STATE OF NEW JERSEY v. ZAKRY S. SHIVERS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5454-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ZAKRY S. SHIVERS,
Defendant-Appellant.
_________________________
Argued February 28, 2022 – Decided March 15, 2022
Before Judges Fasciale and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 18-03-0474.
Austin J. Howard, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Candace Caruthers,
Assistant Deputy Public Defender, of counsel and on
the brief).
William Kyle Meighan, Supervising Assistant
Prosecutor, argued the cause for respondent (Bradley
D. Billhimer, Ocean County Prosecutor, attorney;
Samuel Marzarella, Chief Appellant Attorney, of
counsel; William Kyle Meighan, on the brief).
PER CURIAM
Defendant Zakry S. Shivers pleaded guilty to first-degree robbery and the
court imposed a ten-year sentence subject to the requirements of the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. He appeals from his conviction and
sentence, arguing the court erred by denying his motion to suppress physical
evidence and by failing to sentence him to a term appropriate for a crime one
degree lower than the first-degree offense to which he pleaded. He also claims
he is entitled to resentencing for retroactive application of mitigating factor
fourteen, that he was under twenty-six years of age at the time the crime was
committed, N.J.S.A. 2C:44-1(b)(14). Unpersuaded by defendant's arguments,
we affirm.
I.
Following his indictment for robbery, aggravated assault, and weapons
offenses, defendant moved to suppress evidence seized from his person and a
backpack he carried following his arrest. The evidence at the hearing on
defendant's motion established that at around 5:00 p.m. on October 13, 2017,
Brick Township police officers were informed there had been a robbery at a
local gas station. Patrolman Mark Storch testified he first learned about the
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robbery at "[r]oughly around 5:15" p.m. and was informed a male suspect with
a knife had "fled the scene."
Storch drove his marked patrol car to the vicinity of the gas station to look
for a potential suspect, and, about five minutes after first learning about the
robbery, he traveled down a dead-end, residential street located about a half-
mile from the station. Storch noticed a male, later identified as defendant,
walking on the sidewalk in the same direction Storch was traveling.
Storch followed defendant but stayed about fifteen yards behind him.
According to Storch, he "constantly" braked the patrol car to stay behind
defendant. The brakes of the patrol car "were constantly squeaking at the time,
to the point where other" people "in the neighborhood were looking at the car,"
but Storch noticed defendant "never looked over his shoulder once to see what
type [of vehicle] or who was behind him with the brakes."
Storch received a further description of the suspect over the radio. It was
reported the suspect was "a black male approximately six feet tall." Storch noted
the individual he was following was about six feet tall. Storch drove the patrol
car nearer to defendant and identified him as a black male.
Storch then drove his patrol car, with the driver's side window down,
alongside defendant as he continued to walk on the sidewalk. Storch asked
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defendant where he was going, and defendant said he was going home. When
Storch asked defendant where he lived, defendant first said "down the block."
Storch again asked defendant where he lived, and defendant said he was going
to his girlfriend's house and provided the name of a street where his girlfriend
purportedly lived. When Storch told defendant he could not get to that street
from where he was, defendant said he planned to take a trail behind a
convenience store that led to the street.
Storch testified the street defendant identified as the location of his
girlfriend's home was not accessible either by the road defendant was on or by
any sidewalk. Storch also explained the trail behind the convenience store
defendant mentioned was a mile and a half away and was not accessible from
the neighborhood defendant was in.
At that point, Storch exited his patrol car, spoke to defendant "face-to-
face," and asked defendant his name. Defendant provided his name and accused
Storch of "racially profiling him." Storch explained he was speaking to
defendant because "there was an incident" at the gas station, "the subject who
committed [the] crime was a six-foot black male and [defendant] match[ed] the
physical descriptions," and defendant was in "close proximity" to the robbery.
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As Storch spoke to defendant, he observed defendant "was extremely nervous,"
"continually looked around," and "exhibit[ed] a fight or flight appearance."
Brick Township Patrolman Mancini, Detective Alvarado, and Detective
Sergeant Lawrence Petrola arrived and joined in the conversation with
defendant.1 According to Storch, Detective Joseph Leskowski also arrived at
some point, spoke with defendant, left the scene, and returned later. Storch
testified defendant repeatedly asked if he could leave but was told he could not
because "there was just a robbery," "[and] he matched the physical descriptions
of" the suspect. Storch recalled that it "was cool but not freezing cold," and
defendant had "perspiration on his forehead and the sweatshirt[] he was wearing
had actual sweat stains, moisture, on it."
According to Storch, the officers wanted him to sit because they "believed
he might run" and the officers wanted to "try and keep him." The officers "sat
[defendant] on the curb." 2 Storch explained that once defendant was seated on
1
Patrolman Mancini's and Detective Alvarado's first names are not included in
the record.
2
Storch testified that he and Mancini "asked [defendant] to sit down because of
his – it looks – his nervousness to run." Storch also testified he told defendant
"to relax and sit on the curb."
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the curb, he was not free to leave, and he would have been directed to sit down
if he had gotten up.
After defendant sat on the curb, Storch saw ants on the backpack
defendant wore. Storch asked defendant to stand and noticed ants were not on
his person; they were on the backpack only. When Storch pointed that out,
defendant dropped the backpack from his back.
Storch further testified defendant asked many times if he could leave, and
"out of frustration" he told defendant, "if you want to leave you can voluntarily
show us your backpack, and if there's no elements of a crime in there, then you
can go." In response, defendant did nothing.
Storch explained defendant "sat there" on the curb and subsequently asked
again if he could leave, and that defendant had a conversation with Petrola about
the backpack. Following his conversation with Petrola, defendant quickly
opened a compartment in the backpack for a few seconds, and Storch looked
inside and saw a "black hat." Storch testified his observation of the "black ball
cap" was significant because it had been reported the perpetrator of the robbery
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was wearing a black ball cap. 3 Storch also testified defendant quickly closed
the backpack and asked again if he could leave.
Storch took no further action, but later placed defendant under arrest after
receiving an order to do so from Detective Leskowski. Following defendant's
arrest, Storch searched the backpack and found the hat and money from the
robbery of the gas station in separate compartments.
Petrola also testified at the suppression hearing. On October 13, 2017, he
received a report about the gas station robbery during which the perpetrator used
a "sharp object" to wound the victim before leaving the scene. According to
Petrola, the initial description of the suspect was a black male with a baseball
cap who left the scene running east in the direction of the street where Storch
observed defendant walking. Petrola responded to the area to assist in locating
the suspect and went to Storch's location to provide assistance. Upon his arrival,
Petrola learned Storch was with defendant who fit the suspect's description,
defendant was unfamiliar with the area, and defendant was in close proximity to
the location of the robbery.
3
Storch testified he could not recall when he was advised the perpetrator wore
a black ball cap, and he said he did not remember if he learned that information
before or after defendant's arrest. As we explain, however, Petrola testified the
initial dispatch report concerning the robbery stated the suspect wore a black
baseball hat.
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Petrola also observed defendant seated on the curb, and Petrola noticed it
was a "mild day" and defendant "was sweating." Defendant asked why he was
being held and if he could leave. Petrola told defendant he was a suspect in a
robbery, he fit the description of the suspect, and once they could establish he
was not the suspect, "he would be free to leave."
Petrola also asked Storch if he "went through the backpack," and Storch
said he had not because defendant did not consent to a search of it. Defendant
asked Petrola "how [he] can get to leave," and Petrola said defendant was a
suspect and he was waiting for a detective to arrive at the scene. Defendant
asked "how long is it going to be," and Petrola explained the officers needed to
determine whether defendant continued to be suspect, and that defendant could
"help out" in that effort by consenting to a search. In response, defendant
refused any search.
Petrola testified he then spoke to Leskowski, who was "going to be in
charge of handling the . . . case," to inform him of "what was going on." Petrola
explained after several minutes, defendant asked how he could "speed this up ."
Petrola told defendant he could "consent to the search and he has the right to
refuse the search or stop the search." Petrola also told defendant he "did not
have to consent to the search." Defendant asked if he could leave if he showed
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the officers his backpack, and Petrola told defendant "if he was no longer a
suspect, then he [could] leave."
As Petrola spoke to Storch and Alvarado, defendant said he "want[ed] to
speed this up so [he could] get out of here." Petrola testified he said, "okay,"
and defendant said he would show "what's in [his] bag." Petrola told defendant
he did not have to show what was in the backpack, and that he could stop the
search at any time. Defendant replied, "I'll show you," and opened the backpack,
for less than five seconds, as Storch looked inside. Defendant shut the backpack
and told Petrola, "you told me I could stop." Defendant asked if he could leave,
but was told by Petrola he could not leave because the officers did not see what
was in the backpack. Defendant said he did not "want to show [Petrola]
anymore," and that he would wait for the detective to arrive.
Storch told Petrola he saw a baseball cap in the backpack. That
information was significant to Petrola because of the prior report that the suspect
wore a baseball cap.
Leskowski was the State's final witness at the suppression hearing. He
testified he is a twenty-five-year veteran of the Brick Police Department, and
recalled that on October 13, 2017 he received a report about the gas station
robbery. He traveled directly to the street where Storch was with defendant
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because he was informed Storch was with a possible suspect. When he arrived,
Storch, Petrola, and Alvarado were present with defendant seated on the curb.
Upon his arrival, Leskowski was informed defendant had opened his
backpack, and Storch reported seeing a "baseball-style cap similar to the one
that was broadcast [in] the description" of the suspect. Leskowski approached
defendant, asked "where he was, and where he was coming from," and defendant
became "a little irate." After defendant denied any knowledge of the robbery,
Leskowski left and went to the gas station to review video, photos, or anything
else that had been obtained by the officers present there.
The victim was not at the gas station because he had been transported to
the hospital. Other officers at the gas station directed Leskowski to a female,
who reported she saw the robbery. The witness said she was confident she could
identify the suspect if she saw him again. Another officer then drove the witness
to the location where defendant was seated on the curb, and the witness said she
was ninety-five percent sure defendant was the perpetrator, but his clothes were
different.
While Leskowski spoke with the witness at the gas station, he received a
report that a homeowner reported seeing someone changing clothes in the woods
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near his home. The homeowner also reported the individual left clothes in the
woods.
After the female witness identified defendant as the perpetrator of the
robbery, Leskowski met with the homeowner, who reported he had seen a black
male changing clothes in the woods near his home. The homeowner made a
comment to the man, who said he was going to the bathroom. The homeowner
described the clothes the man wore after he dressed.
Leskowski called Petrola and asked that he take a picture of defendant and
send it.4 Petrola took a picture of defendant seated on the curb and sent it to
Leskowski, who showed it to the homeowner. The homeowner immediately
identified defendant as the individual he had seen changing his clothes.
Leskowski returned to defendant's location and ordered that he be placed under
arrest.
Leskowski explained that around 5:20 p.m. he headed to the location
where defendant was located with Storch and the other officers. According to
4
In its decision on defendant's suppression motion, the court noted Petrola
testified Leskowski requested that he take a photo of defendant before defendant
opened his backpack and Storch looked inside. The court, however, found
Leskowski's version of the sequence of events more credible, and the court
concluded Leskowski did not request that Petrola take the photo of defendant
until after defendant opened the backpack and the witness to the robbery went
to defendant's location on the curb and identified him as the perpetrator.
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Leskowski, by that time he arrived at defendant's location, defendant had opened
the backpack and Storch had seen the baseball cap.
Leskowski also testified that after briefly speaking with the other officers
and defendant, over the following fifteen minutes he went to the gas station and
returned to defendant's location where the female witness reported she was
ninety-five percent certain defendant was the perpetrator.
Leskowski then left defendant's location again, traveled to meet the
homeowner, and requested and received the picture from Petrola that the
homeowner used to identify defendant. Leskowski explained he then returned
to defendant's location and ordered that he be placed under arrest. Leskowski
estimated that from the time he first left defendant's location until he returned
and ordered defendant be placed under arrest, about an hour had passed.
After hearing argument from counsel, the court rendered a decision from
the bench, first finding Leskowski "extremely candid and credible," Petrola
"very credible," and Storch's testimony, although at times argumentative,
included information necessary to the court's analysis of the issues.
The court found Storch's initial interaction and questioning of defendant
constituted a field inquiry. The court determined Storch was in close proximity
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to where a serious crime — a first-degree robbery — had been committed, and
he arrived in the area within a short time after the commission of the crime.
The court also found Storch initially followed defendant, but did not
impede defendant in any manner as he trailed behind him. The court further
found Storch initially could only determine defendant was a male who was
around six feet tall, and as Storch slowly followed defendant, he kept applying
the brakes so as not to catch up with the "walking suspect." The court noted that
others in the neighborhood looked at the patrol car when Storch applied the
brakes, but defendant never turned around to look. The court explained that
although defendant's failure to react to Storch's squeaking brakes was innocent
conduct by itself, it could be properly considered in the totality of the
circumstances in determining the validity of the officer's actions.
The court also found Storch had a conversation with defendant as he drove
alongside defendant. The court found the conversation constituted a field
inquiry during which Storch asked defendant where he was going, and defendant
said he was going home. When Storch asked defendant for his address,
defendant provided a response that contradicted his prior statement, saying he
was going to his girlfriend's house. The court determined Storch then asked
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defendant for his girlfriend's address and defendant provided the name of a
street, and Storch noted "you can't get there from here."
The court further found defendant accused Storch of racial profiling as
Storch initially questioned him. The court observed racial profiling is unlawful,
but it found no basis to conclude Storch's interaction with defendant constituted
racial profiling. The court determined Storch had received a report that a black
male about six-feet tall had committed the robbery, Storch started following
defendant before determining he was black, and defendant fit the suspect's
description and was seen in close proximity to the crime. The court concluded
Storch's initial field inquiry with defendant was not improper. 5
The court further found the field inquiry continued after Storch exited the
patrol car and walked alongside defendant while speaking with him. During that
time, Storch observed that defendant was extremely nervous, and his eyes were
darting about in a manner suggesting to Storch defendant was considering
whether to flee. While still talking to defendant, but without obstructing his
5
The court also found as fact that Storch's testimony defendant "did not belong
in the neighborhood" was not founded on defendant's race but instead was a
based solely on defendant's inconsistent and incredible responses to Storch's
questions about where he was going, where he lived, and where his girlfriend
purportedly lived.
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movement in any way, Storch also observed defendant was sweating profusely
on a cool October evening.
The court determined Storch then directed defendant to sit on the curb
and, at that point, the field inquiry became an investigative detention under
Terry v. Ohio, 392 U.S. 1 (1968). The court found there was reasonable and
articulable suspicion for the Terry stop because defendant was in close
proximity to the crime soon after it was committed, defendant fit the description
of the suspect, defendant provided inconsistent and incredible answers to
Storch's questions about where he lived and where he was going, and defendant
exhibited signs of nervousness — sweating and darting eyes.
The court addressed the search of the backpack that resulted from Storch's
look inside it. The court found defendant asked if he could leave, and Petrola
properly informed defendant he could leave if he consented to a search of his
backpack and the search confirmed defendant should not be a suspect. The court
also found Petrola fully informed defendant on three separate occasions he did
not have to consent to a search, he could refuse consent, and, if he consented,
he could stop the search at any time. The court determined defendant knew he
had the right to refuse to consent because he exercised that right a number of
times. The court also found defendant later voluntarily picked up the backpack
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and opened one of its compartments for a few seconds to allow Storch to look
inside. For those reasons, the court found the search of the backpack was lawful.
The court accepted Petrola's testimony Storch said he saw the ballcap in
the backpack, and the hat was significant because, as Leskowski testified, the
initial report of the robbery described the suspect as wearing a baseball cap. The
court further found Storch's observation of the hat provided an additional basis
for a reasonable and articulable suspicion defendant had committed the robbery
that warranted his continued detention.
The court also found Storch's testimony about seeing the ants on the
backpack credible. It accepted Petrola's testimony that the presence of the ants
on the backpack, and the absence of them on defendant, supported a suspicion
the backpack had been stored somewhere separate from defendant, to perhaps
secrete a change of clothes, a weapon, or the proceeds after the robbery.
The court relied on Leskowski's testimony that after he arrived at
defendant's location and spoke to him, Leskowski then left, went to the gas
station and returned with other officers and the witness, who identified
defendant as the perpetrator of the robbery. The court found the witness's
identification supported probable cause for defendant's arrest, even though he
was not arrested immediately following the witness's identification.
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The court also considered whether the length of defendant's detention was
reasonable. The court noted the imprecision in Storch's testimony about how
much time passed between different incidents occurring after he directed
defendant to sit on the curb, and the court found that from Storch's testimony
the timing could not be credibly determined. The court, however, determined
Leskowski's testimony, which the court found credible, clarified the timing and
sequence of the events.
The court found that based on Leskowski's testimony, the witness's
identification occurred approximately an hour after the start of the Terry stop,
and it supported defendant's continued detention thereafter until defendant was
arrested. The court also determined the approximately one-hour Terry stop was
not unnecessarily prolonged by the officers who were investigating an armed
robbery during which the victim was injured. The court concluded that based
on all the circumstances, the Terry stop was lawful, and the court denied
defendant's suppression motion.
Defendant subsequently pleaded guilty to first-degree robbery. The court
imposed a ten-year sentence subject to the requirements of NERA. This appeal
followed.
Defendant makes the following arguments:
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POINT I
THE TRIAL COURT ERRED IN DENYING THE
MOTION TO SUPPRESS EVIDENCE BECAUSE IT
WRONGLY FOUND THAT DEFENDANT WAS
DETAINED, RATHER THAN ARRESTED, WHEN
HE WAS REQUIRED TO SIT ON THE SIDEWALK
FOR AT LEAST AN HOUR WITH ARMED,
UNIFORMED POLICE OFFICERS STANDING
OVER HIM ON EACH SIDE.
POINT II
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE BECAUSE THE STATE FAILED TO
PROVE THAT DEFENDANT WAS NOT COERCED
INTO LETTING POLICE LOOK INSIDE HIS
BACKPACK WHEN HE WAS GIVEN AN
ULTIMATUM TO CONSENT TO A SEARCH OF HIS
BACKPACK OR REMAIN DETAINED
INDEFINITELY.
POINT III
THIS COURT SHOULD REMAND FOR
RESENTENCING FOR THE TRIAL COURT TO
RECONSIDER DEFENDANT'S SENTENCE BASED
ON THE NEW MITIGATING FACTOR, "THE
DEFENDANT WAS UNDER [TWENTY-SIX]
YEARS OF AGE AT THE TIME OF THE
COMMISSION OF THE OFFENSE," N.J.S.A. 2C:44-
1(b)(14), AND BECAUSE THE TRIAL COURT
ERRED IN FAILING TO FIND THAT THE
INTERESTS OF JUSTICE REQUIRED A
DOWNGRADE.
A. The New Youth Mitigating Factor Law Should Be
Given Retroactive Application.
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B. Alternatively, a Resentencing is Necessary Because
the Trial Court Erred by Failing to Find That the
Interests of Justice Required A Downgrade.
II.
Our review of a court's order denying a motion to suppress evidence is
limited. State v. Handy, 206 N.J. 39, 44 (2011). We defer to a motion court's
factual findings "so long as [they] are supported by sufficient credible evidence
in the record." State v. Vincenty, 237 N.J. 122, 131-32 (2019) (quoting State v.
Hubbard, 222 N.J. 249, 262 (2015)). We do so even if an opportunity for
independent review could lead to a different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964). Whether established facts warrant the grant or denial of a
suppression motion is a legal question subject to de novo review, Handy, 206 N.J. at 45, and, "[w]hen a question of law is at stake," our review is plenary,
State v. Mann, 203 N.J. 328, 337 (2010).
Defendant does not challenge the court's finding he was restricted to the
curb for an hour prior to the witness's identification of him as the perpetra tor of
the robbery.6 He also concedes the witness's identification established probable
6
Defendant does not dispute the court's factual finding he was restricted to the
curb for thirty minutes with Storch and the other officers, before Leskowski first
arrived at the defendant's location and that within thirty minutes after
Leskowski's arrival, the female witness identified him as the perpetrator.
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cause for his arrest. He argues that his confinement to the curb for the hour
constituted an unlawful de facto arrest without probable cause. He contends the
court therefore erred by finding he was subject to a lawful investigative
detention while confined to the curb.
Defendant also does not argue Storch improperly questioned him at the
outset, either while Storch first drove alongside defendant as he walked, or after
Storch exited the patrol car and walked with him. Defendant does not contend
Storch did not have a reasonable and articulable suspicion of defendant's
involvement in the robbery supporting a proper investigative detention. See
State v. Shaw, 237 N.J. 588, 612 (2019) (explaining "[p]olice must have a
particularized suspicion" based on "reasonable and . . . articulable facts" to
support "an investigatory stop"); see also State v. Rosario, 229 N.J. 263, 272
(2017) (stating an investigatory detention "must be based on an officer's
'reasonable and particularized suspicion . . . that an individual has just engaged
in, or was about to engage in, criminal activity'" (quoting State v. Stovall, 170 N.J. 346, 356 (2002))). To the contrary, defendant concedes Storch had
reasonable and articulable suspicion he was the perpetrator of the armed robbery
such that an investigative detention was proper.
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Defendant claims the investigatory stop was unnecessarily long and
intrusive and therefore constituted an unlawful de facto arrest long before the
witness identified him as the perpetrator. "An investigative stop occurs when 'a
reasonable person would have believed that he was not free to leave' and
constitutes a 'seizure' under the Fourth Amendment." State v. Gibson, 218 N.J.
277, 291 (2014) (quoting United States v. Mendenhall, 446 U.S. 544, 554
(1980)). "The duration of an investigative stop must be limited in time and scope
to the purpose that justified the stop in the first place." Ibid. (citing Florida v.
Royer, 460 U.S. 491, 500 (1983)). In Royer, the Court explained an
investigative stop must be temporary, must not last any longer than required to
effectuate the stop's purpose, and must employ "the least intrusive means
reasonably available to verify or dispel the officer's suspicions in a short period
of time." 460 U.S. at 500.
"[A]n investigative stop becomes a de facto arrest when the officers'
conduct is more intrusive than necessary for an investigative stop." State v.
Dickey, 152 N.J. 468, 478 (1998) (quoting United States v. Jones, 759 F.2d 633,
636 (8th Cir. 1985)). Factors relevant to determining if an investigative stop
has become a de facto arrest include: the duration of the stop, if it involves
unnecessary delay; "the degree of fear and humiliation that the police conduct
A-5454-18
21
engenders"; "transporting a suspect to another location or isolating him from
others"; "subjecting a suspect to unnecessary delays, handcuffing him, or
confining him in a police car." Id. at 479 (quoting United States v. Bloomfield,
40 F.3d 910, 917 (8th Cir. 1994)); see also Shaw, 237 N.J. at 612-13.
"Case law has recognized law enforcement's need to respond to the
fluidity of a street encounter where there is a reasonable suspicion of
wrongdoing; accordingly, the duration of the investigative stop may be extended
for a reasonable but limited period for investigative purposes." State v. Coles,
218 N.J. 322, 344-45 (2014). "In assessing whether a detention is too long in
duration to be justified as an investigative stop, [courts] . . . examine whether
the police diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly, during which time it was necessary to "
continue to detain the defendant. Dickey, 152 N.J. at 477 (quoting United States
v. Sharpe, 470 U.S. 675, 686 (1985)). Further, to avoid a detention becoming a
de facto arrest, the "'detention must be reasonable at both its inception and
throughout its entire execution.'" Shaw, 237 N.J. at 612 (quoting Coles, 218 N.J. at 344). "Once a de facto arrest occurs, the particularized suspicion that
originally supported the investigatory detention is no longer sufficient and the
arrest must be supported by probable cause." Coles, 218 N.J. at 346.
A-5454-18
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Our Supreme Court has determined as "[m]uch as a 'bright line' rule would
be desirable, in evaluating whether an investigative detention is unreasonable,
common sense and ordinary human experience must govern over rigid criteria."
Dickey, 152 N.J. at 476-77 (quoting Sharpe, 470 U.S. at 685). Further, the
United States Supreme Court has "emphasized the need to consider the law
enforcement purposes to be served by the stop as well as the time reasonably
needed to effectuate those purposes." Sharpe, 470 U.S. at 685.
Here, the officers were confronted with a report of an armed robbery in
which a victim was injured, and they responded quickly to the area where the
robbery occurred searching for the suspect. Storch had a reasonable and
articulable suspicion defendant committed the offense based on defendant's
physical proximity to the crime and the temporal proximity of his presence near
the crime scene: his physical characteristics were consistent with the description
of the suspect; his inconsistent, incredible, and contradictory responses to
Storch's questions; and his signs of nervousness, including his darting eyes and
excessive perspiration on a cool evening.
The officers' means of detaining defendant were not particularly intrusive.
Even though the officers had a reasonable and articulable suspicion defendant
may have committed an armed robbery, Storch did not pat-down defendant or
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search his backpack for weapons during the investigative detention. Defendant
was not handcuffed, placed in a police car, or transported to another locati on.
The officers did not draw their weapons or threaten defendant, and they testified
their discussions with him were at all times in a conversational tone. They told
defendant the reason they required him to remain — they were attempting to
determine whether he was the proper suspect — and they required only that
defendant remain at the curb in a public place while the officers attempted to
resolve that issue. There is no evidence the officers took any action that was
"more intrusive than necessary for an investigatory stop." Dickey, 152 N.J. at
478: see also Shaw, 237 N.J. at 612-13 (explaining "important factors" in
determining when a "prolonged investigative stop turns into a de facto
arrest . . . include unnecessary delays, handcuffing the suspect, confining the
suspect in a police car, transporting the suspect, isolating the suspect, and the
degree of fear and humiliation engendered by the police conduct"). 7
Also, within one half hour of the start of the investigative detention, the
police developed additional evidence that more strongly supported a reasonable
and articulable suspicion defendant was the perpetrator of the armed robbery.
7
We note there is no evidence defendant suffered any fear or humiliation that
was engendered by the officers' conduct.
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24
As noted, during the initial phase of the investigative detention — before
Leskowski first arrived — defendant opened his backpack and Storch observed
the black baseball cap that was consistent with the earlier report describing what
the suspect wore during the robbery. This information contributed to the
ongoing investigation, and further supported defendant's detention while the
police continued their diligent and ongoing efforts to determine if defendant was
the correct suspect.
There is no evidence the officers unduly delayed the investigative stop.
To the contrary, within an hour of initiating the investigatory detention,
Leskowski had traveled to defendant's location based on the report Storch had
stopped a suspect, he spoke to defendant in an effort to obtain information
pertinent to the investigation, and he traveled to the crime scene, where other
officers had already identified a witness. Leskowski also caused the witness to
go to defendant's location, where she identified defendant as the perpetrator. As
the motion court correctly recognized, and as defendant concedes on appeal, it
was at that point — within one hour of the initiation of the investigative
detention — that probable cause to arrest defendant was established.
"There is 'no rigid time limitation on Terry stops.'" State v. Chisum, 236 N.J. 530, 546 (2019) (quoting Sharpe, 470 U.S. at 685). Given the totality of
A-5454-18
25
the circumstances presented by the ongoing and quickly undertaken
investigation of a very serious crime, during which an armed suspect injured the
victim during the course of a robbery, we do not find the one-hour investigative
detention unreasonable. At all times, the officers "diligently pursued a means
of investigation that was likely to confirm or dispel their suspicion[]" defendant
was the correct suspect "during which it was necessary to detain" defendant.
Dickey, 152 N.J. at 477 (quoting Sharpe, 470 U.S. at 686); see also Chisum, 236 N.J. at 547. Thus, defendant was lawfully detained prior to the witness's
identification of him as the perpetrator of the robbery, at which time there was
probable cause for his arrest. The court properly denied defendant's motion to
suppress physical evidence seized following his arrest.
III.
Defendant also argues Storch's perusal of the hat in the backpack
constitutes an unlawful search because defendant opened the backpack in
response to a coercive ultimatum that he consent to a search of the backpack or
"remain detained indefinitely." We are not persuaded.
"Consent searches under the New Jersey Constitution are afforded a
higher level of scrutiny." State v. Carty, 170 N.J. 632, 639 (2002). The State
has the burden to prove that consent was "clear, knowing, voluntary,
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26
unequivocal, and express." State v. Sugar, 100 N.J. 214, 234 (1985).
Voluntariness must be determined from all the surrounding circumstances,
Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973), because consent
contemplates an exercise of choice, "and choice entails the opportunity to
evaluate the available options," State v. Johnson, 68 N.J. 349, 355 (1975)
(Schreiber, J., concurring); see also State v. Chapman, 332 N.J. Super. 452, 466
(App. Div. 2000).
The State is required to prove a valid waiver of the right to refuse consent
by "clear and positive testimony." State v. King, 44 N.J. 346, 352 (1965). Our
Supreme Court has identified several factors in determining voluntariness of
consent. Factors tending to show that consent was not voluntary include that
consent was given: (1) by an individual while under arrest; (2) despite a denial
of guilt; (3) only after the accused had refused initial requests for consent to
search; (4) where the subsequent search resulted in a seizure of contraband
which the accused must have known would be discovered; and (5) while the
defendant was handcuffed. Id. at 352-53. Factors tending to show voluntariness
of consent to search include that the accused: (1) had reason to believe that the
police would find no contraband; (2) admitted guilt before giving consent; and
(3) affirmatively assisted the police officers. Id. at 353.
A-5454-18
27
These factors are only "guideposts," because "[e]very case necessarily
depends upon its own facts. Thus, the existence or absence of one or more of
the aforementioned factors may be of great significance in the circumstances of
one case yet be of slight significance in another." Id. at 353.
Here, the court considered the King factors, noting that although
defendant had rejected prior suggestions he could consent to a search, and he
had denied guilt concerning the robbery during his conversations with Storch
and throughout the investigative detention, he was not under arrest when he
opted to open a compartment in his backpack to briefly show the officers what
was inside. Defendant also was not handcuffed.
During his interactions with the officers, they never directly requested
defendant's consent to search his backpack. Instead, they merely informed him
he could help them more quickly determine if he was the correct suspect if he
consented to a search. In each exchange defendant had with Petrola to that
effect, Petrola informed defendant he had a right to refuse consent, and, if he
gave consent, he could end the search at any time. As the court found, on three
occasions prior to his decision to open the backpack, defendant exercised his
right to refuse consent.
A-5454-18
28
Defendant's decision to open the backpack was not made in response to a
request from any officer. Instead, apparently anxious to leave the scene of the
investigative detention, defendant offered to open the backpack. Further,
defendant assisted the officers in conducting the search. He held the backpack
at all times; he unzipped the compartment he selected; and he closed the
compartment after opening it only for a few seconds. The court found
defendant's decision was a tactical one, made voluntarily to show only a portion
of the backpack's interior for the purpose of obtaining permission to leave.
However, even after defendant offered to show the officers the backpack, Petrola
again reminded him that he was not obligated to consent, he could refuse
consent, and, if he consented, he could stop the search at any time. In response
to Petrola's statements, defendant unzipped the backpack and showed it to
Storch.
We reject defendant's claim the search was coercive because the officers,
in response to defendant's oft-repeated stated desire to leave the scene, advised
him he could help them determine if he was the correct suspect by consenting to
a search of his backpack. In State v. Hagans, 233 N.J. 30, 41-42 (2018), the
Court held that consent to a search of an automobile was given voluntarily,
"without any type of coercion," despite police officers advising the driver of the
A-5454-18
29
vehicle that not allowing the search of the car was "only prolong[ing] the
inevitable," after the driver initially refused consent to search. The Court found
the officer's repeated explanation that the driver did not need to consent to the
search of the vehicle, "reminding her of her right to refuse consent," supported
the determination the driver "knowingly and voluntarily consented" to the
officer's search. Id. at 41, 43. The Court's holding applies with syllogistic
precision here.
The trial court considered the King factors as guideposts, and found
defendant made a fully informed and voluntary decision to consent to the search.
We discern no basis to question its findings of fact or conclusion the State
satisfied its burden of establishing the search was the product of a knowing and
voluntary consent. Defendant was fully aware of his right not to consent, and
made a voluntary decision, for tactical reasons, to offer the officers a brief
glimpse into his backpack. Storch's glimpse into the backpack was lawful and
does not permit or required the suppression of evidence later seized.
IV.
Defendant also makes two arguments challenging his sentence. He claims
he is entitled to a remand for resentencing because the court is obligated to
consider his relative youth as a mandatory statutory mitigating factor under
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30 N.J.S.A. 2C:14-1(b)(14). He also argues the court erred in its assessment of the
aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and (b), and had
the court properly found and weighed the factors, it should have determined he
is entitled to be sentenced in the range for a crime one-degree lower as permitted
under N.J.S.A. 2C:44-1(f)(2). We consider the arguments in turn.
The court sentenced defendant on May 31, 2019. The court imposed the
minimum sentence within the range for a first-degree offense, an aggregate ten-
year prison term, subject to NERA's requirements. See N.J.S.A. 2C:43-6(a)(1)
(setting sentencing range for a first-degree offense between ten and twenty
years). The following year, the Legislature enacted an amendment to N.J.S.A.
2C:44-1(b), adding a fourteenth mitigating factor, "[t]he defendant was under
26 years of age at the time of the commission of the offense," and declaring the
amendment was "effective immediately." L. 2020, c. 110 § 1, eff. Oct. 19, 2020
(codified at N.J.S.A. 2C:44-1(b)(14)).
Defendant argues that although the amendment was not effective until
seventeen months after his sentencing, it should be given pipeline retroactivity
and therefore requires a remand for resentencing. "Pipeline retroactivity" is the
retroactive application of a new law to a case that is in the process of direct
A-5454-18
31
appeal, or pipeline, at the time the law became effective. State v. G.E.P., 243 N.J. 362, 370 (2020).
A determination whether a statute applies retroactively "is a purely legal
question of statutory interpretation." State v. J.V., 242 N.J. 432, 442 (2020)
(quoting Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)). In
making the determination, "[t]he overriding goal . . . 'is to determine as best
[this court] can the intent of the Legislature, and to give effect to that intent.'"
Id. at 442 (first alteration in original) (quoting State v. S.B., 230 N.J. 62, 67
(2017)). We must "look to the statute's language and give those terms their plain
and ordinary meaning." Ibid.; see Johnson, 226 N.J. at 386 (explaining "the best
indicator of that intent is the plain language chosen by the Legislature" (quoting
Cashin v. Bello, 223 N.J. 328, 335 (2015))). Where the terms are "clear and
unambiguous, then the interpretive process ends, and" this court must "apply the
law as written." Id. at 443 (quoting Murray v. Plainfield Rescue Squad, 210 N.J.
581, 592 (2012)). Where "the statutory text is ambiguous, we may resort to
'extrinsic interpretative aids, including legislative history,' to determine the
statute's meaning." Ibid. (quoting S.B., 230 N.J. at 68).
Our Supreme Court has found the Legislature's declaration that a statute
is "effective immediately" reflects a determination the statute shall have
A-5454-18
32
prospective effect. For example, in Pisack v. B & C Towing, Inc., the Court
held the Legislature's determination and declaration a statute shall be effective
immediately "bespeak[s] an intent contrary to, and not supportive of, retroactive
application." 240 N.J. 360, 371 (2020) (quoting Cruz v. Cent. Jersey
Landscaping, Inc., 195 N.J. 33, 48 (2008)). Similarly, in State v. Parolin, the
Court held that amendments to NERA, removing the offense for which the
defendant was convicted from NERA's coverage, did not apply retroactively
because the Legislature provided the amendment would "take effect
immediately." 171 N.J. 223, 233 (2002).
We may properly presume the Legislature was fully aware of judicial
interpretations of statutory language, N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 195 n.6 (2002), and therefore the Legislature understood that,
consistent with the Court's decisions in Pisack and Parolin, making N.J.S.A.
2C:44-1(b)(14) "effective immediately" constituted a clear and unambiguous
declaration the amendment was prospective only. 8 See Pisack, 240 N.J. at 371;
Parolin, 171 N.J. at 233. "Thus, the Legislature is deemed to have been fully
aware that," if it sought to make application of mitigating factor prospective, it
8
The Court decided Pisack on January 16, 2020, ten months before the
enactment of N.J.S.A. 2C:44-1(b)(14). 240 N.J. at 360. The Court decided
Parolin in 2002. 171 N.J. at 233.
A-5454-18
33
should not have declared it effective immediately, and "should have expressly
provided for such application in the amendment's text." Olkusz v. Brown, 401 N.J. Super. 496, 502 (App. Div. 2008).
The statute also does not include any language suggesting an intent that it
apply prospectively or rendering its "effective immediately" language
something other than the declaration of prospective application recognized in
Pisack and Parolin. See Olkusz, 401 N.J. Super. at 502 (noting "the Legislature's
silence on the question of retroactivity" in the face of canons of statutory
construction supporting prospective application "is akin to a legislative flare,
signaling to the judiciary that prospective application is intended").
For those reasons, we reject defendant's claim mitigating factor fourteen,
N.J.S.A. 2C:44-1(b)(14), should be given retroactive application. The clear and
unambiguous language used by the Legislature, and as consistently interpreted
by our Supreme Court, does not permit an interpretation that the amendment
applies retroactively to individuals, like defendant, who were sentenced prior to
October 19, 2019. As we held in State v. Bellamy, mitigating factor fourteen
does not apply retroactively to sentences imposed prior to the effective date of
N.J.S.A. 2C:44-1(b)(14), and the mitigating factor may properly be applied only
to sentencings, including re-sentencings following a remand on appeal,
A-5454-18
34
occurring on or after N.J.S.A. 2C:44-1(b)(14)'s October 19, 2019 effective date.
468 N.J. Super. 29, 46-48 (App. Div. 2021).
Because the clear and unambiguous language of the statutory amendment
does not permit retroactive application under the circumstances presented here,
see id. at 48, it is unnecessary to address defendant's remaining arguments
supporting its claim the statute should be applied retroactively, see J.V., 242 N.J. at 443 (explaining a court's interpretation of a statute ends where the
statute's terms are clear and unambiguous).
Defendant also argues the court improperly considered the mitigating and
aggravating factors at his sentencing, and "had the court conducted a proper
weighing of the applicable aggravating and mitigating factors, the court would
have concluded that a downgraded sentence in the second-degree range was
required" under N.J.S.A. 2C:44-1(f)(2). He contends the court failed to "provide
a reasoned explanation for its conflicting finding of aggravating factor three and
mitigating factor seven," N.J.S.A. 2C:44-1(a)(3); N.J.S.A. 2C:44-1(b)(7); "it
was error for the [trial] court to give great weight to aggravating factor nine,"
N.J.S.A. 2C:44-1(a)(9); and the trial "court also failed to address mitigating
factors four and nine, as were requested by [his] counsel." Defendant claims
that had the factors properly been considered, the court should have imposed a
A-5454-18
35
sentence in the second-degree range for his first-degree robbery conviction as
permitted under N.J.S.A. 2C:44-1(f)(2).
"Appellate courts review sentencing determinations in accordance with a
deferential standard. The reviewing court must not substitute its judgment for
that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). We must
affirm a sentence unless: 1) the trial court failed to follow the sentencing
guidelines; 2) the court's findings of aggravating and mitigating factors were not
based on competent and credible evidence in the record; or 3) "the [court's]
application of the guidelines to the facts of [the] case makes the sentence clearly
unreasonable so as to shock the judicial conscience." Id. at 70 (second alteration
in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). "When the
court fails to provide a qualitative analysis of the relevant sentencing factors on
the record, an appellate court may remand for resentencing." Ibid.
We first consider defendant's claim the court erred by failing to sentence
him in the second-degree range for his conviction of first-degree robbery as
permitted under N.J.S.A. 2C:44-1(f)(2). The statute provides a court may
sentence a defendant "to a term appropriate to a crime of one degree lower than
that of the crime for which the defendant was convicted," if "the court is clearly
A-5454-18
36
convinced that the mitigating factors substantially outweigh the aggravating
factors and where the interest of justice demands." N.J.S.A. 2C:44-1(f)(2).
To sentence a defendant within a range one-degree lower than the crime
for which the sentence is imposed, the court must not only "consider general
sentencing principles," it "must [also] consider whether there is a compelling
reason to downgrade defendant's sentence in the interest of justice under section
44-1(f)(2)." State v. Megargel, 143 N.J. 484, 501 (1996). "The reasons" for the
downgrade "must be in addition to, and separate from, the 'mitigating factors
which substantially outweigh the aggravating factors,' that the trial court finds
applicable to a defendant under the first prong of [N.J.S.A. 2C:]44-1(f)(2)."
Ibid.
Moreover, when deciding whether a downgrade is appropriate, the focus
must be on the crime because the downgrade statute "is an offense-oriented
provision." State v. Lake, 408 N.J. Super. 313, 328 (App. Div. 2009). The
sentence must "reflect the Legislature's intent that the severity of the crime [is]
the most single important factor in the sentencing process." Megargel, 143 N.J.
at 500. A trial court should not downgrade if the "surrounding circumstances of
an offense" do not "make it very similar to a lower degree offense." Ibid. The
court should also consider the defendant's "role in the incident to determine the
A-5454-18
37
need to deter him from further crimes and the corresponding need to protect the
public from him." Id. at 501.
We discern no abuse of the court's discretion in its determination
defendant was not entitled to a sentence in the second-degree range under
N.J.S.A. 2C:44-1(f)(2). In finding no compelling circumstances warranting a
downgrade of the sentencing range, the court properly considered the
circumstances of the offense and defendant's role in it, and found the crime was
premeditated, carefully planned, and involved the use of a weapon that caused
injury to the victim. And defendant does not argue there is a crime in the second-
degree range similar to the armed robbery he committed here. See id. at 500.
Defendant's argument that a reassessment of the aggravating and
mitigating factors would result in a finding of a compelling reason establishing
that a downgrade in the sentencing range is in the interest of justice, ignores that
the reasons establishing the interest of justice required under N.J.S.A. 2C:44-
1(f)(2) must be separate, and in addition to, the weighing of aggravating and
mitigating factors. Id. at 501. The court correctly recognized and applied that
A-5454-18
38
legal standard and did not abuse its discretion in denying defendant's request for
the sentencing range downgrade. 9
Defendant also claims the court erred by finding aggravating factor three,
the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3),
because it conflicts with the court's finding of mitigating factor seven, defendant
did not have a prior criminal record, N.J.S.A. 2C:44-1(b)(3). He relies on State
v. Case, where the Court found factor seven "stood as a counterpoise to the
finding of a risk that defendant was likely to commit another offense." 220 N.J.
49, 67 (2014). The Court did not, however, determine a finding of mitigating
factor seven precluded a finding of aggravating factor three, and it explained it
"did not presume" the two factors could not "coexist." Ibid. The Court found
the sentencing court erred because it did not make its finding of aggravating
factor three "grounded on competent, credible evidence," or "give a reasoned
9
As we explain, the court also correctly denied the request for the sentencing
downgrade based on its finding and weighing of the aggravating and mitigating
factors. As noted, a court must first find the mitigating factors substantially
outweigh the mitigating factors in order to consider downgrading the sentencing
range under N.J.S.A. 2C:44-1(f)(2). Here, the record supports the court's
determination the aggravating factors outweighed the mitigating factors, and,
for that additional reason, a downgrade of the sentencing range was not
appropriate under N.J.S.A. 2C:44-1(f)(2).
A-5454-18
39
explanation for its conclusion [the] first-time offender presented a risk to
commit another offense." Ibid.
Here, the sentencing court provided the reasoned explanation for its
findings of aggravating factor three and mitigating factor seven that the Court
found lacking in Case. The sentencing court found that despite defendant's lack
of a prior record, there was a risk he would commit another offense because he
had carefully planned and executed the very serious crime, armed robbery, for
which he was convicted. We find no abuse of discretion in the court's reasoning
or determination.
Defendant also claims the court erred by failing to find mitigating factor
four, there were substantial grounds tending to excuse defendant's conduct,
N.J.S.A. 2C:44-1(b)(4). Defendant claims he has a history of being abused and
attendant emotional issues supporting a finding of mitigating factor four. We
are not persuaded by the claim because there is no evidence the purported history
or emotional issues played a role in his commission of the robbery. Indeed,
during the presentence investigation, defendant reported to the probation
department he committed the robbery because he was "desperate and needed
money."
A-5454-18
40
We similarly reject defendant's claim the court erred by failing to find
mitigating factor nine, the character and attitude of defendant show he is
unlikely to reoffend, N.J.S.A. 2C:44-1(b)(9). He claims even the court noted he
had taken responsibility for the commission of the robbery and had utilized his
time in custody prior to sentencing to participate in various programs designed
to reduce defendant's chances of recidivism. He argues the court then erred by
failing to find his character and attitude was such that he was unlikely to
reoffend.
The court was aware of defendant's self-improvement efforts while in
custody; the court mentioned them during the sentencing proceeding. The court,
however, was not persuaded those efforts established defendant had the
character and attitude of an individual unlikely to reoffend. Again, the court
focused on defendant's actions in carefully planning the robbery—with a
disguise, hidden clothes for a change after the commission of the crime, and the
use of a weapon—as reflective of a character and attitude evincing a likelihood
of reoffending. That is the reason the court found aggravating factor three, and
that is the reason the court did not find mitigating factor nine. Again, we discern
no abuse of discretion in the court's findings, which are supported by the record.
A-5454-18
41
Defendant's remaining sentencing arguments, as well as any other
arguments made on appeal that we have not directly addressed, are without
sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).
Affirmed.
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42
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