STATE OF NEW JERSEY v. JEFFREY PREVILON
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-0962-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFREY PREVILON,
Defendant-Appellant.
________________________
Argued October 4, 2021 – Decided November 19, 2021
Before Judges Fasciale and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 17-09-2434
and 17-09-2436.
Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Tamar Y. Lerer, of counsel
and on the briefs).
Caitlinn Raimo, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Caitlinn Raimo, of
counsel and on the brief).
PER CURIAM
After pleading guilty, defendant appeals from his conviction for second-
degree possession of a firearm while committing a violation of N.J.S.A. 2C:35-
5, N.J.S.A. 2C:39-4.1(a).1 He primarily challenges an order denying his motion
to suppress, contending that the evidence was the fruit of an unlawful search and
seizure and that the motion judge erred by finding probable cause for the arrest
and search incident to the arrest. In addition, defendant generally argues that
the sentencing judge imposed an excessive sentence without adequate
explanation. The judges correctly denied the motion and imposed the sentence.
We therefore affirm.
Two officers, Officer Kevin Wright and Detective Henry Suarez, who
were in their police vehicle, saw defendant as he walked in the middle of the
1
A grand jury indicted and charged defendant with third-degree possession of
a controlled dangerous substance (CDS) heroin, N.J.S.A. 2C:35-10(a); third-
degree possession of CDS heroin with intent to distribute, N.J.S.A. 2C:35-
5(a)(1), N.J.S.A. 2C:35-5(b)(3); second-degree possession of CDS heroin within
500 feet of a public housing facility, N.J.S.A. 2C:35-7.1(a); third-degree
possession of CDS cocaine, N.J.S.A. 2C:35-10(a); third-degree possession of
CDS cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-
5(b)(3); second-degree possession of CDS cocaine within 500 feet of a public
housing facility, N.J.S.A. 2C:35-7.1(a); second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b); second-degree possession of a firearm while
attempting to commit a violation of N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1(a);
and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-
7(b)(1).
A-0962-19
2
street with what appeared to be a medicine bottle. They stopped him because
defendant had been "staggering, [and] walking . . . side to side." The officers
then pulled over their vehicle to question defendant and inspect the bottle he
was carrying.
After Wright exited the car, with his badge and police vest visible,
defendant said, "my bad, officers, it's just a little syrup." Wright took the bottle
and examined its contents. He looked inside and determined, because of the
"smell and[ ]thickness" of the liquid and the scratched-off label, that it "appeared
that it could be possibly cough syrup." Wright then asked defendant "if he had
a prescription for the bottle," and defendant replied he did not.
Wright then detained and arrested defendant. He removed defendant's
backpack to handcuff him, and when the officer put the backpack on the ground,
Wright and Suarez "heard a clink" sound, "as if metal was hitting concrete."
Suarez searched defendant incident to the arrest and seized a plastic bag in
defendant's waistband containing eighteen glassine envelopes, five vials, eight
jugs of CDs, and two nylon bags of loose cocaine. For their safety, Wright
searched the backpack suspecting it contained a firearm due to the backpack's
weight, the sound it made when he put it down, and the immediate area, which
A-0962-19
3
from the officers' background and training had been known "as a high narcotic,
violence area." The backpack contained a firearm.
At the suppression hearing, defendant argued that the initial stop , the
arrest, and the searches were illegal. The judge found the officers had
reasonable suspicion to stop defendant because he was staggering in the middle
of the road with the bottle. The judge also found that they had probable cause
to arrest defendant after observing him drink from the bottle, hearing him admit
the bottle was "a little bit of syrup," and examining the bottle itself. The judge
found the police had authority to search defendant incident to the arrest, and that
the search of the backpack was within defendant's immediate control and not
remote. He held that the discovery of the handgun was inevitable once they
brought defendant to the police station.
On appeal, defendant raises the following points for this court's
consideration:
POINT I
THE SEIZURE AND SEARCH OF DEFENDANT'S
BELONGINGS WERE ILLEGAL.
A. Defendant's Belongings Were Seized And
Searched Without Probable Cause Or An
Exception To The Warrant Requirement.
A-0962-19
4
B. Even If There Were Probable Cause That
Defendant Committed A Disorderly Persons
Offense, Defendant Should Have Been Issued
A Summons And Released. Therefore, The
Custodial Arrest And Search Incident To That
Arrest Were Illegal.
POINT II
DEFENDANT'S SENTENCE IS EXCESSIVE AND
THE [JUDGE] FAILED TO EXPLAIN THE
REASONS FOR ITS IMPOSITION. THEREFORE,
THE SENTENCE MUST BE VACATED AND THE
MATTER REMANDED FOR RESENTENCING.
I.
We begin with defendant's first argument—that the police illegally
searched him without probable cause or an exception to the warrant requirement;
and even if there was probable cause that he had committed a disorderly persons
offense, the police should have issued a summons and released him rather than
arresting and detaining him.
In our review of the grant or denial of a motion to suppress, we "must
defer" to the motion judge's factual findings "so long as those findings are
supported by sufficient evidence in the record." State v. Dunbar, 229 N.J. 521,
538 (2017) (quoting State v. Hubbard, 222 N.J. 249, 262 (2015)). We ordinarily
defer to those findings because they "are substantially influenced by [ the
judge's] opportunity to hear and see the witnesses and to have the 'feel' of the
A-0962-19
5
case, which a reviewing [judge] cannot enjoy." State v. Lamb, 218 N.J. 300,
313 (2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). We will
disregard those findings only when a judge's findings of fact are "so clearly
mistaken that the interests of justice demand intervention and correction." State
v. Hagans, 233 N.J. 30, 37-38 (2018) (quoting State v. Gamble, 218 N.J. 412,
425 (2014)). We review a motion judge's legal conclusions de novo. Dunbar,
229 N.J. at 538.
There are three types of interactions with law enforcement, each involving
different constitutional implications depending on the event's impact on an
individual's freedom to leave the scene. First, a "field inquiry is essentially a
voluntary encounter between the police and a member of the public in which the
police ask questions and do not compel an individual to answer." State v.
Rosario, 229 N.J. 263, 271 (2017). The individual is free to leave; therefore,
field inquiries do not require a well-grounded suspicion of criminal activity
before commencement. 2 Id. at 271-72; see also Elders, 192 N.J. at 246. Second,
an investigatory stop or detention, sometimes referred to as a Terry3 stop,
involves a temporary seizure that restricts a person's movement. A Terry stop
2
This first interaction is not an issue on appeal.
3
Terry v. Ohio, 392 U.S. 1 (1968).
A-0962-19
6
implicates a constitutional requirement that there be "'specific and articulable
facts which, taken together with rational inferences from those facts,' give rise
to a reasonable suspicion of criminal activity." Elders, 192 N.J. at 247 (quoting
State v. Rodriguez, 172 N.J. 117, 126 (2002)). Third, an arrest requires
"probable cause and generally is supported by an arrest warrant or by
demonstration of grounds that would have justified one." Rosario, 229 N.J. at
272.
To establish that a stop was valid, the State has the burden of proving that
the police were aware of "specific and articulable facts which, taken together
with rational inferences from those facts, [gave] rise to a reasonable suspicion
of criminal activity." State v. Mann, 203 N.J. 328, 338 (2010) (quoting State v.
Pineiro, 181 N.J. 13, 20 (2004)); see Terry, 392 U.S. at 20. To determine
whether reasonable suspicion exists, a judge must consider the totality of the
circumstances, viewing the "whole picture" rather than taking each fact in
isolation. State v. Nelson, 237 N.J. 540, 554 (2019) (quoting State v. Stovall,
170 N.J. 346, 361 (2002)). This analysis also considers police officers'
"background and training," id. at 555, including their ability to "make inferences
from and deductions about the cumulative information available to them that
A-0962-19
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'might well elude an untrained person.'" Ibid. (quoting United States v. Arvizu,
534 U.S. 266, 273 (2002)).
Investigative stops are justified, even absent probable cause, "if the
evidence, when interpreted in an objectively reasonable manner, shows that the
encounter was preceded by activity that would lead a reasonable police officer
to have an articulable suspicion that criminal activity had occurred or would
shortly occur." State v. Davis, 104 N.J. 490, 505 (1986). Judges are to
determine whether the totality of the circumstances gives rise to an "articulable
or particularized suspicion" of criminal activity, not by use of a strict formula,
but "through a sensitive appraisal of the circumstances in each case." Ibid. The
judge adhered to these rules.
The judge believed the officers had properly concluded the investigative
stop was justified. They stopped defendant because he was in a high crime and
narcotics area, walking in the middle of the road, staggering from side-to-side,
carrying and drinking from a medicine bottle, and defendant immediately said,
"my bad, officers, it's just a little syrup." We have no reason to disturb the
judge's findings, which are supported by the credible evidence in this record.
The Fourth Amendment of the United States Constitution and Article I,
paragraph 7 of the New Jersey Constitution protect citizens against unreasonable
A-0962-19
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searches and seizures and require a showing of probable cause prior to an arrest
or the issuance of a warrant. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "The
probable-cause requirement is the constitutionally-prescribed standard for
distinguishing unreasonable searches from those that can be tolerated in a free
society[.]" State v. Novembrino, 105 N.J. 95, 106 (1987). "A warrantless search
[or seizure] is presumed invalid unless it falls within one of the recognized
exceptions to the warrant requirement." Gamble, 218 N.J. at 425 (quoting State
v. Cooke, 163 N.J. 657, 664 (2000)). The State, as the party seeking to validate
the warrantless search, "has the burden of proving the validity of the search [or
seizure]." State v. Maryland, 167 N.J. 471, 489 (2001).
The standards for determining probable cause to arrest and probable cause
to search are identical. State v. Smith, 155 N.J. 83, 92 (1998). Our Supreme
Court has stated that the probable cause standard "is not susceptible of precise
definition." State v. Moore, 181 N.J. 40, 45 (2004) (citing State v. Wilson, 178 N.J. 7, 13 (2003)). Nevertheless, the Court has consistently held that "a
principal component of the probable cause standard 'is a well-grounded
suspicion that a crime has been or is being committed.'" Ibid. (quoting State v.
Nishina, 175 N.J. 502, 515 (2003)); see also Maryland v. Pringle, 540 U.S. 366,
A-0962-19
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371 (2003) (holding that "[t]he substance of all the definitions of probable cause
is a reasonable ground for belief of guilt").
Probable cause, however, "is not a stringent standard." State in Int. of
J.G., 151 N.J. 565, 591 (1997). It does not require the suspicion that a crime
has been or is being committed "be correct or more likely true than false." State
v. Johnson, 171 N.J. 192, 207 (2002) (internal citation omitted). Rather,
probable cause simply requires "a practical, common-sense decision whether,
given all the circumstances . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place." Id. at 214 (internal
quotation marks and citation omitted); see also Florida v. Harris, 568 U.S. 237,
244 (2013).
The judge concluded that "based on all the foregoing facts, without
isolating any particular fact, the [officers] in this case had probable cause to
arrest [defendant]." The judge found that because he blurted out, "my bad,
officers, it's just a little bit of syrup" upon seeing the officers, the suspicions
were reasonably heightened that defendant was engaged in criminal activity.
Because of this now heightened suspicion, Wright took the bottle and
"determined that it contained cough syrup based on the smell and thickness of
the liquid." Wright saw that someone scratched the label off the bottle, and after
A-0962-19
10
defendant was asked, defendant admitted he did not have a prescription for the
cough syrup. This all combined to create probable cause to arrest defendant.
From there, the judge found that the searches of defendant's person and
backpack were lawful searches incident to arrest.
Defendant essentially argues that because he did not immediately appear
to be carrying cough syrup that clearly required a prescription there was no
probable cause to arrest him after the investigatory stop. But this ignores the
totality of the situation. The judge determined that because immediately after
the stop defendant said he was drinking "syrup" and the similarity to State v.
Waltz, 61 N.J. 83 (1972), there were grounds to suspect further criminal
conduct. In Waltz, our Court held that although a medicine bottle might not
ordinarily contain illicit drugs, it is reasonable for an officer to see a medicine
bottle and have probable cause to believe there are illicit drugs contained
therein. Id. at 88. There is sufficient credible evidence to support the motion
judge's holding of probable cause. State v. Handy, 206 N.J. 39, 44 (2011)
(quoting Elders, 192 N.J. at 243) (quotations omitted).
Finally, under State v. Dangerfield, 171 N.J. 446 (2002), the officers were
well within their discretion to arrest defendant versus issuing him a summons.
In Dangerfield, our Court recognized that while there is a preference for the
A-0962-19
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issuances of citations and summonses, officers still had discretion to choose
between a citation and a custodial arrest. Id. at 458. "[W]e do not disturb the
authority of the police to arrest for disorderly and petty disorderly persons
offenses that occurred in their presence." Id. at 460. As we clarified in State v.
Daniels, if the arrest is not pretextual, there is not a bright-line limit to the extent
of a search incident to that arrest. 393 N.J. Super. 476, 491 (App. Div. 2007).
For this reason, the officers were justified in arresting defendant.
II.
We reject defendant's argument that the sentencing judge imposed an
excessive sentence of eight years in prison with four years of parole ineligibility.
We conclude the judge gave sufficient reasons for her findings of aggravating
and non-existing mitigating factors. And—contrary to defendant's contention—
we see no basis that the judge incorrectly thought she was bound by the
"escalating plea offers."
We review a sentencing court's imposition of sentence for abuse of
discretion. State v. Jones, 232 N.J. 308, 318 (2018). And we do so "in
accordance with a deferential standard." State v. Trinidad, 241 N.J. 425, 453
(2020) (quoting State v. Fuentes, 217 N.J. 57, 70 (2014)). We ordinarily defer
to the sentencing judge's factual findings; we do not "second-guess" them. State
A-0962-19
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v. Case, 220 N.J. 49, 65 (2014). Under this standard, we affirm the sentence
"unless: (1) the sentencing guidelines were violated; (2) the findings of
aggravating and mitigating factors were not 'based upon competent credible
evidence in the record;' or (3) 'the application of the guidelines to the facts' of
the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228
(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). The standard also
applies to "sentences that result from guilty pleas, including those guilty pleas
that are entered as part of a plea agreement." State v. Sainz, 107 N.J. 283, 292
(1987).
Defendant had an extensive criminal history. He had five juvenile
adjudications, twenty-six adult arrests, five prior indictable convictions, ten
prior disorderly persons convictions, and one ordinance violation. Defendant
served one prior prison term.
The judge found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the risk
that defendant will commit another offense); aggravating factor six, N.J.S.A.
2C:44-1(a)(6) (the extent of defendant's prior criminal record and the
seriousness of the offenses of which defendant has been convicted); and
aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterring
defendant and others from violating the law). She found no mitigating factors.
A-0962-19
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Applying our deferential standard of review, Case, 220 N.J. at 65, we discern no
basis to disturb the judge's weighing of the aggravating factors, or her imposition
of sentence.
Although the State previously offered defendant a seven with forty-two,
defendant rejected the offer knowing full well that in the future the State's offer
would be "off the table." At sentencing, defendant admitted that although he
wanted the earlier offer, he was willing to accept the eight with a four. And that
is exactly what the judge imposed.
Defendant argues that the judge improperly considered the Attorney
General's escalating plea bargain policy. Under the Attorney General's
guidelines, a County Prosecutor's Office must strictly "provide for a longer
sentence if the defendant pleads guilty after indictment to account for the
additional investment of resources to prosecute the case and the unwillingness
of the defendant to accept responsibility in a timely fashion." Attorney General
Law Enforcement Directive No. 2016-6 v3.0, "Modification of Directive
Establishing Interim Policies, Practices, and Procedures to Implement Criminal
Justice Reform Pursuant to P.L. 20154, c. 31" (Sept. 27, 2017). The judge was
not indicating that she was bound by this policy in her sentencing but rather was
informing defendant why the initial seven-year plea was "off the table."
A-0962-19
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Accordingly, the judge did not abuse her discretion, and defendant's sentence is
not manifestly excessive.
To the extent that we have not addressed defendant's remaining
arguments, we conclude that they lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2).
Affirmed.
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