STATE OF NEW JERSEY VS. LUQMAN ABDULLAH (09-10-0928, UNION 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NOT FOR PUBLICATION WITHOUT THE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-5547-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUQMAN ABDULLAH,

Defendant-Appellant.

Submitted September 17, 2019 – Decided October 18, 2019

Before Judges Hoffman and Currier.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 09-10-0928.

The Anthony Pope Law Firm, PC, attorneys for
appellant (Annette Verdesco and Eric William
Feinberg, on the briefs).

Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Michele C. Buckley, Special
Deputy Attorney General/Acting Assistant Prosecutor
and Reana Garcia, Special Deputy Attorney
General/Acting Assistant Prosecutor, of counsel and on
the brief).
 Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Luqman Abdullah appeals from his conviction on numerous

charges following a jury trial. He also asserts error in the denial of a pre-trial

suppression motion and challenges the sneak and peek warrant. After a review

of the arguments in light of the record and applicable principles of law, we

affirm.

I.

A.

We derive the facts from the evidence elicited at trial. In 2009, numerous

law enforcement agencies in Union County, including the Federal Bureau of

Investigation, began a joint narcotics investigation, targeting a suspected drug

distribution network. A wiretap of a local drug dealer revealed the identities of

the dealer's drug suppliers — one was Abdul Hassan. Defendant was observed

at Hassan's residence. Further investigation disclosed defendant frequented

several homes; he was often at his girlfriend's residence in Newark, his mother's

home in Elizabeth and at his own residence in Sayreville. Defendant was

observed driving numerous vehicles, only one of which was registered in his

name.

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 Tracking devices on defendant's vehicles showed him frequently at an

apartment building located on Chancellor Avenue in Newark. After police

observed defendant enter the Chancellor Avenue parking lot several times, only

remaining in the building ten to fifteen minutes, they suspected the residence

was a "stash location," "a place where drugs were sold . . . or kept."

When law enforcement surveilled defendant, they noticed he was

"extremely surveillance conscious" and would drive erratically, such as driving

too fast, making "many lane changes," frequently stopping on the side of the

road, and circling around the block numerous times. Elizabeth Police Detective

Daniel Merten testified that "squaring of blocks" and stopping frequently on the

side of the road normally indicates counter surveillance techniques used by

people trying "to make sure they are not being followed."

Since the Chancellor Avenue residence was an apartment complex, law

enforcement did not know which apartment was being used to manufacture and

distribute drugs. A review of the electric bills for the entire complex showed

apartment D2's bill was "unusually low," roughly ten dollars a month. In order

to ascertain whether D2 was the correct apartment, an undercover detective

walked into the building at the same time as Hassan, and observed him entering

D2. As a result, law enforcement installed a camera in the hallway facing doors

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D1, D2, and D3. This camera captured defendant at the Chancellor Avenue

residence on April 12 and April 14, 2009.

Shortly thereafter, a detective for the Union County Prosecutor's Office

sought legal authorization via a "sneak and peek"1 in order "to plant . . . a 'bug'

or a listening device" in apartment D2. A 127-page affidavit supported the

application for the warrant. The search warrant was issued on April 17, 2009.

In the early morning hours of April 22, 2009, officers physically entered

apartment D2. Once inside, law enforcement observed that "it appeared that no

one was living there;" there was "little to no furniture," no toiletries, no

silverware, no food, and no bed. As they entered the kitchen, they noticed there

was powder covering the floor, the cupboards were open with "large rock -like

substances in plastic bags," there was baking soda, Pyrex containers, a "scale

with powder substance on it," knives and razor blades covered in powder,

"[p]ackaging material, ziplock bags, plastic bags, [and] rubber gloves."

Additionally, they saw white powder covering the stove. Although the officers

believed they were witnessing the production of controlled dangerous

substances (CDS), specifically cocaine, they did not do a "thorough and

1
The detective described a "sneak and peek" as a "covert entry . . . into [an]
apartment" where law enforcement "look[s] for a . . . position to place a listening
device."
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exhaustive search" for drugs as they were there to find a location to position the

listening device.

During the sneak and peek, law enforcement also observed a rifle and a

handgun in two different closets. The officers recorded what they saw upon

entering the apartment for the purpose of determining where to place the

listening device, however, the video also captured the evidence found in the

room. A sample of the powder and a rubber glove were taken for testing.

Eleven hours after the search concluded, at 1:53 p.m. on April 22, 2009,

defendant was observed leaving the apartment. He was also seen at the

apartment at 12:00 p.m. on April 23. Later that evening, at approximately 7:30

p.m., police observed defendant leave apartment D2 and enter Hassan's Cadillac.

The investigation ended that night after law enforcement became concerned that

defendant and the other suspects were suspicious that they were being

investigated.

Arrest warrants were issued for defendant and Hassan. 2 A team of

detectives and state troopers located Hassan's car parked outside a restaurant.

When defendant and Hassan came out of the restaurant, the officers "jumped out

of the car," "rushed both individuals," screamed "[p]olice, freeze, get down on

2
Twenty-four people were arrested as a result of the investigation.
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the ground," "threw a distraction device down," used lights and sirens, and began

a foot pursuit of the suspects.

As both men began to flee, the officers chased them, screaming, "[p]olice

stop, police stop, you're under arrest." Defendant did not stop and law

enforcement could not catch him. Hassan ran across the street, but then

surrendered to police and was arrested.

That same night, law enforcement executed numerous search warrants for

residences connected with defendant. During a search of his girlfriend's

apartment, law enforcement found mail addressed to defendant, two cell phones,

three pictures of defendant hidden in the refrigerator, and $5000 in cash in the

living room closet.

The police also obtained a search warrant for apartment D2. They again

noticed the scarce furnishings, only a couch and chair, and noted the apartment

did not have a refrigerator, dishes, kitchen utensils, toiletries, or clothing in the

closets.

During their search, the police found: a .45 caliber automatic firearm

loaded with four rounds, a 7.62 x 39 rifle with two magazine clips and thirty-

three rounds, a Ruger gun box, respirator masks, a prescription morphine bottle

with seven pills, a plastic bag containing sixteen bricks and one bundle of

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heroine, four plastic bags and four gloves, a .40 caliber firearm, a box of .9

millimeter Luger pistol cartridges with forty-five bullets, three Pyrex measuring

cups, scales, ziplock bags containing suspected CDS, baking soda, a bottle of

rum, a red lighter, knives, numerous black bags and paper plates, one kilo of

suspected cocaine in two plastic bags, and numerous bags of a rock-like

substance which was suspected to be cocaine. In a search of Hassan's residence,

the police found: a box of checks in Hassan's name, Hassan's Visa card, Hassan's

passport, keys to his vehicle, six empty holders for a cell phone's SIM card,

seven new SIM cards in their holders, five cell phones, and $6011 in cash

discovered in three different rooms in the home.

Police executed a no-knock search warrant for the Sayreville residence

where they found defendant's insurance card, three cell phones, defendant's

checkbook, defendant's BMW contract, defendant's driver's license, and $21,995

in cash hidden in two articles of clothing in the master bedroom closet and the

hallway closet.

After searching apartment D2, law enforcement searched a vehicle

associated with defendant that was parked at the building. The search produced:

insurance papers issued to defendant, a Bank of America checkbook in

defendant's name, receipts from BMW listing defendant as the customer, an

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Alamo rental receipt listing defendant as the renter, contractor estimate papers

in defendant's mother's name, and a dry cleaning receipt in defendant's name.

Testing on the seized materials from apartment D2 confirmed the

substances were: 1.79 grams of morphine, 21.17 grams of heroin, and

approximately 2,850 grams of cocaine. Fingerprints from Hassan and the other

supplier were on numerous pieces of evidence. Defendant's fingerprint was

found on one kilo wrapper.

The lab testing also determined defendant's DNA was a match with a water

bottle and latex gloves found in the apartment. Of the twenty-eight gloves that

were analyzed, all "either contained a [DNA] profile that was a match to

[defendant] or a profile where he could not be excluded as a contributor."

B.

On September 24, 2009, five months after defendant had eluded police,

Clifton police conducted a routine traffic stop and pulled over a Jeep Cherokee

for improperly tinted windows. The police asked both the driver and passenger

to step out of the car. The passenger was described as six feet tall, approximately

195 pounds, wearing a black shirt and a baseball cap, and had tattoos on both

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elbows: a spider web on his left and dog tags on his right. 3 The passenger was

later identified as defendant.

When defendant asked to sit on the curb, the police agreed, but instead of

sitting, defendant "took off running using the curb almost like a shuttle block."

As defendant fled across Route 3, the baseball cap "flew off his head and

dropped to the ground." Defendant ran through six lanes of traffic, jumped over

the four foot concrete barrier in the highway, ran through a gas station, and fled

into a wooded area behind the highway. The police were unable to catch up

with him. DNA testing on the baseball cap showed defendant's DNA was a

match with the cap.

II.

In October 2009, defendant was charged in an indictment with: first-

degree racketeering, N.J.S.A. 2C:41-2(c) and 2C:41-2(d) (counts one and two);

second-degree conspiracy, N.J.S.A. 2C:5-2 (count three); first-degree

maintaining or operating a controlled dangerous substance production facility,

N.J.S.A. 2C:35-4 (count four); third-degree possession of a controlled

dangerous substance, N.J.S.A. 2C:35-10(a)(1) (counts five, eight, and eleven);

first-degree possession of a controlled dangerous substance with intent to

3
The parties stipulated at trial that defendant had these tattoos on his elbows.
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distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1) (count six); third-degree

possession of a controlled dangerous substance with intent to distribute on or

within 1,000 feet of school property, N.J.S.A. 2C:35-7 (counts seven and ten);

third-degree possession of a controlled dangerous substance with intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count nine); second-

degree unlawful possession of a weapon (assault firearm), N.J.S.A. 2C:39-5(f)

(count twelve); second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b) (count thirteen); second-degree possession of a firearm in the course

of committing a violation of N.J.S.A. 2C:35-5 and N.J.S.A. 2C:39-4.l(a) (count

fourteen); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count

fifteen); fourth-degree prohibited device, N.J.S.A. 2C:39-3(d) (count sixteen);

third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25(a)

(count seventeen); fourth-degree resisting arrest (by flight), N.J.S.A. 2C:29-2(a)

(counts eighteen and twenty-two); third-degree hindering apprehension,

N.J.S.A. 2C:29-3(a) (count nineteen); third-degree hindering apprehension or

prosecution, N.J.S.A. 2C:29-3(a)(4) (count twenty); third-degree false

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government documents, N.J.S.A. 2C:21-2.l(c) (count twenty-one); third-degree

hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count twenty-three).4

On the same day, defendant was charged in a second indictment with

second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. Three

years later, in December 2012, defendant surrendered to the prosecutor's office.

III.

A.

Prior to trial, defense counsel filed a motion to suppress the evidence

seized during the sneak and peek search, asserting law enforcement lacked

probable cause to obtain the warrant. 5 The trial judge disagreed, noting that

[the warrant judge is] looking for probable cause that
. . . there are criminal activities that are happening in
that particular apartment in that particular location and
whether there's probable cause for that. And he's
looking at the totality of the activities vis-à-vis that
apartment, not just probable cause relating to . . . the
defendant here.

Because the sneak and peek only required probable cause that the apartment had

a connection to drug activity, the judge denied the suppression motion.

4
Counts seven, ten, twenty-one, twenty-two, and twenty-three were dismissed
before trial.
5
The motion was originally filed as a motion to dismiss the indictment; counsel
amended his request during argument on the application.
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 B.

In the seven years that elapsed between the investigation and trial,

defendant's appearance dramatically changed. In 2009 defendant was described

as having long dreadlocks, light facial hair, a muscular-athletic build, weighing

200 pounds, and six feet tall. In 2016, defendant had shorter hair without

dreadlocks, a full beard that covered his chin, and "a slender build." As a result,

the State sought to introduce police opinion testimony of defendant's

identification.

During the ensuing Rule 104 hearing, the State produced Detective Vito

Colacitti, the lead detective in the narcotics investigation. Colacitti stated he

first became familiar with defendant through his law enforcement experience in

2000. Prior to the subject investigation, Colacitti had looked at arrest

photographs of defendant, motor vehicle photographs and had seen him

numerous times in person. Although defendant's appearance had changed in the

seven years proceeding trial, Colacitti testified that his "facial features [were]

exactly the same."

On cross-examination, Colacitti stated he had seen defendant "a dozen

times" between 2002 and the time of the subject investigation. Those

observations were all made while the detective was driving in a car performing

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his duties as a member of the prosecutor's narcotics task force. After the subject

investigation began, Colacitti said he physically observed defendant, in person,

five times. He also intended to identify defendant to the jury on the surveillance

videos.

On September 29, 2016, the trial judge issued an oral decision, finding the

State could present opinion testimony through Colacitti to identify defendant.

The judge distinguished this matter from State v. Lazo, 209 N.J. 9, 22-24 (2012),

because here there was a "change of appearance." He explained that in Lazo,

the Court found it was error to allow the detective to offer lay opinion testimony

on the defendant's appearance because "the detective's ID was not based on prior

knowledge . . . [he] had not witnessed the crime, did not know the defendant,

[there was] no change in appearance, and the ID was based merely on the

victim's description." Id. at 24. In contrast, the judge found here that Colacitti

had personal knowledge of defendant's appearance during the narcotics

investigation and had observed defendant in person and over surveillance

footage "commit acts in furtherance of the crime while they were going on."

Therefore, the judge permitted Colacitti to testify about defendant's

appearance during the investigation, his physical observations of defendant, the

differences in defendant's appearance, and to discuss the videos "where he

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actually [saw defendant's] facial features and [was] able . . . to identify [that the]

person in the video [was] . . . defendant."

The judge precluded Colacitti from testifying about any observations or

knowledge of defendant prior to the narcotics investigation because it was not

relevant, exposed defendant to "significant [Rule] 403 issues," and "could

potentially prejudice the defense on cross-examination."

C.

The State also intended to introduce, under the attenuation doctrine, the

baseball cap seized during the traffic stop in 2009. In the criminal case against

the driver of the Jeep, the driver had moved to suppress the evidence seized

during the stop. Although the judge 6 there determined the stop was proper, he

found the subsequent warrantless search was unjustified under the

circumstances. After the officers were satisfied that the Jeep was not stolen, the

judge found they should have written a ticket and walked away. Therefore, the

judge suppressed the evidence as to the driver of the car. Defendant here sought

to suppress the baseball hat under the same premise.

6
A different judge presided over the Jeep driver's suppression motion than the
trial judge in this case.
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 Although the trial judge here agreed with his colleague's determination

regarding the constitutionality of the stop and subsequent search of the car, he

found the prior decision had not addressed the attenuation doctrine. He stated

that because the Jeep driver "did not do anything . . . to trigger any attenuation

argument" as he was "totally cooperative" and "didn't run," the driver and

defendant were "very differently situated" regarding attenuation. In addition,

the State sought to use the hat as evidence against defendant, not the Jeep driver.

As a result, an attenuation hearing was conducted.

The only witness to testify at the hearing was the Clifton police officer

who had made the traffic stop. Following his testimony, in an oral decision on

September 28, 2016, the trial judge found the attenuation doctrine required the

denial of defendant's motion to suppress the baseball cap.

In making this determination, the judge considered the three factors set

forth in State v. Herrerra, 211 N.J. 308, 331 (2012) (quoting State v. Johnson,

118 N.J. 639, 653 (1990)), to evaluate whether the seized hat was sufficiently

attenuated from the taint of the unconstitutional search: "'(1) the temporal

proximity between the illegal conduct and the challenged evidence; (2) the

presence of intervening circumstances; and (3) the flagrancy and purpose of the

police conduct.'"

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 Although the judge found the first factor weighed in favor of defendant,

he concluded it was "substantially outweighed by the other two factors." The

judge noted that eluding the police and resisting arrest in response to an

unconstitutional stop was an intervening act. He also found the officers had

acted in good faith in stopping the vehicle based on the traffic violation and also

their observation of damage to the passenger door. He stated the officers then

took further action because they believed the driver was covering up the smell

of marijuana or involved in a theft. The judge found: "Although their beliefs

were insufficient to continue their stop, their actions could hardly be described

as flagrant misconduct."

As to intervening circumstances, the judge found defendant's actions in

disobeying police commands to sit on the curb and to stop as he fled across six

lanes of traffic and over a center barrier in heavy traffic "posed a risk of physical

injury to police officers, members of the public, and defendant himself." The

judge found the "significant intervening circumstances" supported the

application of the attenuation doctrine and required the denial of the suppression

motion.

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 D.

At the conclusion of the State's case, defendant moved for acquittal under

State v. Reyes, 50 N.J. 454, 458-59 (1967). Defense counsel argued the State

lacked proof to connect defendant to the crimes charged in the indictment. After

hearing argument, the judge stated he was "satisfied under the Reyes standard

that there[] [was] more than enough information to send all of the[] counts to

the jury." The judge clarified he was not determining whether the State had

proven its case beyond a reasonable doubt, but under the applicable standard, he

believed there was "sufficient evidence that . . . defendant controlled . . .

apartment [D2] and what was in it and was involved in this activity with at least

. . . Hassan and . . . [the second drug supplier] and that there were repeated

possessions with intent predicate acts."

E.

Prior to presenting his case, defense counsel sought to admit an invoice

from a North Carolina Hilton Hotel to refute a police report prepared during the

narcotics investigation that described surveillance of defendant on a particular

day in a mall parking lot. The invoice showed defendant's credit card was used

on that same day at the North Carolina hotel. The prosecution had not discussed

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this day of surveillance in its direct case and the officer who prepared the report

did not testify at trial.

Defendant sought to introduce the hotel invoice to establish he was in

North Carolina at the time of the purported surveillance and, therefore, the

police officer, and by extension, all of the law enforcement involved in the

investigation, misidentified defendant. Counsel intended to call David Mast, an

employee of Hilton Short Hills, to authenticate the invoice.

Counsel for Hilton and Mast explained to the court that Mast worked for

a corporate Hilton in New Jersey and the North Carolina location was a franchise

that may not have adopted the policies and procedures of the Hilton Corporation.

With regard to the actual invoice, the Hilton counsel thought Mast could testify

that it "look[ed] like a Hilton invoice," but he could not corroborate it came from

the Charlotte, North Carolina Hilton.

In response, the State presented several arguments as to the relevancy and

probative value of the invoice. In particular, the State contended there was no

testimony that it was defendant himself who checked into the North Carolina

hotel or that the person who checked in even presented any form of

identification. Mast could not authenticate "whether ID was required or shown,

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whose ID was shown, [or] whether the person who showed up is the same person

who paid for the room."

The judge denied defendant's request to admit the invoice and precluded

Mast's testimony because it was "very minimally probative and ha[d] the

potential to lead to . . . confusion." He determined that Mast, as a Hilton

employee in New Jersey, could not testify about any policies or procedures that

were in place at the North Carolina Hilton franchise in 2009.

F.

During the charge conference, defendant requested the judge address his

allegations regarding tampering of the evidence and defects in the chain of

custody of evidence when charging the jury. Defense counsel proposed the

following charge:7

The defense has elicited testimony that with
respect to the handling and storage of certain physical
evidence the police without justification or explanation
failed to follow police department protocol, and rules
for the handling and storage of physical evidence, and
for maintaining the integrity of the chain of custody
which is necessary to assure the accuracy and validity
of the evidence.

7
The charge was not read into the record during the charge conference. Defense
counsel read the proposed charge into the record during argument on his motion
for a new trial.

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 [. . . .]

If you find that the State has not met its burden in this
regard and you are left with the finding that you are not
reasonably certain that there was no alteration or
modification of — or tampering with such evidence,
then you may disregard and not consider such evidence
in relation to your deliberations. And you may further
conclude that the State's failure in this regard
constitutes reasonable doubt as to the defendant's guilt.

The judge agreed it was appropriate to charge the jury on this issue, but

disagreed with defense counsel's proposed language. He stated:

I'm not giving that charge. I think it's -- I think it's
covered elsewhere, and it's exactly what I had in mind
when you had me strike portions of their charge when
you said it sounds just like what their summation is
going to be. It's not -- it's your -- most of this is covered
elsewhere. The first half of it is covered elsewhere, and
the second half of it is your summation.

The judge then read his charge to counsel. Defense counsel admitted that he

"would prefer [his proposed] charge," but agreed to the judge's charge.

Therefore, the judge instructed the jury:

The defense has raised the issue of alleged
defects in the chain of custody regarding kilo wrappers
and gloves. You must determine whether there are such
defects and the weight to give to such evidence. If you
find there are any defects in the chain of custody, you
may consider them in determining what weight to give
to the testimony regarding the gloves and kilo
wrappers. The State alleges that those items were in the
same or substantially similar condition from when the

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 evidence was seized from 129 Chancellor Avenue,
Apartment D2, until it was received by the laboratory.

Defense counsel did not object.

Defendant was found guilty on all counts on November 9, 2016.

III.

On December 12, 2016, the court and counsel received an anonymous

letter purportedly written by a juror. 8 In this letter, the writer stated that before

the jury was charged, the jurors discussed the case at a restaurant, Googled

defendant, and learned he was "a leader of a street gang." Upon learning this

information, the letter stated that several jurors were prejudiced against

defendant and concluded that he was guilty. Moreover, the letter stated that on

one or two occasions, numerous jurors saw defendant wearing shackles and

noted that "he looked darker and menacing while in handcuffs." The letter

concluded in stating the jurors should be recalled and questioned about their

deliberations. "Ms. Honest" signed the letter and listed a fictitious return

address. Subsequent testing of the letter showed no fingerprints on the envelope

and insufficient DNA despite the letter being "licked and sealed shut."

8
The letter was not read into the record during the July 27, 2017 hearing on the
motion for new trial. Nor was it included in the record provided to this court.
We, therefore, derive our information from counsels' argument and the trial
judge's summary of its contents.
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 A.

Defendant's motion for a new trial was heard on July 21, 2017. Defense

counsel asserted the court erred by not using his proposed charge in the

tampering of evidence and chain of custody jury instruction. He argued there

was sufficient evidence to suggest law enforcement had tampered with the

evidence seized at apartment D2. He reiterated there was no evidence to

demonstrate defendant was involved in the drug operation, and therefore, he

could not have been found guilty of racketeering. Additionally, defense counsel

claimed the court erred in not recalling the jury and conducting a voir dire of the

jurors after receiving the anonymous letter. Lastly, defense counsel argued the

jurors were prejudiced against defendant because they saw him in handcuffs

during the trial.

The trial judge began his ruling in addressing the letter. He noted it was

anonymous, typed, undated, unsigned, and had a fictitious return address. After

citing to a plethora of legal authority, the judge found the letter was unreliable

and determined defendant had "not made the strong showing necessary to

warrant the extraordinary procedure of post-trial interrogation of the []trial

jurors."

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 In considering defendant's argument that the jurors saw him in handcuffs,

causing them to be prejudiced against him, the judge found the assertion was

"not supported by anything in the record." He noted when defendant made the

same allegation near the end of trial, the judge had determined there was no

support for the assertion.

At that time, defense counsel informed the court that although he had not

seen a juror view defendant in handcuffs, defendant told him he thought the

jurors had seen him cuffed. In response, the judge explained it was "impossible"

because the door to the hallway was always locked when defendant was brought

in or out of the courtroom. Additionally, a sheriff's officer was stationed outside

the jury room door during those times and the jurors were not permitted outside

the room when defendant was in transit.

During his discussion of the issue following the motion for new trial, the

judge explained that he, in addition to counsel, had reviewed the courtroom

security footage, and particularly the segment where defendant alleged the jury

had seen him in cuffs. With regard to that allegation, the judge described

defendant as sitting at counsel table, which was about fifty feet from the jury

room door. The video depicted defendant sitting in a high-chair, with his back

to the jury room door. Based on "the distance, the angle, the high-back chair,

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. . . [and] defendant's body blocking the view from anybody in the back of the

[c]ourtoom," the judge concluded it was "impossible" for any juror in the jury

room to have seen defendant in shackles. Additionally, the footage did not

depict a juror near the door during this time; instead, it showed a sheriff's officer

standing in the doorway. Therefore, he determined that no member of the jury

had seen defendant in handcuffs.

The judge denied defendant's motion for a new trial, referring to his prior

rulings and finding there was "enough evidence in the record to support the

predicate racketeering acts." His ruling was memorialized in a September 8,

2017 order.

IV.

Defendant presents the following issues on appeal:

I. THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN DENYING
APPELLANT'S MOTION FOR A NEW TRIAL

II. THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN DENYING
APPELLANT'S MOTION FOR A JUDGMENT
OF ACQUITTAL

III. THE TRIAL COURT ABUSED ITS
DISCRETION IN GRANTING THE STATE'S
MOTION TO PERMIT OPINION TESTIMONY
RELATING TO THE IDENTIFICATION OF
APPELLANT

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 IV. THE TRIAL COURT COMMITTED ERROR IN
DENYING APPELLANT'S MOTION TO
SUPPRESS THE BASEBALL HAT AS
EVIDENCE IN THE CASE

V. THE TRIAL COURT COMMITTED ERROR IN
RULING THAT PROBABLE CAUSE EXISTED
FOR THE SNEAK AND PEEK WARRANT

In defendant's supplemental pro se brief he argues:

I. THE COURT'S FAILURE TO ARTICULATE
ANY FINDINGS OR CONCLUSIONS OF LAW
ON DEFENDANT’S SUPPRESSION MOTION,
AND ADMISSION OF EVIDENCE OBTAINED
AS A RESULT OF THE SNEAK AND PEEK
WARRANT WHICH WAS NOT SUPPORTED
BY PROBABLE CAUSE NOR STATUTORILY
AUTHORIZED, WAS A VIOLATION OF THE
FOURTH AMENDMENT, AND A DENIAL OF
DEFENDANT'S DUE PROCESS RIGHT TO A
FAIR TRIAL THEREFORE THE
CONVICTION SHOULD BE REVERSED

II. THE PROSECUTOR’S USE OF A "SNEAK
AND PEEK" SEARCH WARRANT AS A
PRETEXT TO ESTABLISH PROBABLE
CAUSE FOR SUBSEQUENT SEARCH AND
ARREST WARRANTS CREATED AN
APPEARANCE OF IMPROPRIETY AND
AMOUNTED TO MISCONDUCT THAT
DEPRIVED DEFENDANT OF HIS DUE
PROCESS RIGHT TO A FAIR TRIAL
THEREFORE THE CONVICTION SHOULD
BE REVERSED

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 A.

We begin by addressing defendant's argument that probable cause was

lacking for the sneak and peek warrant. It is well settled that there is "a

presumption of validity with respect to the affidavit supporting the search

warrant." State v. Broom-Smith, 406 N.J. Super. 228, 240 (App. Div. 2009)

(quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)). Our "role is not to

determine anew whether there was probable cause for issuance of the warrant,

but rather, whether there is evidence to support the finding made by the warrant -

issuing judge." State v. Chippero, 201 N.J. 14, 20-21 (2009). Therefore, "[w]e

accord substantial deference to the discretionary determination resulting in the

issuance of the [search] warrant." State v. Sullivan, 169 N.J. 204, 211-12 (2001)

(alteration in original) (quoting State v. Marshall, 123 N.J. 1, 72 (1991)). It is

defendant's "burden to prove that there was no probable cause [to support] the

issuance of the warrant . . . ." State v. Keyes, 184 N.J. 541, 554 (2005) (internal

quotation marks and citation omitted).

Probable cause is "consistently characterized . . . as a common-sense,

practical standard for determining the validity of a search warrant." State v.

Novembrino, 105 N.J. 95, 120 (1987). It is established when police have "'a

well-grounded suspicion that a crime has been or is being committed.'" Sullivan,

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169 N.J. at 211 (internal quotation marks omitted) (quoting State v. Waltz, 61

N.J. 83, 87 (1972)).

Here, we are satisfied that the 127-page affidavit presented in support of

the warrant provided ample evidence to support probable cause for the issuance

of a sneak and peek warrant. The affidavit detailed the surveillance techniques

used by law enforcement, the wiretapped conversations in which the speakers

discussed narcotics sales, apartment D2's uncharacteristically low electric bills

indicative of a stash location, and defendant's and the drug suppliers' "frequent

and short visits" to the Chancellor Avenue building where none of the three

lived.

The affidavit sufficiently showed there was a "fair probability" and a

"well-grounded suspicion" that criminal activity — the production of drugs —

was occurring in apartment D2. See ibid.; State v. Demeter, 124 N.J. 374, 380-

81 (1991). Under the substantial deference we accord to the warrant-issuing

judge's finding, we are convinced there was sufficient evidence to support the

sneak and peek warrant of apartment D2.

A-5547-16T1
27
 B.

We likewise discern no error in the trial judge's denial of defendant's

motion to suppress his baseball cap seized by the police after defendant fled

from the traffic stop.

In reviewing a motion to suppress, we defer to the factual and credibili ty

findings of the trial court, "'so long as those findings are supported by sufficient

credible evidence in the record.'" State v. Coles, 218 N.J. 322, 342 (2014)

(internal quotation marks omitted) (quoting State v. Hinton, 216 N.J. 211, 228

(2013)). Deference is afforded because the findings of the trial judge . . . are

substantially influenced by his opportunity to hear and see the witnesses and to

have the "feel" of the case, which a reviewing court cannot enjoy. State v.

Reece, 222 N.J. 154, 166 (2015) (quotation marks and citations omitted).

Here, the trial judge found the police effectuated a valid traffic stop in

2009 but the subsequent warrantless search was not justified by the

circumstances. However, the exclusionary rule will not require the suppression

of the wrongfully-seized evidence if "'the connection between the

unconstitutional police action and the secured evidence becomes so attenuated

as to dissipate the taint from the unlawful conduct.'" State v. Shaw, 213 N.J.

398, 414 (2012) (internal quotation marks omitted) (quoting State v. Badessa,

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28
185 N.J. 303, 311 (2005)). "[W]hen law enforcement officials secure evidence

that is sufficiently independent of the illegal conduct — evidence that is not

tainted by the misdeed — then withholding evidence from the trier of fact is a

cost that may not be justified by the exclusionary rule." Ibid. (citing Badessa,

185 N.J. at 311).

To determine whether a seizure of evidence is sufficiently attenuated from

an unlawful search, a court must consider three factors: "(1) 'the temporal

proximity' between the illegal conduct and the challenged evidence; (2) 'the

presence of intervening circumstances'; and (3) 'particularly, the purpose and

flagrancy of the official misconduct.'" Id. at 415 (quoting Brown v. Illinois, 422

U.S. 590, 602-04 (1975)); accord State v. Williams, 192 N.J. 1, 15 (2007)

(Williams I).

Here, an analysis of the three factors favors the State and supports the

admission of the hat under the attenuation doctrine. Only the temporal

proximity factor weighs in favor of defendant because the chase occurred a short

time between the police ordering defendant out of the car and his subsequent

flight. However, "temporal proximity 'is the least determinative' factor."

Williams I, 192 N.J. at 16 (quoting State v. Worlock, 117 N.J. 596, 622-23

(1990)).

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 The third factor requires a showing of flagrant misconduct by the Clifton

police. Both trial judges who considered the suppression of the evidence seized

pursuant to the traffic stop found the police properly stopped the Jeep due to its

tinted windows. The suppression motion judge believed "the officers should

have written a ticket and just walked away" after confirming the car was not

stolen. However, the failure to do so did not equate to flagrant misconduct. As

our Supreme Court has stated, "[E]ven though the officers may have acted

mistakenly, they did so in good faith." Williams I, 192 N.J. at 16. We see no

evidence to the contrary.

With two factors in equipoise, the second factor, whether intervening

events exist, becomes most significant to the analysis. See Worlock, 117 N.J.

at 623 (holding that the presence of intervening criminal events is the most

important factor in the attenuation analysis).

In State v. Williams, 410 N.J. Super. 549, 563 (App. Div. 2009) (Williams

II) (quoting William I, 192 N.J. at 15), we considered whether there were

"significant 'intervening circumstances'" that "posed a risk of physical injury to

police officers and . . . members of the public." In that case, we noted the

"defendant did not force the officers to engage in a lengthy and dangerous

pursuit to apprehend him." Ibid.

A-5547-16T1
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 Here, in total disregard for himself, the police and innocent bystand ers,

defendant ran across six lanes of heavy rush hour traffic, jumped over a center

barrier and ran into a gas station and into the woods.

Defendant's actions placed himself, the Clifton police, motorists, and

pedestrians in danger. See Williams I, 192 N.J. at 12-13 (recognizing "'any

flight from police detention is fraught with the potential for violence because

flight will incite a pursuit, which in turn will endanger the suspect, the po lice,

and innocent bystanders'") (quoting State v. Crawley, 187 N.J. 440, 460 n.7

(2006)). We discern no abuse of discretion in the trial judge's finding of

sufficient intervening acts between the traffic stop and the seizure of the baseball

cap. The taint from the search was significantly attenuated by defendant's

criminal flight leading to the seizure of his hat. The exclusionary rule is

inapplicable under these circumstances.

C.

Because defendant's appearance dramatically changed in the seven years

that elapsed between the narcotics investigation and defendant's trial, the State

sought to introduce lay opinion testimony through Detective Colacitti. To the

jurors, defendant was not readily identifiable as the man in the surveillance

A-5547-16T1
31
videos. Therefore, the State wanted Colacitti to identify defendant as the person

in the surveillance footage — proffering a lay opinion.

N.J.R.E. 701 permits a lay witness to give relevant opinion testimony if it

is "rationally based on the perception of the witness and . . . will assist in

understanding the witness' testimony or in determining a fact in issue." A police

officer is permitted to testify as a lay witness when his or her opinions are based

on personal observations and experiences. State v. LaBrutto, 114 N.J. 187, 198

(1989).

In Lazo, the Supreme Court found it error for a detective to testify that he

believed the defendant closely resembled a composite sketch of a suspect

because his lay opinion was not based on any prior knowledge. 209 N.J. at 24.

The detective did not know the defendant and had not witnessed the crime; his

opinion was based entirely on the victim's description of the suspect. Ibid.

There also was no change in the defendant's appearance so the jurors did not

need clarification from the officer that it was the defendant. Ibid. The Court

stated the jury could compare the photo and composite sketch itself. Ibid.

In evaluating whether a law enforcement officer could present lay opinion

testimony on the issue of identification, the Court looked to other jurisdictions

and offered several factors for a trial judge's consideration. One factor was

A-5547-16T1
32
"'whether the witness knew the defendant over time and in a variety of

circumstances. Id. at 22 (quoting United States v. Beck, 418 F.3d 1008, 1015

(9th Cir. 2005))'". A second factor was "whether there are additional witnesses

available to identify the defendant at trial." Ibid. (citing United States v.

Butcher, 557 F.2d 666, 670 (9th Cir. 1977)); State v. Carbone, 180 N.J. Super.

95, 97-100 (Law Div. 1981).

We see no abuse of discretion in the trial judge's determination to permit

Colacitti to identify defendant in the surveillance videos. Colacitti had a long

history of observing defendant, both in person and via surveillance footage. As

the lead detective for the narcotics investigation, he reviewed live surveillance

footage, arrest photographs, motor vehicle photographs, and personally

observed defendant five times.

Colacitti was familiar with defendant's appearance in 2009. He testified

that even though defendant's appearance had changed in the seven years

preceding trial, his "facial features [were] exactly the same." We are satisfied

Colacitti had sufficient prior interactions with defendant to allow him to identify

defendant.

The trial judge permitted Colacitti to describe defendant's appearance

during the investigation, his physical observations of defendant, and the

A-5547-16T1
33
differences in defendant's appearance between the investigation and trial. He

also permitted the detective to identify defendant in the surveillance videos ,

which Colacitti said he could do based on defendant's facial expressions and

distinctive walk. His testimony was proper as it was based on his first-hand

knowledge.

Defendant also argues it was error for the judge to permit other law

enforcement officers to identify defendant in surveillance footage and comment

on his changed appearance. There was no objection to the officers' testimony at

trial and therefore we review defendant's assertions for plain error. R. 2:10-2.

In response, the State asserts those officers were introduced as fact

witnesses, who did not offer opinion testimony. See N.J.R.E. 602 (requiring

non-expert witnesses to confine their testimony to matters of personal

knowledge). Rather, the officers simply described the surveillance footage on

the days they observed defendant.

We find defendant's argument meritless. The officers testified as fact

witnesses. Two detectives described the surveillance footage taken during their

physical surveillance of defendant. Neither offered any opinion testimony. Two

other officers also testified regarding their surveillance of defendant. They

identified defendant in the courtroom and described the differences in his

A-5547-16T1
34
appearance. These comments were based on their prior personal observations

of defendant. Their testimony was not "clearly capable of producing an unjust

result." R. 2:10-2.

D.

We briefly address defendant's assertion of error in the denial of his

motion for acquittal. Like the trial court, "[w]hen evaluating motions to acquit

based on insufficient evidence, [we] must view the totality of evidence, be it

direct or circumstantial, in the light most favorable to the State." State v. Perez,

177 N.J. 540, 549 (2003). The State is entitled to "'the benefit of all its favorable

testimony as well as of the favorable inferences [that] reasonably could be drawn

therefrom.'" Ibid. (alterations in original) (quoting State v. Reyes, 50 N.J. 454,

459 (1967)). Such evidence is sufficient if it would enable a reasonable jury to

find that the accused is guilty of the crime or crimes charged beyond a

reasonable doubt. Ibid.

At the close of the State's case, defendant asserted (1) there was

insufficient evidence to prove he was involved in a racketeering enterprise or

pattern of activity, because the State failed to produce a witness to testify that

defendant distributed narcotics; (2) the State failed to establish all the necessary

A-5547-16T1
35
elements of maintaining or operating a CDS production facility; and (3) there

was insufficient evidence to charge defendant with weapons offenses.

The State presented surveillance footage of defendant frequenting the

Chancellor Avenue residence for mere minutes, the evidence seized from

apartment D2 including defendant's DNA on a water bottle, and the abundance

of cash and numerous burner phones found at his home. Additionally, the State

presented an expert on narcotics production and distribution. In his testimony,

he discussed street-level, mid-level, and upper-level narcotics sales, the

different forms of cocaine, the different types of packaging, the price, the

physical description of a kilogram of drugs, the description of a location used

solely for packaging drugs, the presence of face masks and latex gloves when

dealing with drugs, and opined that people who distribute drugs usually use

multiple cell phones and have a "stash location," and that transactions are done

with cash.

There was ample evidence recovered by the police pursuant to the search

warrants for a reasonable juror to find defendant guilty of the charged offenses

of operating or maintaining a CDS production facility and weapons offenses. In

addition, the narcotics expert advised the evidence recovered at the apartment

A-5547-16T1
36
included materials commonly used to distribute narcotics. It was not error to

deny the motion for acquittal.

E.

Lastly, we turn to the argument that it was error to deny the motion for

new trial. Defendant asserts a new trial is warranted because there was

insufficient evidence to support the racketeering charges, the judge erred in

charging the jury and denying admission of the Hilton invoice, and the jurors

were prejudiced by seeing defendant in handcuffs. Defendant also contends the

trial judge was required to recall the jurors after receiving the anonymous letter,

and conduct a voir dire examination to determine whether the verdict was

tainted.

"'[A] motion for a new trial is addressed to the sound discretion of the trial

judge, and the exercise of that discretion will not be interfered with on appeal

unless a clear abuse has been shown.'" State v. Armour, 446 N.J. Super. 295,

306 (App. Div. 2016) (alteration in original) (quoting State v. Russo, 333 N.J.

Super. 119, 137 (App. Div. 2000)). In determining whether a miscarriage of

justice has occurred, we defer to the trial court on matters not transmitted by the

record, such as credibility, demeanor, and the feel of the case. State v. Gaikwad,

349 N.J. Super. 62, 82-83 (App. Div. 2002). "There is no 'miscarriage of justice'

A-5547-16T1
37
when 'any trier of fact could rationally have found beyond a reasonable doubt

that the essential elements of the crime were present.'" State v. Jackson, 211

N.J. 394, 413-14 (2012) (quoting State v. Afanador, 134 N.J. 162, 178 (1993)).

Our application of this standard leaves us unpersuaded by defendant's

arguments.

As stated earlier, the State presented sufficient evidence to substantiate

convictions on the racketeering charges. The evidence presented of defendant

entering and exiting apartment D2 in addition to the cash and burner phones

found at his residences indicates he was involved in the narcotics enterprise.

The officers need not have physically seen defendant distribute or sell the drugs.

See State v. Ball, 141 N.J. 142, 175 (1995) (holding a defendant can be found

to have participated in an enterprise even if his role "do[es] not exert control or

direction over the affairs of the enterprise, as long as the actor, directly or

indirectly, knowingly seeks to carry out, assist, or further the operations of the

enterprise or otherwise seeks to implement or execute managerial or supervisory

decisions").

We need only briefly discuss the contention regarding the jury charge.

During the charge conference, defense counsel advocated for a more specific

tampering charge. The judge declined counsel's proposed charge, finding it was

A-5547-16T1
38
argument and not the pertinent law. Defense counsel then agreed to the judge's

charge. The trial judge was not "bound to utilize the language" requested by

defense counsel. State v. Green, 86 N.J. 281, 290 (1981) (citing State v.

Thompson, 59 N.J. 396, 411 (1971)). Without an objection, we review the

charge for plain error, and see none.

We next consider whether it was error to deny admission of the Hilton

invoice. Defendant argues the document went "to the heart of [his] defense . . .

that [he] was mis-identified in surveillance" and the State took "far-reaching

efforts . . . to implicate him in the crimes charge[d]." We see no abuse of

discretion in the trial judge's evidentiary ruling.

Defendant was unable to authenticate the invoice. The proposed witness

worked at a Hilton corporate office in New Jersey. The invoice was purportedly

from a North Carolina Hilton franchise. The witness could not testify to the

procedures used during booking or checking into the North Carolina hotel.

There was no evidence to substantiate it was defendant who actually checked

into and stayed in the room. We see no reason to disturb the judge's conclusion

that the invoice was "minimally probative and had the potential to lead to . . .

confusion."

A-5547-16T1
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 We turn to the anonymous letter sent several weeks after the verdict.

Defendant contends the information in the letter required the trial judge to recall

the jurors and conduct a voir dire examination to determine if their verdict was

tainted. We disagree.

Defendant contends he was prejudiced when the jury saw him in handcuffs

and when some jurors learned from an internet search that he was the leader of

a street gang.

"[A] criminal defendant's right to a fair trial requires that he be tried before

a jury panel not tainted by prejudice." State v. Biegenwald, 106 N.J. 13, 32

(1987) (citing Irvin v. Dowd, 366 U.S. 717, 722 (1961)). A new trial must be

granted when improper influence "'could have a tendency to influence the jury

in arriving at its verdict in a manner inconsistent with the legal proofs and the

court's charge.'" State v. Weiler, 211 N.J. Super. 602, 610 (App. Div. 1986)

(quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)). Such improper influence

may include instances when jurors view a defendant in restraints. State v.

Kuchera, 198 N.J. 482, 496-97 (2009); State v. Damon, 286 N.J. Super. 492,

497-98 (App. Div. 1996). Because "the trial court is in the best position to

determine whether the jury has been tainted[,]" we apply an abuse of discretion

A-5547-16T1
40
standard of review to challenges to the integrity of jury deliberations. State v.

R.D., 169 N.J. 551, 559 (2001).

During deliberations, defense counsel told the judge that defendant

thought the jurors had seen him with handcuffs on, although counsel had not

witnessed that. No further information was provided, such as when this occurred

or which jurors may have seen defendant cuffed.

The trial judge advised defendant it would have been "impossible" for any

juror to see him in handcuffs because the door to the hallway was always locked

when defendant was brought in or out of the courtroom. A sheriff's officer was

stationed outside the jury room door during these times and the jury was not

permitted outside the room when defendant was in transit.

The anonymous letter raised this issue again, stating that on one or two

occasions, jurors saw defendant wearing shackles and "he looked darker and

more menacing while in handcuffs." In response, the trial judge reiterated his

courtroom procedures. He also reviewed the court surveillance footage with

counsel. Over the three months of trial, the judge stated he only saw a glance

of defendant's handcuffs for a "matter of seconds." However, when considering

the distance from defendant's seat to the jury room, the judge was confident

defendant could not be seen by the jurors. Moreover, at the specific time viewed

A-5547-16T1
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in the footage, a sheriff's officer was standing in the jury room doorway; no

jurors could be seen.

In deference to the trial judge's "unique perspective," id. at 559-60, and

his thorough review and consideration of this issue, we see no reason to disturb

his decision that denied a new trial and the request to recall the jury.

The anonymous letter also failed to demonstrate the required "strong

showing that [defendant] may have been harmed by jury misconduct." State v.

Athorn, 46 N.J. 247, 250 (1966). The information provided here were hearsay

statements in an anonymous letter bearing a fictitious return address.

Our courts have been wary of implementing the extraordinary remedy of

conducting post-verdict interviews under those circumstances. See State v.

Koedatich, 112 N.J. 225, 289 (1988) (denying post-verdict interviews because

the information was not a reliable juror affidavit and "the contents of a single

newspaper article, indisputably hearsay, [could not] be the sole basis for the

extraordinary procedure of a post-trial jury interrogation."); see also State v.

Freeman, 223 N.J. Super. 92, 120 (App. Div. 1988) (explaining a non-juror's

letter discussing a juror's statement was "at best hearsay," which did not

"provide good cause for post-verdict interrogation of jurors."); State v. DiFrisco,

174 N.J. 195, 242 (2002) (holding the unreliable hearsay "statements of an

A-5547-16T1
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alternate juror as conveyed through PCR counsel's affidavit" was insufficient

"to warrant the extraordinary procedure" of interviewing the jurors post-

verdict).

Presented with only an unreliable and anonymous letter, the trial judge

did not abuse his discretion in declining to exercise the very extraordinary

remedy of recalling the jury. Defendant has not demonstrated any bases upon

which to grant a new trial.

Affirmed.

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