STATE OF NEW JERSEY VS. ELADIO ECHARTEVERA (17-12-1468, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-1902-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELADIO ECHARTEVERA,

Defendant-Appellant.
___________________________

Argued October 28, 2020 – Decided November 30, 2020

Before Judges Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 17-12-
1468.

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

Patrick F. Galdieri, II, Assistant Prosecutor, argued the
cause for respondent (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; Patrick F. Galdieri, II, of
counsel and on the brief).
PER CURIAM

Defendant Eladio Echartevera appeals from a June 25, 2018 order denying

his motion to suppress physical evidence and a December 24, 2018 judgment of

conviction following a jury trial. We conclude the trial court erred by deciding

the motion without conducting an evidentiary hearing. Accordingly, we vacate

the order and remand.

We derive the following facts from the evidence presented at trial. On

August 23, 2017, Detective Jessica DeJesus of the Perth Amboy Police

Department was patrolling an area in Perth Amboy that was known to law

enforcement for high rates of narcotics activity. DeJesus was dressed in plain

clothes, seated in an unmarked police vehicle. DeJesus observed Kristy Seifred,

a known drug user, "pacing back and forth in the area." Seifred repeatedly

checked her cellphone and "look[ed] around the area as if waiting for someone

to arrive." (5T49:4-8). DeJesus focused her surveillance on Seifred and called

for backup.

Shortly thereafter, a U-Haul van appeared and parked "in the yellow line

facing south[]bound on Goodwin Street, just prior to the intersection of

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Goodwin and Market." Defendant, who was identified as the driver of the van,1

began to honk his horn and motion in the direction of Seifred, who then gestured

back to defendant and began to approach his van. DeJesus and other officers,

who had arrived at the scene, exited their vehicles and approached defendant’s

van with their badges displayed. 2 As the officers approached, DeJesus and

Detective Matthew Vasquez "observed [d]efendant move his hands quickly to

his waistline as if he was attempting to conceal something."

Officers removed defendant from the van, and Vasquez patted him down

for weapons. Vasquez claimed he "immediately noticed a large bulge in

[defendant’s] front waistline area[,] which was not consistent with the clothes

he was wearing." Vasquez further claimed that as he began to feel this area,

defendant quickly moved his hands to his waistline and attempted to brush

Vasquez’s hands away. At this time, Vasquez searched the waistline area and

uncovered a "clear plastic bag containing approximately [133] white glassine

envelopes containing a beige powdery substance believed to be heroin "; fifty of

1
A female passenger in the van was arrested because she had outstanding
warrants. The passenger had no drugs on her person and is otherwise uninvolved
in this appeal.
2
At this point, the officers focused their attention on defendant. Seifred left
the area while the officers dealt with defendant.
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the glassine envelopes were stamped "Jump Street," fifty-one were stamped

"K.O.," and thirty-two were stamped "Afghanistan."

Defendant also possessed $250 in $10 and $20 denominations. Defendant

was arrested and transported to police headquarters. The arrest occurred within

1000 feet of a school. Officers searched defendant’s vehicle but uncovered no

additional drugs.

In addition to being charged with several indictable drug offenses,

defendant was issued summonses for: driving with a suspended license,

N.J.S.A. 39:3-40; driving while in possession of a controlled dangerous

substance (CDS), N.J.S.A. 39:4-49.1; and illegal parking, N.J.S.A. 39:4-135.

A Middlesex County grand jury returned an indictment charging

defendant with: third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1)

(count one); third-degree possession of CDS with intent to distribute, N.J.S.A.

2C:35-5(b)(3) (count two); and third-degree possession of CDS with intent to

distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7(a) (count three).

Defendant moved to suppress the evidence seized from his person on the

ground that he was subjected to an illegal warrantless search. The State opposed

the motion, contending that: (1) DeJesus had "a reasonable belief that criminal

activity was afoot" based on her training and observations; (2) the vehicle stop

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was permissible because the van was illegally parked; and (3) the CDS recovered

from defendant’s person was lawfully obtained pursuant to a valid Terry3 pat-

down. The State also argued that because defendant did not certify there were

any material facts in dispute, the motion should be decided without an

evidentiary hearing pursuant to Rule 3:5-7(c).

Defendant's reply brief alleged that when police approached his van, they

had "absolutely no probable cause or reasonable suspicion that a crime ha[d]

taken place or was about to take place . . . and conducted an illegal warrantless

search without any exception to the warrant requirement being present." As to

the clear plastic bag containing 133 white glassine envelopes of heroin that was

detected in defendant's waistband during the pat-down for possible weapons,

defendant contended: "The feel of 133 smal[l] packets of heroin in no way

g[a]ve rise to an honest belief that [defendant] was in possession of any weapon"

that caused "an actual concern" "for officer safety." The brief asserted that

"[t]he facts are in dispute and a testimonial hearing is demanded and required

for a proper determination of the legality of the seizure in the case at bar."

During oral argument, the State reiterated its argument that it did not need

to present testimony since defendant did not dispute any material facts.

3
Terry v. Ohio, 392 U.S. 1 (1968).
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Defendant argued that an evidentiary hearing was warranted because material

facts were in dispute regarding the officers’ basis to search him without a

warrant. Specifically, defendant claimed that the officers did not have a

reasonable suspicion that he was engaged in criminal activity, much less that he

was carrying a weapon at the time he was searched. Defense counsel forcefully

argued that the police "weren't patting him down for a weapon. They believed

he was going to sell drugs to that drug user on the street. They probably put it

there." Based on their belief that defendant "was going to sell drugs to that drug

user on the street," the police "searched him and they didn't stop searching him

until they found drugs in his underwear . . . under the guise of searching for a

weapon." Defendant contended that the bag they felt under defendant's

waistband did not feel like a weapon, putting DeJesus's credibility "directly in

question."

The court responded that the "credibility of a witness or the fact that you're

disputing the entire facts, that’s not going to cut it for a hearing." The court

indicated it would review the parties' submissions and rescheduled the motion.

On June 25, 2018, the court advised counsel that it had decided the motion

and issued an order and letter opinion denying defendant’s motion to suppress

without conducting an evidentiary hearing. Relying on Terry, the court

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concluded that "in light of the facts known to [DeJesus] at the time, it was

reasonable to briefly stop the [d]efendant in order to determine his identity and

also obtain more information." The court stated it was satisfied that numerous

"objective justifications" made "reasonable" "to conduct a Terry stop."

The court explained that DeJesus was patrolling an area known for

narcotics activity and saw Seifred, a known drug user, acting suspiciously. The

court emphasized that DeJesus did not immediately intercede and that she soon

saw defendant approach, honk his horn, and waive in the direction of Seifred,

who waved back at defendant. The court concluded that "DeJesus believed that

a narcotic transaction was imminent . . . [and] proceeded to investigate further.

With her observations coupled with her experience and training, Officer DeJesus

lawfully approached the [d]efendant's vehicle to conduct a brief investigatory

stop." The court concluded that defendant’s furtive gestures of "mov[ing] his

hands quickly in his waistline as officers were approaching," coupled with other

objective facts, "[gave] rise to [a] reasonable and articulable suspicion to

conduct a pat-down of the outer layers of [d]efendant's clothing for officer

safety." The court also determined that "[u]pon noticing a large bulge

inconsistent with [d]efendant's clothing along with [d]efendant quickly moving

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the officer's hand from the front waistline, officers were justified to remove

whatever item contained in the waistline for their safety."

The court noted that defendant did not challenge the fact that he

committed a motor vehicle infraction by parking in a no-parking zone. It found

this provided an objectively reasonable basis for officers to approach defendant's

vehicle and conduct a traffic stop. "While approaching the vehicle to investigate

the motor vehicle infraction, the [d]efendant was observed quickly moving

something around his waistline, which gave rise to suspicions for officers to

initiate inquiries into matters unrelated to the initial motor vehicle infraction.”

"[W]hen the pat-down was being conducted, the [d]efendant quickly reached for

his front waistline in an attempt to move Detective Vasquez's hands away." The

court gleaned all of these facts from the State's written submissions.

The court added that “[d]efendant does not dispute these facts but instead

asks the [c]ourt to disregard the officer[s'] observations, experience, training,

and the established law in holding that the officers unlawfully approached

[d]efendant's vehicle, which the [c]ourt respectfully declines to do.” Instead, it

found "that a reasonable prudent person put in the officers' position would have

reasonably believed that [their] safety or the safety of other persons was

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threatened." The court held that the evidence was lawfully seized pursuant to a

lawful Terry stop and pat-down.

The case proceeded to trial. The State called DeJesus as its first witness.

DeJesus testified on direct about her involvement in defendant’s arrest on

August 23, 2017. The State then called Vasquez, who also testified on direct as

to his search of defendant on the date of defendant’s arrest. When asked how

the glassine envelopes containing heroin were packaged, Vasquez testified: "In

this case it appears there’s some loose ones throughout here. And there’s some

wrapped in some rubber bands. Commonly [ten] are wrapped in a rubber band,

from my experience."

Next, the State called Daniel J. Muntone, an agent with the Middlesex

County Prosecutor’s Office assigned to its Narcotics, Gambling and Organized

Crime Task Force, as a witness. Muntone was accepted as an expert in fields of

drug possession, use, packaging, and distribution activity. He testified on direct

that, when sold on the street, heroin is "usually packaged in . . . wax folds.

Sometimes these wax folds . . . could have plastic around them, but often times

they’re just wax folds that they placed a drug in . . . the street term is a deck of

heroin or a bag of heroin."

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 Muntone also described a "deck" of heroin as “one of those wax folds,”

which typically holds "approximately 0.02 to 0.03 grams of heroin," and

explained that a "bundle" of heroin refers to ten decks of heroin. Muntone also

testified as to the significance of rubber bands:

Rubber bands are significant with heroin distribution
such that the drug distributor will have a quantity of the
drug on them. And a lot of times they’ll have them
wrapped in those [ten] bags, bundles, and then . . . so
you have [ten] bags and it’s wrapped in a rubber band.
As the individual is distributing, once they sell of the
[ten] they’ll sometimes stick the rubber band in another
pocket. It’s really a way to keep track of how much of
the drug you’ve sold.

Muntone also explained that a heroin user is not generally in possession

of large quantities because they typically use between one and two bags of

heroin when abusing the drug and would usually purchase that same amount of

the drug at any one time. They typically do not save heroin for future use. When

heroin users are arrested, they might be in possession of "paraphernalia used to

ingest the drug" and "sometimes you’ll find a small amount of currency on them.

Sometimes you’ll find empty bags. Sometimes you’ll find other drugs on them."

When asked to describe indicators that an individual possesses heroin with

the intent to distribute, Muntone testified:

Well obviously volume. The amount of the drug is one.
Individuals that are involved in the drug trade are

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 involved in it for one reason, to make money. So
currency is also a factor. Different types of stamps are
a factor, multiple stamps. Those rubber bands that I
talked about are a factor. Sometimes weapons come
into play. That’s a factor. They’re . . . typical factors.

On cross-examination, Muntone again confirmed that the possession of rubber

bands is indicative of drug possession for the purpose of distributi on.

Defendant moved for an acquittal of counts two and three, claiming the

State presented insufficient evidence of intent to distribute. Based on Muntone’s

testimony, the markings on the bags of heroin, the money on defendant, and

Seifred’s actions, the court held that a jury could convict defendant of these

charges and denied defendant’s motion.

The jury found defendant guilty on all counts. The court granted the

State's motion for a mandatory extended-term sentence on count three and, after

merger, imposed an aggregate ten-year term subject to a five-year period of

parole ineligibility. This appeal followed.

Defendant raises two points for our consideration:

POINT I

DEFENDANT'S CONVICTION MUST BE
REVERSED BECAUSE THE TRIAL COURT'S
RESPONSE TO THE JURY'S QUESTION
IMPROPERLY PERMITTED IT TO CONCLUDE,
WITHOUT ANY FACTUAL BASIS, THAT THE
LOOSE RUBBER BANDS IN THE EVIDENCE BAG

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 WERE FOUND ON DEFENDANT, WHICH WAS
HIGHLY PREJUDICIAL IN LIGHT OF THE
EXPERT'S TESTIMONY.

POINT II

THE DENIAL OF DEFENDANT'S SUPPRESSION
MOTION MUST BE REVERSED, BECAUSE THE
POLICE CONDUCTED AN ILLEGAL
WARRANTLESS SEARCH WHEN THEY DID A
PAT-DOWN OF DEFENDANT WITH NO
EVIDENCE THAT HE WAS ARMED AND
DANGEROUS.

1. The Suppression Motion And Decision.

2. The Trial Court Made No Finding That The Officers
Reasonably Believed Defendant Was Armed And
Dangerous And The State Alleged No Factual Basis For
The Officers To Believe That Defendant Was Armed
And Dangerous.

3. The Trial Court Erred When It Denied Defendant's
Request For An Evidentiary Hearing, Because The
Officers' Credibility Was Inherently In Dispute.

I.

We first address defendant's argument that the trial court erred by deciding

his suppression motion without conducting an evidentiary hearing. We review

a trial judge's denial of an evidentiary hearing for abuse of discretion. State v.

Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009).

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 Testimony must be taken during a suppression motion hearing if material

facts are in dispute. R. 3:5-7(c). When a defendant moves to suppress evidence

seized during a warrantless search, the State must "file a brief, including a

statement of the facts as it alleges them to be," and the defendant must then "file

a brief and counter statement of facts." R. 3:5-7(b).

A defendant's counterstatement of facts must present "something more

than the naked conclusion that the warrantless search was illegal, in order to

obtain an evidentiary hearing pursuant to [Rule] 3:5-7(c)." State v. Hewins, 166

N.J. Super. 210, 215 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div.

1981). "It is only when the defendant's counter statement places material facts

in dispute that an evidentiary hearing is required." State v. Green, 346 N.J.

Super. 87, 90-91 (App. Div. 2001) (citing Hewins, 166 N.J. Super at 213-15).

In Green, we emphasized "[t]he mere allegation of a warrantless search,

with the attendant burden of proof on the State to justify same, does not place

material issues in dispute, nor does defendant's assertion that he denies the truth

of the State's allegations." Id. at 91 (citing Hewins, 166 N.J. Super. at 214). "In

the absence of factual allegations to support the claim that the search and seizure

were illegal, a hearing [is] not required." State v. Kadonsky, 288 N.J. Super.

41, 46 (App. Div. 1996).

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 The trial court concluded that defendant did not dispute any material facts.

We disagree. The constitutionality of the Terry pat-down and subsequent search

of defendant hinged on several material facts that defendant disputed.

"The Fourth Amendment of the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution prohibit 'unreasonable searches and

seizures' by government officials." State v. Hagans, 233 N.J. 30, 38 (2018)

(quoting State v. Watts, 223 N.J. 503, 513 (2015)). Because warrantless

searches and seizures are presumptively unreasonable, ibid. (quoting State v.

Bryant, 227 N.J. 60, 69 (2016)), "the State bears the burden of proving by a

preponderance of the evidence that a warrantless search or seizure falls within

one of the few well-delineated exceptions to the warrant requirement," State v.

Chisum, 236 N.J. 530, 545 (2019) (quoting State v. Mann, 203 N.J. 328, 337-38

(2010)). An investigatory stop is one such exception. State v. Alessi, 240 N.J.

501, 517-18 (2020).

"To lawfully stop a motor vehicle, 'a police officer must have a reasonable

and articulable suspicion that the driver of a vehicle, or its occupants, is

committing a motor-vehicle violation or a criminal or disorderly persons

offense.'" State v. Nyema, ___ N.J. Super. ___, ___ (App. Div. 2020) (slip op.

at 10) (quoting State v. Scriven, 226 N.J. 20, 33-34 (2016)). "[I]n determining

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the lawfulness of an investigatory stop, a reviewing court must 'evaluate the

totality of circumstances surrounding the police-citizen encounter, balancing the

State's interest in effective law enforcement against the individual's right to be

protected from unwarranted and/or overbearing police intrusions.'" Chisum, 236

N.J. at 546 (alteration in original) (quoting State v. Privott, 203 N.J. 16, 25-26

(2010)).

A police officer may conduct a pat-down search for weapons if he or she

has an objectively reasonable belief that the suspect is armed and dangerous

regardless of whether there is probable cause for arrest. Terry, 392 U.S. at 27;

see State v. Thomas, 110 N.J. 673, 679 (1988). Where the pat-down creates a

"specific and particularized basis for an objectively reasonable suspicion that

[the] defendant [is] armed and dangerous," State v. Roach, 172 N.J. 19, 27

(2002) (emphasis in original) (quoting Thomas, 110 N.J. at 683), "the officer

may conduct 'a carefully limited search of the outer clothing . . . in an attempt

to discover weapons which might be used to assault him,'" id. at 27 (alteration

in original) (quoting Terry, 392 U.S. at 30). "The search must, however, be

'confined in scope to an intrusion reasonably designed to discover' weapons that

might be used to assault the police officer." Ibid. (quoting Terry at 29).

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 "Because the intrusion is designed to protect the officer's safety, the

standard governing protective searches is 'whether a reasonably prudent man in

the circumstances would be warranted in his belief that his safety or that of

others was in danger.'" Ibid. (quoting State v. Valentine, 134 N.J. 536, 543

(1994)). "The officer must be able 'to point to particular facts from which he

reasonably inferred that the individual was armed and dangerous.'" Thomas,

110 N.J. at 679 (quoting Sibron v. New York, 392 U.S. 40, 64 (1968)). "The

existence of an objectively reasonable suspicion is based on the totality of the

circumstances." Roach, 172 N.J. at 27 (citing Valentine, 134 N.J. at 546).

Defendant advances two fact-based arguments. First, he contends the

Terry pat-down was illegal because the police did not have a reasonable

suspicion that he was armed and dangerous. He notes that the State's motion

brief neither alleged that the officers had a reason to fear for their safety nor that

the officers had prior knowledge that defendant was a drug dealer or was known

to be armed. Thus, the State did not produce "specific, articulable facts" that

the officers were in danger. State v. Smith, 134 N.J. 599, 619 (1994) (citing

Terry, 392 U.S. at 27).

Second, during the pat-down the police felt the bulge under defendant's

waistband caused by the bag containing the heroin. Defendant contends that

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palpating the bag would not give rise to an objectively reasonable belief that he

possessed a weapon that threatened officer safety.

These fact-based contentions warranted an evidentiary hearing to afford

defendant the opportunity to test the credibility of the officers through cross -

examination. Here, there were no dashcam or bodycam recordings of the

incident. The State relied solely on the officers' version of what transpired.

The State argued that defendant did not certify there were any material

facts in dispute. Rule 3:5-7(b) "does not require defendants to file an affidavit

in order to be entitled to a hearing on a motion to suppress evidence" seized

during "a warrantless search." State v. Torres, 154 N.J. Super. 169, 173 (App.

Div. 1977). Nor is defendant required to file a certification. See R. 3:5-7(b).

In its opposing papers, the State argued that "Va[s]quez could have

reasonably believed that . . . defendant had a weapon in his front waistline and

was about to use it." While this may have justified the pat-down, the State has

not shown that the shape or texture of the bag or its contents would cause an

objectively reasonable belief that defendant had secreted a weapon in his pants.

Noticeably absent is any claim that the bag felt like a firearm, knife, or other

type of weapon. Thus, unlike in Roach, the State has not shown that after

observing an unusual bulge in defendant's groin area and patting it down,

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Vasquez was unable to determine whether the item causing the bulge was a

weapon, necessitating "further action to neutralize any potential threat." 172

N.J. at 29. Squarely at issue is whether the search was "reasonably limited in

scope to the accomplishment of the only goal which might conceivably have

justified its inception—the protection of the officer by disarming a potentially

dangerous man." Sibron, 392 U.S. at 65.

Defendant is entitled to an evidentiary hearing because of the material

facts in dispute, including defendant's alleged actions leading up to and during

the stop, the credibility of DeJesus and Vasquez regarding the basis for the stop,

the pat-down, and the resulting search of defendant, and whether Vasquez had

an objectively reasonable belief that defendant was armed with a weapon. As

our Supreme Court recently reiterated, "[o]ur legal system has long recognized

that cross-examination is the greatest legal engine ever invented for the

discovery of truth." State v. Medina, 242 N.J. 397, 413 (2020) (alteration in

original) (quoting State v. Basil, 202 N.J. 570, 591 (2010)). Defendant must be

afforded that opportunity to test the State's version of the incident through cross -

examination.

We therefore hold that the motion court abused its discretion by deciding

the suppression motion without an evidentiary hearing. Accordingly, we vacate

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the order denying defendant's suppression motion and remand for an evidentiary

hearing.

II.

We next address defendant's argument that the trial court's response to the

jury's question improperly permitted the jury to conclude that the loose rubber

bands in the evidence bag were found on defendant. He contends that his

conviction must be reversed because the instruction was highly prejudicial in

light of the testimony of the State's expert. We disagree.

During deliberations, the jury sent the court the following note: "Loose

rubber bands in the evidence bag. Questioning if in possession of defendant or

loose after evidence." Both parties acknowledged that the State had presented

no discovery or testimony that defendant had loose rubber bands on his person

at the time of his arrest. The court determined that the jury’s inquiry was "a

question of fact as to the evidence that was presented in this case" and advised

counsel that he would instruct the jury that they should simply rely on their

recollection of the evidence as it was presented. Defendant objected in light of

Muntone’s testimony concerning rubber bands and requested the court to

instruct the jury that the rubber bands were placed into the evidence bag by lab

technicians. The court explained that it could not provide the requested

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instruction to the jury and labelled it purely speculative as no testimony had

been elicited that the rubber bands had been placed in the bag by lab technicians.

Instead, the court provided the following response to the jury’s question:

Your question is focused on a fact that may or may not
have been testified to during the trial. The [c]ourt is
unable to answer this question because it would, in my
opinion, intrude upon your responsibilities to be the
finder of facts. As a result, you should rely upon your
recollection from the evidence presented during trial to
answer this question.

Both detectives identified the bag containing the 133 glassine envelopes

of heroin and testified that it was in substantially the same condition as when it

was seized from defendant. When asked how the glassine bags were packaged,

Vasquez testified "it appears there's some loose ones throughout here. And

there's some wrapped in some rubber bands. Commonly [ten] are wrapped in a

rubber band, from my experience."

As part of the final jury charge, the court gave the following instruction:

You are the judges of the facts. And as judges of the
facts you are to determine the credibility of the various
witnesses as well as the weight to be attached to their
testimony. You and you alone are the sole and
exclusive judges of the evidence, of the credibility of
the witnesses and the weight to be attached. Regardless
of what counsel said . . . or I may have said recalling
the evidence in the case, it is your recollection of the
evidence that should guide you as judges of the facts.
Arguments, statements, remarks, openings and

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 summations are not evidence and must not be treated as
evidence. Although the attorneys may point out what
they think important in this case, you must rely solely
upon your understanding and recollection of the
evidence that was admitted during the trial.

The court also provided a standard jury instruction regarding the parties'

stipulations:

(1) the 133 glassine envelopes that were marked [in
evidence] were delivered to the New Jersey State Police
Laboratories and a representative sample was tested
. . . and was determined to be heroin, a Schedule I
[CDS]; (2) the 133 glassine envelopes were not altered,
cha[n]ged or tampered with at any time from the time
that the evidence was seized by the Perth Amboy Police
to the time that the envelopes were tested and analyzed
by the New Jersey State Police Laboratory. Upon
completion of the testing process, the 133 glassine
envelopes were then returned to the Middlesex County
Prosecutor’s Office[.]

"Appropriate and proper charges to a jury are essential for a fair trial."

State v. Daniels, 224 N.J. 168, 180 (2016) (citing State v. Savage, 172 N.J. 374,

387 (2002)). "[E]rroneous instructions on material points are presumed to

possess the capacity to unfairly prejudice the defendant." State v. Baum, 224

N.J. 147, 159 (2016) (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).

Since defendant objected, "the applicable standard of review is whether

the alleged defective jury charge constitutes harmless error." State v. Josephs,

174 N.J. 44, 94-95 (2002). Under that standard, the error must "raise a

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21
reasonable doubt" that it "led the jury to a verdict it otherwise might not have

reached." Baum, 224 N.J. at 159 (quoting State v. Lazo, 209 N.J. 9, 26 (2012)).

"The test to be applied . . . is whether the charge as a whole is misleading, or

sets forth accurately and fairly the controlling principles of law." Ibid.

(alteration in original) (quoting State v. Jackmon, 305 N.J. Super. 274, 299

(App. Div. 1997)). Accordingly, the effect of any error "must be evaluated in

light 'of the overall strength of the State’s case.'" State v. Walker, 203 N.J. 73,

90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

When reviewing a trial court's response to a jury question, we must

determine whether the court "erred in its response and, if so, whether that 'error

undermines our confidence that the deliberative process produced a just result

and the conviction must be reversed.'" State v. Lykes, 192 N.J. 519, 537 (2007)

(quoting State v. Parsons, 270 N.J. Super. 213, 224-25 (App. Div. 1994)).

Applying these standards, we conclude that the trial court fairly and

adequately instructed the jury in response to their question. Considering the

testimony of the detectives and the stipulations, the court properly refrained

from infringing on the jury's fact-finding function. Instructing the jury to rely

on its recollection of the evidence presented was appropriate. We discern no

error, much less harmful error.

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 III.

In sum, we remand for the trial court to conduct an evidentiary hearing on

defendant's suppression motion. If the court suppresses the evidence seized

from defendant, it shall enter an order vacating the conviction and schedule the

case for retrial. If the court denies the motion, the judgment of conviction will

remain in full force and effect.

Remanded for further proceedings consistent with this opinion. We do

not retain jurisdiction.

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