STATE OF NEW JERSEY v. JOSE L. MATIAS, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE L. MATIAS, JR.,

Defendant-Appellant.

________________________________

February 5, 2014

 

Argued January 6, 2014 Decided

 

Before Judges Parrillo, Harris, and Kennedy.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 05-12-1022 and 05-12-1023.

 

Lavinia Lee Mears argued the cause for appellant (The Mears Law Firm, attorneys; Ms. Mears, on the brief).

 

Nathan C. Howe, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Howe, of counsel and on the brief).

 

PER CURIAM

Defendant Jose L. Matias, Jr. was found guilty by a jury of all eight counts contained in separate Somerset County indictments. In Indictment No. 05-12-1022 Matias was charged with second-degree conspiracy to distribute a controlled dangerous substance (CDS) in a quantity of five ounces or more, N.J.S.A. 2C:5-2, 2C:35-5(a)(1) and 2C:35-5(b)(1) (count one); first-degree possession of a CDS in a quantity of five ounces or more with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1) (count two); second-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and 2C:35-7 (count three); second-degree possession of a CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-5(a) and 2C:35-7.1 (count four); second-degree possession of a firearm while in the course of committing, attempting to commit, or conspiring to commit a drug offense, N.J.S.A. 2C:35-5 and 2C:39-4.1(a) (count five); third-degree possession of a handgun without a permit, N.J.S.A. 2C:58-4 and 2C:39-5(b) (count six); and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count 7). In Indictment No. 05-12-1023 Matias was charged with one count of certain persons not to have weapons, N.J.S.A. 2C:39-7. After merger, Matias was sentenced to an aggregate term of twenty years in prison with seven years and six months of parole ineligibility.

Matias appeals from the April 20, 2012 judgments of conviction (one for each indictment), and alleges that several putative errors require reversal of the convictions, including prejudicial evidentiary rulings, mismanagement of pretrial and trial proceedings, defective jury instructions, denial of due process of law, and impropriety of the sentence. After a review of the extensive and protracted record, none of Matias's arguments persuades us that he was deprived of a fair trial, denied due process of law, suffered an improper sentence, or is otherwise entitled to reversal. However, because a critical suppression motion was never properly resolved, we remand for a limited proceeding. In all other respects, we provisionally affirm.

I.

A.

The following facts are gleaned from the trial record as the State's version, which evidently convinced the jury of Matias's guilt.

During 2005, the Somerset County Prosecutor's Office (SCPO) conducted a narcotics wiretap investigation designated Operation Pedal Pusher (OPP),1 which ended on November 3, 2005, after the SCPO executed sixty arrest warrants in various locations. The main target of the OPP investigation was Ricardo Pena. According to the State, Pena sold cocaine primarily to individuals "in the Franklin Township, New Brunswick area." The wiretap investigation led the SCPO to suspect that many others were involved in selling drugs, including individuals Gary Sweet, Rajah Woolfork, and Brittany Borden. Sweet was among those arrested in the SCPO sweep on November 3, 2005, and whose residence in Union County was searched pursuant to a search warrant.

Inside Sweet's dwelling investigators discovered "marijuana [], cocaine, drug paraphernalia, digital scales, and also a handgun." Upon taking Sweet into custody and lodging him in the Somerset County Jail, the SCPO asked Sweet if he wanted to "work off" his charges as an unpaid confidential informant, to which Sweet agreed. Sweet began his service as a confidential informant immediately following his arrest on November 3, and continued in that capacity the following day on November 4.

Sweet was released from jail on November 4 into SCPO Detective Robert Orro's custody. That day around noon, Detective Orro returned with Sweet to Sweet's residence located on a residential cul-de-sac in Rahway and both men went inside. Parked nearby in an unmarked van on the cul-de-sac were Detective Omar Belgrave and Sergeant Joseph Walsh of the SCPO; Sgt. Eric Yaccarino of the Warren Township Police Department; Detective Thomas Rickey from Union County; and an unnamed Union County police lieutenant.

What occurred inside Sweet's home and outside on the street were contested issues at trial. Sweet testified that the SCPO "went through" his phone but he could not recall if he was asked to call "certain people from [his] phone." Sweet testified, nevertheless, that he "called a lot of people . . . that's what they instructed me to do, call as many people as [I] can to try to get as many people to come over," to "set up people for the [SCPO]" in a drug sting. Detective Orro listened in "ear-to-ear" as Sweet called numerous individuals, including Matias, to deliver CDS to Sweet's home.

At trial, Detective Orro was permitted to testify over Matias's objection that he heard Sweet cryptically say to Matias, "I need a half." Matias responded that "he can get it, but it's going to take him a little while to get it." The detective further explained that he was surprised that Sweet "was ordering a half a kilo of cocaine, and it sounded like a regular street deal you heard for a $50 bag on the street." Detective Orro opined, "So obviously Gary Sweet knew this individual very well and it was surprising to have him order up that much cocaine that easily."

After the telephone call to Matias, Sweet provided a physical description of Matias and the motor vehicle that was slated to deliver the cocaine. Detective Orro stated that Matias called Sweet "at least two other" times, providing Sweet with "updates about [Matias's] location and what time he would be at [Sweet's] house." Detective Orro relayed these updates to the officers in the surveillance van outside.

In the late afternoon of November 4, Matias telephoned Sweet to alert him that he would shortly arrive at Sweet's home. The officers in the surveillance van soon observed a sport utility vehicle (SUV), which matched Sweet's description, drive onto the cul-de-sac and park in a nearby driveway. The officers then saw an individual matching the description provided by Sweet of Matias exit from the SUV's driver's side, holding a black bag while still speaking on a mobile phone.

Shortly thereafter believing that the individual had figured out that the van belonged to law enforcement and thus compromised their cover the officers exited the van and told the individual, who was later confirmed to be Matias, to show his hands. Wearing ballistics vests with a carrier identifying them as police, the officers verbally stated that they were police officers, and approached Matias. After refusing to follow a verbal command to "get down on the ground," Sergeant Walsh believing that Matias was "either going to fight us or run" quickly grabbed and spun Matias around and "took him down to the ground," placing him in handcuffs. This caused the black bag and mobile phone to fall out of Matias's hands.

According to Sergeant Walsh, he immediately detected a familiar "strong chemical odor that's usually present with large amounts of cocaine." Detective Belgrave retrieved the bag from the ground and discovered nearly 700 grams of cocaine inside.2 A search of Matias uncovered three mobile phones, $737 in cash, and the SUV's keys. At this point, Matias was placed under arrest and transported to the Rahway Police Department headquarters in the surveillance van.

Prior to moving Matias to the police station, Sergeant Walsh requested that Detective Rickey, the only officer who did not accompany Matias in the van, to drive Matias's SUV back to the Rahway headquarters. At a suppression hearing in the Law Division, Sergeant Walsh testified that because the SUV was in a "bad neighborhood," in a "private driveway," and was freely accessible to "people on the street" he decided to safeguard the vehicle so it would not be "ransacked" or stolen. Sergeant Walsh explained:

I didn't have a lot of officers. Union County was giving me pressure that they had to respond to another case. I had another case building in Watchung, I had a quick minute to make a decision what to do. At this time, I didn't know what I was going to do with the SUV, whether it was going to be seized, or [forfeited] for our use . . . . Or if I was going to execute a search on it. At this time, I didn't want to make the decision there. I decided to take it back to [the] Rahway Police Department where I could freeze the moment and go from there.

According to Detective Rickey, after driving the SUV to police headquarters, he discovered a fully loaded handgun "sitting on the passenger side floor board, in front of the passenger side front seat." The gun's serial numbers were scraped off.

B.

On May 15, 2007, the Law Division denied Matias's motion to suppress the handgun seized in the SUV. The motion judge found probable cause to exist that the vehicle was an instrumentality being used by Matias to further the distribution of CDS. Furthermore, the court found that "there were exigent circumstances, given the lack of manpower, and the neighborhood in which the vehicle was parked, the fact it was parked in somebody's driveway, all led to the circumstance where the police took the appropriate action under the circumstances."

On September 24, 2007, in connection with a plea arrangement later repudiated by Matias, the State agreed to dismiss Indictment No. 05-12-1022's count four, second-degree possession of a CDS with intent to distribute within 500 feet of a public park, because of "insufficient proof, not due to the plea agreement."

On June 5, 2008, Matias filed a motion to disclose the State's confidential informant. On July 18, 2008, the motion was granted, and Sweet's identity and the nature of his interactions with law enforcement were made known. The motion also sought to suppress "all evidence, including but not limited to CDS, packaging, paraphernalia, currency, cellular phones, and any other items or other evidence derived from the warrantless arrest and/or seizure and/or searches of Defendant." The court said it would hear Matias's motion to suppress the drug evidence after the State produced discovery related to Sweet.

On November 10, 2010, a hearing was held before a different judge to determine whether the court would conduct a second suppression hearing. The State contended that Matias's defense counsel "did not move to suppress the drugs" at the time counsel moved to suppress the handgun. The State further argued that "the legality of seizing those drugs . . . was decided as part of the motion with the gun." When directly asked by the motion judge, "Did defense counsel ever [(emphasis added)] file a motion to suppress the narcotics?" the State responded, "He did not." The motion judge concurred in that evaluation of the procedural history by noting, "If there was [a motion to suppress the drugs], I don't have it."

The motion judge later determined that Matias's argument "rais[ed] a red herring . . . [and is] a useless point of argument that's not worth the Court's consideration." Accordingly, the judge denied Matias's request for a second suppression hearing for the following reasons:

[Matias's] assertion that cocaine evidence was not litigated in the previous motion to suppress . . . is spurious.

 

. . . .

 

Even though not specifically stated in [the first motion judge's] conclusion, all evidence was considered leading up to the seizure of [Matias], the drugs, and the gun. [The first motion judge] was aware of the drug evidence and found with precision that the State had met its burden on its justification for a warrantless search and seizure of all of the evidence in the case.

 

Motion is denied.

The trial commenced in October 2011. The parties did not advise the trial court that count four of Indictment No. 05-12-1022 had been dismissed, due to insufficient evidence, four years earlier on September 24, 2007.

During the State's case, Woolfork admitted that he purchased drugs from Sweet but further testified that he had did not know where Sweet bought his drugs. Moreover, Woolfork stated he did not know Matias and had neither previously seen nor spoken with Matias. Sweet, who also was named as one of Matias's coconspirators and testified at trial, admitted he knew Woolfork because Sweet "[sold] drugs to him" and pooled his money with Woolfork "to buy drugs." Sweet also stated he sold cocaine to Woolfork a "couple of times, two or three times" between September and November of 2005.

Sweet further testified that he knew Matias for over fifteen years, and that Matias had been a friend with who Sweet spoke daily. Sweet recounted his service as a confidential informant in early November 2005, but was equivocal with respect to Matias. For example, Sweet testified, "I do not remember placing a call to Mr. Matias. It's possible I did. I do not remember placing a call to Mr. Matias." Additionally, when asked, "Between September and November, 2005, did [Matias] supply you with cocaine?" Sweet replied, "To the best of my knowledge, no." When Sweet reviewed his 2005 police statement that implicated Matias, Sweet asserted that it did not refresh his recollection of events from almost six years earlier.

At the close of the State's case, Matias moved for a judgment of acquittal, arguing that no evidence was introduced to suggest that there was any agreement to conspire among Matias, Sweet, Woolfork, and Borden; and the evidence seized during Sweet's arrest was improperly admitted because there was no foundation for admissibility. The trial court denied Matias's motion, finding that the State had met its burden of going forward with sufficient circumstantial evidence to convince a jury of Matias's guilt of conspiracy beyond a reasonable doubt.

Matias then testified, and stated that Sweet repeatedly called him on November 4, 2005, asking Matias to return a duffle bag that Sweet left in the back of Matias's SUV when Sweet borrowed the vehicle. Matias testified that he did not know what was inside the bag, and that when he arrived and parked near Sweet's home, he was tackled and arrested by the police as he approached Sweet's house.

On cross-examination, Matias admitted he did not have a permit to possess a handgun. Matias denied using multiple dates of birth and social security numbers, but was confronted with evidence to the contrary, including proof that Matias used an alias, "Jose Padilla." Ultimately, Matias admitted that he also is known by the name "Jose Padilla."

On October 26, 2012, the trial court charged the jury. While delivering the instructions, the judge repeatedly referred to Matias as "Jose L. Matias, Jr., a/k/a Jose Padilla." No objection to the "a/k/a" reference was made. Ultimately, the jury found Matias guilty of all charges in both indictments.3

On April 20, 2012, Matias was sentenced to fifteen years in prison, subject to a seven-year, six-month parole disqualifier on count two, with a consecutive five years on count five of Indictment No. 05-12-1022. The trial court merged counts one, three, and four with count two. On count six, Matias was sentenced to concurrently serve four years with count two. On count seven, Matias was ordered to serve eighteen months to run concurrent with count two. Appropriate fines and penalties were also imposed.

On Indictment No. 05-12-1023, Matias was sentenced to eighteen months in prison, concurrent to the terms of the sentence imposed under Indictment No. 05-12-1022. This appeal followed.

 

II.

On appeal, Matias presents the following arguments for our consideration:

POINT I: THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE CONSPIRACY COUNT.

 

A. THE WEAPONS RELATED CONVICTIONS IN COUNTS FOUR TO SEVEN MUST BE REVERSED AS THE COURT ERRED IN SUPPRESSING THE WEAPON FOUND IN THE WARRANTLESS, POST-ARREST VEHICLE SEARCH.

 

POINT II: DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT COMMITTED HARMFUL ERROR IN DECLINING TO HEAR DEFENDANT'S SUPPRESSION MOTION AND THEREBY PURSUE A DUE PROCESS ENTRAPMENT DEFENSE.

 

POINT III: THE WEAPONS CONVICTIONS IN COUNTS FIVE, SIX AND SEVEN AND THE CERTAIN PERSONS CONVICTION MUST BE REVERSED UNDER THE FOURTH AMENDMENT.

 

A. THE COURT ERRED IN DENYING SUPPRESSION OF THE WEAPON FOUND IN THE WARRANTLESS, POST-ARREST VEHICLE SEARCH.

 

POINT IV: THE NUMEROUS ERRORS IN THE JURY CHARGES TAINTED THE JURY'S ABILITY TO DELIBERATE AND WERE CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT AND REQUIRE REVERSAL OF DEFENDANT'S CONVICTION.

 

A. THE COURT'S REPEATED REFERENCE TO DEFENDANT AS HAVING AN "A/K/A" THROUGHOUT READING EACH COUNT OF THE JURY'S CHARGE AS HAVING AN "A/K/A" WAS SEVERELY PREJUDICIAL AND IS REVERSIBLE ERROR.

 

B. THE COURT ERRED IN NOT INSTRUCTING THE JURORS THAT IT COULD DISTINGUISH "CONSPIRACY" FROM A SINGLE POSSESSION WITH INTENT DRUG SALE BETWEEN A BUYER AND A SELLER OR THE NEED TO FIND EVIDENCE OF AN AGREEMENT BETWEEN DEFENDANT AND THE NAMED CO-CONSPIRATORS OR OTHER NAMED INDIVIDUALS AT TRIAL.

 

C. THE JURORS WERE NOT INSTRUCTED ON HOW TO VIEW THE PHYSICAL EVIDENCE SEIZED BY THE STATE DURING WOOLFORK'S AND SWEET'S ARREST AS IT RELATES TO DEFENDANT.

 

D. THE COURT FAILED TO CHARGE THE ELEMENTS OF THE CRIME.

 

POINT V: DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT VIOLATED DEFENDANT'S DUE PROCESS RIGHTS WHEN IT DECLINED TO RULE ON THE MOTIONS TO CHANGE VENUE, DISMISS THE INDICTMENT AND DISMISS THE CONSPIRACY COUNT.

 

POINT VI: COUNT FOUR MUST BE REVERSED AND VACATED AS THE LOCATION IS NOT A PUBLIC PARK AND THE STATE DISMISSED THE COUNT PRIOR TO TRIAL.

 

POINT VII: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT VIII: THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

 

A.

We start with Matias's argument that he was entitled to a judgment of acquittal on the conspiracy charge because State v. Roldan, 314 N.J. Super. 173 (App. Div. 1998), holds that "an agreement without another individual to buy or sell drugs is insufficient to establish a conspiracy between a buyer and a seller." We reject Matias's argument because it fails to recognize that the jury was presented with sufficient albeit contested evidence, which it obviously believed, of Matias's involvement in a multi-person arrangement to distribute a CDS.

In reviewing a motion for acquittal based on insufficiency of evidence pursuant to Rule 3:18-1, our review is limited and deferential, and we apply the same standard that binds the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). The question is whether a reasonable jury viewing the State's evidence "in its entirety," and with "the benefit of all" inferences that are reasonable and favorable could find guilt of the charge beyond a reasonable doubt. State v. Josephs, 174 N.J. 44, 80 (2002) (citing State v. Reyes, 50 N.J. 454, 459 (1967)).

In State v. Samuels, 189 N.J. 236, 245 (2007), the Court explained that

the agreement to commit a specific crime is at the heart of a conspiracy charge. Such an agreement is central to the purposes underlying the criminalization of the inchoate offense of conspiracy. Thus, under the Code "'the major basis of conspiratorial liability [is] the unequivocal evidence of a firm purpose to commit a crime'" that is provided by the agreement. State v. Roldan, 314 N.J. Super. 173, 181 (App. Div. 1998) (quoting Model Penal Code 5.03 comment 2 (Tentative Draft No. 10 (1960)). "'The agreement is an advancement of the intention'" to commit the crime. State v. Abrams, 256 N.J. Super. 390, 401 (App. Div. 1992) (quoting State v. Carbone, 10 N.J. 329, 336-37 (1952)), certif. denied, 130 N.J. 395 (1992).

 

A conspiracy may be proven by circumstantial evidence. Id. at 246. An implicit or tacit agreement may be inferred from the circumstances. State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div.), certif. denied, 130 N.J. 18 (1992).

Pursuant to Roldan, "a simple agreement to buy drugs is insufficient to establish a conspiracy between the seller and the buyer." Roldan, supra, 314 N.J. Super. at 182.

However, when the evidence shows that two or more parties have entered into an agreement to engage in concerted criminal activity which goes beyond the kind of simple agreement inevitably incident to the sale of contraband and consequently 'makes possible the attainment of ends more complex than those which one criminal could accomplish,' Iannelli [v. United States, 420 U.S. 770, 778, 95 S. Ct. 1284, 1290, 43 L. Ed. 2d 616, 623 (1975)] (quoting Callanan v. United States, 364 U.S. 587, 593-94, 81 S. Ct. 321, 325, 5 L. Ed. 2d 312, 317 (1961)), the participants may be found guilty of conspiracy.

 

[Id. at 182-83.]

Thus, "the government need not prove a direct connection between all the conspirators." Id. at 182 (citation omitted).

Matias argues there is no direct evidence to support the existence of an express agreement between or among his alleged co-conspirators Sweet, Woolfork, and Borden and as a result, the Law Division should have granted his motion for acquittal on the conspiracy count. However, the State presented evidence that it only took one telephone call from Sweet, asking Matias for "a half," to bring Matias to Rahway with about $10,000 worth of cocaine, which the jury was free to conclude was unlikely to be for Sweet's personal consumption. Moreover, Woolfork, an admitted drug dealer, testified that he bought cocaine from Sweet "more than any others." Between September and November 2005, Woolfork purchased approximately 300 grams of cocaine. The sheer quantity of cocaine (700 grams) that Matias was about to deliver to Sweet on November 4, 2005, permits a reasonable inference that Matias and Sweet had an ongoing relationship built upon narcotics trafficking, and this incident was not an isolated, one-time drug transaction, but rather, was part of a larger drug distribution network. The trial court properly denied Matias's acquittal motion.

B.

Matias contends further that his first suppression motion with respect to the handgun was incorrectly decided. He argues that the warrantless entry into the SUV by a police officer for purposes of driving the vehicle away from the cul-de-sac was improper, and the subsequent discovery of the handgun as it dislodged from under the front passenger seat violated his Fourth Amendment rights. We disagree.

Both the United States and New Jersey Constitutions protect citizens against unreasonable searches and seizures and require the State to obtain a warrant prior to a search or seizure. U.S. Const. amend. IV; N.J. Const. art. I, cl. 7. Consistent with this standard, a warrantless search is presumed invalid unless it falls "within a recognized exception to the warrant requirement." State v. Best, 201 N.J. 100, 107 (2010) (quoting

State v. Pena-Flores, 198 N.J. 6, 11, 18 (2009)). The State must prove the validity of a warrantless search by a preponderance of the evidence. State v. Barksdale, 224 N.J. Super. 404, 412 (App. Div. 1988).

We defer to the motion court's factual findings on a motion to suppress. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Robinson, 200 N.J. 1, 15 (2009) (internal quotation marks and citation omitted); see also State v. Elders, 192 N.J. 224, 243 (2007). We defer to the trial court's findings that are "substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Robinson, supra, 200 N.J. at 15 (internal quotation marks and citation omitted). We are "not permitted to weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Locurto, 157 N.J. 463, 472 (1999) (internal quotation marks and citations omitted). However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010) (citation omitted). Thus, we exercise plenary review of a motion court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). Applying these standards of review, we discern no basis to suppress the handgun.

Although the subjective rationale for having a police officer, rather than a civilian tow truck operator, enter the SUV and drive it to police headquarters for safekeeping, was based on swiftly unfolding events, it is clear that Sergeant Walsh believed that the vehicle was integrally involved in the commission of Matias's crime. From the totality of circumstances known to Sergeant Walsh at the time, particularly the convergence of Matias showing up as promised while carrying a bag with a "strong chemical odor that's usually present with large amounts of cocaine," it was a reasonable response for law enforcement to take control of the vehicle that delivered the contraband. Additionally, although Matias contested exigency, we have little basis to quarrel with the conclusion that it was immediately necessary for the protection of the public interest to drive the vehicle away from Sweet's cul-de-sac. An exigency exception only "'applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable.'" State v. Walker, 213 N.J. 281, 291 (2013) (quoting Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865, 874 (2011)). Such a situation existed here.

Consequently, we are satisfied that the plain view exception to the warrant requirement applies in this case. A police officer may seize evidence in plain view without a warrant if the officer is "lawfully . . . in the viewing area," he discovers the evidence inadvertently, and it is immediately apparent the object viewed is "evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J.192, 206-07 (2002). Here, the law enforcement officer driving Matias's vehicle to the police station and his subsequent discovery of the weapon that revealed itself from under the front passenger seat did not constitute unreasonable intrusions. "The touchstone of search-and-seizure analysis is one of reasonableness, for that is what both the Fourth Amendment and the New Jersey Constitution ultimately require in protecting citizens from 'unreasonable' intrusions." State v. Wright, 431 N.J. Super. 558, 593 (App. Div. 2013) (citing State v. Rockford, 213 N.J. 424, 440-41 (2013)). "When determining the propriety of a warrantless seizure, '[t]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" State v. O'Donnell, 203 N.J. 160, 162 (2010) (quoting State v. Bogan, 200 N.J. 61, 81 (2009)), cert. denied, ___ U.S. ___, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010).

In the present matter, Detective Rickey observed the handgun in plain view while he was engaged in lawfully transporting the SUV. Thus, a warrant was not required to seize the obvious contraband. See State v. Mann, 203 N.J. 328, 341 (2010) ("[T]he plain view exception to the warrant requirement applies, and [the officer's] seizure of the drugs from the back seat of defendant's vehicle was lawful."); State v. Mai, 202 N.J. 12, 25 (2010) ("[T]he seizure of the loaded gun from the floor of the van was proper under the 'plain view' doctrine.").

Additionally, the State contends that the handgun would have been discovered under the inevitable discovery doctrine, regardless of who drove the SUV to police headquarters. The inevitable discovery doctrine, like the independent source doctrine, seeks to ensure that the suppression of evidence does not outpace the deterrence objective of the warrant requirement.

The independent source rule allows admission of evidence that has been discovered by means wholly independent of any constitutional violation, . . . thereby putting the police in the same position that they would have been in had no police misconduct occurred. Similarly, the deterrent purposes of the exclusionary rule are not served by excluding evidence that, but for the misconduct, the police inevitably would have discovered.

 

[State v. Sugar, 100 N.J. 214, 237 (1985) (internal quotation marks and citation omitted).]

As such, if the evidence would have been obtained lawfully and properly without the putative misconduct, the prosecution is neither "put in a better position than it would have been if no illegality had transpired" nor "put in a worse position simply because of some earlier police error or misconduct." State v. Holland, 176 N.J. 344, 361 (2003) (citation omitted). Here, the State satisfied its burden that the gun in Matias's SUV would have otherwise been discovered through lawful means.

C.

Matias next argues that he was deprived of due process of law when the Law Division improperly refused to consider his motion to suppress the drug evidence seized at the time of his arrest. Matias claims that he sought to project a due process entrapment defense based upon the State's instigation and improper use of Sweet as a confidential informant as a springboard to suppress the drug evidence. Without addressing the underlying merits of Matias's claim of entrapment, we agree that the Law Division did not properly consider Matias's second motion to suppress, and a remand is necessary for an evidentiary hearing, pursuant to N.J.R.E. 104, to resolve the contested motion.

The management of the present indictments suffered from years of delay, changes in judicial personnel, and numerous substitutions of defense counsel. The record firmly establishes that the first suppression motion was limited to the propriety of the seizure of the handgun after Matias's SUV was warrantlessly entered and driven to police headquarters. Although the denial of the first suppression motion necessarily involved an analysis of the predicate for arresting Matias, which may or may not have incorporated a probable cause analysis, nothing in the first motion addressed claims relating to Sweet's involvement as a government agent and the potential entrapment defense. Indeed, after the court granted Matias's motion for disclosure of the details of Sweet's involvement as a confidential informant, it was contemplated that the second suppression motion, addressing the drug evidence, would be heard. As a practical matter, that was never accomplished because of confusion with respect to the status of the first suppression motion and the improvident application of the first judge's inapposite conclusions to the second suppression motion.

Because we do not subscribe to the view that Matias had his day in court with respect to suppression of the drug evidence, we remand this matter to determine the propriety, under all of the circumstances, of the seizure of Matias and the drug evidence (including the mobile phones and cash). On remand, Matias shall be entitled to pursue his claim of entrapment. If the Law Division denies the remanded suppression motion, that concludes the matter. Alternatively, if the Law Division grants the motion, it should then revisit whether to suppress the handgun, and ultimately vacate the judgments of conviction and grant new trials on both indictments.

D.

Except for the claim that his conviction for second-degree possession of a CDS with intent to distribute within 500 feet of a public park in count four of Indictment No. 05-12-1022 should be dismissed because it was dismissed prior to trial,4 the balance of Matias's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Nevertheless, we shall comment briefly on three of them.

First, the trial court's innocuous references to Matias as "Jose L. Matias, Jr., a/k/a Jose Padilla" during jury instructions were entirely incapable of producing an unjust result. Cf. State v. Parker, ___ N.J. ___ (2014) (reversing conviction and ordering a new trial where the State's persistent use of the defendant's aliases violated N.J.R.E. 405(a) and 608 and deprived the defendant of a fair trial). Second, Matias's assertions of ineffective assistance of counsel due to "an unclear record, five different attorneys and four separate judges," plus a prosecutor who "egregiously abused the trust the Court placed in him as an officer of the Court," are premature and not appropriate in this direct appeal. State v. Preciose, 129 N.J. 451, 459-60 (1992) (expressing a strong preference for resolving ineffective assistance of counsel claims on collateral, not direct, review). Third, Matias's claim of an improper sentence is unavailing because both the process that produced it, and the sentence itself, are neither shocking to the conscience nor an abuse of discretion. See State v. Bieniek, 200 N.J. 601, 608 (2010).

 

 

E.

In summary, subject to the remanded suppression motion, we affirm the judgments of conviction. We also remand for the correction of the judgment of conviction in Indictment No. 05-12-1022 to reflect that the conviction for count four is vacated and the charge of second-degree possession of a CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-5(a) and 2C:35-7.1, is dismissed.

Affirmed in part and remanded in part. We do not retain jurisdiction.

1 The OPP earned its name "because in the beginning of the wiretap, [the SCPO's] main source that [it] began to deal with would often ride a bicycle and meet his buyers and deal his drugs off of a bicycle."

2 A narcotics expert testified for the State that the wholesale value of the cocaine was $10,500, but if profitably diluted ("stepped on three times"), it could fetch as much as $105,000 from street-level sales.

3 The charge in Indictment No. 05-12-1023, certain persons not to have weapons, N.J.S.A. 2C:39-7, was tried separately and sequentially before the same jury.

4 The State consents to this disposition. We find no merit in Matias's argument that the submission of this previously dismissed charge to the jury had the capacity to produce an unjust result. See R. 2:10-2