STATE OF NEW JERSEY VS. NESTOR BALBI (17-06-0767, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0682-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NESTOR BALBI, a/k/a NESTOR
BALBI-CIRIACO,

Defendant-Appellant.
____________________________

Argued telephonically April 29, 2020 –
Decided June 2, 2020

Before Judges Fuentes, Haas and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 17-06-0767.

Susan Lee Romeo, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Susan Lee Romeo, of
counsel and on the briefs).

Craig Allen Becker, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Craig Allen Becker, of counsel
and on the brief).
PER CURIAM

Defendant Nestor Balbi appeals from the July 16, 2018 denial of his

suppression motion and challenges his September 21, 2018 sentence, based on

the State's refusal to offer him a Graves Act 1 waiver without a corresponding

statement of reasons. We remand for additional findings as to defendant's

suppression motion and direct that defendant be resentenced in the event the

outcome of defendant's suppression motion remains unchanged following the

remand.

We glean the following facts from the record. On June 19, 2017, a Bergen

County grand jury returned Indictment No. 17-06-0767, charging defendant with

second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-

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

cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count three); second-degree

possession of a handgun while attempting to commit a drug-related crime,

1
Pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), any person convicted of the
unlawful possession of a firearm, N.J.S.A. 2C:39-5(b), "shall be sentenced to a
term of imprisonment." The Graves Act further requires that for certain
offenses,"[t]he term of imprisonment shall include the imposition of a minimum
term . . . . [which] shall be fixed at one-half of the sentence imposed by the court
or [forty-two] months, whichever is greater . . . during which the defendant shall
be ineligible for parole." N.J.S.A. 2C:43-6(c).
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N.J.S.A. 2C:39-4.1 (count four); fourth-degree possession of hollow-nose

bullets, N.J.S.A. 2C:39-3(f) (count five); and fourth-degree possession of a

defaced firearm, N.J.S.A. 2c:39-3(d) (count six).

Defendant moved to suppress evidence from a motor vehicle stop that led

to his indictment. In his motion, he argued there was no reasonable, articulable

suspicion to justify the initial stop, that the judge who issued a search warrant

after the stop failed to exercise his independent judgment before approving it,

and the affidavit supporting the search warrant contained statements that were

willfully false or in reckless disregard for the truth. The motion judge granted

a testimonial hearing regarding the lawfulness of the stop, as well as a Franks2

hearing regarding the validity of the search warrant.

Officer Timothy Cullen, a veteran police officer with fifteen years of

experience, was the only witness to testify at the court-ordered hearings. He

affirmed that on February 17, 2017, while assigned to the Bergen County

Prosecutor's Office Narcotics Task Force, he received an alert from an agency

2
Franks v. Delaware, 438 U.S. 154 (1978). When a defendant challenges the
veracity of a search warrant affidavit and demands a Franks hearing, that
defendant must make "a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit." State v. Robinson, 200 N.J. 1,
7 (2009) (citation omitted).

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within the New York Police Department that a Subaru Tribeca bearing a

particular Pennsylvania license plate had crossed the George Washington Bridge

southbound from New York into New Jersey at approximately 2:38 a.m. The

vehicle was registered to Norma Ivette Diaz Natal. Officer Cullen recalled being

involved in two prior narcotics cases involving Natal in which cars registered to

her contained hidden trap compartments, and in one instance, a kilo of cocaine.

He suspected the Subaru might contain a hidden compartment and set up

surveillance with fellow officers near the George Washington Bridge to await

the Subaru's return to New York City that day.

At approximately 7:00 p.m., a fellow officer spotted the Subaru and noted

that its front and rear windows were tinted. Knowing front windows of cars

driven in New Jersey cannot be tinted unless the driver has a specific skin

condition or ailment, N.J.S.A. 39:4-58; N.J.A.C. 13:20-33.7(d), the officer

stopped the Subaru.

When Officer Cullen joined his fellow officer on scene, he approached the

car. He noted that "the windows [on the Subaru] were being lowered, and [he]

could see it was occupied by five males." Officer Cullen detected the strong

smell of cologne coming from the passenger compartment. Defendant was

seated in the driver's seat and asked to produce his driver's license, registration

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and insurance card. While defendant gathered this information, Officer Cullen

noticed an air freshener, a single key ignition, and an aftermarket alarm fob

inside the vehicle. Based on his experience, Officer Cullen testified that all of

these seemingly innocuous items are affiliated with drug trafficking. As

defendant reached across his passenger to hand the officer his documents,

Officer Cullen saw defendant's "hand was shaking considerably." Defendant's

documents showed he lived in an area of the Bronx which the officer knew to

be a "well-documented high drug trafficking hub."

Defendant first told Officer Cullen the Subaru belonged to him, but then

stated it belonged to his girlfriend's sister. He then advised the car belonged to

his girlfriend's mother. Defendant also provided inaccurate or incomplete

information about where the car was registered and the address where he picked

up his passengers. Further, he and his passengers provided inconsistent answers

about their activities before the stop.

Cullen asked defendant to step out of the vehicle. After he refused Officer

Cullen's request to a consensual search of the vehicle, the officer called for a

canine unit. The canine performed a free-air sniff of the vehicle and its handler

advised Officer Cullen that the canine alerted to the presence of narcotics on the

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front passenger side door of the vehicle. Defendant and his co-defendants were

arrested, and the Subaru was impounded.

On February 18, 2017, the police obtained a search warrant for the Subaru

based on Officer Cullen's affidavit. His affidavit included his observations from

the motor vehicle stop and the fact that the Subaru was registered to a third party

not present at the stop. When the search warrant was executed, the police

discovered a handgun and a clear plastic bag containing a white powdery

substance in a hidden compartment. Testing confirmed the substance was

cocaine.

During defendant's suppression hearing, the State played a motor vehicle

recording (MVR) of the stop. It was admitted into evidence without objection.

When Officer Cullen's testimony concluded, defense counsel, including

defendant's attorney provided closing arguments, as did the State. Upon

completion of the State's closing argument, defendant's attorney inquired of the

motion judge, "may I just say one more thing?" Defendant's counsel then

referred to the MVR footage of the canine sniff and stated:

With regard to the dog hit that . . . you may not have
noticed, but it is on the dashcam the officer opened the
door of the car, the front driver's side and right
passenger side, front right passenger. A dog hit doesn't
require . . . a search warrant because it's considered
non-invasive. But here, they opened the door. They let

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 the dog in to sniff . . . . So, for that reason, I argue they
should have had . . . a search warrant for the dog[].

The assistant prosecutor disagreed, remarking:

I don't remember them doing that, Judge. It's on the
film. He walked the dog around the car and the dog
scratched on the opposite side and I didn't see the door
open there.

....

You'll have the film of the dog already hit on the car.
The dog hit on the car.

The motion judge directed counsel to replay the segment of the MVR

pertaining to the canine sniff. As it played, counsel took turns narrating what

each observed in the footage. The motion judge also commented, "I saw it.

They opened up . . . the driver door." The assistant prosecutor added that the

windows in the Subaru were down during the canine sniff, to which defendant's

attorney remarked, "I don't believe we've . . . heard testimony about that." No

further testimony was elicited after this exchange.

On July 16, 2018, the motion judge issued an extensive written opinion,

denying defendant's suppression motion and upholding the validity of the search

warrant. The motion judge found the motor vehicle stop was justified as the

police saw the Subaru's front and rear windows were tinted and cited defendant

for the motor vehicle violation. The judge also found the police lawfully

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prolonged the stop. He credited Officer Cullen's testimony, acknowledging that

after the stop, the officer detected a heavy odor of cologne, a single key ignition,

and an aftermarket fob associated with hidden compartments. The judge also

noted defendant and his passengers provided conflicting information to law

enforcement and defendant was unable to accurately identify the Subaru's owner

or its place of registration. Additionally, the judge accepted the officer's

testimony that defendant was nervous and denied he had "ever been in trouble,"

even though he was involved in a prior criminal case with a federal agency and

arrested for conspiracy to commit robbery. "Based on the totality of the

circumstances," the judge concluded "the request for a [canine] officer to search

the car was reasonable . . . . [and] there was no indication that the stop was

longer than necessary to search for potential contraband. When [the canine]

alerted the officers to narcotics in the vehicle, the officers reasonably impounded

the vehicle and requested a search warrant."

Turning to the issue of whether the search warrant was supported by

probable cause, the motion judge found the search warrant affidavit "sufficiently

set forth the reasons for the stop and there were no material misstatements made

with reckless disregard of the truth." Accordingly, he determined there was

"ample evidence to support a probable cause finding to issue the search warrant."

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Noting Officer Cullen's prior involvement with corresponding narcotics

investigations, the judge again reviewed the factors which led to the issuance of

the warrant, including:

a single key ignition with an aftermarket alarm fob, a
heavy odor of cologne [which] emanated from the
passenger compartment, and [the canine] alerted the
officers to [the] presence of narcotics in the vehicle.
These facts along with the rest of [Officer] Cullen's
warrant application reasonably provided the neutral
judge with probable cause to issue the search warrant.

Following the denial of his suppression motion and Franks application,

defendant attempted to negotiate a plea deal through counsel. In a July 23, 2018

letter, defendant's attorney stated that "Mr. Balbi respectfully requests that, in

return [for pleading guilty to counts one and three of the indictment], the State

move for a waiver pursuant to N.J.S.A. 2C:43-6.2 to reduce the parole

ineligibility period to one year." She remarked that such a resolution would be

"in keeping with what other first-time offenders facing second[-]degree cases

have received." Approximately one week later, the assistant prosecutor

responded with a two-line email which read, "[p]lease give me a call to discuss

your July 23, 2018 letter re: defendant Balbi's plea. Thank you." The record is

devoid of any further discussions related to the Graves Act. Defendant was

sentenced on September 21, 2018 to a five-year prison term on count one, to run

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concurrent to a term of five years with a forty-two-month parole disqualifier on

count three.

On appeal, defendant raises the following arguments:

POINT I

THE DENIAL OF DEFENDANT'S SUPPRESSION
MOTION MUST BE REVERSED, AND THE
EVIDENCE SUPPRESSED, BECAUSE THE POLICE
CONDUCTED AN UNCONSTITUTIONAL SEARCH
WITHOUT A WARRANT WHEN THEY OPENED
THE CAR DOORS AS PART OF THE "FREE AIR"
DOG SNIFF.

POINT II

DEFENDANT'S SENTENCE MUST BE REVERSED
AND REMANDED BECAUSE, CONTRARY TO THE
REQUIREMENTS OF STATE V. BENJAMIN, 228
N.J. 358 (2017), AND THE ATTORNEY GENERAL'S
DIRECTIVE, THE PROSECUTOR PROVIDED NO
STATEMENT OF REASONS FOR REFUSING
DEFENDANT'S REQUEST FOR A WAIVER UNDER
N.J.S.A. 2C:43-6.2 OF THE MANDATORY
MINIMUM SENTENCE FOR A GRAVES ACT
OFFENSE.

Initially, defendant urges us to reverse the suppression ruling, claiming

the canine sniff unlawfully extended beyond the exterior of the Subaru. He

maintains the dog's handler opened the driver's door, as well as the front

passenger door. The State disagrees that reversal is necessary, arguing the

opening of a car door during the canine sniff "was not the direct or indirect cause

A-0682-18T3
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of the later discovery of evidence." The State also contends the driver-side front

door window "was rolled down for the entirety of the stop," that other "windows

appear to be rolled down and there is no indication that the dog or the officer

ever entered the vehicle." Additionally, the State argues that the challenged

evidence would be admissible under the doctrines of "inevitable discovery" or

"independent source" and that "even without the hit from the dog sniff, the

remaining details present in the warrant are sufficient to maintain probable cause

to search the vehicle."

It is well established that "a search based on a properly obtained warrant

is presumed valid." Robinson, 200 N.J. at 7-8 (quoting State v. Valencia, 93

N.J. 126, 133 (1983)). A defendant challenging the validity of a search warrant

has the burden to prove there was no probable cause supporting the issuance of

the warrant or that the search was otherwise unreasonable. Ibid. "When

reviewing the issuance of a search warrant by another judge, the court is required

to pay substantial deference to the judge's determination" of probable cause.

State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2006). Any doubts as to

the validity of the search warrant "should ordinarily be resolved by sustaining

the search." State v. Keyes, 184 N.J 541, 554 (2005) (citations omitted).

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 Additionally, it is well established that appellate courts "reviewing a

motion to suppress must uphold the factual findings underlying the trial court's

decision so long as those findings are 'supported by sufficient credible evidence

in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (internal citations

omitted). This is especially important for those findings by the trial court

"which are substantially influenced by his [or her] opportunity to hear and see

the witnesses and to have the 'feel' of the case, which a reviewing court cannot

enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). "A trial court's findings

should be disturbed only if they are so clearly mistaken 'that the interests of

justice demand intervention and correction.'" Elders, 192 N.J. at 244 (quoting

Johnson, 42 N.J. at 162). "Video-recorded evidence is reviewed under the same

standard." State v. Hagans, 233 N.J. 30 (2018). But a court's legal conclusions

are reviewed de novo and not entitled to deference by an appellate court. State

v. Handy, 206 N.J. 39, 45 (2011).

The Fourth Amendment of the Federal Constitution and Article I,

Paragraph 7 of the New Jersey Constitution guarantee individuals the right to be

free from unreasonable searches and seizures. U.S. Const. amend. IV; N.J.

Const. art. I, ¶ 7. A dog sniff of the exterior of a vehicle is not considered a

search and is much less intrusive than a typical search. City of Indianapolis v.

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Edmond, 531 U.S. 32, 40 (2000); State v. Dunbar, 229 N.J. 521, 534 (2017).

Privacy rights are not implicated in exterior dog sniffs because narcotics

detection dogs do not "expose noncontraband items that otherwise would remain

hidden from public view." Illinois v. Caballes, 543 U.S. 405, 409 (2005).

A canine sniff of a vehicle "does not require entry into the car and is not

designed to disclose any information other than the presence or absence of

narcotics." Edmond, 531 U.S. at 40. Accordingly, "an officer does not need

reasonable suspicion independent from the justification for a traffic stop in order

to conduct a canine sniff." Dunbar, 229 N.J. at 540.

Here, we are faced with a dearth of information about the factual

circumstances surrounding the canine sniff. For example, it is unclear if the

canine indicated the presence of drugs prior to, and after, the alleged warrantless

intrusion of the vehicle. It also is not known if the dog would have ultimately

reacted positively to the presence of narcotics on the vehicle without the

purported intrusion. See United States v. Lyons, 486 F.3d 367, 373 (8th Cir.

2007).

If a dog opens a door or jumps through a window without prompting by

its handler during a canine sniff, at least one court has concluded the search is

not unlawful. See United States v. Pierce, 622 F.3d 209, 213-15 (3d Cir. 2010).

A-0682-18T3
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In Pierce, the canine jumped through an open car window and sniffed throughout

the entire interior of the car. Id. at 211-12. The Third Circuit held that because

the dog entered the car without prompting and was following its "natural

instincts," this was not a search. Id. at 213-15. Additionally, at least one federal

circuit court has held if a dog's access to a car's interior is facilitated by the

conduct of the driver or passenger of the car, the search is not unlawful. United

States v. Pulido-Ayala, 892 F.3d 315, 319-20 (8th Cir. 2018).

Certainly, there is unrefuted testimony from Officer Cullen that windows

were lowered as he approached the Subaru. But no testimony was elicited from

this officer about whether the dog alerted to the front driver or passenger doors

before either was allegedly opened and whether any doors or windows were

opened during the "free air" sniff. Perhaps the canine handler could have shed

some light on what transpired, but he was not subpoenaed by the defense or

called by the State. Any attempts by counsel to try and fill the void by

representing what appeared in the MVR footage cannot substitute for such

competent evidence. As the motion judge mentioned the results of the canine

sniff when denying the suppression motion and upholding the validity of the

search warrant, we are constrained to remand this matter to afford him the

opportunity to make additional factual findings and legal conclusions. On

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remand, the judge is in the best position to make specific factual findings about

the dog's movements and thereafter address whether the canine sniff was lawful

and what effect, if any, an illegal breach of the vehicle's exterior had on the

search and the validity of the search warrant.

Regarding defendant's Point II, we note his guilty plea to the second-

degree offense of unlawful possession of a handgun without a permit subjected

him to the mandates of the Graves Act. Accordingly, under N.J.S.A. 2C:43-

6(c), the sentencing court was compelled to impose a parole ineligibility period

that equaled either one-half of the sentence or forty-two months, whichever was

greater, unless defendant received a Graves Act waiver.

A Graves Act waiver mitigates the "undue severity that might accompany

the otherwise automatic application of the mandatory minimum sentence under

the Graves Act, [as provided under N.J.S.A. 2C:43-6.2]," State v. Benjamin, 228

N.J. 358, 368 (2017), and provides the following limited exception for certain

first-time offenders:

On a motion by the prosecutor made to the
assignment judge that the imposition of a mandatory
minimum term of imprisonment under [the Graves Act]
for a defendant who has not previously been convicted
of [a Graves Act] offense . . . does not serve the
interests of justice, the assignment judge shall place the
defendant on probation pursuant to [N.J.S.A. 2C:43-
2(b)(2)] or reduce to one year the mandatory minimum

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 term of imprisonment during which the defendant will
be ineligible for parole. The sentencing court may also
refer a case of a defendant who has not previously been
convicted of an offense under that subsection to the
assignment judge, with the approval of the prosecutor,
if the sentencing court believes that the interests of
justice would not be served by the imposition of a
mandatory minimum term.

[N.J.S.A. 2C:43-6.2.]

Under either scenario set forth in N.J.S.A. 2C:43-6.2, the prosecutor must

affirmatively indicate the approval or denial of the waiver for any defendant

wishing to take advantage of it. Ibid. To ensure uniformity in the application

of this provision, the New Jersey Attorney General issued the Directive to

Ensure Uniform Enforcement of the "Graves Act" (Oct. 23, 2008, as corrected

Nov. 25, 2008) ("Directive"). In addition to describing the procedure to be

followed when addressing a waiver request, the Directive includes specific

record-keeping requirements. In fact, the Directive requires prosecutors to

"document in the case file its analysis of all of the relevant aggravating and

mitigating circumstances, whether or not the agency moves for or approves a

waiver or reduction pursuant to N.J.S.A. 2C:43-6.2." Directive at 13.

The Benjamin Court concluded sufficient procedural safeguards existed

under the Graves Act to protect a defendant's constitutional rights, in part,

because of the Attorney General's Directive. 228 N.J. at 372. The Court noted

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the importance of documenting the prosecutor's analysis of all the circumstances

relevant to a Graves Act waiver and determined a statement of reasons from the

State about this analysis was "appropriate to facilitate the judicial review for the

arbitrary or discriminatory exercise of prosecutorial discretion." Ibid. Central

to the Court's decision was its conclusion that "prosecutors are guided by

standards, inform defendants of the basis for their decisions, and are subject to

judicial oversight." Id. at 373.

Here, the State admits it departed from Benjamin by not providing a

statement of reasons to defendant after he requested a Graves Act waiver. But

it argues his failure to raise the waiver issue before the sentencing court

precludes him from seeking relief. We disagree.

The State provides no explanation for its lack of a concrete and detailed

response to defendant's July 2018 request for a Graves Act waiver. We decline

to sanction such a denial-by-omission approach. A failure to respond by the

prosecutor makes it virtually impossible for a defendant to show a prosecutor's

refusal to allow for a Graves Act waiver constituted a "patent and gross abuse

of discretion" or for a reviewing court to determine whether a prosecutor's denial

of the waiver was based on legally sustainable grounds. State v. Alvarez, 246

N.J. Super. 137, 148 (App. Div. 1991). Accordingly, we remand this matter for

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resentencing, pursuant to the Directive, in the event defendant's suppression

motion is denied following our remand. We express no opinion on the outcome

of the remanded proceedings, the scope of which we leave to the trial court's

discretion.

Remanded. We do not retain jurisdiction.

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