolling Quentin Avenue because it was a

high-crime area. While proceeding down Quentin Avenue, the officers passed

Langley Place, a narrow two-way street running perpendicular to Quentin

Avenue. The officers observed a black 2019 Dodge Charger with window tint,

idling and blocking the lane of passage. Sturmfels said it caught the officers'

attention because it was the only car present in the area. The officers decided

to circle the block, intending to stop the Charger from the opposite direction.

When the officers reached Langley Place where the Charger had been

parked, it was no longer there. They began searching for the vehicle. Police

found the car parked in the parking lot of the apartment building on 45 Quentin

Avenue with the front of the vehicle facing the building. The officers observed

a man, later determined to be defendant, exit the vehicle from the driver's side

and walk towards the hood. Sturmfels noted the individual appeared nervous

and his eyes got wide when he saw them. The officers parked behind defendant's

car. Defendant then appeared to bend down and make a tossing motion in front

A-0054-24 3 of the hood of his vehicle. The officers heard scraping against the pavement,

"like a metallic sound."

Defendant then proceeded to the passenger side of the vehicle and toward

the trunk. Sturmfels recognized him as defendant Bernardo Rivera from past

interactions. Defendant opened the trunk and retrieved a backpack, slung it over

his shoulder, and walked away quickly. Sturmfels exited the vehicle to further

investigate. Sturmfels testified defendant was walking away from the vehicle

when he shouted defendant's name to detain him and investigate whether

defendant had discarded contraband from his person.

Meanwhile, Freeman and Flores approached the Charger, shining

flashlights into the car, revealing three passengers. Freeman opened the rear

passenger door and ordered the occupants to put their hands on their lap s and

they complied. Freeman testified he did not look under the car for the suspected

contraband because he believed doing so would put him at a disadvantage to the

people in the car.

Freeman called for backup and patrol officers arrived at the scene. After

they arrived, Flores looked under the Charger and saw a handgun and a high -

capacity magazine on the ground. Sturmfels arrested defendant and conducted

a search incident to arrest, finding approximately $1,200 in cash, two cell

A-0054-24 4 phones, an Apple Smart Watch, a digital scale, and clear, plastic sandwich bags

in his backpack.

Sturmfels returned to the Charger and recovered a nine-millimeter gun

from beneath it. Officers patted down the other occupants of the car and released

them after finding no weapons or contraband. Freeman testified neither the gun

nor the car were moved before pictures were taken. The Charger was searched

pursuant to a warrant a few days later and additional weapons and ammunition

were found in defendant's car pursuant to the search, with another handgun

found stolen from South Carolina.

A Middlesex County Grand Jury indicted defendant on July 13, 2022, for

two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b)(1) (counts one and three); two counts of fourth-degree possession of a large

capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (counts two and four); one

count of third-degree receiving stolen property, N.J.S.A. 2C:2-7(a) (count five);

and one count of fourth-degree sale of handgun ammunition, N.J.S.A. 2C:58-

3.3(b) (count six). A second indictment charged defendant with two counts of

second-degree possession of a handgun by a certain person not to have a weapon,

N.J.S.A. 2C:39-7(b)(1).

A-0054-24 5 Defendant moved to suppress the physical evidence obtained during the

warrantless stop and arrest. Sturmfels and Freeman testified at the hearing.

Despite mention in defendant's motion brief that he was entitled to a

rebuttable presumption BWC footage would have benefitted his case, defendant

did not raise the issue during the hearing. Instead, defendant argued the officers

could not have accurately observed his actions in discarding the weapon from

their position in the police car relative to him standing in front of the Charger.

Additionally, defendant argued the concrete barrier at the front of the parking

spot prevented him from throwing anything into the undercarriage area.

The trial court denied defendant's motion to suppress, finding the officers'

testimony credible in that they had sufficient and particularized suspicion to

conduct an investigatory stop, and defendant was properly arrested and

searched. The trial court found it would be a "dereliction of duty if the police

did not get out of the car and look underneath [it]."

On January 6, 2023, defendant entered a guilty plea to second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1), and second-degree

certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). In exchange

for his plea, the State recommended eight years of imprisonment with forty-two

months of parole ineligibility for the first count and five years of imprisonment

A-0054-24 6 with five years of parole ineligibility for the second count, to run concurrently.

At sentencing on February 6, 2024, defendant raised concerns that the officers

had no BWC footage to support their version of the events for the first time and

argued he was entitled to a new suppression hearing, which was rejected. The

trial court found aggravating factors three (risk of another offense), six (extent

of criminal record), and nine (need to deter defendant and others) applied,

N.J.S.A. 2C:44-1(a)(3), (6), and (9), respectively, and no mitigating factors

applied. It imposed the recommended sentence.

Defendant appealed the order denying his motion to suppress and his

conviction. On appeal, defendant raises the following single contention:

POINT I THIS COURT MUST REMAND FOR FACTFINDING BY A NEW JUDGE BECAUSE THE MOTION COURT FAILED TO APPLY THE STATUTORY REBUTTABLE PRESUMPTION THAT MISSING BODYWORN CAMERA FOOTAGE WOULD HAVE FAVORED THE DEFENSE.

We disagree and affirm.

II.

"When appellate courts review the grant or denial of a motion to suppress,

they 'must defer to the factual findings of the trial court so long as those findings

are supported by sufficient evidence in the record.'" State v. Caneiro, 262 N.J.

288, 300 (2025) (quoting State v. Hubbard, 222 N.J. 249, 262 (2015)). "Only

A-0054-24 7 when factual findings 'are clearly mistaken' can they be set aside." Ibid. (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. (quoting State v. Dunbar,

229 N.J. 521, 538 (2017)).

Defendant argues the officers failed to comply with the statute requiring

them to wear BWCs, imposing a rebuttable presumption that the missing footage

would have favored the defense. The State argues the presumption should not

apply because defendant did not raise the issue prior to or at the motion hearing,

and if he had, the State would have overcome the presumption.

"The Fourth Amendment of the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution, in almost identical language,

protect against unreasonable searches and seizures." Caneiro, 262 N.J. at 300

(quoting State v. Smart, 253 N.J. 156, 164 (2023)). Indeed, "[u]nder both

constitutions, 'searches and seizures conducted without warrants issued upon

probable cause are presumptively unreasonable and therefore invalid.'" Ibid.

(quoting State v. Goldsmith, 251 N.J. 384, 398 (2022)). It is well recognized,

"[t]o overcome that presumption under both constitutions, the State must show

by a preponderance of the evidence that the search falls within one of the well -

A-0054-24 8 recognized exceptions to the warrant requirement." Id. at 300-01 (alteration in

original).

In an effort to further protect individuals' privacy rights, our Legislature

enacted a statute requiring law enforcement officers to wear BWCs while

engaged in the performance of their official duties with few exceptions.

N.J.S.A. 40A:14-118.3. This requirement was made "subject to the limit of

funds appropriated or otherwise made available for this purpose." Ibid. The

statute became effective on June 1, 2021, five months prior to the events giving

rise to this appeal. If BWCs are not worn during an interaction with a defendant,

a rebuttable presumption arises that the missing footage would have favored

defendant's case. N.J.S.A. 40A:14-118.5(q)(2) to (3).

Rule 2:6-2 restricts our review to questions or issues presented in the

record to the trial court. See also J.K. v. N.J. State Parole Bd., 247 N.J. 120,

138 n.6 (2021).

Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below, however the limitation on the scope of appellate review is not absolute. If [t]he issue is an important one of public concern and ought [to] be considered; there is no question as to [the Appellate Division's] power to do so.

[State v. Dangcil, 248 N.J. 114, 132 n.4 (2021) (citations omitted).]

A-0054-24 9 Although we have the discretion to consider matters meeting the plain

error standard espoused in Rule 2:10-2, we generally decline to do so when the

opportunity to object was available below. "Plain error has intentionally been

created as a high bar for parties to meet in order to encourage litigants to raise

any objections to evidence at the trial level where the court can best 'forestall or

correct a potential error,' in a timely manner." State v. Santamaria, 236 N.J.

390, 409 (2019) (quoting State v. Bueso, 225 N.J. 193, 203 (2016)). "[E]ven if

it were error, a party cannot strategically withhold its objection to risky or

unsavory evidence at trial only to raise the issue on appeal when the tactic does

not pan out." Ibid.

Here, defendant did not raise his concerns at the hearing on the motion to

suppress the evidence, or until after he had entered his guilty plea and returned

for sentencing. Defendant had the opportunity to assert the rebuttable

presumption issue both during the suppression motion and before entering his

guilty plea but failed to do so. Until sentencing, defendant argued only that the

officers did not meet their burden in establishing the application of certain

exceptions to the warrant requirement applied. Thus, although defendant argues

the trial court erred in not considering this presumption, he did not raise it until

after he had pleaded guilty to the crime.

A-0054-24 10 We have previously concluded the existence of this rebuttable

presumption does not apply automatically, but only on defendant's presentation

of the issue, absent here. State v. Jones, 475 N.J. Super. 520, 535 (2023) ("Issues

pertinent to whether defendant is entitled to the rebuttable presumption under

N.J.S.A. 40A:15-118.5(q)(2), and whether the State can successfully rebut the

presumption . . . shall abide the presentation of the parties' arguments and

evidence and shall be decided in the first instance by the motion court . . . .").

The statute contains similar language requiring a defendant to "reasonably assert

that exculpatory evidence was destroyed or not captured." N.J.S.A. 40A:14 -

118.5(q)(2) (emphasis added).

The State further argues even if the presumption had been applied, it was

rebutted by the well-known exceptions to warrantless searches that allowed

them to legally collect the gun as evidence. Of the well-recognized exceptions

to a warrantless search and seizure, the State argues four applied. First, it argues

it reasonably conducted an investigatory stop. Second, it contends defendant

abandoned the gun when he walked away from it, eliminating standing to object

to the search and seizure of property. Third, it asserts the gun was lawfully

recovered under the plain-view doctrine. Fourth, it claims the gun was properly

recovered under the inevitable discovery doctrine.

A-0054-24 11 Although defendant argued none of these exceptions applied at the motion

to suppress hearing, he did not renew those arguments on appeal. An issue not

briefed on appeal is deemed abandoned. State v. Huang, 461 N.J. Super. 119,

125 (App. Div. 2018). As such, defendant offers no argument to address the

State's position that, if the presumption had been considered, the State would

have easily been able to rebut it.

Affirmed.

A-0054-24 12