NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1767-22
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION February 7, 2024 v. APPELLATE DIVISION
KHALIL H. HASKINS, a/k/a KHALIL HASKIN, and ANDREW HAEFELE,
Defendant-Appellant. ________________________
Submitted January 23, 2024 – Decided February 7, 2024
Before Judges Haas, Natali and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 21-08- 2068.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
NATALI, J.A.D. Believing the tinted front side windows of defendant Khalil H. Haskins'
car violated the Motor Vehicle Code, police stopped his vehicle and, after a
warrantless search, seized marijuana, a loaded handgun, and drug
paraphernalia from the car and suspected heroin from defendant. Following an
unsuccessful motion to suppress that physical evidence, defendant pled guilty
to fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d), and
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1). He
now appeals the court's order denying his suppression application, arguing the
stop of his car was unlawful because the State failed to establish his car's
tinted windows violated the Motor Vehicle Code under the test set forth in
State v. Smith, 251 N.J. 244 (2022).
In Smith, our Supreme Court held "reasonable and articulable suspicion
of a tinted windows violation arises only when a vehicle's front windshield or
front side windows are so darkly tinted that police cannot clearly see people or
articles within the car." Id. at 253. When the court denied defendant's
application, our Supreme Court had not yet decided Smith, and it instead relied
on our decision in State v. Cohen, 347 N.J. Super. 375 (App. Div. 2002). In
that case, we concluded police must establish the windows are "so darkly
tinted as to obstruct [the driver's] vision" to justify a motor vehicle stop based
upon a violation of N.J.S.A. 39:3-74. Id. at 380. In support, we held that
A-1767-22 2 statute "prohibits the use of tinted windows which fail to meet the applicable
standard now set forth in N.J.A.C. 13:20-33.7," a regulation proscribing "tinted
spray or plastic material added to previously approved glazing in the front
windshield or windows" because of the change to "vision and light
transmission properties of the glazing in areas where driver visibility shall not
be obscured." Ibid. (quoting N.J.A.C. 13:20-33.7(d)). Because we conclude
the holding in Smith constituted a new rule of law for retroactivity purposes,
and is further entitled to pipeline retroactivity, we vacate the court's order and
remand for further proceedings consistent with this opinion.
I.
The relevant facts that emerged at the suppression hearing are as
follows. On January 19, 2021, Barrington Police Department Corporal Patrick
D'Ascenzo observed defendant driving a black Cadillac de Ville with "heavily
tinted" front and back windows on both the driver and passenger sides. He
stated the rear windshield was not tinted and could not recall whether the front
windshield was tinted. Because he understood the Motor Vehicle Code to
prohibit tinted front windows, Corporal D'Ascenzo stopped defendant's car,
conducted a warrantless search, and seized as noted.
Defendant moved to suppress the physical evidence, which the court
denied. The court found Corporal D'Ascenzo testified credibly and relying on
A-1767-22 3 Cohen, 347 N.J. Super. at 380, found he had reasonable suspicion to stop
defendant's car based on the front window tint which Corporal D'Ascenzo
believed violated N.J.S.A. 39:3-75.1 As noted, our Supreme Court decided
Smith on June 28, 2022, approximately four months after the court denied
defendant's motion to suppress.
Defendant entered his plea on March 3, 2022, was later sentenced, and
the court entered a Judgment of Conviction on April 1, 2022. At sentencing,
and pursuant to Rule 3:21-4(i), the court advised defendant of his right to
appeal and the associated forty-five-day deadline set forth in Rule 2:4-1(a).
Defendant's notice of appeal was therefore due on May 16, 2022, but was not
filed until February 17, 2023.
Contemporaneous with his February 17 notice, defendant filed an
unopposed motion for leave to file a notice of appeal as within time and
submitted his certification, in which he stated his family "called [his attorney
on his behalf] and left multiple messages requesting an appeal" but received no
response. He also stated he "wrote to the criminal case manager around April
20[], 2022 requesting assistance" and "to the judge," who responded informing
1 Notwithstanding the court's reliance on N.J.S.A. 39:3-75, the parties agree the controlling statute is N.J.S.A. 39:3-74. See Smith, 251 N.J. at 261 (noting "[t]he plain language of section 75 indicates that it is concerned solely with the quality and maintenance of . . . safety glazing material, not aftermarket tinted window film").
A-1767-22 4 him his letter had been "forwarded to [his] attorney." Finally, defendant noted
he wrote to the appellate section of the Office of the Public Defender, who
"informed [him] that [his] appeal request was out of time," leading to the filing
of his motion, which we granted. See State v. Molina, 187 N.J. 531, 535-36
(2006) (holding defendant may move to appeal as within time despite failing to
prosecute appeal in timely manner and having been advised of appeal rights if
defendant "demonstrates, by [their] own certification and by a preponderance
of the credible evidence, that the defendant did request the filing of an appeal
in a timely manner and that counsel failed to prosecute it").
Before us, defendant argues the court erred in denying his suppression
motion because the police lacked a reasonable suspicion that the car's tinted
windows violated N.J.S.A. 39:3-74. In support, he contends the State failed to
present evidence the tinted windows inhibited Corporal D'Ascenzo's ability to
clearly see inside the vehicle as required under Smith, 251 N.J. at 266. In
response, the State contends Smith should apply prospectively only, and the
court's reliance on Cohen, 347 N.J. Super. at 380, was therefore proper. In the
alternative, the State requests we remand to permit it to present additional facts
and testimony consistent with Smith.
A-1767-22 5 II.
Whether a court decision applies prospectively or retroactively involves
a three-step analysis. State v. Dock, 205 N.J. 237, 254 (2011). First, we must
initially consider whether the decision announces a new rule of law. Ibid. Our
Supreme Court has instructed that a new rule is announced if the decision
"breaks new ground," ibid. (quoting State v. Cummings, 184 N.J. 84, 97
(2005)), or involves a "sudden and generally unanticipated repudiation of a
long-standing practice," State v. G.E.P., 243 N.J. 362, 382 (2020) (quoting
State v. Feal, 194 N.J. 293, 308 (2008)).
A decision is also considered a new rule if it "imposes a new obligation
on the State." Dock, 205 N.J. at 254 (quoting Cummings, 184 N.J. at 97).
Finally, a decision announces a new rule "if the result was not dictated by
precedent existing at the time the defendant's conviction became final." Ibid.
(quoting Cummings, 184 N.J. at 97). In cases in which "the meaning of a
statute as determined by prior decision is changed, the court decision changing
it is the equivalent of a new rule of law." State v. Burstein, 85 N.J. 394, 406
(1981).
After determining a decision reflects a new rule of law, we then balance
three factors to determine if retroactive application is warranted: "(1) the
purpose of the rule and whether it would be furthered by a retroactive
A-1767-22 6 application, (2) the degree of reliance placed on the old rule by those who
administered it, and (3) the effect a retroactive application would have on the
administration of justice." G.E.P., 243 N.J. at 386 (quoting State v.
Henderson, 208 N.J. 208, 300 (2011)). We also consider "more generally . . .
what is just and consonant with public policy in the particular situation
presented." Dock, 205 N.J. at 255 (quoting Cummings, 184 N.J. at 97).
With regard to the first factor, a rule intended to remedy a past
substantial impairment of the truth-finding function or to "enhance the
reliability of the factfinding process" will generally weigh in favor of some
form of retroactivity. G.E.P., 243 N.J. at 386-87. On the other hand, a rule
intended "solely to deter illegal police conduct" weighs against retroactivity,
because "the deterrent purposes of such a rule would not be advanced by
applying it to past misconduct." Burstein, 85 N.J. at 406. Our Supreme Court
has emphasized the factors are "not of equal weight" and the first factor is
"often the pivotal consideration," with the others becoming more salient "when
the inquiry into the purpose of the new rule does not, by itself, reveal whether
retroactive application . . . would be appropriate." Dock, 205 N.J. at 255
(quoting Cummings, 184 N.J. at 97).
The second factor requires an examination of "whether law enforcement
agents justifiably relied on the old rule in performing their professional
A-1767-22 7 responsibilities." Id. at 256. Such reliance must have been "in good faith"
and consistent with "then-prevailing constitutional norms." G.E.P., 243 N.J. at
388. "'The reasoning underlying this inquiry is that state agents should not be
penalized for complying in good faith with "prevailing constitutional norms"'
when carrying out their duties." State v. Knight, 145 N.J. 233, 252 (1996)
(quoting State v. Howery, 80 N.J. 563, 582 (1979) (Pashman, J., dissenting)).
In weighing the third factor, we consider whether the retroactive
application of a rule would "undermine the validity of large numbers of
convictions." Ibid. "We have noted our concern about overwhelming courts
with retrials, and our awareness of the difficulty in re-prosecuting cases in
which the offense took place years in the past." Ibid. In other words, we are
more hesitant to apply a rule retroactively when there will be a significant
adverse impact upon our criminal justice system.
Finally, after determining retroactivity is appropriate, we are required to
decide which "retroactivity option is to be chosen." Dock, 205 N.J. at 256
(quoting Cummings, 184 N.J. at 98). The new rule may be applied: (1) as the
State requests here, "purely prospectively"; (2) "in future cases and in the case
in which the rule is announced, but not in any other litigation that is pending or
has reached final judgment at the time the new rule is set forth"; (3) "in all
future cases, the case in which the rule is announced, and any cases still on
A-1767-22 8 direct appeal," known as "pipeline retroactivity"; or (4) completely
retroactively. Ibid. (quoting Cummings, 184 N.J. at 98).
Complete retroactivity is appropriate only where the old rule
"'substantially impair[ed] [the] truth-finding function' and raises 'serious
question about the accuracy of guilty verdicts in past trials.'" G.E.P., 243 N.J.
at 386 (emphasis and alterations in original) (quoting Feal, 194 N.J. at 308-
09). Generally, we seek to avoid retroactive application "if many cases will be
impacted." Feal, 194 N.J. at 311; see also State v. Purnell, 161 N.J. 44, 56
(1999) (holding courts should consider "the number of cases that would
require dismissal or retrial in the event of retroactive application" and strive to
"avoid overwhelming courts with retrials and the difficulty of retrying cases in
which the underlying events took place long in the past"). Examples of rules
to which complete retroactivity has been applied include the right to counsel at
trial, G.E.P., 243 N.J. at 387 (quoting Burstein, 85 N.J. at 407) (citing
Pickelsimer v. Wainwright, 375 U.S. 2 (1963)); the right to counsel at
preliminary hearings, ibid. (quoting Burstein, 85 N.J. at 407) (citing Arsenault
v. Massachusetts, 393 U.S. 5 (1968)); the requirement the State prove all
elements of an offense beyond a reasonable doubt in juvenile proceedings,
ibid. (quoting Burstein, 85 N.J. at 407) (citing Ivan V. v. City of New York,
407 U.S. 203 (1972)); and the exclusion of codefendants' confessions which
A-1767-22 9 implicate the defendant, ibid. (quoting Burstein, 85 N.J. at 407) (citing Roberts
v. Russell, 392 U.S. 293 (1968)).
Pipeline retroactivity is proper where a new rule is "designed to enhance
the reliability of the factfinding process" but the old rule did not substantially
impair the accuracy of the process, id. at 388 (citing Burstein, 85 N.J. at 408),
or where there is an "absence of data concerning 'the number and kinds of
cases that would be affected by a rule of complete retroactivity. . . ,'" Feal, 194
N.J. at 311-12 (quoting State v. Bellamy, 178 N.J. 127, 142-43 (2003)). This
outcome "best balances principles of fairness and repose." State v. Natale, 184
N.J. 458, 494 (2005). Examples of new rules of law to which our Supreme
Court applied pipeline retroactivity include the application of a totality of
circumstances test to warrantless blood draws in DWI cases, State v. Adkins,
221 N.J. 300, 313 (2015); the heightened burden of proof in DWI cases
involving refusal to submit to a breathalyzer test, Cummings, 184 N.J. at 99;
and the exclusion of a prosecutor's comments about defendant's presence at
trial, Feal, 194 N.J. at 312.
On the other hand, rules intended "solely to deter illegal police conduct,"
such as exclusionary rules, are "virtually never given retroactive effect."
Burstein, 85 N.J. at 406. Instances of rules applied only prospectively include
those permitting admission of wiretap tapes which had not been timely sealed
A-1767-22 10 only if there had been no tampering, id. at 411; excluding results of wiretaps
due to improper minimization, State v. Catania, 85 N.J. 418, 447 (1981); and
invalidating "random traffic stops," State v. Carpentieri, 82 N.J. 546, 548-49
(1980).
Here, we agree with the State that Smith announced a new rule of law as
it imposed a new obligation on the State—namely, the requirement to establish
"that tinting on the front windshield or front side windows inhibited officers'
ability to clearly see the vehicle's occupants or articles inside" when relying
upon a tinted windows violation as a basis for reasonable suspicion. Smith,
251 N.J. at 266.
Additionally, we are satisfied the decision reached a result not dictated
by existing precedent. Under Cohen, the State was required only to show,
more generally, the officer reasonably believed a car's windows were "so
darkly tinted as to obstruct [the driver's] vision." 347 N.J. Super. at 380. We
also held in that case "N.J.S.A. 39:3-74 prohibits the use of tinted windows
which fail to meet the applicable standard now set forth in N.J.A.C. 13:20 -
33.7." Ibid. In contrast, under Smith, the Court determined the State must
"present evidence" that the window tint actually "inhibited officers' ability to
clearly see" inside the vehicle. 251 N.J. at 266. The Court also explicitly
"depart[ed] from Cohen to the extent that it ties violations of N.J.S.A. 39:3-74
A-1767-22 11 to the standards set forth in N.J.A.C. 13:20-33.7," finding the regulation no
longer applicable to passenger vehicles. Id. at 262. As such, we are satisfied
Smith changed "the meaning of a statute as determined by prior decision."
Burstein, 85 N.J. at 406.
We are unpersuaded by the State's argument, however, that Smith should
apply purely prospectively and conclude the rule set forth in Smith is entitled
to pipeline retroactivity. With regard to the first balancing factor, the rule's
purpose, the Court noted its task in Smith was "to interpret the language of a
statute [N.J.S.A. 39:3-74] enacted a century ago," specifically the term "non-
transparent." 251 N.J. at 266. In other words, the court's holding clarified the
circumstances under which window tint violates N.J.S.A. 39:3-74, which we
are satisfied will "enhance the reliability of the factfinding process," G.E.P.,
243 N.J. at 388.
Turning to the second and third factors, the degree of reliance on the old
rule and the impact on the administration of justice, against this record we
accord each limited weight. We reach this conclusion because the record lacks
sufficient support to evaluate the extent of law enforcement's reliance on
Cohen, or whether that reliance was "in good faith" and consistent with "then-
prevailing constitutional norms." G.E.P., 243 N.J. at 388. Similarly, the
A-1767-22 12 record is again devoid of evidence establishing the number or types of cases
impacted by retroactive application of the rule.
Nevertheless, we acknowledge Cohen remained good law for over
twenty years and, as the State posits, police have likely relied on its holding.
Additionally, we presume retroactive application of Smith will have at least
some effect upon the administration of justice and we are mindful that we
"must not impose unjustified burdens on our criminal justice system ,"
Cummings, 184 N.J. at 98 (quoting Knight, 145 N.J. 252). We are satisfied the
first factor, strongly supporting retroactivity, outweighs the second and third
factors, to the extent they weigh against retroactivity. As noted, the factors are
"not of equal weight" and the first is "often the pivotal consideration ." Dock,
205 N.J. at 255 (quoting Cummings, 184 N.J. at 97).
As such, we finally examine which retroactivity option is the most
appropriate. We find limited retroactivity is a result which is "just and
consonant with public policy," ibid. (quoting Cummings, 184 N.J. at 97), and
are satisfied complete retroactivity is unwarranted as we cannot conclude the
prior rule in Cohen "substantially impair[ed] [the] truth-finding function" to
the extent that it raised "serious question about the accuracy of guilty verdicts
in past trials." G.E.P., 243 N.J. at 386 (alterations in original) (quoting Feal,
194 N.J. at 308-09). An additional consideration militating against purely
A-1767-22 13 prospective application is the holding in Smith is not intended in our view to
have a deterrent effect, but rather to identify the level of window tint which
violates N.J.S.A. 39:3-74. Under these circumstances, we find pipeline
retroactivity is appropriate.
III.
We also conclude defendant's appeal, although not filed until after Smith
was decided, should be deemed within the "pipeline." As noted, we granted
defendant leave to file his notice of appeal "as within time." Therefore, his
appeal was deemed filed within forty-five days from the sentence date, which
was at least one month prior to the Smith decision. Defendant's case, for all
practical purposes, was accordingly "on direct appeal" at the time Smith was
issued. Dock, 205 N.J. at 256 (quoting Cummings, 184 N.J. at 98).
Having determined Smith applies to this case and others in the pipeline,
we vacate the court's denial of defendant's motion to suppress and remand this
matter for the court to consider whether the State has established "tinting on
the front side windows inhibited officers' ability to clearly see the vehicle's
occupants or articles inside," as required under Smith, 251 N.J. at 266. See
Adkins, 221 N.J. at 317 (requiring opportunity on remand for the State to
present evidence supporting basis for police action in applying pipeline
retroactivity to new rule). In doing so, we reject defendant's argument we
A-1767-22 14 should resolve the matter based on the existing record. The parties should be
permitted to present evidence and argument with regard to the new
requirements announced in Smith.
Finally, as the judge made credibility findings and may be committed to
her previous view of the evidence, we direct that a new judge preside over the
suppression hearing on remand. State v. Jones, 475 N.J. Super. 520, 534 (App.
Div. 2023) (requiring suppression hearing be assigned to new judge as motion
judge weighed evidence and made credibility findings); see also R.L. v.
Voytac, 199 N.J. 285, 306 (2009) (holding matter should be assigned to a
different judge on remand because the court "previously made credibility
findings"). We offer no opinion on the merits of defendant's suppression
motion or whether defendant should ultimately prevail on the issues, a nd
nothing in this opinion should be construed as an expression of such.
To the extent we have not specifically addressed any of the parties' legal
arguments it is because we have concluded they are of insufficient merit to
warrant discussion in a written opinion. R. 2:11–3(e)(2).
Vacated and remanded. We do not retain jurisdiction.
A-1767-22 15