NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0673-23
STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
SHAQUIL D. HUGGINS, a/k/a STYLESZ HUGGINS,
Defendant-Appellant.
_____________________________
Argued January 21, 2026 – Decided August 19, 2026 Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 21-08-0685.
Alexandra Marek, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Alexandra Marek, of counsel and on the briefs).
Colleen Kristan Signorelli, Assistant Prosecutor, argued the cause for respondent (Wayne Mello, Hudson County Prosecutor, attorney; Colleen Kristan Signorelli, on the brief).
PER CURIAM Defendant Shaquil D. Huggins appeals from the September 18, 2023 judgment of conviction (JOC) entered by the Law Division after a jury convicted him of four weapons- and drug-related crimes arising from a traffic stop, as well as the sentence imposed for those convictions. Defendant also appeals from a March 28, 2022 Law Division order denying his pretrial motion to suppress. We affirm.
I.
On April 25, 2021, two Bayonne Police Department (BPD) officers, Hany Kased and Joseph Giordano, were on patrol in separate marked police vehicles. At approximately 12:45 a.m., Kased saw a vehicle on Route 440 "traveling at a low rate of speed," perhaps fifteen to twenty miles per hour, below the posted limit of forty-five miles per hour, "impeding the normal flow of traffic." The vehicle was traveling slow enough that other vehicles had to go around it to proceed. Kased also noted the vehicle had four "lightly tinted" windows.
Kased followed the vehicle for about a minute. Before Kased could activate his overhead lights to initiate a stop, the driver quickly pulled over on the side of the road. The vehicle was in a crosswalk, not a parking space. Kased pulled up next to the vehicle and questioned the driver as to why he pulled over.
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The driver responded he and his passenger, defendant, were lost. Kased activated his overhead lights and exited his vehicle to investigate further. Giordano was also at the scene and exited his vehicle.
Both officers then activated their body worn cameras. Kased did not turn on his body worn camera until he exited the police vehicle. This was a violation of BPD policy, which requires the camera to be activated whenever an officer interacts with a member of the public.
Kased approached the front passenger window while Giordano approached the driver's window. The driver produced his driver's license, insurance, and registration. According to Kased, both the driver and passenger appeared nervous, and the area had low lighting. Kased asked the driver to step out of the vehicle. The driver complied and moved to the rear of the vehicle, where he remained with Giordano.
Kased remained at the passenger side of the car, where he observed defendant was not wearing a seatbelt. The officer asked defendant to produce identification. Defendant complied. Kased noticed defendant making furtive movements and observed him reach over the center console to retrieve a lighter, which took his hand out of view. The officer asked defendant not to move, at which point defendant, who was wearing a fanny pack, bladed his body. The
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officer asked defendant if there were any weapons or contraband in the vehicle. Defendant evaded the question.
Kased noticed defendant's hands were shaking and that he kept touching his fanny pack. Based on these observations, his prior experience arresting someone carrying a firearm inside a fanny pack, the time of night, and the low lighting in the area, Kased asked defendant to step out of the vehicle and keep his hands visible.
Defendant "took his time getting out of the vehicle." Once defendant had exited the vehicle, the officer directed him to put his hands on top of the vehicle to permit the officer to conduct a pat-down search. Defendant did not comply. Kased tried to turn defendant around to face the vehicle. As he did so, the officer noticed defendant's hands "going towards the fanny pack." Kased ordered defendant to stop reaching and grabbed both of defendant's hands out of "fear that he was trying to get something out of the fanny pack." Defendant began to struggle with the officer. Ultimately, he broke the officer's hold, pushed Kased away, took the fanny pack off, and threw it over a nearby fence into a parking lot.
Defendant was subdued and arrested. Officers seized the fanny pack from the parking lot. A .380 caliber handgun with one chambered hollow point round
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and three hollow point rounds in the magazine was found in the fanny pack. Defendant did not have a permit to possess a handgun.
A search of the vehicle uncovered no contraband. However, while officers were processing defendant at the BPD headquarters, they found two vials of crack cocaine in his pocket. When defendant was later strip searched at the Hudson County Correctional Center, officers found thirty-four wax folds of heroin and fentanyl in his underwear.
A Hudson County grand jury indicted defendant, charging him with: (1)
second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2:39-5(b)(1) (count one); (2) second-degree certain persons not have a weapon, N.J.S.A. 2C:39-7(b)(1) (count two); (3) fourth-degree possession of a prohibited device, N.J.S.A. 2C:39-3(f)(1) (count three) (hollow point bullets); (4) third- degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count four); (5) fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1(a) (count five); (6) third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (count six); (7) third-degree possession of a CDS (heroin), N.J.S.A. 2C:35-10(a)(1) (count seven); (8) second-degree possession with intent to distribute heroin within 500 feet of a public housing facility,
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N.J.S.A. 2C:35-7.1 (count eight); and (9) third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1) (count nine). 1 On September 29, 2021, defendant moved to suppress the seizure of his person and all evidence obtained therefrom. He argued: (1) the motor vehicle stop was unlawful because the vehicle was stopped on the side of the road with its hazard lights on prior to Kased's arrival at the scene; and (2) Kased unlawfully ordered him to exit the vehicle and was not justified in attempting to conduct a pat-down search.
The motion court held a two-day hearing at which Kased and the driver of the vehicle testified. The driver, who is white, testified after his initial conversation with Kased, the officer told him he was free to leave. However, after Kased saw defendant, who is black, the officer changed his mind and extended the stop. The driver also testified defendant was calm and relaxed during the stop and did not reach across the console. The driver admitted that once he exited the vehicle, he could not see what defendant was doing during his interaction with Kased.
1 The officers also issued defendant a ticket for failing to wear a seatbelt, N.J.S.A. 39:3-76.2(f). Tickets for two motor vehicle violations were mailed to the driver.
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On March 28, 2022, the court issued a nine-page written decision denying the motion. The court found Kased provided credible testimony regarding the motor vehicle stop, his interaction with defendant, including his request defendant exit the vehicle, and the events thereafter ultimately resulting in defendant's arrest and the discovery of the handgun, bullets and CDS in defendant's possession.
The court found under either version of events the officers had reasonable suspicion the driver of the vehicle committed a motor vehicle offense. Under Kased's version of events, the officers observed the car carrying defendant obstructing the flow of traffic by moving so slowly other vehicles had to maneuver around it to pass. Under the driver's version of events, even if his car was parked when Kased approached, the officer provided credible testimony the car was blocking a pedestrian crosswalk and was not in a parking space. In addition, the court found the officer observed the car had tinted windows. 2 The court concluded Kased had an objectively valid reason to stop the vehicle.
In addition, the court noted established precedent providing when an officer has an articulable and reasonable suspicion to stop a vehicle, the officer
2 The State later conceded Kased's testimony the vehicle had "lightly tinted" windows did not justify a motor vehicle stop for a tinted-windows violation. State v. Smith, 251 N.J. 244, 264-65 (2022).
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may question the occupants of the vehicle "even on a subject unrelated to the purpose of the stop, without violating the Fourth Amendment , so long as such questioning does not extend the duration of the stop." (quoting State v. Hickman, 335 N.J. Super. 623, 636 (App. Div. 2000)). Here, the court found the officers had a reasonable suspicion defendant was not wearing his seatbelt, rendering the stop and the officer's short duration questioning of defendant lawful.
The motion court rejected defendant's argument that because the motor vehicle infractions were committed by the driver, the officers impermissibly ordered him to exit the vehicle. The court found the officers' reasonable suspicion defendant was not using a seatbelt, a primary motor vehicle offense, justified Kased's directive that defendant exit the vehicle, regardless of additional evidence justifying the officer's heightened caution during his interaction with defendant. See State v. Bacome, 228 N.J. 94, 106-07 (2017) (reaffirming the principle that circumstances establishing an officer's "heightened caution" for safety justifies the removal of a passenger from a vehicle).
In addition, the court found Kased had an objectively reasonable heightened awareness of danger based on defendant's actions during the stop.
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The officer observed defendant's nervousness, furtive movements, and evasiveness. Much of defendant's suspicious behavior centered on his fanny pack, a container Kased knew from experience was used to conceal a firearm. The court found these circumstances reasonably led Kased to believe, that unlike a routine traffic stop, it was necessary to order defendant to exit the vehicle to more effectively secure the scene and protect his safety.
The court found Kased had a reasonable suspicion defendant was armed and the officer's safety was in danger. Thus, the court concluded the officer was justified in conducting a pat-down of defendant after he exited the vehicle.
Before trial, the court granted the State's motion to dismiss counts eight and nine of the indictment.
After a four-day trial, the jury convicted defendant on counts one (unlawful possession of a firearm), three (possession of a prohibited device), six (possession of CDS), and seven (possession of CDS). The jury acquitted defendant of counts four (resisting arrest) and five (obstruction).
Following the verdict, defendant pleaded guilty to count two (certain persons not to possess a weapon). In exchange, the State agreed to recommend a five-year term of imprisonment with a five-year period of parole ineligibility
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pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), to run concurrently with the sentence imposed for his convictions at trial.
At sentencing, the State moved to impose an extended term pursuant to N.J.S.A. 2C:44-3(a) and N.J.S.A. 2C:43-7(c). Defense counsel did not dispute defendant's eligibility for an extended term, but asked the court to find mitigating factors two, N.J.S.A 2C:44-1(b)(2) ("The defendant did not contemplate that the defendant's conduct would cause or threaten serious harm . . . ."), and eight, N.J.S.A 2C:44-1(b)(8) ("The defendant's conduct was the result of circumstances unlikely to recur . . . ."), and impose the minimum term of ten years with a five-year period of parole ineligibility on the unlawful possession of a handgun conviction, to run concurrently with the sentences imposed on the trial convictions.
The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) ("The risk that the defendant will commit another offense . . . ."), six, N.J.S.A. 2C:44- 1(a)(6) ("The extent of the defendant's prior criminal record and the seriousness of the offenses of which the defendant has been convicted . . . ."), and nine, N.J.S.A. 2C:44-1(a)(9) ("The need for deterring the defendant and others from violating the law . . . ."). The court rejected mitigating factor eight, given its findings aggravating factors three and six applied, and found mitigating factor
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two applied. The court also noted defendant obtained his GED while detai ned in the county jail.
The court found the aggravating factors substantially outweighed the mitigating factor and recognized it was required to impose a mandatory extended term under the Graves Act. The court imposed a twelve-year term of imprisonment with a six-year period of parole ineligibility for the conviction of unlawful possession of a handgun without a permit, a five-year term of imprisonment with a five-year period of parole ineligibility on the certain persons conviction, an eighteen-month period of imprisonment on the prohibited device conviction, a three-year period of imprisonment on the heroin possession conviction, and a three-year period of imprisonment on the cocaine possession conviction. The court ordered each sentence to run concurrently. This appeal followed.
Defendant raises the following arguments for our consideration.
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AS A RESULT OF AN UNLAWFUL STOP AND SEIZURE.
A. THE STATE FAILED TO CARRY ITS BURDEN IN ESTABLISHING THAT POLICE HAD A REASONABLE AND ARTICULABLE BASIS TO
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STOP THE VEHICLE DEFENDANT WAS A PASSENGER IN FOR ANY OF THE MINOR TRAFFIC VIOLATIONS IT RELIED UPON.
B. THE OFFICERS UNLAWFULLY EXTENDED THE STOP BEYOND THE TIME NEEDED TO COMPLETE THE STOP'S MISSION.
C. THE OFFICERS UNLAWFULLY ORDERED DEFENDANT, WHO WAS THE PASSENGER, OUT OF THE VEHICLE.
D. THE OFFICERS UNLAWFULLY ATTEMPTED TO CONDUCT A PAT[-]DOWN OF DEFENDANT.
E. THE EXCLUSIONARY RULE DEMANDS THE EVIDENCE SEIZED FROM DEFENDANT AS A RESULT OF THE ILLEGAL STOP AND SEIZURE BE SUPPRESSED.
POINT II
THE PROSECUTOR MADE MULTIPLE IMPROPER REMARKS DURING SUMMATION THAT AMOUNTED TO PROSECUTORIAL MISCONDUCT THAT DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III
DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL WHEN THE UNCHARGED ACT OF FENTANYL POSSESSION WAS ADMITTED AT TRIAL.
POINT IV
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DEFENDANT'S SENTENCE IS EXCESSIVE AND MUST BE VACATED AND REMANDED FOR RESENTENCING.
II.
A. Suppression Motion.
Defendant argues the motion court erred when it denied his motion to suppress because Kased unlawfully: (1) stopped the vehicle in which defendant was a passenger without the required reasonable and articulable suspicion a traffic violation occurred; (2) extended the stop when he excessively and intrusively questioned defendant on matters unrelated to the stop; (3) ordered defendant to exit the vehicle without heightened caution; and (4) attempted a pat-down search without reasonable and articulable suspicion defendant was armed and dangerous. We disagree.
Our scope of review of the motion court's suppression order is well established. We must defer to the motion court's factual findings from the suppression hearing, so long as they are supported by sufficient credible evidence in the record. State v. Nelson, 237 N.J. 540, 551 (2019) (quoting In Interest of J.A., 233 N.J. 432, 445 (2018)). Our review of the judge's factual findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). By contrast, the trial
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court's interpretation of the law and the legal "consequences that flow from established facts" are reviewed de novo. State v. Gamble, 218 N.J. 412, 425 (2014).
The applicable law with respect to the vehicle stop is clear. In general, under the Fourth Amendment of the United States Constitution and under Article I, paragraph 7 of the New Jersey Constitution, a warrantless search is presumed invalid and "permissible only if 'justified by one of the "few specifically established and well-delineated exceptions" to the warrant requirement.'" State v. Witt, 223 N.J. 409, 422 (2015) (quoting State v. Frankel, 179 N.J. 586, 598 (2004)). That is, a defendant has a constitutional right to be free from indiscriminate searches and seizures by police without a warrant, unless one of the recognized exceptions to the warrant requirement applies. Ibid.
A traffic stop is lawful when based on a reasonable and articulable suspicion that a traffic or other offense has been committed, and the State has the burden to prove by a preponderance of the evidence that such suspicion was present. State v. Amelio, 197 N.J. 207, 211 (2008); see also Delaware v. Prouse, 440 U.S. 648, 663 (1979); State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div. 2011) ("A motor vehicular violation, no matter how minor, justifies a stop
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without any reasonable suspicion that the motorist has committed a crime or other unlawful act.").
To determine whether reasonable articulable suspicion existed, a court must consider the totality of the circumstances, viewing the "whole picture" rather than taking each fact in isolation. Nelson, 237 N.J. at 554-55 (quoting State v. Stovall, 170 N.J. 346, 361 (2002)). This analysis may also consider police officers' "background and training," including their ability to "make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.'" Id. at 555 (internal quotation marks omitted) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)).
Moreover, "[c]onstitutional precedent requires only reasonableness on the part of the police, not legal perfection. Therefore, the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense." State v. Williamson, 138 N.J. 302, 304 (1994); see also State v. Sutherland, 231 N.J. 429, 439 (2018). However, if the conduct that caused the officer to effectuate the stop is not actually an offense, the stop is unconstitutional. State v. Carter, 247 N.J. 488, 531 (2021).
There is sufficient support in the record for the motion court 's finding Kased had reasonable and articulable suspicion the driver of the vehicle in which
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defendant was a passenger committed a motor vehicle offense. N.J.S.A. 39:4 - 97.1 provides: "No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law." The motion court found credible the officer's testimony he observed the motor vehicle travelling on Route 440 at so slow a speed that other vehicles had to maneuver around the slow-moving car to proceed down the highway. The officer thus observed the vehicle impeding traffic. The driver admitted he was lost and consulting the GPS on his phone for directions. Nothing in the record suggests the reduced speed was necessary for the safe operation of the vehicle.
The State argues we should decline to consider defendant's argument Kased extended the duration of the stop by questioning defendant, because defendant failed to raise it before the motion court. We agree. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012); see also State v. Robinson, 200 N.J. 1, 19 (2009) (explaining that appellate courts refrain from addressing issues not developed in the trial court). Restraint from appellate review is appropriate here.
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Defendant did not raise the extension issue in his motion to suppress. The "mere filing of a motion to suppress under Rule 3:5-7(a)" does not "require[] the State 'to justify every aspect of the warrantless search,' including the initial stop, which [defendant] did not challenge at the suppression hearing." Witt, 223 N.J. at 418. As the Court explained in Witt:
We reject defendant's contention that the State must disprove issues not raised by the defense at a suppression hearing. Defendant's approach would compel the State to cover areas not in dispute from fear that an abbreviated record will leave it vulnerable if the defense raises issues for the first time on appeal.
Requiring the State to disprove shadow issues will needlessly lengthen suppression hearings and result in an enormous waste of judicial resources.
[Ibid.]
However, for the sake of completeness, we note we are not convinced the duration of the stop was unlawfully extended. A valid motor vehicle stop may not be "unduly prolonged" by the officer. State v. Williams, 254 N.J. 8, 41 (2023). When an officer "exceed[s] the time needed to handle the matter for which the stop was made," the stop becomes an unreasonable seizure in violation of the Fourth Amendment. Rodriguez v. United States, 575 U.S. 348, 350 (2015).
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However, "[d]uring a lawful traffic stop, a police officer is permitted to inquire into matters unrelated to the justification for the traffic stop," and "may make ordinary inquiries incident to the traffic stop." Nelson, 237 N.J. at 552 (alteration in original) (quoting State v. Dunbar, 229 N.J. 521, 533 (2017)) (internal quotation marks omitted). If "during the course of the stop or as a result of reasonable inquiries initiated by the officer, the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions." Ibid. (alterations in original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). The Court has recognized "[t]here is [no] litmus-paper test for . . . determining when a seizure exceeds the bounds of an investigative stop." State v. Chisum, 236 N.J. 530, 547 (2019) (alterations in original) (quoting Dickey, 152 N.J. at 476). Therefore, in assessing "whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Ibid. (quoting Dickey, 152 N.J. at 477).
Here, the motor vehicle stop lasted seven or eight minutes. Kased's questions to defendant, who he observed not wearing a seatbelt, were
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reasonable. In addition, Kased's observations of defendant's furtive movements, the presence of a fanny pack of the type that, in the officer's experience, is used to conceal a handgun, and defendant's nervousness increased the officer's suspicions and led to further questioning. We see no basis on which to conclude the officer unlawfully extended the stop.
We also find no basis to conclude the motion court erred with respect to the validity of Kased ordering defendant to exit the vehicle. As the motion court found, a passenger's removal from a vehicle is appropriate when the "totality of the circumstances [] would create in the police officer a heightened awareness of danger that would warrant an objectively reasonable officer [] securing the scene in a more effective manner by ordering the passenger to alight from the car." State v. Smith, 134 N.J. 599, 618 (1994). The officer must be able to "point to specific and articulable facts that would warrant heightened caution to justify ordering the occupants to step out of a vehicle detained for a traffic violation." Ibid. The Court has recognized "[f]urtive movements may satisfy the heightened caution standard." Bacome, 228 N.J. at 107. "The unknown nature of surreptitious movements creates risk for an officer and, in turn, that risk supports the exercise of heightened caution." Ibid.
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The record supports the motion court's finding Kased reasonably relied on defendant's furtive movements, including touching his fanny pack and blading his body, and nervousness to order him to exit the vehicle. We agree the officer credibly testified he had a heightened concern for his security in light of his observations.
We find no error in the motion court's conclusion Kased was justified in attempting a pat-down frisk of defendant. "[A]n officer is permitted to pat-down a citizen's outer clothing when the officer 'has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.'" State v. Diloreto, 180 N.J. 264, 276 (2004) (quoting State v. Nishina, 175 N.J. 502, 514-15 (2003)). To "justify a pat-down search or 'frisk' of an individual, an 'officer need not be absolutely certain that the individual is armed.'" Ibid. (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). The test is "whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his safety or that of others was in danger." Ibid. "[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experiences ." State v.
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Lund, 119 N.J. 35, 45 (1990) (alteration in original) (quoting Terry, 392 U.S. at 27).
The Supreme Court has recognized that "events occurring subsequent to a permissible investigatory stop may give rise to an objectively credible suspicion that the suspect is armed." Id. at 46. Further, "there might be circumstances in which furtive movement and nervous appearance would establish the basis for a protective search." Ibid. Examples of factors that, in conjunction with furtive movements, could justify a frisk are "additional evasive action, lying to the police, the presence of other incriminating information about the motorist or occupants of the car, the absence of identification, and even the lateness of the hour." Id. at 48.
The same factors that justified the officer ordering defendant to exit the vehicle justified his attempt to pat down defendant. The officer had a reasonable suspicion defendant was armed and a pat down was justified to ensure his safety.
B. Prosecutorial Misconduct.
We are not convinced the assistant prosecutor's closing statement contained remarks constituting plain error. "Prosecutors are expected to assert vigorously the State's case and are given considerable leeway in delivering their summations." State v. Daniels, 182 N.J. 80, 96 (2004). However, "[t]hey are
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duty-bound to confine their comments to facts revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Frost, 158 N.J. 76, 85 (1999).
"Not every improper prosecutorial statement will warrant a new trial."
Daniels, 182 N.J. at 96. Where, as here, a defendant fails to object at trial, we review the challenged comments for plain error. State v. Pressly, 232 N.J. 587, 593 (2018). Under that standard, "an appellate court can reverse only if it finds that the error was clearly capable of producing an unjust result." Ibid. (quoting R. 2:10-2). "In general, when counsel does not make a timely objection at trial, it is a sign 'that defense counsel did not believe the remarks were prejudicial ' when they were made." Id. at 594 (quoting State v. Echols, 199 N.J. 344, 360 (2009)).
Even where a defendant objects at trial, "prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999). "To justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. (quoting State v. Roach, 146 N.J. 208, 219 (1996)).
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In our analysis in those circumstances, we consider: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. " State v. Jones, 364 N.J. Super. 376, 384 (App. Div. 2003) (quoting Frost, 158 N.J. at 83).
In his summation, the assistant prosecutor stated, "none of those facts were advanced by the defense," when responding to defendant's argument the fanny pack found in the parking lot was not the one he was wearing during the stop. The assistant prosecutor said, in effect, several coincidences would have had to occur for the officers to find a separate fanny pack in the fenced-in parking lot at the very spot of the vehicle stop. Our review of the record led us to the conclusion the remark was fleeting and isolated and did not create the risk the jury considered defendant to have the burden of proof on any element of the charges alleged by the State. See State v. Gorthy, 226 N.J. 516, 540 (2016). This is particularly true, given the court's clear instructions to the jury on the burden of proof.
We also find the assistant prosecutor's remark, "You're not going to debate the legality of the traffic stop, no," not to have been so prejudicial as to warrant
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reversal of defendant's convictions. The remark was made in response to defense counsel's closing statement challenging Kased's credibility and questioning whether his actions during the motor vehicle stop were appropriate. The remark did not have the potential to dissuade the jury from considering defendant's challenge to the validity of Kased's account of his actions at the traffic stop.
C. Uncharged Act.
We have reviewed the testimony of the State's expert regarding the presence of fentanyl in the substances found on defendant. We are not convinced the expert's limited reference to the substances testing positive for heroin and fentanyl constituted evidence of uncharged criminal or bad acts. The testimony accurately recounted the results of the tests of the substances found in defendant's possession.
However, even if the testimony concerned other bad acts, its admission did not warrant reversal of defendant's convictions. Because defendant did not object to the testimony at trial, we review the admission of the evidence for plain error. Pressly, 232 N.J. at 593. N.J.R.E. 404(b) provides, in relevant part, as follows:
(b) Other Crimes, Wrongs, or Acts.
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(1) Prohibited Uses. Except as otherwise provided by Rule 608(b), 3 evidence of other crimes, wrongs, or acts is not admissible to prove a person's disposition in order to show that on a particular occasion the person acted in conformity with such disposition.
(2) Permitted Uses. This evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The Supreme Court established four factors to be weighed when deciding whether other crimes evidence is admissible under N.J.R.E. 404(b):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992).]
"Because evidence of a defendant's previous misconduct 'has a unique tendency' to prejudice a jury, it must be admitted with caution." State v. Willis, 225 N.J. 85, 97 (2016) (quoting State v. Reddish, 181 N.J. 553, 608 (2004)).
3 Rule 608(b) is not applicable here.
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"Prior-conduct evidence has the effect of suggesting to a jury that a defendant has a propensity to commit crimes, and, therefore, that it is 'more probable that he committed the crime for which he is on trial.'" Id. at 97 (quoting State v. Weeks, 107 N.J. 396, 406 (1987)).
The testimony was relevant, given that it concerned the identity of the substances found in defendant's possession. It also concerned an act similar in kind, and close in time, to defendant's possession of heroin and cocaine. The evidence was clear and convincing – defendant did not object to the accuracy of the test results. In addition, the probative value of the evidence outweighed its potential for prejudice. The presence of fentanyl in the CDS in defendant's possession was not so prejudicial as to alter the definitive proof he was also in possession of heroin and cocaine.
D. Excessive Sentence.
We reject defendant's argument that his sentence is excessive. "Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We are satisfied the court's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice, nor shocking to the judicial conscience. See State v. Fuentes,
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217 N.J. 57, 70 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Our review of the sentencing hearing revealed no basis on which to disturb the sentence imposed. The record supports the court's findings with respect to aggravating and mitigating factors and the aggregate sentence does not shock our judicial conscience.
We have carefully considered defendant's remaining arguments, including his claim of racial bias on the part of the officers involved in the stop, and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-0673-23