STATE OF NEW JERSEY v. ERIC E. POTTER

NOT FOR PUBLICATION WITHOUT THE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.

ERIC E. POTTER,

Defendant Appellant.

__________________________________

June 23, 2015

 

Submitted March 18, 2015 Decided

Before Judges Waugh, Maven, and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-08-1447.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Eric E. Potter appeals his conviction for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of heroin in a quantity of one-half ounce or more with the intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); and third-degree possession of heroin with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

A.

On the evening of April 26, 2010, Officer Eddy Raisin of the Street Crimes Unit (Unit) of the Asbury Park Police Department met with a confidential informant who had provided reliable information in the past. The informant told him that Potter was known to walk from the Vita Garden Apartments in Asbury Park during the early morning hours to a house on Bangs Avenue, where he would play poker on the second floor and sell heroin. To reach Bangs Avenue, he would cut through a municipal basketball court.1 The informant provided a physical description of Potter.

Shortly before 10:00 a.m., on April 27, Raisin met at police headquarters with other members of his Unit, including Lieutenant David Desane, Officer Lorenzo Pettway, Officer Adam Mendes, and Officer Kamil Warraich, as well as members of the Monmouth County Narcotics Strike Force, including Detectives Todd Rue, Scott Samis, and Christopher Camilleri. After the meeting, they set up surveillance sites at the basketball court, Bangs Avenue, and the street connecting the two, using unmarked police cars.

Warraich and Camilleri's vehicle was in a parking lot near the basketball courts. Raisin and Mendes were on the connecting street and had a clear view of the basketball courts. Desane, Samis, and Pettway positioned their vehicle so they could view the house on Bangs Avenue, but they could not observe the basketball court from their location.

At approximately 11:40 a.m., Raisin observed a man matching Potter's description heading from the Vita Garden Apartments toward the basketball courts. Raisin immediately told Warraich to drive toward the basketball courts and approach Potter.

Warraich and Camilleri left the parking lot, drove closer to the courts, and parked. They got out of the vehicle and approached Potter. While doing so, Warraich positioned himself to Potter's right side and Camilleri positioned himself to the left. Warraich asked Potter for his name and what he was doing in the area.

Before Potter answered, Warraich observed a clear, "Ziploc[-]type" plastic bag in the front right pocket on the outside of Potter's jacket. Although the bag was inside the pocket, it was visible because the bag created a bulge that kept the pocket open. Warraich could also see the packages in the bag, which were wrapped in paper and shaped like a small brick.

Based on his training and experience, including having "seen plenty of bricks of heroin," Warraich concluded that the bag contained drugs.2 Warraich immediately placed Potter under arrest and removed the plastic bag from his pocket. The bag contained several bricks of what was subsequently identified as heroin. A search incident to the arrest uncovered a second plastic bag in Potter's left pocket that also contained several bricks of what proved to be heroin. Nine unbundled packets of heroin were also recovered. Following his arrest, Potter was transported to police headquarters, where another search revealed that Potter was carrying $1520 in cash.

Warraich turned the plastic bags and nine loose packets over to Officer Raisin. In his investigation report, Raisin recorded his inventory of the two bags. One of them contained 498 glassine packets, 298 of which bore the stamp "Candy Girl," 150 of which were stamped "Extra Power," and 50 of which were stamped "Knockout." The other bag held 350 glassine packets, 150 of which were stamped "Candy Girl," 150 of which bore the stamp "Extra Power," and 50 of which were stamped "Knockout."

At police headquarters, Potter was interviewed by Samis and Raisin. The interview was videotaped and transcribed. Before the start of the interview, Samis informed Potter of his Miranda3 rights. Potter initialed a Miranda form acknowledging, among other things, that he was waiving his right to remain silent, his right to consult with an attorney, and his right to have one present during the interview. Potter also acknowledged that he had been informed that his decision to waive his rights was not final and could be revoked at any time during the interview.

During the interview, Potter admitted that he was told by another person to pick up the two bags and deliver them to someone he did not identify. There was one buyer for the larger bag for $2500 and another for the smaller bags for around $1800. Potter expected to receive $300 for facilitating the transactions. He told the officers that he had four or five customers and was averaging a couple of bundles a day in sales. He also asserted that the quantity he had with him that day was a lot more than he usually sold. Potter maintained that he used the money to buy food and support himself.

At the end of the interview, Samis told Potter that they would "let [him] make phone calls" once they found out what the bail amount would be. According to Samis, Potter had not asked to make a phone call prior to that exchange.

B.

Potter was indicted on August 4, and pled not guilty on September 27. He was assigned counsel from the Office of the Public Defender at his arraignment. On December 16, Potter filed a motion seeking to represent himself. Potter's attorney subsequently joined the motion.

At oral argument on April 12, 2011, Potter's attorney advised the judge that Potter had been denied the opportunity to represent himself in a prior case, and that the denial had been reversed on appeal. He also requested the judge explain the risks of self-representation to Potter.

The judge then informed Potter of his right to remain silent and explained that the risks of self-representation included self-incrimination and lack of familiarity with the court rules and the rules of evidence. She questioned Potter about his familiarity with hearsay. Potter responded: "[I]t's just hearsay. It's not no proven fact . . . . It's just the evidence." He acknowledged having some familiarity with the New Jersey Rules of Evidence. The judge expressed some concern and explained that "there are a lot of technical issues that can come up that an attorney may be able to use to your benefit that you may not be aware of."

Potter explained that he wanted to represent himself because he had a different trial strategy than his appointed counsel, and he felt he was qualified. Potter acknowledged that he had represented himself at trial in the past. Potter also told the judge that he had taken paralegal courses while in prison.

The judge repeatedly expressed her concern about the possible adverse consequences of his decision, but Potter continued to express his desire to represent himself. The judge ultimately allowed Potter to proceed pro se, but with standby counsel.

Potter's attorney had filed a motion to suppress the evidence seized on the day of his arrest. The judge heard some testimony on that issue on April 14. Warraich and Raisin testified for the State. The judge then adjourned the hearing pending disposition of Potter's motion to compel production of the personnel records of certain members of the Asbury Park Police Department and the Monmouth County Prosecutor's Office. That motion was denied on May 12.

The motion to suppress resumed on May 26, with testimony by Camilleri, Samis, Rue, and others. On July 19, following the presentation of additional evidence, the judge placed an oral decision on the record. She found that both Warraich and Camilleri were credible witnesses, and that Warraich was very knowledgeable about the packaging of narcotics. She concluded that Warraich had sufficient reasonable suspicion to warrant an investigative stop. The judge found that Warraich observed Potter carrying drugs in plain view when he sought to question him, which provided probable cause for the arrest and the subsequent search.

Potter filed a motion to dismiss the indictment on August 25. The judge assigned to conduct the trial heard oral argument on the motion on November 3, and issued a written decision and order denying the motion six days later.

On December 2, Potter filed a motion to suppress the statements he made to the police following his arrest, arguing (1) that the police coerced him to make the statement through a promise; (2) that he was suffering from heroin withdrawal at the time; and (3) that he did not know he was being videotaped.

The trial judge conducted a hearing on that motion on March 13, 2012. The following day, he issued an order and a written decision. The judge concluded (1) that Potter had failed to present evidence of the existence of any promise, much less a promise that overbore his will, (2) that there was no evidence presented that he was suffering from heroin withdrawal, and (3) that Potter had no privacy right with respect to his statement because he had been told it would be recorded, if not videotaped.

The trial testimony began on March 21, and continued for three additional days.4 The officers and detectives involved in the April 27, 2010 operation testified. The State also presented testimony from the property clerk at the Asbury Park Police Department and a forensic scientist from East Regional Laboratory who testified that more than half an ounce of heroin had been seized.

Detective George Snowden of the Monmouth County Narcotics Strike Force was qualified as the State's expert witness on narcotics distribution in Monmouth County. He testified that heroin is typically sold and packaged in a glassine envelope, bag, or "deck" that is "a one by one-and-a-half waxine folded-up envelope with . . . a stamp[ed] brand[] on it." According to Snowden, a glassine packet typically contains between .01 and .05 grams of heroin and costs between $3 and $10 a bag. The price varies based on the neighborhood, the relationship between the buyer and seller, and the quantity being purchased.

Snowden explained that a bundle of heroin consists of ten glassine packets bound together by a rubber band. A brick of heroin is a larger unit consisting of five bundles (fifty packets of heroin), wrapped in newspaper, magazine paper, or white paper, but most commonly magazine paper. Large quantities of heroin are typically distributed in bricks. Snowden testified that in his opinion the possession of 850 packets of heroin and approximately $1500 in cash was indicative of intent to distribute rather than personal use.

The jury found Potter guilty on all counts. He was sentenced on July 19. The State moved for a mandatory extended term, pursuant to N.J.S.A. 2C:43-6(f), based on Potter's previous conviction for possession of CDS with the intent to distribute. The trial judge granted the motion.

In sentencing Potter, the judge found three aggravating factors and no mitigating factors. He imposed a sentence of fifteen years in prison with seven-and-one-half years of parole ineligibility pursuant to N.J.S.A. 2C:43-6(f). He explained his reasons for the sentence as follows

On the aggravating factors, the risk [Potter] will commit another offense, the extent of his prior record and the need to deter [Potter] and others from violating the law. There are no mitigating factors. [Potter] has seven prior municipal court convictions. He [has] been convicted in Superior Court nine times. He's a habitual criminal. He's somebody who for whatever reason is bent on spending the bulk of his life behind bars. That's his decision.

With reference to the sentence in this matter, the State contends and has indicated to the [c]ourt that [Potter] should be sentenced on the second count of the indictment and the other counts merge with it. I therefore will go along with that recommendation. I have, however, decided that this is an extended term and there is clearly a situation where a stipulated period of parole ineligibility would apply. As I have indicated, [Potter] is a career criminal. Not to the extent that he's involved in organized crime, but he's involved in illegal activity constantly.

On the second count, I merge the other two counts into this[;] he's sentenced to 15 years [in a] New Jersey State Prison. There's seven and a half years of parole ineligibility.

This appeal followed.

II.

Potter raises the following appellate arguments through counsel

POINT I: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS INSTRUCTION ON THE LAW PERTAINING TO THE QUANTITY REQUIREMENT FOR A SECOND[-]DEGREE INTENT TO DISTRIBUTE CDS CRIME. (Not Raised Below)

POINT II: THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM ABSENTEE WITNESSES ABOUT PRIOR CRIMES ALLEGEDLY COMMITTED BY THE DEFENDANT. (Not Raised Below)

A. THE POLICE IMPROPERLY INFORMED JURORS THAT THE DEFENDANT WAS UNDER SURVEILLANCE FOR NARCOTICS OFFENSES.

B. THE FACT THAT THE POLICE HAD THE DEFENDANT UNDER SURVEILLANCE FOR NARCOTICS OFFENSES HAD NO PROBATIVE VALUE AND WAS UNDULY PREJUDICIAL.

C. THE STATE IMPROPERLY ELICITED OTHER-CRIME EVIDENCE THAT THE DEFENDANT HAD BEEN SELLING DRUGS ON PRIOR OCCASIONS.

D. THE TRIAL COURT FAILED TO GIVE A PROPER LIMITING INSTRUCTION.

POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Not Raised Below)

POINT IV: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF THE STATE'S EXPERT WITNESS' TESTIMONY CONCERNING MATTERS WELL WITHIN THE KEN OF THE AVERAGE JUROR. (Not Raised Below)

POINT V: THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE DEFECTIVE WAIVER PROCEDURE.

POINT VI: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT EXPRESSLY DISAVOWED ITS OBLIGATION TO ENSURE A FAIR TRIAL, RESULTING IN UNFAIR PREJUDICE. (Not Raised Below)

POINT VII: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below)

POINT VIII: THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO A GRAND JURY INDICTMENT WAS VIOLATED, AND THE TRIAL COURT ERRONEOUSLY DENIED THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON THOSE GROUNDS.

POINT IX: THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL DETENTION AND SEARCH OF THE DEFENDANT.

A. THE DEFENDANT WAS UNLAWFULLY DETAINED.

B. THE POLICE LACKED PROBABLE CAUSE TO SEARCH THE DEFENDANT.

POINT X: THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT'S WAIVER OF MIRANDA RIGHTS HAD BEEN MADE KNOWINGLY AND VOLUNTARILY.

POINT XI: THE SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

B.THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

Potter filed a pro se supplemental brief in which he argued the following points

POINT I: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT[']S MOTION TO SUPPRESS ILLEGALLY OBTAINED EVIDENCE IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION OF 1947.

POINT II: THE INSTRUCTIONS BY THE TRIAL JUDGE TO THE JURY EXCEEDED THE BOUNDS OF FAIR COMMENT AND CONSTITUTED PREJUDICIAL ERROR AND DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL UNDER THE SIXTH AMENDMENT AND THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION OF 1947.

POINT III: THE DEFENDANT[']S RIGHT TO CONFRONTATION AS [GUARANTEED] BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION OF 1947, AND THE DEFENDANT[']S RIGHT TO DUE PROCESS THAT IS [GUARANTEED] BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT DENIED THE DEFENDANT[']S MOTION TO OBTAIN THE POLICE RECORDS OF THE STATE[']S WITNESSES.

A.

We begin our discussion of the issues with Potter's argument that the motion judge erred by granting his motion for leave to represent himself.

By way of background, we note that this trial was not the first in which Potter sought to represent himself. He represented himself during a trial held in January 2005, and was convicted. State v. Potter, A-4213-04 (App. Div. June 25, 2007) (slip op. at 5-8), certif. denied, 192 N.J. 482 (2007). He appealed, arguing, as he does here, that the trial judge should not have allowed him to represent himself. Id. at 8. We found no merit in that argument, and affirmed the conviction. Id. at 3, 8. Potter was then denied the opportunity to represent himself during a trial held in June 2005, and was convicted. State v. Potter, A-1291-05 (App. Div. July 31, 2007) (slip op at 1-3), certif. denied, 193 N.J. 586 (2008). He appealed, arguing in part that he should have been allowed to represent himself. Id. at 2. We reversed on that basis. According to Potter, the case was not retried.

We review the judge's determination that Potter's waiver of his right to counsel was knowing and intelligent under an abuse of discretion standard. See State v. DuBois, 189 N.J.454, 475 (2007). A "[d]efendant possesses both the right to counsel and the right to proceed to trial without counsel." Id.at 465. In State v. Crisafi, 128 N.J.499, 509 (1992), the Court explained that a defendant may "exercise the right to self-representation only by first knowingly and intelligently waiving the right to counsel." In State v. DuBois, supra, 189 N.J.at 467 (citing Crisafi, supra, 128 N.J.at 311-12), the Court also directed

[W]hen determining whether a waiver of counsel is knowing and intelligent, trial courts must inform defendant of: (1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that lack of knowledge of the law may impair defendant's ability to defend himself; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it would be unwise not to accept the assistance of counsel.

The Court set forth additional requirements to the process, specifically that

(1) the discussions should be open-ended for defendants to express their understanding in their own words; (2) defendants should be informed that if they proceed pro se, they will be unable to claim they provided ineffective assistance of counsel; and (3) defendants should be advised of the effect that self-representation may have on the right to remain silent and the privilege against self-incrimination.

[Id. at 468 (citing State v. Reddish, 181 N.J. 553, 594-95 (2004)).]

In analyzing a defendant's responses to these concerns, the court should "'indulge [in] every reasonable presumption against waiver.'" State v. King, 210 N.J. 2, 19 (2012) (alteration in original) (quoting State v. Gallagher, 274 N.J. Super. 285, 295 (App. Div. 1994)). "Only in the rare case can the record support a finding that, in the absence of such a searching examination, a defendant did indeed 'fully appreciate[] the risks of proceeding without counsel, and . . . decide[] to proceed pro se with his eyes open.'" Id. at 20 (alterations in original) (quoting Crisafi, supra, 128 N.J. at 513). The "ultimate focus" of this inquiry is on the defendant s "actual understanding of the waiver of counsel." Crisafi, supra, 128 N.J. at 512.

Having reviewed the transcript of Potter's questioning by the motion judge concerning his request to represent himself, we find that the record reflects full compliance with the requirements of Reddish and DuBois. Although the judge might have explained that Potter's response to her question about hearsay was incorrect, her failure to do so does not warrant reversal. She clearly expressed her concern that "there are a lot of technical issues that can come up that an attorney may be able to use to your benefit that you may not be aware of." Potter was adamant that he wanted to represent himself, as he had been in the past. Potter identified the risk that he would be found guilty as a risk of self-representation. When the judge asked him if he thought that "if [he] was represented by an attorney, that risk might have been lowered based upon the attorney's knowledge of the law," Potter responded: "No." The judge was not obligated to provide instruction concerning the law of hearsay.

B.

We next turn to the pretrial suppression issues concerning the evidence seized when Potter was arrested and the statement taken after he was brought to police headquarters.

The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows

[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. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

 
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007) (third alteration in original).]

Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

i.

We start with the search and seizure issue. Under the Fourth Amendment of the United States Constitution and article I, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property).

The seizure of a person occurs in a police encounter if the facts objectively indicate that "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)) (internal quotation marks omitted). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const. art. I, 7).

The Supreme Court has defined a field inquiry as "the least intrusive" form of police encounter, occurring when a "police officer approaches a person and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting Nishina, supra, 175 N.J. at 510). During such an inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).

In contrast to a field inquiry, an investigatory stop, also known as a Terry stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904.

The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). There is no mathematical formula for deciding whether the totality of circumstances provides the required articulable or particularized suspicion and, "[a]s the case law suggests, the test is qualitative, not quantitative." Stovall, supra, 170 N.J.at 370.

Our review of the record convinces us that the motion judge did not err when she denied the motion to suppress. The testimony was that the two officers approached Potter and stopped on either side of him. As Warraich asked for his name and what he was doing at the time, he observed what he believed to be drugs in plain view. We consider that interaction to have been a simple field inquiry, rather than an investigatory stop. There was nothing "harassing, overbearing, or accusatory in nature," Pineiro, supra, 181 N.J. at 20 (quoting Nishina, supra, 175 N.J. at 510), with respect to the actions of the police. As Raisin testified, the arrest took place "30 seconds" after Camilleri and Warraich approached Potter.

Even if the interaction is viewed as an investigatory stop, we find that there were sufficient facts known to and observed by the officers for them to have had "a reasonable suspicion of criminal activity," Rodriguez, supra, 172 N.J. at 126. Raisin had been told by a reliable informant that Potter regularly walked a specific route, from Vita Garden Apartments, through a specific basketball court, to play cards and sell heroin at a specific building on Bangs Avenue. Raisin testified that he was told by the informant that Potter carried drugs with him when he went to Bangs Avenue, and the judge credited that testimony. During the surveillance on April 27, 2010, the police officers observed Potter traveling that route, as predicted by the informant. Information provided to the police by a reliable informant may generate the reasonable suspicion necessary for an investigatory stop. Davis, supra, 104 N.J.at 505-06.

Once the bags containing the drugs were seen in plain view, there was probable cause for the arrest. Searches incident to a lawful arrest are a well-established exception to the warrant requirement. State v. Pena-Flores, 198 N.J. 6, 19 (2009).

ii.

We now turn to the Miranda issue. A trial judge will admit a confession into evidence only if the State has proven beyond a reasonable doubt, based on the totality of the circumstances, that the suspect's waiver of those rights was knowing, intelligent, and voluntary. State v. Patton, 362 N.J. Super. 16, 42 (App. Div.), certif. denied, 178 N.J. 35 (2003). In reviewing a trial judge's ruling on a Miranda motion, we analyze police-obtained statements using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. Patton, supra, 362 N.J. Super. at 43 (citations and internal quotation marks omitted). We generally will not "engage in an independent assessment of the evidence as if [we] were the court of first instance," State v. Locurto, 157 N.J. 463, 471 (1999), nor will we make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997). Instead, we generally defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

A suspect's confession during a custodial interrogation can only be obtained if that suspect was supplied with his or her Miranda rights. Miranda, supra, 384 U.S. at 461, 86 S. Ct. at 1620-21, 16 L. Ed. 2d at 716. Before considering the validity of a waiver of Miranda rights, it must be established that the police scrupulously honored the suspect's right to remain silent. State v. Burno-Taylor, 400 N.J. Super. 581, 589 (App. Div. 2008). If the suspect's words or conduct, upon being advised of his or her rights, "could not reasonably be viewed as invoking the right to remain silent," this requirement is satisfied and the police may continue their questioning. Id. at 590 (citing State v. Bey, 112 N.J. 123, 136-38 (1988)).

The trial judge determined, by the required standard, that the State had demonstrated that Potter had freely and voluntarily waived his Miranda rights after they had been appropriately explained to him. He rejected Potter's assertions that he was promised lenient treatment if he identified the person who had supplied him with the heroin, noting that there was no evidence of such a promise and that he had not, in fact, identified his supplier. He further found that there was no evidence that Potter was suffering from heroin withdrawal when the waiver took place, and that, even if Potter was not aware that the statement was being videotaped, there was no obligation to so inform him, citing State v. Vandever, 314 N.J. Super. 124, 127-28 (App. Div. 1998). Those findings and conclusions are fully supported by the record, the trial judge's findings of fact, and the applicable law.

On appeal, Potter argues for the first time that he was denied the opportunity to seek the advice of counsel over the telephone. There is no evidence in the record to support that claim. The fact that Samis told Potter at the end of the interview that he could make telephone calls once they found out what his bail was does not support Potter's claim.

C.

We now turn to the issues raised with respect to the sentence. Potter alleges that it was excessive and illegal because it was based on impermissible judicial factfinding.

"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

N.J.S.A. 2C:43-6(f) requires, on motion by the prosecutor, an extended term for a person previously convicted of a crime involving the distribution or intended distribution of narcotics, if that person is convicted a second time of such an offense. Potter had the requisite prior drug conviction, and in fact had more than one. We see no error in the judge's selection and weighing of the sentencing factors, nor was there double counting with respect to prior convictions. That Potter will not be eligible for release until he is in his sixties is not a mitigating factor. Potter's cooperation with the police was minimal at best. He did not name his source, and did not plead guilty. The sentence was legal and not excessive.

With respect to judicial factfinding, Potter's reliance on Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) is misplaced. In Alleyne, the Court recognized and differentiated the traditional role of a sentencing judge in applying sentencing factors.

Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S. 817, ___, 130 S. Ct. 2683, 2692, 177 L. Ed. 2d 271 (2010) ("[W]ithin established limits[,] . . . the exercise of [sentencing] discretion does not contravene the Sixth Amendment even if it is informed by judge-found facts" (emphasis deleted and internal quotation marks omitted)); Apprendi [v. New Jersey], 530 U.S. [466,] 481, 120 S. Ct. 2348, [2358,] 147 L. Ed.2d 435[, 449 (2000)] ("[N]othing in this history suggests that it is impermissible for judges to exercise discretion taking into consideration various factors relating both to offense and offender in imposing a judgment within the range prescribed by statute").

[Id. at __, 133 S. Ct. at 2163, 186 L. Ed. 2d at 330 (first, second, third, and eighth alterations in original).]

Our Supreme Court eliminated presumptive sentencing specifically to avoid the situation in which judicial factfinding is used to enhance a sentence. State v. Natale, 184 N.J. 458, 488 (2005).

D.

Having reviewed Potter's remaining arguments in light of the facts in the record and the applicable law, we find them to be without merit and not warranting an extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following with respect to some of those arguments. Others do not require any discussion.

However, we note first that many of the arguments at issue were not raised in the trial court, and are consequently reviewed under the plain error rule. See State v. Jenkins, 178 N.J. 347, 360 (2004). Plain error is error that is "clearly capable of producing an unjust result," which should "in the interests of justice" be noticed even if "not brought to the attention of the trial . . . court." R. 2:10-2; see also Jenkins, supra, 178 N.J. at 360-61. "[T]he possibility of injustice [must be] 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Plain error in the context of a jury charge is "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

i.

Potter argues for the first time on appeal that the trial judge erred in failing to charge the jury that it should consider how much of the heroin he intended to keep for his personal use in determining whether he possessed "a quantity of one-half ounce or more with the intent to distribute," as required by N.J.S.A. 2C:35-5(b)(2). Not only did Potter fail to request such a charge, there was no evidence in the record to suggest that he intended to keep any for himself. In fact, in his statement, Potter said that he had two bags of heroin and intended to sell both of them. Consequently, there was no error and, even if there was, the error did not possess "'a clear capacity to bring about an unjust result,'" Adams, supra, 194 N.J. at 207 (quoting Jordan, supra, 147 N.J. at 422).

ii.

Potter also argues for the first time on appeal that the State improperly introduced, through testimony that Potter was under surveillance at the time of his arrest, evidence of other crimes in violation of N.J.R.E.404(b) and State v. Cofield, 127 N.J.328, 338 (1992). Samis testified on direct that there was a surveillance set up on Potter. There was no objection. On cross-examination, when Potter asked Samis why he was under surveillance, Samis responded that they had received information from a confidential informant. Potter did not object to that testimony either, and in fact it was his cross-examination of Samis that invited the mention of the informant. In addition, he never requested a limiting instruction. Although we question whether mention of the surveillance, or the informant, in response to Potter's own question, actually raises an issue under Cofield, we are convinced that the testimony at issue does not raise "'a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached,'" Taffaro, supra, 195 N.J. at 454 (quoting Macon, supra, 57 N.J. at 336).

iii.

Potter contends for the first time on appeal that the prosecutor improperly stated in closing argument that Potter was engaged in an ongoing criminal enterprise. The prosecutor argued to the jury that "you can basically see a business model for this defendant." In the absence of an objection, "[such] remarks usually will not be deemed prejudicial." State v. Ramseur, 106 N.J.123, 322-23 (1987). The failure to object suggests that the defendant did not believe the remarks were prejudicial at the time they were made and deprives the court of an opportunity to take curative action. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J.25 (1997). In any event, the prosecutor's argument was a fair comment on that portion of Potter's statement to the police in which he said that he obtained drugs from a supplier and sold the drugs for profit. He also told them that he used the money derived from the transactions to support himself.

iv.

Potter also asserts for the first time on appeal that expert testimony in this case was improper because the expert opined that the heroin was possessed with the intent to distribute. Such testimony is specifically permitted by the Supreme Court, which held in State v. Sowell, 213 N.J. 89, 103-05 (2013) that ordinary jurors cannot be expected "to understand the difference between drugs possessed for distribution as opposed to personal use." In any event, Potter admitted in his statement to the police that he had the heroin with him because he intended to sell it.

We also find no reason to reverse on the basis of Warraich's testimony to his belief that the plastic bag in Potter's pocket contained heroin, testimony to which there was no objection. Although Warraich had not been qualified as an expert, his testimony was not offered to prove that the bags contained heroin, but rather offered to show why he arrested Potter. The State called a qualified expert to testify to her analysis of a portion of the contents of the bags seized from Potter, which established that there was more than one half of an ounce of heroin. The testimony at issue does not raise "'a reasonable doubt as to whether [any] error led the jury to a result it otherwise might not have reached,'" Taffaro, supra, 195 N.J. at 454 (quoting Macon, supra, 57 N.J. at 336).

v.

Potter argues that he should have been allowed access to the personnel records of the police officers and detectives who conducted the surveillance. He bases his claim on information given to him by an inmate with whom he spoke while awaiting trial in the Monmouth County Correctional Facility.5 The allegations had no bearing on the case against Potter and were not factually supported at the time of the motion.

Although a defendant may attack a prosecution witness's credibility by revealing possible biases, prejudices, or ulterior motives as they relate to the issues in the case, State v. Harris, 316 N.J. Super. 384, 397 (App. Div. 1998), the question of "whether police personnel records should be disclosed involves a balancing between the public interest in maintaining the confidentiality of police personnel records" against a defendant's right of confrontation. Id.at 397-98. To obtain such records, a defendant "must advance 'some factual predicatewhich would make it reasonably likely'" that the records contain some relevant information, and establish that the defendant is not merely engaging in a fishing expedition. Id.at 398 (quoting State v. Kaszubinski, 177 N.J. Super. 136, 139 (Law Div. 1980)). The motion judge correctly concluded that Potter failed to meet his burden and properly denied his request.

vi.

Potter argues that the indictment should have been dismissed because it was based on hearsay evidence, the indictment number was incorrectly transcribed, and he was improperly denied his right to review the grand jury selection process. The motion judge correctly rejected those contentions.

A grand jury indictmentis presumed valid and should only be disturbed if "manifestly deficient or palpably defective," Ramseur, supra, 106 N.J.at 232, based "on the 'clearest and plainest ground,'" State v. Perry, 124 N.J.128, 168 (1991) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J.8, 18-19 (1984)). "[A]n indictmentshould not be dismissed unless the prosecutor's error was clearly capable of producing an unjust result. This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error." State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J.635 (2001). A discrepancy in a date stamp or other similar clerical error will not invalidate an indictment. State v. Unsworth, 85 N.J.L.237, 238 (E. & A. 1913). As we explained in State v. Holsten, "'[a]n indictmentmay be based largely or wholly on hearsayand other evidence which may not be legally competent or admissible at the plenary trial.'" 223 N.J. Super. 578, 585 (App. Div. 1988) (alteration in original) (quoting State v. Schmidt, 213 N.J. Super. 576, 584 (App. Div. 1986), rev'd on other grounds, 110 N.J.258 (1988)); see alsoState v. McCrary, 97 N.J.132, 146 (1984) (stating that "hearsayand other informal proofs are permissible in determining issues that implicate important rights," such as the bases for an indictment(citing Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 408, 100 L. Ed. 397, 402-03, reh'g denied, 351 U.S. 904, 76 S. Ct. 692, 100 L. Ed. 1440 (1956))); State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) ("A grand jury may return an indictmentbased largely or wholly on hearsaytestimony."). Where there is sufficient evidence to sustain the grand jury's charges, the indictmentshould not be dismissed. SeeHolsten, supra, 223 N.J. Super.at 585-86.

III.

For all of the reasons stated above, we affirm the conviction and sentence on appeal.

Affirmed.

1 The basketball courts are within 1000 feet of the Asbury Park Middle School.

2 Warraich testified that heroin is usually packaged in glassine paper, which is similar to wax paper, and marked with a stamp. They could be kept individually or in a bundle, consisting of ten bags, or in a brick, consisting of fifty bags. In a bundle, the ten bags are usually held together by a rubber band. A brick consists of five bundles wrapped in newspaper or magazine paper and shaped in a rectangle. A brick is the shape of a masonry brick, but much smaller, about three to four inches long and a little less wide.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 Prior to the start of testimony, the judge considered and granted Potter's application to redact portions of the interview video and the related transcript.

5 Potter improperly submits documents that were not before the motion judge when she considered his request for the records. We decline to consider those documents because they are not properly before us. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007) (citing R. 2:5-5(b) and R. 2:9-1(a)).