STATE OF NEW JERSEY v. CARLOS I. ALCANTARA (16-10-1566, MIDDLESEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0509-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS I. ALCANTARA,
Defendant-Appellant.
_______________________
Submitted March 16, 2022 – Decided July 1, 2022
Before Judges Hoffman and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 16-10-
1566.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from his guilty plea conviction for first-degree
racketeering and from the twelve-year prison sentence that was imposed in
accordance with the negotiated plea agreement. Defendant challenges the
January 29, 2019 order issued by Judge Joseph L. Rea denying defendant's
motion to suppress evidence that had been seized from his vehicle pursuant to a
consent-to-search given after he was arrested for an active warrant. Although
defendant does not challenge the lawfulness of the motor vehicle stop and his
ensuing arrest based on the outstanding warrant, he alleges that the officer's
entry into the vehicle to look for an insurance identification card was a pretext
and that the officer did not have reasonable and articulable suspicion to justify
the consent search that was later conducted at the police station. Defendant
further contends that Judge Rea abused his discretion by refusing to reopen the
suppression hearing and expand the record to include an electronic enhancement
of the audio portion of the mobile video recording (MVR) of the roadside
encounter. After carefully reviewing the record in light of the arguments of the
parties and the applicable principles of law, we reject defendant's contentions
and affirm the denial of the suppression motion. We also reject defendant's
argument that the sentence imposed was excessive.
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I.
We discern the following facts from the plea hearing. Defendant admitted
that he became involved in a theft and racketeering enterprise, rose through the
ranks of the enterprise, and recruited others to join the conspiracy. Defendant
and his coconspirators formed shell corporations and established bank accounts
into which they deposited stolen money. The money would then be transferred
abroad. The factual basis for the guilty plea shows that more than $500,000
passed through the racketeering enterprise.
In October 2016, a Middlesex County grand jury indicted defendant and
forty-four codefendants with: first-degree racketeering, N.J.S.A. 2C:41-2(c)
and 2C:41-2(d) (count one); second-degree conspiracy to commit theft, financial
facilitation of criminal activity, receiving stolen property and promoting
organized street crime, N.J.S.A. 2C:5-2, 2C:20-4(a) and 2C:21-25(a) (count
two); second-degree leader of organized crime, N.J.S.A. 2C:5-2(g) (count
three); first-degree financial facilitation of criminal activity (money laundering),
N.J.S.A. 2C:21-25(a), 2C:21-25(b) or 2C:21-25(c) (count four); first-degree
promoting organized street crime, N.J.S.A. 2C:33-30 (count five); second-
degree theft by deception, N.J.S.A. 2C:20-4(a) and 2C:2-6 (count six); second-
degree receiving stolen property, N.J.S.A. 20:20-7 and 2C:2-6 (count seven);
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second-degree misconduct by a corporate official, N.J.S.A. 2C:41-2(c), 2C:5-2,
2C:21-25, 2C:33-30, 2C:20-7, 2C:21-4(a), 2C:21-9(c), and 2C:2-6 (count eight);
fourth-degree falsifying records, N.J.S.A. 2C:21-4(a) (count nine); third-degree
failure to file business tax returns, N.J.S.A. 54:52-8 (count ten); third-degree
failure to file personal tax returns, N.J.S.A. 54:52-8 (count eleven); third-degree
failure to pay income taxes, N.J.S.A. 54:52-9 (count twelve); and third-degree
filing a fraudulent tax return, N.J.S.A. 54:52-10 (count thirteen).
Defendant moved to suppress physical evidence seized from his vehicle.
Judge Rea presided over the suppression hearing, which occurred over the
course of three days in July, September, and November 2018. The State
presented testimony from three witnesses: an FBI agent from Florida,
Investigator Ryan Tighe from the Middlesex County Prosecutor's Office
(MCPO), and Perth Amboy Police Officer Dennis Marte, who executed the
initial motor vehicle stop.
On January 29, 2019, Judge Rea denied the motion to suppress, rendering
a comprehensive oral opinion that spanned more than thirty pages of transcript.
On June 26, 2019, Judge Rea denied defendant's motion to supplement and
expand the motion-to-suppress record with an enhanced audio recording of the
dashcam recording of the motor vehicle stop.
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On the same day, defendant pled guilty to count one, first-degree
racketeering, pursuant to a negotiated agreement. The State agreed to dismiss
the remaining counts and to recommend a sentence of twelve years in prison,
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant
agreed to cooperate with the FBI and the United States Attorney's Office for the
Southern District of Florida.
Defendant provided a factual basis for the guilty plea and Judge Rea
accepted it. On October 8, 2020, Judge Rea sentenced defendant in accordance
with the plea agreement to twelve years in prison, subject to NERA. In
accordance with Rule 3:5-7(d), defendant preserved the right to appeal the denial
of the motion to suppress.
This appeal follows. Defendant raises the following contentions for our
consideration:
POINT I
THE TRIAL COURT ERRED WHEN IT FAILED TO
CONSIDER THE ENHANCED AUDIO RECORDING
WHICH CLEARLY CALLED INTO QUESTION THE
VERACITY OF THE ARRESTING OFFICER'S
TESTIMONY THAT DEFENDANT DID NOT HAVE
AN INSURANCE CARD, THUS CALLING INTO
QUESTION WHETHER THE ENTRY INTO
DEFENDANT'S VEHICLE WAS LAWFUL.
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POINT II
AS THE ARRESTING OFFICER LACKED AN
ARTICULABLE REASONABLE SUSPICION THAT
DEFENDANT HAD ENGAGED IN, OR WAS
ABOUT TO ENGAGE IN, CRIMINAL ACTIVITY,
THERE WAS NO BASIS TO ASK DEFENDANT FOR
CONSENT TO SEARCH HIS VEHICLE.
POINT III
AS THE ARRESTING OFFICER'S ENTRY INTO
DEFENDANT'S VEHICLE TO ALLEGEDLY LOOK
FOR AN INSURANCE CARD WAS A PRETEXT,
THE ENTRY AND SUBSEQUENT SEARCH WAS
UNLAWFUL AND ANY SEIZURE THEREOF MUST
BE SUPPRESSED AS "FRUIT OF THE POISONOUS
TREE."
POINT IV
THE TRIAL COURT'S CUMULATIVE ERRORS
DENIED DEFENDANT A FAIR AND RELIABLE
HEARING.
POINT V
DEFENDANT'S SENTENCE WAS MANIFESTLY
EXCESSIVE AND UNFAIR UNDER THE
CIRCUMSTANCES.
II.
We first address defendant's contention that Judge Rea erred in denying
the motion to suppress. Specifically, defendant contends Officer Marte's entry
into the detained vehicle to look for the insurance identification card before it
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was towed was a pretext to search the car for criminal evidence. He also
contends that the officer did not have reasonable and articulable suspicion of
criminal activity to justify asking defendant for permission to conduct a consent
search.
A.
The following pertinent facts were elicited at the suppression hearing. On
February 24, 2016, Officer Marte was on patrol in a marked police vehicle that
was equipped with a mobile data terminal. As he drove westbound on Smith
Street in Perth Amboy, Marte ran a random license plate check on a Honda
Crosstour that had passed him. 1 That check revealed that there was an
outstanding warrant for the registered owner.
Officer Marte turned around, activated the lights and siren on his patrol
vehicle, and initiated a stop of the Honda on Smith Street near a Conrail station.
Defendant pulled over and stopped in a no parking zone.
Marte approached the driver's side door. Defendant, who was the sole
occupant of the vehicle, lowered the window and the officer asked him to
1
Defendant does not challenge the officer's authority to run a random license
plate check or to stop defendant's vehicle once the officer determined that there
was an outstanding arrest warrant for the registered owner. See State v. Segars,
172 N.J. 481 (2002); State v. Donis, 157 N.J. 44 (1988).
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produce his driving credentials. Defendant produced a valid driver's license and
registration but was not able to produce a valid insurance identification card.2
While standing outside the car, Marte observed numerous credit cards scattered
on the front passenger seat, along with a large sum of money and other
documents. Having established defendant's identity and that he was the
registered owner of the vehicle, Marte confirmed with the police dispatcher that
there was an outstanding warrant for defendant's arrest. 3
Officer Marte instructed defendant to get out of the Honda. As defendant
exited, Marte again saw through the open door cash, credit cards, and documents
scattered on the passenger side. Marte testified that as he stood by the driver's
side door, he could see in the center console area the paperwork and cards "all
over the seats," including paperwork on the floor. The credit cards were "all
over the place." As he stood outside the vehicle, Marte could not see the names
on the various cards.
2
Marte eventually issued a ticket to defendant for not having an insurance card
as required by N.J.S.A. 39:3-29.
3
The warrant had been issued because of defendant's failure to pay a $550 fine
for a motor vehicle violation for unsafe driving. Defendant does not dispute the
validity of the arrest warrant or the lawfulness of the arrest based upon that
warrant.
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Marte advised defendant that he was being arrested on the outstanding
warrant and proceeded to handcuff him. Marte then conducted a search of
defendant's person that revealed a wad of cash in the amount of $10,000 in the
breast pocket of defendant's jacket. The cash was wrapped in a band from the
bank that had a date on it from the month of October. Defendant explained that
the money was a tax refund. 4 Marte testified that he was skeptical of that
explanation because the bank band around the money was from October—four
months before the present encounter. Marte testified that the amount of cash on
defendant's person and the items scattered in the Honda made him suspicious
because he knew about credit card fraud and the scamming of ATM cards. He
had been instructed to be on the lookout for this type of fraud.
Marte secured defendant in the police car and called for back-up
assistance. Marte determined to have the car impounded because defendant's
vehicle had pulled over and come to a stop in a tow away zone, and there was
no other vehicle occupant to drive the car away. 5
4
Defendant on appeal does not contend that Marte violated defendant's rights
under Miranda v. Arizona, 384 U.S. 436 (1966).
5
The officer acknowledged that there was metered parking on another part of
Smith Street, but noted that no one would be available to keep putting money
into a meter.
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It took about twenty to twenty-five minutes for the tow truck to arrive.
Marte testified that he needed defendant's registration and insurance information
to complete the towing report.
The MVR recording shows that Marte leaned into the vehicle twice. The
officer testified that the first time he was looking for defendant's insurance card.
The second time, he was looking for the keys in the ignition and the insurance
card. As he leaned into the vehicle, Marte saw the same credit cards and
paperwork that he had observed while he was standing outside the vehicle.
Marte testified that the interior of the vehicle was "a mess" and that he leaned
into the vehicle for about sixty seconds. He did not move anything that he saw
and did not seize anything from the Honda at the scene of the stop.
Defendant's vehicle was towed to police headquarters. Marte followed
the tow truck with defendant in the back seat of the police car. The MVR in the
patrol car continued to record. During the drive to police headquarters,
defendant asked what he needed to do to get his car back. Marte told him that
he needed to produce a valid insurance card.
Once at police headquarters, Officer Marte and his supervising sergeant
advised defendant of his Miranda rights. The Miranda waiver form was read to
defendant in English. Defendant waived his Miranda rights.
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The officers next presented defendant with a consent to search form and
asked for his consent to search his vehicle. Defendant granted consent and
indicated that he wanted to be present during the search of his vehicle.
The motor vehicle stop, the ride to police headquarters, the administration
of Miranda warnings, and the consent-to-search waiver colloquy were all
electronically recorded. The recordings were played in open court during the
suppression hearing.
The police searched defendant's car pursuant to the consent and seized:
numerous credit cards with different names of persons and businesses,
documents pertaining to wire transfers to China for large amounts of money,
$4900 in cash, and three cell phones. No insurance card was found in the
vehicle.
Defendant argued at the hearing that the evidence seized from his vehicle
should be suppressed because there was no probable cause to believe his vehicle
contained contraband and thus the automobile exception to the warrant
requirement did not apply. Defendant also argued that police did not have a
particularized and reasonable suspicion of criminal activity to justify asking
defendant for consent to search the vehicle. Defendant also argued that Marte
had entered the car under the pretext of looking for a missing insurance
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identification card and that the ensuing search at the police station was a fruit of
that pretext.
The State argued that defendant had been pulled over and arrested based
on an active warrant and, thus, it was not necessary for police to have reasonable
suspicion to ask for consent, but that in any event, there was reasonable and
articulable suspicion to believe that the car contained evidence of criminal
activity to justify the consent search.
The State also argued that material in the car was lawfully seized under
the plain view doctrine because Marte was lawfully present outside the car when
he first saw them and also was lawfully present inside the vehicle while
conducting a credentials search.
The State further argued in the alternative that even if the search was
unlawful, the evidence is admissible under the inevitable discovery and
independent source exceptions to the exclusionary rule in view of an ongoing
federal investigation. 6
6
We note that much of the State's evidence presented at the three-day
suppression hearing pertained to an ongoing federal money laundering
investigation. Because we agree with the trial court that the consent search was
lawful, we need not discuss the motion hearing testimony about the federal
investigation, which is pertinent only to the State's argument that the material
seized from defendant's car would inevitably have been discovered as part of the
federal investigation.
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B.
Judge Rea issued his decision from the bench on January 29, 2019. The
judge noted at the outset that he had watched the MVR video, and he commented
on the poor quality of the audio. He first ruled on the State's inevitable discovery
and independent source arguments. He rejected those arguments, and instead
found that at the time of the motor vehicle stop, the FBI was already
investigating defendant for suspected criminal activities in Florida. Judge Rea
also found, however, that there was no link in the federal investigation to
activities in New Jersey until after the FBI saw the county's press release and
then contacted the MCPO.
Judge Rea also rejected the State's argument that the materials could
lawfully have been seized from the car under the plain view exception to the
warrant requirement. Judge Rea noted that while Officer Marte had testified
credibly that he observed the credit cards, paperwork, and the cash while
standing outside defendant's vehicle, he had not noticed the names on any of the
cards. Even when he was inside the vehicle looking for an insurance card, Marte
did not look at the names on the cards. Thus, Judge Rea reasoned, Marte's
observations established only the presence of the credit cards and cash but not
probable cause to believe that they were the proceeds or instrumentalities of
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criminal activity. Accordingly, the plain view exception does not apply. See
Minnesota v. Dickerson, 508 U.S. 366, 379 (1993) (holding that probable cause
to believe an object is contraband or evidence of a crime must be immediately
apparent to justify a plain view or touch seizure).
Judge Rea next found that Marte's testimony was "very credible." The
judge held that Officer Marte had properly initiated a stop of defendant's motor
vehicle. Based upon his viewing of the MVR video, the judge found that the
officer approached the driver's side window and that he and defendant
exchanged paperwork. Judge Rea explained that he could discern from the MVR
recording that during the trip to the police station Marte told defendant that he
could not take back possession of his vehicle without proof of insurance. That
supported the officer's testimony that defendant had not produced a valid
insurance identification card. Judge Rea further noted that Marte issued a ticket
for failure to produce that document. The judge ruled that Officer Marte was
thus entitled to conduct a limited search for the insurance card. Judge Rea also
found credible Marte's testimony that while he was inside the vehicle, his search
was limited to looking for an insurance card and that he did not conduct an
impermissible search of the items he saw in the passenger cabin.
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Judge Rea also found that there was a lawful basis to tow the vehicle to
the police station. The judge reasoned that because defendant had not produced
a valid insurance card, the vehicle could not be driven. The judge further noted
that the vehicle had stopped in a no parking zone on a busy street. The police
thus had no option but to have the vehicle towed.
Importantly for purposes of this appeal, Judge Rea also found that once at
the station, the officers had lawful authority to ask for permission to conduct a
consent search. Judge Rea held that the police had reasonable suspicion to
believe the vehicle contained evidence of criminal activity, satisfying the
requirement set forth in State v. Carty, 170 N.J. 632 (2002). The judge
concluded that the police "would have been derelict in their duties" if they had
not asked for consent to investigate whether the credit cards strewn about in the
vehicle were legitimate.
Judge Rea further ruled that the MVR recording showed that the police
properly went through the consent-to-search form with defendant. Defendant
was no longer in handcuffs and the judge saw on the video that defendant
checked off on the form that he was granting consent and also checked off on
the form that he wanted to be present during execution of the search. The judge
added that the police followed "the textbook way" of obtaining consent. J udge
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Rea thus concluded that the State had met its burden of proving by "clear and
positive" evidence that defendant had knowingly and voluntarily consented to
the search.
C.
We begin our analysis by acknowledging the legal principles governing
this appeal. We review a trial court's ruling on a motion to suppress evidence
"with substantial deference to the trial court's factual findings, which we 'must
uphold . . . so long as those findings are supported by sufficient credible
evidence in the record.'" State v. Hinton, 216 N.J. 211, 228 (2013) (quoting
State v. Handy, 206 N.J. 39, 44 (2011)). This deference applies to "factual
findings based on a video recording or documentary evidence" to ensure that
trial courts remain "the finder of the facts." State v. S.S., 229 N.J. 360, 381
(2017). We review a trial court's legal conclusions de novo. Id. at 380.
To effectuate a lawful investigatory stop, an officer must show "'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 v. Ohio, 392 U.S 1, 21
(1968)). "The 'articulable reasons' or 'particularized suspicion' of criminal
activity must be based upon the law enforcement officer's assessment of the
A-0509-20
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totality of the circumstances . . . ." State v. Davis, 104 N.J. 490, 504 (1986).
"There must be 'some objective manifestation that the person [detained] is, or is
about to be engaged in criminal activity.'" State v. Pineiro, 181 N.J. 13, 22
(2004) (alteration in original) (quoting United States v. Cortez, 449 U.S. 411,
417–18 (1981)). However, "[t]he suspicion need not rise to the 'probable cause
necessary to justify an arrest.'" Id. at 20 (quoting State v. Nishina, 175 N.J. 502,
511 (2003)).
When, during a lawful stop, a driver is unwilling or unable to present proof
of his driving credentials as required by N.J.S.A. 39:3-29, the police may
conduct a limited search of those places in the vehicle where those credentials
are ordinarily kept. See State v. Terry, 232 N.J. 218, 222 (2018). The search is
a limited one, and must be confined to the glove compartment or other areas,
such as the center console area, where the driving credentials reasonably might
be found. Id. at 223; State v. Hamlett, 449 N.J. Super. 159, 174 (App. Div.
2017). Furthermore, the driver must be given an opportunity to present his
registration or his insurance information before the police may conduct a search
for those credentials. State v. Keaton, 222 N.J. 438, 442–43 (2015).
A consent search is another one of the well-defined exceptions to the
warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973);
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State v. Johnson, 68 N.J. 349, 353–54 (1975); State v. King, 44 N.J. 346, 352
(1965). It is, of course, fundamental that consent to search must be voluntary.
Bustamonte, 412 U.S. at 222. Moreover, under the New Jersey Constitution, a
consent to search is valid only if the person giving consent has knowledge of his
or her right to refuse. Johnson, 68 N.J. at 353–54. In deciding whether consent
to search was voluntarily and knowingly given, a reviewing court must consider
the totality of the circumstances. King, 44 N.J. at 352–53. "Voluntariness is a
question of fact to be determined from all the circumstances." Bustamonte, 412
U.S. at 248–49. To meet its burden of proof, the State is required to prove
voluntariness by "clear and positive testimony." King, 44 N.J. at 352; State v.
Douglas, 204 N.J. Super. 265, 277 (App. Div. 1985). Under the New Jersey
Constitution, when the police request a consent to search during the course of a
motor vehicle stop, the police must have a reasonable and articulable suspicion
that the search will produce evidence of criminal wrongdoing. Carty, 170 N.J.
at 635.
We next apply these general principles to the facts of this case as found
by the trial court. We agree that the search of defendant's car was lawfully
conducted pursuant to the consent search doctrine for the reasons explained in
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Judge Rea's thorough and thoughtful oral opinion. We add the following
comments.
We agree that the stop was lawfully initiated based on information learned
during a lawful random license plate check that the registered owner of the
vehicle was subject to an active arrest warrant. Defendant was lawfully arrested
pursuant to the warrant once Officer Marte determined that defendant was the
registered owner and confirmed with the dispatcher that the warrant was valid
and active. We also agree that Officer Marte was permitted to lean into the
vehicle to look for the insurance identification after defendant had been given
an opportunity to produce it.
We reject defendant's contention that the credentials search was a pretext
to search the car for evidence of criminality. For one thing, the lawfulness of
police conduct is measured by an objective standard. The subjective thoughts
of an officer are not relevant. See State v. Bruzzese, 94 N.J. 210, 223 (1983)
(holding the Fourth Amendment proscribes unreasonable actions, not improper
thoughts); see also State v. Gonzales, 227 N.J. 77, 82 (2016) (eliminating the
inadvertence requirement from the plain view exception, noting it is inconsistent
with the strong preference for objective standards of reasonableness and
A-0509-20
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inadvertence analysis calls for subjective inquiry into an individual officer's
motivations).
Furthermore, we accept Judge Rea's finding that Marte testified truthfully
as to the reason why he entered the vehicle and that he did not move or examine
the credit cards and thus did not learn anything about them that he did not
already know from his observations made from outside the vehicle.
We reject defendant's claims that the search of his vehicle at the police
station violated State v. Witt, 223 N.J. 409 (2015). That case establishes the
elements of the automobile exception to the warrant requirement under the New
Jersey Constitution. The State does not rely, however, on that exception.
Rather, the State contends—and Judge Rea found—that the warrantless search
of defendant's car at the police station falls under the consent search exception
to the warrant requirement.
We add with respect to the consent search doctrine that defendant's
reliance on Carty is misplaced. In that case, our Supreme Court relied on Article
I, paragraph 7 of the New Jersey Constitution to establish a requirement that
police must have reasonable and articulable suspicion to believe that a search
would reveal evidence of a crime before they may ask for permission to conduct
a consent search of a detained motor vehicle. Carty, 170 N.J. at 638–40. As the
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Court explained in State v. Domicz, "[o]ur Carty decision addressed concerns
about the then intractable problem of racial profiling on our highways and 'the
widespread abuse of our existing law that allow[ed] law enforcement officers to
obtain consent searches of every motor vehicle stopped for even the most minor
traffic violation.'" 188 N.J. 285, 304 (2006) (second alteration in original)
(citation omitted) (quoting Carty, 170 N.J. at 646). The Court in Domicz ruled
that police do not require reasonable suspicion to ask for permission to search a
house. Id. at 305.
In this case, the request to conduct a consent search did not prolong the
duration of the roadside encounter, which had already escalated to an arrest and
was relocated to the scene of the police station based on the active arrest warrant
of the sole vehicle occupant. But even assuming for the sake of argument that
police could not ask for consent to search the lawfully impounded vehicle
without reasonable suspicion, as Judge Rea aptly found, there was reasonable
suspicion to believe that the vehicle contained evidence of criminal activity.
That suspicion was based on Officer Marte's observations of the numerous credit
cards and cash scattered within the passenger cabin coupled with the cash found
on defendant's person during the lawful search incident to his arrest. We agree
with Judge Rea that Marte and his superior officer would have been derelict in
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their duties had they not investigated why so many credit cards were present in
the vehicle.
Because police had a lawful basis to ask for consent and the consent was
given knowingly and voluntarily, the evidence seized from the vehicle was
admissible and defendant's suppression motion was properly denied.
III.
We next turn to defendant's contention that Judge Rea abused his
discretion by declining to re-open the suppression hearing and expand the
record. Because we affirm substantially for the reasons explained by Judge Rea,
we need not address defendant's argument at length. We add the following
comments.
Defendant had provided to the court and to the State a CD and a transcript
of what defendant claimed was "an enhanced version" of the MVR audio
recording of the roadside encounter. Defendant argued that the audio recording
showed that defendant and Officer Marte discussed an expired insurance card.
We agree with Judge Rea that the new evidence defendant proffered was
irrelevant and would not have changed the results of suppression motion. We
add that the reasonable suspicion to believe a consent search would reveal
evidence of criminal activity existed before Officer Marte leaned into the car to
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look for the insurance identification. No card—expired or valid—was
ultimately found. Furthermore, even assuming for the sake of argument that
defendant had provided an expired insurance card when he presented his driving
credentials, the officer would still have had a basis to look for an unexpired card.
We note that defendant's motion to expand the record was essentially a
motion for reconsideration. Such motions are entrusted to the sound discretion
of the court in the interest of justice. Cummings v. Bahr, 295 N.J. Super. 374,
384 (App. Div. 1996). Judge Rea considered defendant's arguments and
concluded that the enhanced audio recording did not contradict his ruling on the
motion to suppress. We see no abuse of discretion in reaching that conclusion.
IV.
Finally, we turn to defendant's contention that the sentence he received is
excessive. As a general matter, sentencing decisions are reviewed under a
highly deferential standard. See State v. Roth, 95 N.J. 334, 364–65 (1984)
(holding that an appellate court may not overturn a sentence unless "the
application of the guidelines to the facts of [the] case makes the sentence clearly
unreasonable so as to shock the judicial conscience"). Our review is therefore
limited to considering:
(1) whether guidelines for sentencing established by the
Legislature or by the courts were violated; (2) whether
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the aggravating and mitigating factors found by the
sentencing court were based on competent credible
evidence in the record; and (3) whether the sentence
was nevertheless "clearly unreasonable so as to shock
the judicial conscience."
[State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State
v. McGuire, 419 N.J. Super. 88, 158 (App. Div.
2011)).]
"[A]ppellate courts are cautioned not to substitute their judgment for those
of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v.
Lawless, 214 N.J. 594, 606 (2013)). Relatedly, a trial court's exercise of
discretion that is in line with sentencing principles "should be immune from
second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010).
In imposing a sentence, the court must make an individualized assessment
of the defendant based on the facts of the case and the aggravating and mitigating
sentencing factors. State v. Jaffe, 220 N.J. 114, 121–22 (2014). To facilitate
appellate review, the sentencing court must "state reasons for imposing such
sentence including . . . the factual basis supporting a finding of particular
aggravating or mitigating factors affecting [the] sentence . . . ." R. 3:21-4(h);
accord State v. Fuentes, 217 N.J. 57, 73 (2014); see also N.J.S.A. 2C:43-2(e)
(requiring the sentencing court to state the "factual basis supporting its findings
of particular aggravating or mitigating factors affecting sentence.").
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Judge Rea emphasized that defendant had negotiated a plea agreement that
took into account the aggravating and the mitigating circumstances. Judge Rea
further noted that defendant was a high-ranking member in the international
money laundering scheme and was responsible for recruiting numerous
coconspirators. The judge found defendant's role to be important. The illicit
enterprise stole electronic funds from the victims and laundered the stolen
money through the sham corporations. Defendant set up one of those sham
corporations, CA Golden Trades, Incorporated, in New Jersey. The judge noted
that the illicit enterprise stole millions of dollars.
The judge then proceeded to carefully analyze all applicable aggravating
factors. He found aggravating factor three, (the risk that the defendant will
commit another offense), "a very real aggravating factor" and gave significant
weight to it.
Judge Rea also found aggravating factor five, (the substantial likelihood
that the defendant is involved in organized criminal activity), applicable because
defendant was involved in racketeering, which is organized criminal activity.
The judge stressed that this case involved participants in New Jersey and several
other states, as well as in at least three foreign countries.
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The judge also found aggravating factor nine, (the need to deter defendant
and others from violating the law). The judge concluded that the need for
general deterrence "was a very legitimate and powerful" aggravating factor, and
deemed it to be "extremely weighty" in his calculus.
The judge also found aggravating factors ten (involvement in the offense
of fraudulent or deceptive practices against State government) and eleven (the
imposition of a monetary penalty without a term of imprisonment would be
perceived by defendant or others as just part of the cost of doing business). The
judge reasoned that setting up dummy corporations in New Jersey was a
deceptive practice. The judge acknowledged that although probation was not a
possible sentence for defendant, factor eleven applied because defendant had
committed a financial crime and a sentence other than imprisonment would be
seen as a cost of doing business.
Judge Rea next considered the applicable mitigating factors. Because
defendant had no prior criminal record, the judge found mitigating factor seven,
(the defendant has no history of prior delinquency or criminal activity ). The
judge found mitigating factor twelve, (defendant's willingness to cooperate with
law enforcement authorities), applicable because defendant agreed to cooperate
with law enforcement. The judge also found mitigating factor six (the defendant
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has compensated or will compensate the victim of the defendant's conduct for
the damage or injury sustained), because defendant had made some effort at
restitution, although the judge noted that it was a mere "drop in the bucket"
compared to the millions of dollars stolen from the victims. Of the three
mitigating factors deemed to be applicable, the judge noted that mitigating factor
seven was the most compelling. The judge rejected defendant's argument that
mitigating factor nine, (the character and attitude of the defendant indicate he is
unlikely to commit another offense), applied, reasoning that defendant viewed
the people he recruited as "pawns" in the illegal scheme and recruited as many
people as he could so that sham corporations could be set up to funnel the stolen
money.
Judge Rea concluded that the aggravating factors outweighed the
mitigating factors. We are satisfied that the judge properly considered the
applicable aggravating and mitigating factors and qualitatively weighed them.
See State v. Dalziel, 182 N.J. 494, 505 (2005); State v. Natale, 184 N.J. 458,
488–89 (2005); Roth, 95 N.J. at 368. We decline to substitute our judgment for
that of the sentencing court, State v. Miller, 237 N.J. 15, 28 (2019), and conclude
that the twelve-year sentence imposed in accordance with the plea agreement
does not shock the judicial conscience. Roth, 95 N.J. at 364–65.
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To the extent we have not addressed them, any remaining arguments
raised by defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
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