STATE OF NEW JERSEY VS. JANUS HINTON (14-03-0514, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1494-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JANUS HINTON, a/k/a
JAMES J. HINTON, and
JAMES HINTON,

Defendant-Appellant.
___________________________

Argued May 14, 2019 – Decided June 25, 2019

Before Judges Yannotti, Gilson and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 14-03-
0514.

Kevin G. Byrnes, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Kevin G. Byrnes, on the brief).

Mary R. Juliano, Assistant Prosecutor, argued the cause
for respondent (Christopher J. Gramiccioni, Monmouth
 County Prosecutor, attorney; Mary R. Juliano, of
counsel and on the brief).

PER CURIAM

Defendant was tried before a jury and found guilty of third-degree

unlawful possession of a controlled dangerous substance (CDS) (heroin), in

violation of N.J.S.A. 2C:35-10(a)(1). Defendant appeals from the judgment of

conviction (JOC) dated November 2, 2017. We affirm.

I.

On March 20, 2014, a Monmouth County grand jury returned an

indictment charging defendant with possession of CDS (heroin), in violation of

N.J.S.A. 2C:35-10(a)(1), a crime of the third degree. Defendant was also

charged in complaint 2013-000571-1335 with unlawful possession of CDS

(marijuana), N.J.S.A. 2C:35-10(a)(4), and unlawful possession of drug

paraphernalia, N.J.S.A. 2C:36-2. In addition, defendant received summonses

for various traffic violations.

Defendant thereafter filed a motion to suppress evidence the police seized

from his automobile and during a search at the police station. The trial court

conducted an evidentiary hearing and denied the motion. Defendant was later

tried before a jury on the heroin charge. Defendant waived his right to counsel,

and represented himself at trial.

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 Officer Thomas Holmstedt of the Neptune City Police Department

(NCPD) testified that on December 31, 2013, at around 1:48 a.m., he was on

patrol in his police cruiser and stopped defendant for speeding on Route 35.

Holmstedt transported defendant to the Neptune Township Police Department.

Defendant was taken to the processing room and searched. During the search,

Holmstedt detected a hard object that came to a distinct point in defendant's

groin area. The officer could not determine if the object was a weapon.

Holmstedt asked defendant what the object was, and defendant said it was

his genitals, but Holmstedt did not believe defendant. Believing the object could

be a weapon, the officer placed defendant in handcuffs for safety and the safety

of the officers. Holmstedt brought defendant to a separate room for more

privacy.

Holmstedt removed defendant's jeans and observed that defendant was

wearing full-length, long-john, thermal-type pants underneath his jeans. He

found sixty-four glassine bags of heroin in defendant's long-johns. Holmstedt

secured the heroin, brought the contraband back to the NCPD, placed it in an

evidence bag, and put it in the evidence locker.

On cross-examination, Holmstedt testified that when he stopped the

vehicle, defendant did not have a driver's license and he ran a check on defendant

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and his female passenger, who was seated in the front seat. Holmstedt learned

that there was an active arrest warrant for defendant's passenger.

When the passenger stepped out of the vehicle, Holmstedt observed some

pieces of marijuana on the floor of the car, between the passenger seat and t he

passenger-side door. Holmstedt arrested defendant for possession of marijuana,

which Holmstedt found in the car after defendant consented to a search.

Defendant's trial began on June 7, 2016. He appeared with standby

counsel. At the trial, the judge stated that the jury would decide only the count

in the indictment charging defendant with possession of CDS (heroin), in

violation of N.J.S.A. 2C:35-10(a)(1). At the conclusion of the trial, the jury

found defendant guilty of that charge.

After the jury was discharged, the judge addressed the remaining charges.

He stated that prior to trial, the State agreed to dismiss the count charging

defendant with possession of less than fifty grams of marijuana. The judge

dismissed that charge. The judge then found defendant not guilty on the count

charging defendant with possession of drug paraphernalia. He determined that

the State had offered no evidence to prove defendant's guilt on that count. The

judge did, however, find defendant guilty of driving while his driving privileges

were suspended.

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 The trial court sentenced defendant on October 27, 2017, and entered a

JOC dated November 2, 2017. Defendant's appeal followed.

On appeal, defendant argues:

POINT I
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR WHEN IT PERMITTED THE DEFENDANT
TO REPRESENT HIMSELF EVEN THOUGH THE
APPELLATE DIVISION PREVIOUSLY FOUND HE
HAD "NO CONCEPT OF DEFENSE STRATEGY
AND RELEVANT LEGAL PRINCIPLES."

POINT II
THE PROSECUTOR IMPROPERLY PERSUADED
THE JURY THAT STATEMENTS MADE BY THE
PRO SE DEFENDANT DURING QUESTIONING
AND SUMMATION ARE INCULPATORY
ADMISSIONS THAT CONSTITUTE PROOF OF HIS
GUILT.

POINT III
THE DEFENDANT'S RIGHT TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES AS
GUARANTEED BY THE FOURTH AMENDMENT
TO THE UNITED STATES CONSTITUTION AND
ART[ICLE] I, PAR[AGRAPH] 7 OF THE NEW
JERSEY CONSTITUTION WAS VIOLATED BY
THE WARRANTLESS SEARCH AND SEIZURE.

A. The Detention and the Plain View Observation of
Marijuana During the Vehicle Stop Were Unlawful.

B. The Evidence Seized at the Police Station was the
Result of an Illegal Strip Search, and It should be
Suppressed.

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 POINT IV
THE TRIAL COURT IMPROPERLY BALANCED
THE AGGRAVATING AND MITIGATING
FACTORS.

II.

Defendant first argues that the trial judge erred by finding that he had

validly waived his right to counsel and allowing him to represent himself at trial.

We disagree.

The United States Constitution and the New Jersey Constitution provide

that a defendant in a criminal matter has the right to the assistance of counsel.

U.S. Const. amend. VI; N.J. Const. art. 1, ¶ 10. A "corollary" to this right is

"the defendant's right to represent himself." State v. King, 210 N.J. 2, 16 (2012)

(citing Faretta v. California, 422 U.S. 806, 814 (1975)). Nevertheless, "[a]

defendant's right of self-representation is not absolute[.]" Id. at 18 (citing State

v. McNeil, 405 N.J. Super. 39, 51 (App. Div. 2009)).

A trial judge "has the duty to assure that a defendant's waiver of counsel

is made 'knowingly and intelligently.'" Ibid. (quoting State v. Crisafi, 128 N.J.

499, 509 (1992)). "To fulfill this duty, a trial court must inform a defendant of

the charges to be tried, the statutory defenses to those charges, and the potential

sentencing exposure that accompanies those charges." Ibid. (citing Crisafi, 128

N.J. at 511).

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 "A court should also inform a defendant of the risks he faces and problems

he may encounter." Ibid. (citing Crisafi, 128 N.J. at 511-12). Specifically, the

judge should discuss with defendant:

whether defendant will experience difficulty in
separating his roles as defendant and counsel; whether
defendant understands that he not only has the right not
to testify, but also the right not to incriminate himself
in any manner; whether he understands that he could
make comments as counsel from which the jury might
infer that he had knowledge of incriminating evidence
(and the difficulty in avoiding such comments); and
whether he fully understands that if he crosses the line
separating counsel from witness, he may forfeit his
right to remain silent and subject himself to cross-
examination by the State.

[Ibid. (quoting State v. Reddish, 181 N.J. 553, 594
(2004))].

"A trial court must also ensure that a defendant seeking to represent

himself at trial is aware that in the event of a conviction, he will not be able to

seek post-conviction relief alleging he had been deprived of the effective

assistance of counsel." Id. at 19 (citing Reddish, 181 N.J. at 594). The judge

also should "explain that a defendant representing himself remains as obligated

to follow the applicable rules of procedure and evidence as would a licensed

attorney." Id. at 18 (citing Crisafi, 128 N.J. at 512).

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 Finally, "a court should stress the difficulties inherent in proceeding

without an attorney and 'specifically advise the defendants that it would be

unwise not to accept the assistance of counsel.'" Ibid. (quoting Crisafi, 128 N.J.

at 512). "[S]uch a searching examination" is required to ensure that the

defendant's decision to proceed pro se is made "with his eyes open." Id. at 20

(citing Crisafi, 128 N.J. at 513).

Here, the record shows that at a hearing conducted on March 2, 2015, the

judge informed defendant of the charges against him, the elements the State had

to prove to prosecute each charge successfully, and the State's evidentiary

burdens of proof. The judge informed defendant of his defenses to those

charges, questioned him about his understanding of those defenses, and

explained the sentences he could face if found guilty.

The judge also explained the potential problems and risks inherent in self-

representation. The judge asked defendant whether he understood "the

difficulties of separating someone as a defendant and someone as a lawyer," to

which defendant replied that he understood. The judge asked defendant whether

he understood that he had the right not to testify, and that if he di d, he would be

subject to cross-examination. Defendant replied that he understood.

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 The judge also asked defendant whether he understood that by

representing himself, he could make incriminating statements while examining

witnesses. Defendant again stated he understood. The judge then asked

defendant whether he understood that by representing himself, he would not be

able to argue in a petition for post-conviction relief (PCR) that he did not have

the effective assistance of counsel. Defendant replied that he understood.

The judge further explained that at trial, defendant would be responsible

for presenting his defense, required to follow "the applicable rules of procedure

and evidence," and required to "handle [himself] just like a lawyer would." In

addition, the judge told defendant that he thought self-representation was "not a

good idea" and reminded him that "[t]here are many difficulties in representing

yourself." The judge found that, even so, defendant could elect to represent

himself and stated, "I can't stop you from representing yourself if you want to."

Defendant insisted on representing himself.

The judge then questioned defendant about his education, knowledge of

the law, and understanding of how criminal trials are conducted. The judge

asked defendant whether he had any questions about representing himself, and

defendant replied that he did not. At the end of the hearing, the judge found

A-1494-17T1
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defendant had validly waived his right to counsel, and granted defendant

permission to represent himself at trial.

On appeal, defendant argues that there are a "multitude of problems" with

the waiver of his right to counsel. He contends that in a prior case, this court

filed an opinion stating that he did not have the requisite legal skills and abilities

to represent himself in a criminal trial. He argues there is no evidence he

acquired such skills in the years since the trial in that earlier case.

In State v. Hinton, A-6531-06 (App. Div. Mar. 18, 2009) (slip op. at 3),

the court addressed defendant's contention that the trial judge erred by denying

him the opportunity to represent himself during his criminal trial. The court

held that defendant did not make a request in the trial court to defend himself,

and found that his statement during trial about his desire to fire his attorney "was

simply a passing thought based on a temporary disagreement with his attorney."

Id. (slip op. at 5).

The court also observed that "[the trial judge] was extraordinarily patient

with defendant, who clearly had no concept of effective defense strategy or

relevant legal principles, and frequently interrupted the pre-trial proceedings

with questions and statements." Ibid. The court's passing comment on

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defendant's knowledge of defense strategy and the applicable legal principles

was not, however, binding on the trial judge in this case.

Defendant further argues that the trial judge erred by failing to undertake

the searching inquiry required to determine if he had validly waived his right to

counsel. He contends the judge failed to inform him that the lack of knowledge

of the law may impair his ability to defend himself. He also claims the court

did not inform him that by waiving his right to counsel and representing himself

at trial, he would be waiving any claim of ineffective assistance of counsel that

could be raised in a PCR petition.

The record does not support defendant's argument. As the record shows,

the judge conducted a hearing on defendant's application to waive his right to

counsel, and conducted the "searching examination" required to ensure that

defendant made his decision to waive counsel "with his eyes open." King, 210

N.J. at 20 (citing Crisafi, 128 N.J. at 513).

As we have explained, the judge informed defendant of the problems and

risks in self-representation. The judge told defendant he was not required to

testify on his own behalf, and warned defendant that he could make

incriminating statements while examining witnesses. The judge also told

A-1494-17T1
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defendant that he would be waiving any claim of ineffective assistance of

counsel if he waived his right to counsel and represented himself at trial.

We therefore reject defendant's contention that the trial judge erred by

allowing defendant to represent himself at trial.

III.

Defendant further argues that the assistant prosecutor improperly argued

to the jury that the statements he made during his examination of certain

witnesses were admissions the jury could consider. In her closing argument, the

prosecutor stated:

How do we know that the defendant acted knowingly
or purposely in possessing . . . the heroin? Well,
knowingly or purposely is a state of mind, and that can
be drawn from inferences; from inferences from facts,
from inferences from actions, from inferences from
words. And here let's look at the inferences that can be
made.

The inference can be made from where the heroin was
found. It was found in the defendant's long-johns.
Clearly the defendant had to place that heroin there. It
was in his long-johns.

Now, the defendant also, through his information and
when he was questioning the witnesses, acknowledged
his familiarity with drugs. He referenced the heroin as
"the dope," "the dope." He said that multiple times
when he was questioning the chemist. So I think we
can infer from the defendant's words referring to this as
dope, and from where it was found that he knowingly

A-1494-17T1
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 possessed it. All of the elements of an unlawful
possession of heroin have been met in this case.

On appeal, defendant argues that the prosecutor improperly attempted to

persuade the jury to draw inferences from questions he asked while cross-

examining a witness. Defendant contends that his questions were not made

under oath and therefore, his statements were "not evidence."

It is well-established that "prosecutorial misconduct is not grounds for

reversal of a criminal conviction unless the conduct was so egregious as to

deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38

(2007) (quoting State v. Timmendequas (I), 161 N.J. 515, 575-76 (1999)). To

warrant a new trial, the prosecutor's conduct must be "clearly and unmistakably

improper" and "must have substantially prejudiced defendant's fundamental

right to have a jury fairly evaluate the merits of his defense." Id. at 438 (quoting

State v. Papasavvas (I), 163 N.J. 565, 625 (2000)).

When reviewing a prosecutor's alleged improper remarks, we consider

"whether defense counsel made a timely and proper objection, whether the

remark[s] [were] withdrawn promptly, and whether the court ordered the

remarks stricken from the record and instructed the jury to disregard them."

Ibid. (quoting Papassavas (I), 163 N.J. at 625). Here, defendant did not object

to the prosecutor's remarks.

A-1494-17T1
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 The State recognizes that generally, a prosecutor may not comment on a

non-testifying defendant's demeanor at trial. See State v. Adames, 409 N.J.

Super. 40, 57-61 (App. Div. 2009). The State points out, however, that a

different situation is present when, as in this case, a self-represented defendant

questions a witness. When doing so, the defendant may communicate some

relevant, incriminating information.

The Court of Appeals for the Third Circuit addressed this issue in Oliver

v. Zimmerman, 720 F.2d 766 (3d Cir. 1983). In that case, the defendant was

charged with attempted burglary of a bank and decided to represent himself at

his criminal trial. Id. at 767. While cross-examining a witness, the defendant

inadvertently referred to himself as the alleged burglar. Id. at 770. During

summation, the government's attorney asked the jury to draw an inference of the

defendant's guilt based on the questions the defendant asked the witness during

trial. Id. at 768, 770. The jury found the defendant guilty. Id. at 767, 770.

On appeal, the court rejected the defendant's argument that the prosecutor

had improperly commented on his questions during summation. Id. at 770. The

court stated, "[i]t is not prosecutorial misconduct to ask the jury to draw

permissible inferences from anything that appears in the record." Ibid. The

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court reasoned that, once the defendant's question appeared in the record, "the

prosecutor had a clear right to comment on it." Ibid.

The court's decision in Oliver is not binding, but its reasoning supports

the conclusion that the prosecutor's comments in this case were not "clearly and

unmistakably improper." Wakefield, 190 N.J. at 438 (citing Papassavas (I), 163

N.J. at 625). Here, defendant's questions to the witness were part of the record,

and the prosecutor did not act improperly by asking the jury to consider those

statements when determining whether defendant was guilty of the charged

offense.

However, even if the prosecutor erred by commenting on defendant's

questions in her summation, the error did not "substantially prejudice[]

defendant's fundamental right to have a jury fairly evaluate the merits of his

defense." Ibid. Here, the State presented overwhelming evidence from which

the jury could find beyond a reasonable doubt that defendant "knowingly or

purposely" possessed the heroin, in violation of N.J.S.A. 2C:35-10(a)(1).

In light of that evidence, the prosecutor's comment that defendant had a

familiarity with drugs, as shown by his reference to "dope," was not likely to

prejudice defendant's right to have the jury fairly evaluate the evidence .

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Wakefield, 190 N.J. at 438. We therefore reject defendant's contention that the

prosecutor's comments deprived him of his right to a fair trial.

IV.

Next, defendant argues that the trial judge erred by denying his motion to

suppress the evidence obtained from the vehicle and in the search of defendant

at the police station. Again, we disagree.

A. Testimony at Suppression Hearing

At the hearing on defendant's suppression motion, Holmstedt testified that

on December 31, 2013, he was patrolling on Route 35 in a marked police cruiser

when he observed a white Ford driving forty-seven miles per hour in a thirty-

five mile per-hour speed zone. Holmstedt pulled the vehicle over and turned on

his cruiser's motor vehicle recording (MVR) system to record the stop.

Holmstedt approached the vehicle and asked the driver, who was later

identified as defendant, to produce his driver's license. Defendant told the

officer he did not have a driver's license in his possession. A female passenger

was seated in the front passenger seat of the car. Defendant and his passenger

verbally provided their identification information to Holmstedt. The officer

returned to his cruiser and called the department's dispatch officer to verify the

information and check for outstanding warrants.

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 The dispatch officer informed Holmstedt that there was an outstanding

warrant for the female passenger's arrest. Holmstedt exited his cruiser,

approached the passenger side of defendant's car, and began speaking with

defendant and his passenger. He told them about the warrant. Holmstedt asked

the passenger to step out of the vehicle and placed her under arrest.

Defendant questioned Holmstedt about how he could later contact his

passenger. When Holmstedt looked back at defendant to answer his question,

he observed pieces of marijuana on the floor of the vehicle between the

passenger seat and the open passenger-side door. Holmstedt secured the

passenger, and then returned to the white Ford. He asked defendant to step out

of the car, and defendant complied.

Holmstedt led defendant to the sidewalk and asked him for consent to

search his vehicle. Defendant agreed and executed a consent-to-search form.

Holmstedt began his search from the front driver's side door and worked his way

through the vehicle. The officer discovered pieces of marijuana "throughout the

vehicle" and secured them in an evidence bag.

Holmstedt arrested defendant, placed him in the back seat of the police

vehicle, and brought him to the Neptune Township police station. In the station's

processing area, Holmstedt searched defendant "in accordance with [the police

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department's] policy." While patting defendant down, Holmstedt felt a sharp

object in the groin region of defendant's pants.

Holmstedt asked defendant what the object was, and defendant stated it

was his genitals. Suspecting defendant was hiding a weapon or other

contraband, Holmstedt placed defendant in handcuffs and, accompanied by

another officer, escorted defendant to a separate room for privacy.

Holmstedt removed defendant's jeans. Defendant was wearing thermal,

long-johns under his jeans. Holmstedt discovered sixty-four packages in the

front compartment of defendant's long-johns. The packages contained heroin.

Defendant then told Holmstedt he had another bag hidden in his socks. That bag

contained marijuana.

B. Detention and Evidence Seized During Motor Vehicle Stop

On appeal, defendant argues that "there was an unreasonable lapse of time

between the time of the initial stop and the time of the plain view observation"

and that "the duration of the stop far exceeded the time required to accomplish

the purpose of the stop," which defendant contends was "to issue a motor vehicle

summons." He argues that this roadside detention was illegal and that "[a]ll

seized evidence following this illegality should be suppressed."

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 Defendant did not raise this argument in the trial court. Therefore, the

court did not have the opportunity to address this contention. Nevertheless, the

record does not support defendant's contention that there was an unreasonable

lapse of time between the officer's initial stop of the vehicle and his observation

of the marijuana, which was in plain view.

"During an otherwise lawful traffic stop, a police officer may inquire 'into

matters unrelated to the justification for the traffic stop.'" State v. Dunbar, 229

N.J. 521, 533 (2017) (first quoting Arizona v. Johnson, 555 U.S. 323, 333

(2009); then citing State v. Dickey, 152 N.J. 468, 479 (1998)). The officer may

make "ordinary inquiries," such as "checking the driver's license, verifying

whether the driver has any outstanding warrants, and inspecting the automobile's

registration and proof of insurance." Ibid. (quoting Rodriguez v. United States,

575 U.S. , 135 S. Ct. 1609, 1615 (2015) (quotations omitted)).

If the stop and its ordinary inquiries lead to "suspicions unrelated to the

traffic offense," the officer may expand the investigation to "satisfy those

suspicions." Ibid. (quoting Dickey, 152 N.J. at 479-80). The officer cannot,

however, conduct an incidental investigation in a manner that "prolongs the stop,

absent the reasonable suspicion ordinarily demanded to justify detaining an

individual." Id. at 533-34 (citing Rodriguez, 575 U.S. at , 135 S. Ct. at 1615;

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Dickey, 152 N.J. at 476-79). Therefore, a traffic stop "that is justified solely by

the interest in issuing a warning ticket to the driver can become unlawful if it is

prolonged beyond the time reasonably required to complete that mission." Id.

at 534 (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)); see also State v.

Coles, 218 N.J. 322, 344 (2014).

Here, it is undisputed that Holmstedt made a valid stop of defendant's car

for a motor vehicle violation. The trial court noted that the warrant and

credentials check took longer than usual, but this was because Holmstedt had to

contact the dispatch officer and confirm defendant's identity using only the

information defendant provided verbally. The identification check took about

"five to ten minutes."

Furthermore, Holmstedt was authorized to verify the female passenger's

identification information and check for outstanding warrants. See State v.

Sloane, 193 N.J. 423, 426, 439 (2008) (finding that, after stopping the motor

vehicle, the police officer was entitled to search both the driver and the

passenger for outstanding warrants using the National Crime Information Center

(NCIC) database).

Thus, the record supports the trial court's finding that Holmstedt did not

unreasonably delay the traffic stop. As the record shows, the officer made

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"ordinary inquiries" that were incidental to the otherwise lawful traffic stop. See

Dunbar, 229 N.J. at 533. Moreover, the officer properly approached defendant's

passenger's door and ordered the passenger out of the vehicle after confirming

the existence of a warrant for her arrest.

Holmstedt was therefore lawfully in the viewing area when he observed

the marijuana in plain view. Holmstedt validly seized the marijuana. See State

v. Johnson, 171 N.J. 192, 206 (2002) (citing Texas v. Brown, 460 U.S. 730, 737-

40 (1983)).

C. Evidence Seized During Search at Police Station

Defendant further argues that Holmstedt's search at the police station was

a "strip search," as that term is defined in the "Strip Search Act" (the Act),

N.J.S.A. 2A:161A-1 to -10. He contends the State failed to prove that the search

complied with the requirements set forth by the Act. He therefore contends the

heroin discovered during the search must be suppressed.

N.J.S.A. 2A:161A-3(a) defines a "strip search" as "the removal or

rearrangement of clothing for the purpose of visual inspection of the person's

undergarments, buttocks, anus, genitals, or breasts." Ibid. In the Act, the

Legislature did not define the term "undergarments." Therefore, we must

A-1494-17T1
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ascribe to that term its ordinary meaning. See State v. Twiggs, 233 N.J. 513,

532 (2018) (citing Paff v. Galloway Twp., 229 N.J. 340, 353 (2017)).

In State v. Evans, 235 N.J. 125, 129 (2018), the Court determined that the

police had conducted a strip search when an officer brought the defendant into

another room with another officer present, unbuckled the defendant's pants,

reached into his jeans, and found plastic bags "[b]etween [the defendant's] pants

and underwear." The Court found there was a strip search even though the

officers had not removed defendant's underwear and his private parts were not

exposed. Ibid.

We are convinced, however, that there is sufficient credible evidence in

the record to support the trial court's finding that Holmstedt did not perform a

strip search when he removed defendant's jeans. Holmstedt performed a visual

inspection of defendant's long-johns, which would ordinarily be considered

"undergarments." But, the evidence reveals that defendant was wearing boxer

shorts beneath the long-johns. Thus, in this case, defendant's long-johns were a

second layer of outerwear, not his "undergarments." We therefore conclude that

the court correctly determined that Holmstedt did not perform a strip search.

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 Even if we were to conclude that Holmstedt's removal of defendant's jeans

constituted a strip search, the search was permissible. The Act provides in

relevant part that a person shall not be subjected to a strip search unless:

a. The search is authorized by a warrant or
consent;

b. The search is based on probable cause that a
weapon, controlled dangerous substance, . . . or
evidence of a crime will be found and a recognized
exception to the warrant requirement exists; or

c. [(1)] The person is lawfully confined in a
municipal detention facility or an adult county
correctional facility and [(2)] the search is based on a
reasonable suspicion that a weapon, controlled
dangerous substance . . . or contraband . . . will be
found, and [(3)] the search is authorized pursuant to
regulations promulgated by the Commissioner of the
Department of Corrections.

[N.J.S.A. 2A:161A-1.]

Here, the judge found that the search complied with the requirements

imposed by N.J.S.A. 2A:161A-1(c). The judge noted that the officer had

performed the search at police headquarters, which was a municipal detention

facility. The judge also found that before conducting the search, Holmstedt had

sufficient reasonable suspicion to believe that defendant was in possession of a

weapon or CDS.

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 Defendant argues, however, that the State failed to demonstrate that the

officer conducted the strip search in compliance with regulations promulgated

by the Commissioner of the Department of Corrections (DOC), as required by

N.J.S.A. 2A:161A-1(c). The judge did not address this issue in his opinion.

Even so, the record supports the conclusion that if Holmstedt conducted a strip

search, he did so in accordance with the DOC's regulations.

The DOC regulations provide in pertinent part that:

(a) A person who has been detained or arrested for
commission of an offense other than a crime and who
is confined in a municipal detention facility shall not be
subject to a strip search unless:

1. The search is authorized by a warrant or valid
documented consent;

2. A recognized exception to the warrant requirement
exists and the search is based on probable cause that a
weapon, controlled dangerous substance, contraband or
evidence of a crime will be found and the custody staff
member authorized to conduct the strip search has
obtained the authorization of the custody staff
supervisor in charge;

3. The person is lawfully confined and the search is
based on a reasonable suspicion that a weapon,
controlled dangerous substance, contraband or
evidence of a crime will be found and the custody staff
member authorized to conduct the strip search has
obtained the authorization of the custody staff
supervisor in charge; or

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 4. Exigent circumstances prevent obtaining a search
warrant or authorization of the custody staff supervisor
in charge and such exigent circumstances require
custody staff to conduct a strip search in order to take
immediate action for purposes of preventing bodily
harm to the officer, person or others.

[N.J.A.C. 10A:34-3.4(a) (emphases added)].

Here, the record shows that due to "[e]xigent circumstances," Holmstedt

was authorized to conduct an immediate strip search "for purposes of preventing

bodily harm" to himself or others. See N.J.A.C. 10A:34-3.4(a)(4). As we have

explained, Holmstedt believed defendant was concealing a weapon underneath

his pants and that defendant presented an immediate threat of bodily harm to

himself and other officers present at the time.

Accordingly, we conclude exigent circumstances prevented Holmstedt

from obtaining the search warrant to conduct the search of defendant's person.

The circumstances required the officer to conduct a search "in order to take

immediate action" to prevent bodily harm to the officer and others present at the

time. Ibid.

V.

Defendant also challenges his sentence. Here, the sentencing judge

granted the State's motion for imposition of an extended term as a persistent

offender pursuant to N.J.S.A. 2C:44-3(a). The judge found aggravating factors

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three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will re-offend); six, N.J.S.A.

2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of

the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9)

(need to deter defendant and others from violating the law). The judge found

no mitigating factors.

The judge decided not to sentence defendant within the range of extended-

term sentences, N.J.S.A. 2C:43-7(a)(4), or impose a period of parole

ineligibility, N.J.S.A. 2C:43-6(b). Instead, the judge sentenced defendant to a

flat, four-year custodial term. The judge ordered a six-month suspension of

defendant's driving privileges, and imposed appropriate fees and penalties. In

addition, the judge dismissed the other charges and motor vehicle violations.

On appeal, defendant argues that the sentencing judge failed to properly

weigh the aggravating and mitigating factors. He contends the judge erred by

finding he is at risk of committing another crime. He asserts this finding is based

on this conviction and his prior record. He states that there is no evidence he is

at risk to commit another offense.

Defendant also argues that while the judge cited the need to deter him and

others from violating the law, this is a factor that applies in all cases and it

should have been accorded little weight. In addition, defendant contends the

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judge erred by failing to find mitigating factors one, N.J.S.A. 2C:44-1(b)(1)

(defendant's conduct did not cause injury or harm); and two, N.J.S.A. 2C:44 -

1(b)(2) (defendant did not contemplate that his conduct would cause harm).

Defendant therefore argues that his sentence is excessive. He contends

that instead of sentencing him to a flat, four-year term, the judge should have

imposed a flat, three-year prison term. We disagree.

We review the sentence imposed in a criminal matter under an abuse of

discretion standard. State v. Jones, 232 N.J. 308, 318 (2018). In doing so, we

consider whether: "(1) the sentencing guidelines were violated; (2) the findings

of aggravating and mitigating factors were . . . 'based upon competent credible

evidence in the record'; [and] (3) 'the application of the guidelines to the facts'

of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221,

228 (2014) (third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-

65 (1984)).

"An appellate court is bound to affirm a sentence, even if it would have

arrived at a different result, as long as the trial court properly identifies and

balances aggravating and mitigating factors that are supported by competent

credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989)

(first citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); then citing Roth, 95

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N.J. at 364-65). Although the law "does not require that trial courts explicitly

reject every mitigating factor argued to the court, [trial courts are encouraged]

to address each factor raised, even if only briefly." State v. Bieniek, 200 N.J.

601, 609 (2010).

Here, the record shows the judge followed the sentencing guidelines, and

there is sufficient credible evidence to support the judge's findings of

aggravating factors, and the judge's conclusion that no mitigating factors

applied. Moreover, the record shows that the judge properly weighed the

aggravating and non-existing mitigating factors. We conclude the sentence

imposed here is not an abuse of discretion.

Affirmed.

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