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Date: 11-13-2017

Case Style:


Case Number: A-4922-15T4

Judge: Carmen_Alvarez


Plaintiff's Attorney: Sara M. Quigley, Deputy Attorney General

Defendant's Attorney: Cody T. Mason
Assistant Deputy Public Defender

Description: The following facts are largely taken from the suppression
motion hearing testimony of Bridgewater Township Police Department
Officers Anthony DiGraziano and Kevin Florczak. No other witnesses
On March 20, 2013, at approximately 7:00 p.m., anti-crime
team undercover officers DiGraziano and Florczak were parked in
an unmarked police vehicle in the parking lot of the Days Inn on
Route 22 in Bridgewater. The officers were working an anti-crime
detail to investigate drug trafficking and distribution in
response to recent violent crimes at the hotel. They observed a
Ford Taurus park in a designated "No Parking Fire Zone" at the
rear of the hotel complex. The officers pulled their unmarked
vehicle behind the Taurus, exited, and approached the Taurus.
Officer Florczak walked to the driver's side and Officer DiGraziano
went to the passenger's side.
While investigating why the three passengers of the Taurus
were illegally parked in the fire zone, a black Mazda pulled up
and parked within five feet of the driver's side of the Taurus.
According to Officer DiGraziano, the driver of the Mazda was

3 A-4922-15T4

staring at the officers and the Taurus. Because they were
investigating the occupants of the Taurus for possible drug
activity, the close proximity of the Mazda made the officers
nervous and uncomfortable. As a result, Officer DiGraziano
identified himself as a police officer to the driver of the Mazda,
later identified as defendant, and gestured with his hand to leave
the area. Officer DiGraziano also yelled at defendant that there
was a police investigation and he should leave.
When defendant failed to leave the area, Officer DiGraziano
approached the Mazda, knocked on the passenger-side window, held
up his police badge, and again told defendant to leave the area.
As soon as defendant rolled the window down, Officer DiGraziano
detected the odor of raw, unburnt marijuana coming from inside the
vehicle. Officer DiGraziano told defendant to put his car in
park. After getting Officer Forczak's attention, both officers
approached the driver's side of the Mazda.
When Officer DiGraziano told defendant he smelled raw
marijuana, defendant said he had smoked marijuana before coming
to the Days Inn. When Officer DiGraziano told him he smelled raw,
unburnt marijuana, defendant retrieved and handed him a bag of
green vegetation from his pants pocket, which later field-tested
positive for marijuana. The bag was secured in the police vehicle
and backup was requested to help handle the Mazda. Once backup

4 A-4922-15T4

arrived, Officers DiGraziano and Florczak finished their
investigation and search of the Taurus, ultimately releasing that
After defendant exited the vehicle, Officer Florczak walked
around the Mazda and smelled a strong, overpowering odor of raw
marijuana coming from inside the vehicle. He also observed a bag
on the rear seat. Officer Florczak asked defendant whose vehicle
he was driving and what he was doing there. Defendant responded
that it was a rental car, rented by a friend he could not identify,
and that he was visiting his girlfriend who was visiting her cousin
at the Days Inn.
Defendant was arrested for possession of marijuana under
fifty grams for the marijuana he had voluntarily turned over. A
search incident to arrest revealed $995 in cash in his front
pockets. When the officers asked defendant for consent to search
his vehicle, he refused. The officers then called for a drug
sniffing canine to perform an exterior sniff of the Mazda.
Although the testimony of the officers did not include describing
the canine's examination of the results thereof, the trial court
made the following findings:
A K-9 unit was requested to perform an exterior sniff of the Defendant's vehicle for narcotics and Captain Tim Pino arrived on scene with K-9 Dano. Dano indicated a

5 A-4922-15T4

positive hit for narcotics on the rear hatch of the vehicle and passenger side front door.

The vehicle was then impounded while the officers applied for a
search warrant. According to the motion judge, the search warrant
application was based upon both the facts outlined above and
defendant's criminal history, which includes distribution of
narcotics and vehicles that contain hidden compartments.1
A search warrant was obtained and executed the next day. The
search of the vehicle revealed a 9mm handgun, hollow-nose bullets,
a high capacity seventeen-round magazine, two sandwich-sized bags
of marijuana, two gallon-sized bags of marijuana, and several
hypodermic syringes.
Defendant was indicted for second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b) (count one); second-degree
possession of a firearm during a drug offense, N.J.S.A. 2C:39-4.1
(count two); third-degree possession with intent to distribute
marijuana, N.J.S.A. 2C:35-5(a)(1) and -5(b)(11) (count three);
fourth-degree possession of a large capacity magazine, N.J.S.A.
2C:39-3(j); and fourth-degree possessionof hollow-nose bullets,
N.J.S.A. 2C:39-3(f).
1 The record on appeal does not include a copy of the search warrant affidavit.

6 A-4922-15T4

Defendant moved to suppress the evidence seized from his car.
The trial court conducted a testimonial suppression hearing and
issued a seventeen-page written opinion and order denying
defendant's suppression motion. The judge found that the officers
had a reasonable suspicion that defendant was engaging in criminal
activity when they smelled the unburnt marijuana. She further
found that the brief detention that followed to further question
defendant was lawful. The judge also found that the officers had
probable cause to arrest defendant for possession of marijuana
when he, without being asked to, turned over the baggie of
marijuana. The judge concluded the police were then permitted to
conduct a search incident to arrest and seize the currency.
The judge also found that the search of defendant's car was
authorized by a valid search warrant based on adequate probable
cause including plain smell, visual observations, defendant's
prior history, and the canine hit on the vehicle.
Following the denial of his suppression motion, defendant
entered into a plea agreement. Defendant pled guilty to counts
two and three in exchange for a recommended sentence of a five
year prison term, subject to a three-year period of parole
ineligibility on count two, to run consecutive to a flat three
year prison term on count three. The parole ineligibility period
was mandated by the Graves Act, N.J.S.A. 2C:43-6. The sentences

7 A-4922-15T4

were to run consecutively pursuant to N.J.S.A. 2C:39-4.1(d). The
plea agreement also provided for the dismissal of counts one,
four, and five, two disorderly persons offenses, and a motor
vehicle offense.
A different judge conducted the sentencing hearing on May 13,
2016. Defense counsel requested that defendant be granted a six
month delay in reporting date to commence serving his prison term
to allow defendant to undergo ongoing surgical treatment for severe
diabetic retinopathy in both eyes. According to a letter from his
treating physician, defendant was scheduled to undergo retinal
surgery on his right eye on May 18, 2016.
The sentencing judge found the following aggravating factors
applied: three, the risk that defendant would commit another
offense, N.J.S.A. 2C:44-1(a)(3); seven, that defendant committed
the offenses for pecuniary gain, N.J.S.A. 2C:44-1(a)(7); and nine,
the need to deter defendant and others from violating the law,
N.J.S.A. 2C:44-1(a)(9). Finding no mitigating factors, the judge
concluded that the aggravating factors outweighed the non-existent
mitigating factors.
Without expressing any reason for deviating from the
recommended sentence, the sentencing judge imposed two concurrent
five-year sentences, with each being subject to a three-year period
of parole ineligibility. Appropriate fines and penalties were

8 A-4922-15T4

also imposed. Counts one, four, and five, two disorderly persons
offenses, and one motor vehicle offense were dismissed. The trial
court declined to postpone defendant's reporting date and remanded
him to the jail to begin serving his sentence.
Defendant raises the following points on appeal:






A. The Sentencing Court Did Not Explain the Basis for Its Unsupported Aggravating Factor Findings and Failed to Find Clear Mitigating Factors, Thereby Requiring a Remand for Resentencing on Count Three and Consideration of Whether to Downgrade Count Two to a Third-Degree Offense. [Not Raised Below In Part].

9 A-4922-15T4

B. The Interests of Justice Require a Remand to Allow Field to Seek a Sentencing Waiver on the Count Two Mandatory Minimum in Light of the Sentencing Court's Apparent Desire to Impose a Lower Sentence, the Prosecutor's Violation of Binding Guidelines, and Field's Lack of Criminal History and Serious Health Problems. [Not Raised Below].

C. The Sentencing Court Imposed an Illegally Long Period of Parole Ineligibility on Count Three.


Defendant argues that the police officers did not have a
reasonably articulable suspicion to warrant a field inquiry. He
further argues that the officers lacked a valid basis to conduct
a subsequent brief investigatory detention. We disagree.
Officer DiGraziano was not effecting a "stop" of defendant
when he approached defendant's vehicle to tell him to leave the
scene of an active police investigation of different individuals
in a different car. Defendant had already parked his vehicle in
a no parking fire zone only five feet from the Taurus that was the
subject of the investigation. Telling defendant to leave the area
was not a stop, field inquiry, or investigatory detention.
Therefore, the officers were not required to have a reasonably
articulable suspicion that defendant was committing an offense at
that point.

10 A-4922-15T4

Despite being directed to leave the area, defendant did not
drive away. Officer DiGraziano acted reasonably in walking over
to defendant's vehicle to direct defendant for the second time to
leave the area. By doing so, the officers were not attempting to
detain defendant in any way. On the contrary, they were trying
to do the exact opposite to get defendant to leave the area
because they were concerned by his close proximity to the vehicle
and individuals they were investigating. Police officers have the
authority to control the scene of an investigation and stop others
from interfering or obstructing that investigation. See State v.
Sloane, 193 N.J. 423, 430 (2008). The officers had not yet
subjected defendant to a field inquiry, investigative detention,
or arrest for Fourth Amendment purposes.
Defendant's reliance on our Supreme Court's recent opinion
in State v. Rosario, 229 N.J. 263 (2017), is misplaced. The facts
in Rosario are clearly distinguishable. Rosario involved "a person
sitting in a lawfully parked car outside her home who suddenly
finds herself blocked in by a patrol car that shines a flood light
into the vehicle, only to have the officer exit his marked car and
approach the driver's side of the vehicle." Id. at 273. The
Court concluded that the defendant "would not reasonably feel free
to leave." Ibid. The Court explained that "such police activity
reasonably would, and should, prompt a person to think that she

11 A-4922-15T4

must stay put and submit to whatever interaction with the police
officer was about to come." Ibid. Here, the facts are the polar
opposite to those in Rosario. Defendant injected himself into the
investigation when he arrived at the scene, parked illegally in a
fire zone, and did not leave when gestured and told to do so by
Officer DiGraziano.
Once Officer DiGraziano smelled the odor of raw, unburnt
marijuana emanating from defendant's vehicle, he had a reasonably
articulable suspicion that defendant was committing an offense,
providing a valid basis to conduct a field inquiry and brief
investigatory detention. When defendant admitted he had recently
smoked marijuana and voluntarily turned over a baggie of suspected
marijuana, the officers had probable cause to arrest defendant.
Upon defendant's arrest, the officers were permitted to
conduct a search incident to arrest in order to protect themselves
and to insure that evidence is not destroyed. State v. Sims, 75
N.J. 337, 352 (1978) (citing Chimel v. California, 395 U.S. 752,
762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694, reh'g denied,
396 U.S. 869, 90 S. Ct. 36, 74 L. Ed. 2d 124 (1969); State v.
Gray, 59 N.J. 563, 569 (1971)). Any evidence, contraband or weapon
found during the search incident to arrest is properly seized.
See New York v. Belton, 453 U.S. 454, 461, 101 S. Ct. 2860, 2864,
69 L. Ed. 2d 768, 775-76 (1981); State v. Mai, 202 N.J. 12, 26

12 A-4922-15T4

(2010); State v. Jefferson, 413 N.J. Super. 344, 359 (App. Div.
2010) (finding that cocaine discovered during warrantless search
incident to arrest admissible at trial).
These facts coupled with the strong, overpowering odor of
raw, unburnt marijuana gave the officers a valid, objectively
reasonable basis to impound the vehicle and probable cause to
obtain a search warrant to search it. The law is well-settled
that "the smell of marijuana itself constitutes probable cause
that a criminal offense ha[s] been committed and that additional
contraband might be present." State v. Myers, 442 N.J. Super.
287, 295 (App. Div. (2015) (citations omitted), certif. denied,
224 N.J. 123 (2016). Here, "the overwhelming smell of marijuana
emanating from the automobile gave the officer probable cause to
believe that it contained contraband." State v. Pena-Flores, 198
N.J. 6, 30 (2009) (citing State v. Nishina, 175 N.J. 502, 515-16
(2003)), overruled by State v. Witt, 223 N.J. 409 (2015) (revising
automobile exception to search warrant requirements).
"A search based on a properly obtained warrant is presumed
valid." State v. Sullivan, 169 N.J. 204, 211 (2001) (citing State
v. Valencia, 93 N.J. 126, 133 (1983)). Defendant has not
demonstrated that there was no probable cause supporting the
issuance of the warrant or that the search of the vehicle was
otherwise unreasonable. Therefore, we discern no basis to declare

13 A-4922-15T4

the warrant invalid. See State v. Marshall, 123 N.J. 1, 72 (1991),
cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694
The search of the vehicle revealed a 9mm handgun with hollow
nose bullets and a high-capacity magazine, as well as over one
pound of marijuana and several hypodermic syringes. The weapons,
drugs, and paraphernalia were lawfully seized.
Defendant's reliance on the New Jersey Compassionate Use
Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to 16, is also
misplaced. CUMMA affords an affirmative defense to patients who
are properly registered under the statute and are subsequently
arrested and charged with possession of marijuana. See N.J.S.A.
2C:35-18(a). The burden is on the defendant to prove the
affirmative defense by a preponderance of the evidence. Ibid.
The State is under no obligation to negate an exemption under
CUMMA or N.J.S.A. 2C:35-18(a). Ibid. CUMMA does not alter the
established search and seizure law of this State and does not
apply in this matter.
Defendant was not, and is not, a registered qualifying patient
under CUMMA. Therefore, he was not authorized to possess
marijuana. "We stress that this is not a situation where a person
suspected of possessing or using marijuana has proffered to a law
enforcement officer a registry identification card or other

14 A-4922-15T4

evidence that the person is a registered qualifying patient under
CUMMA." Myers, supra, 442 N.J. Super. at 303.
Defendant's argument that marijuana is no longer per se
contraband due to the passage of CUMMA is meritless. "[T]he
possession, consumption, and sale of marijuana remains illegal
except in the instance of a registered qualifying patient who
obtains medical marijuana from one of the limited number of
[medical marijuana alternative treatment centers]." Id. at 302.
Possession of a registry identification card under CUMMA "is
an affirmative defense, not an element of the offense." Ibid.
(citing N.J.S.A. 2C:35-18(a)). Therefore, "absent evidence the
person suspected of possessing or using marijuana has a registry
identification card, detection of marijuana by the sense of smell,
or by other senses, provides probable cause to believe that the
crime of unlawful possession of marijuana has beencommitted."
Id. at 303. Defendant had no such registry identification card.2
The trial court's denial of defendant's suppression motion
is supported by substantial credible evidence in the record and
in accordance with applicable legal principles. Accordingly, we
affirm defendant's convictions for second-degree possession of a
2 We further note that defendant was in possession of more than one pound of marijuana. CUMMA limits the amount of marijuana to be dispensed to a registered qualifying patient to only two ounces per month. N.J.S.A. 24:6I-10.

15 A-4922-15T4

firearm during a drug offense and third-degree possession with
intent to distribute marijuana.
We next consider whether defendant's sentence was illegal or
an abuse of discretion. The recommended sentence for the second
degree possession of a firearm during a drug offense was a five
year prison term, subject to a three-year period of parole
eligibility required by the Graves Act, N.J.S.A. 2C:43-6. The
recommended sentence for the third-degree possession with intent
to distribute marijuana was a consecutive flat three-year prison
term. At sentencing, the prosecutor reiterated the recommended
sentence as stated in the plea agreement.
A sentence imposed that conforms to a defendant's plea bargain
is presumed reasonable. State v. Pillot, 115 N.J. 558, 566 (1989)
(citing State v. Sainz, 107 N.J. 283, 294 (1987)). Unless the
appeal raises a question of law, we review a sentence imposed
pursuant to a plea bargain for an abuse of discretion. Sainz,
supra, 107 N.J. at 292.
Contrary to his statement that he was sentencing defendant
"in accordance with the plea agreement[,]" the sentencing judge
did not impose the recommended sentence on count three. Instead,
he imposed a concurrent five-year term with a three-year parole

16 A-4922-15T4

ineligibility. The State concedes that defendant's sentence is
illegal and violates the terms of the plea agreement. We agree.3
The three-year period of parole ineligibility on count three
was illegal. A parole ineligibility period shall not exceed one
half of the prison term imposed. N.J.S.A. 2C:43-6(b). In
addition, the parole ineligibility period shall only be imposed
"where the court is clearly convinced that the aggravating factors
substantially outweigh the mitigating factors . . . ." Ibid.
Here, the judge did not make that finding. Instead, he found that
the aggravating factors outweighed the non-existent mitigating
The judge also ruled that the sentence on count three would
run concurrently to count two. That too was error. Convictions
for possession of a firearm during a drug offense "shall be ordered
to be served consecutively to that imposed for any conviction for
a violation of any of the sections of chapter 35 . . . ." N.J.S.A.
3 We recognize that these errors may have resulted from the lack of clarity of paragraph 13 of the plea form, which was compounded by the extremely cryptic nature of the State's sentencing argument with regard to the recommended sentence for count three, and the mandatory consecutive sentencing requirements imposed by N.J.S.A. 2C:39-4.1(d). We further note that the sentencing judge did not conduct the plea hearing.

17 A-4922-15T4

Given these errors, we remand for the trial court to
resentence defendant to a five-year prison term, subject to a
three-year period of parole ineligibility on count two, to run
consecutively to a three-year flat prison term on count three.
Defendant also argues that the trial court failed to recognize
its ability to impose a lower sentence than recommended by the
plea agreement. Defendant did not argue at sentencing for a
sentence lower than recommended by the plea agreement. In
particular, defendant did not argue or apply for a waiver of the
mandatory minimum sentence imposed on count two.
Defendant further argues that the trial court could have
downgraded count two for sentencing purposes to be sentenced as a
third-degree offense pursuant to N.J.S.A. 2C:44-1(f)(1). This
argument was also not raised below. Indeed, other than asking for
a six-month delayed reporting date, defendant did not argue that
any mitigating factors applied, let alone that the mitigating
factors substantially outweighed the aggravating factors. Nor did
defendant argue that the interests of justice required a downgrade
for sentencing purposes.
We decline to consider these arguments raised for the first
time on appeal. To the extent that defendant may claim that the
failure to present these arguments resulted from ineffective
assistance of counsel, he can raise those arguments in a timely

18 A-4922-15T4

filed petition for post-conviction relief. See State v. Preciose,
129 N.J. 451, 460 (1992) (recognizing the "general policy against
entertaining ineffective-assistance-of-counsel claims on direct
appeal because such claims involve allegations and evidence that
lie outside the trial record"); see also State v. McDonald, 211
N.J. 4, 30 (2012). Defendant may also file for relief under Rule
3:21-10(b)(2) after his mandatory parole ineligibility term has
been served. See Pressler & Verniero, Current N.J. Court Rules,
comment on R. 3:21-10(b) (citing State v. Mendel, 212 N.J. Super.
110, 113 (App. Div. 1986) (holding that "when defendant is serving
a sentence required by the Graves Act he may not make an
application under R. 3:21-10(b)")). We express no opinion as to
the likelihood of success of any such future applications.

Outcome: Defendant's remaining arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
In summary, we affirm defendant's convictions, vacate the
sentence, and remand for the trial court to resentence defendant
to a five-year prison term, subject to a three-year period of
parole ineligibility on count two, to run consecutively to a flat
three-year prison term on count three in accordance with this
opinion. A

Plaintiff's Experts:

Defendant's Experts:


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