STATE OF NEW JERSEY v. TIWAN M. FLAGLER, a/k/a TUQAUN ASHLEY

Defendant Tiwan M. Flagler appeals from the denial of his

motion to suppress evidence seized after a motor vehicle stop and

from his sentence. On appeal, defendant raises the following

contentions:



POINT I THE ORDER DENYING THE MOTION TO SUPPRESS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW MOTION HEARING IN FRONT OF A DIFFERENT JUDGE. THE MOTION JUDGE INEXPLICABLY DECLARED THAT SHE WAS OBLIGATED TO "VIEW THE TESTIMONY AND THE FACTS IN THE LIGHT MOST FAVORABLE TO THE . . . STATE" WHEN EVALUATING A WARRANTLESS SEARCH, THEREBY IRREPARABLY TAINTING ALL OF HER OTHER FINDINGS ON THE MATTER.



POINT II THE MATTER SHOULD BE REMANDED FOR RESENTENCING.



We derive the following facts from the record. A grand jury

indicted defendant for second-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b) (count one); second-degree possession

of a firearm, N.J.S.A. 2C:39-4.1(a) (count two); fourth-degree

possession of dum-dum bullets, N.J.S.A. 2C:39-3(f) (count three);

third-degree possession of a controlled dangerous substance

(CDS), N.J.S.A. 2C:35-10(a)(1) (count four); first-degree

possession with the intent to distribute a (CDS), N.J.S.A. 2C:35

5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count five); third-degree

distribution of CDS within 1,000 feet of school property, N.J.S.A.







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2C:35-7 (count six); and third-degree receiving stolen property,

N.J.S.A. 2C:20-7 (count seven). The charges stemmed from a

handgun and Phencyclidine (PCP) the police found on defendant

after stopping the vehicle in which he was a passenger for

allegedly driving through a red light.

Defendant filed a motion to suppress, arguing that the stop

was illegal because the driver, Jasmar Boyd, did not drive through

a red light. Defendant also argued there was no legal basis for

the police to order him from the vehicle.

Police Officer Gabriel Moreano from the Jersey City Police

Department testified at the motion hearing that at approximately

8:30 p.m. on May 18, 2014, he and Officer Christopher Viera were

traveling in an unmarked patrol car near the area of Clinton Avenue

and Kennedy Boulevard. As they approached the intersection at

Clinton Avenue and Kennedy Boulevard, they saw a vehicle slow down

and then continue through the intersection without stopping for

the red light. They activated their overhead lights, followed

behind the vehicle, and stopped it. Upon approaching the vehicle,

they smelled a strong odor of PCP emanating from it. Officer

Viera asked Boyd to exit the vehicle after Boyd could not present

a driver's license. A pat down search of Boyd revealed nothing

noteworthy. Officer Moreano then asked defendant to exit the

vehicle. Upon exiting, defendant advised the officer there was a







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handgun in his right cargo pocket and PCP in his right front

pocket. The officer placed defendant under arrest and seized the

handgun and PCP. Boyd testified that the light was green at the

time he drove through the intersection.

In denying the motion, the motion judge stated that "because

this is a motion to suppress, the court must view the testimony

and the facts in the light most favorable to the non-moving party,

which would be the State here[.]" The judge then applied this

standard in making credibility determinations.

The judge applied the wrong standard in assessing the State's

burden of proof. To justify a warrantless search, the State must

prove by a preponderance of the evidence that the search fell

within one of the exceptions to the warrant requirement. State

v. Brown, 216 N.J. 508, 527 (2014) (citation omitted). Because

the judge applied the wrong standard and has made credibility

determinations, we are constrained to vacate the denial of

defendant's motion to suppress and remand to a different judge for

a new suppression hearing. If defendant prevails, he shall be

afforded an opportunity to withdraw his guilty plea. See R. 3:9

3(f).

We next address defendant's sentence. Following the denial

of his motion, defendant pled guilty to second-degree unlawful

possession of a weapon (count one), and first-degree possession







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with intent to distribute a CDS (count five). On count one, the

State agreed to recommend a mandatory extended-term of ten years

with a five-year period of parole ineligibility pursuant to the

Graves Act, N.J.S.A. 2C:43-6(c), and a concurrent term of ten

years with a three and one-half-year period of parole ineligibility

on count two.

The State specifically reserved the right to request

imposition of the sentence consecutively to a thirty-year sentence

defendant was then serving for a prior armed robbery conviction.

The State noted that defendant committed the present offenses

while out on bail for the armed robbery.

At sentencing, the judge found aggravating factor N.J.S.A.

2C:44-1(a)(3), "[t]he risk that the defendant will commit another

offense[,]" based on evidence that every year since 2004, defendant

either committed a new offense or violated his probation. The

judge noted that defendant's offenses continued to escalate, and

therefore, his risk to commit another offense was high.

The judge found aggravating factor N.J.S.A. 2C:44-1(a)(6),

"[t]he extent of the defendant's prior criminal record and the

seriousness of the offenses of which he has been convicted[,]"

based on defendant's extensive juvenile criminal history, and his

extensive adult criminal history, which included convictions for

aggravated assault, armed robbery, possession of a weapon for an







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unlawful purpose, unlawful possession of a weapon, possession of

a CDS, and possession with intent to distribute a CDS.

The judge also found aggravating factor N.J.S.A. 2C:44

1(a)(9), "[t]he need for deterring the defendant and others from

violating the law[,]" based on defendant's failure to be deterred

by his prior terms of imprisonment and probation. The judge found

no mitigating factors. The judge sentenced defendant to an

aggregate ten-year term of imprisonment with a five-year period

of parole ineligibility to run consecutively to the armed robbery

sentence. In imposing the consecutive sentence the judge stated,

In essence to allow the sentence to run concurrent to the sentence he is currently serving is basically telling defendant that you can continue to commit additional crimes and have those crimes serve as free crimes because the sentence you were serving on a more serious offense happens to be more serious and so the additional crimes that you commit thereafter aren't as serious and therefore should basically be free crimes.



The court does not find that that is appropriate, nor does the court find that there is any basis in the law to warrant such a concurrent sentence.



On appeal, defendant does not challenge the judge's findings

of aggravating and mitigating factors. Rather, he contends that

the judge failed to address the factors in State v. Yarbough, 100

N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct.

1193, 89 L. Ed. 2d 308 (1986) in imposing the consecutive sentence.







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We review a judge's sentencing decision under an abuse of

discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014).

As directed by the Court, we must determine whether:

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.



[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]



In determining whether consecutive sentences are appropriate,

New Jersey courts have applied the guidelines delineated in

Yarbough, supra, 100 N.J. at 643-44:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;



(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;



(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:



(a) the crimes and their objectives were predominantly independent of each other;



(b) the crimes involved separate acts of violence or threats of violence;



(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and







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place as to indicate a single period of aberrant behavior;



(d) any of the crimes involved multiple victims;



(e) the convictions for which the sentences are to be imposed are numerous;



(4) there should be no double counting of aggravating factors;



(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and



(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.



The court is to apply these factors qualitatively, rather than

quantitatively. A consecutive sentence can be imposed, even if a

majority of the Yarbough factors support concurrent sentences.

State v. Carey, 168 N.J. 413, 427-28 (2001). The fairness of the

overall sentence should be considered in reviewing the imposition

of consecutive sentences. State v. Sutton, 132 N.J. 471, 485

(1993).

Although "[t]he 'no free crimes' guideline does not require

the court automatically to impose consecutive sentences for

multiple offenses[,]" State v. Rogers, 124 N.J. 113, 121 (1991),

the Court has recognized that the first guideline tilts in favor







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of the imposition of consecutive sentences. Carey, supra, 168

N.J. at 423. The third guideline lists five facts that the court

should consider, including whether the crimes were independent of

one another, involved separate acts, were committed at different

times or places as opposed to a single period of behavior.

Yarbough, supra, 100 N.J. at 643-44.

Reviewing the Yarbough factors qualitatively, we discern no

reason to disturb the consecutive sentence. Defendant's crimes

were completely independent of one another, as defendant was out

on bail for the armed robbery when he committed the present crimes.

In addition, the crimes were committed at different times and

places, did not indicate a single period of criminal behavior, and

the armed robbery conviction involved a victim.