NOT FOR PUBLICATION WITHOUT THE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-4703-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALEEM MALLARD, a/k/a
ALIMEEN WATSON,
Defendant-Appellant.
__________________________
Submitted January 11, 2017 – Decided May 15, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 07-09-1501.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alison Perrone, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Eric P. Knowles,
Assistant Prosecutor, on the brief).
PER CURIAM
Following a jury trial, defendant Aleem Mallard was convicted
of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a), and
acquitted of first-degree robbery, N.J.S.A. 2C:15-1, and fourth-
degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e).
After waiving his right to a jury trial, the trial judge found
defendant guilty of second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b). On July 30, 2009, the judge
sentenced defendant to an extended term of seventeen years with
an eight-and-one-half year period of parole ineligibility on the
certain persons conviction, a concurrent five years on the unlawful
possession of a weapon conviction, and a concurrent eighteen months
on the resisting arrest conviction.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL COURT'S DECISION DENYING DEFENDANT'S
MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM
THE TRUNK OF THE CAR MUST BE REVERSED.
POINT II
SINCE THE IDENTIFICATION INSTRUCTION
IMPROPERLY EMPHASIZED THE STATE'S EVIDENCE
AGAINST DEFENDANT WITHOUT ANY MENTION OF
DEFENSE EVIDENCE OF MISIDENTIFICATION,
DEFENDANT'S CONVICTIONS MUST BE REVERSED AND
THE MATTER REMANDED FOR A NEW TRIAL. (Not
Raised Below).
POINT III
SINCE THE TRIAL COURT REFUSED TO INSTRUCT THE
JURY ON FALSE-IN-ONE, FALSE-IN-ALL, AS
REQUESTED BY COUNSEL, THIS COURT SHOULD
REVERSE DEFENDANT'S CONVICTIONS AND REMAND THE
MATTER FOR A NEW TRIAL.
2 A-4703-13T3
POINT IV
THE COURT ERRED IN IMPOSING A SEVENTEEN-YEAR
TERM WITH EIGHT AND A HALF YEARS OF PAROLE
INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING
OF THE RELEVANT FACTORS DOES NOT SUPPORT SUCH
A SENTENCE. ADDITIONALLY, THE COURT ERRED IN
BASING ITS SENTENCE ON CONDUCT FOR WHICH
DEFENDANT WAS FOUND NOT GUILTY.
We have considered defendant's contentions in Points II and
III in light of the record and applicable legal principles and
conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2). However, we make the
following brief comments.
There was no plain error in the identification charge. State
v. Funderburg, 225 N.J. 66, 79 (2016). The identification charge
the judge gave mirrored the Model Jury Charge on identification
in effect at the time of defendant's trial. The charge did not
emphasize evidence favorable to the State, and the judge did not
comment on the State's evidence or strength of the State's case
or bolster the credibility of any identification witness or the
reliability of the identification procedures used. See State v.
Robinson, 165 N.J. 32, 45 (2000).
The judge did not abuse her discretion in declining to give
a false-in-one, false-in-all charge. See State v. Ernst, 32 N.J.
567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5
L. Ed. 2d 374 (1961). There was no evidence that a witness had
3 A-4703-13T3
willfully or knowingly testified falsely as to a material fact at
issue, and defendant did not argue the contrary. Thus, there was
no basis for a false-in-one, false-in-all charge. See ibid.
(noting that a false-in-one, false-in-all charge requires evidence
that witness knowingly and willfully testified falsely as to a
material fact).
I.
The following facts are relevant to defendant's argument in
Point I regarding the denial of his motion to suppress a handgun
found in the trunk of his car. Detective Joseph Walsh from the
City of Jersey City Police Department testified at the suppression
hearing that at approximately 8:00 p.m. on April 17, 2007, he
responded to the scene of an armed robbery at a bodega on Logan
Avenue. A witness, F.F.,1 told Walsh that he called the police
after seeing two males acting suspiciously outside his home before
the robbery occurred. The witness also said that he saw the men
drive away in a green car, and he obtained the license plate number
and gave it to the dispatcher.
Walsh obtained information of the green car's whereabouts and
was transporting F.F. there in an unmarked patrol car to see if
F.F. could identify the car. While en route, they saw the car
1 We use initials to protect the identity of the witness.
4 A-4703-13T3
drive by on Garfield Avenue. Walsh notified the dispatcher,
requested assistance, and followed the car without activating his
siren or lights.
Walsh saw the driver of the green car, later identified as
defendant, drive down Westside Avenue at a speed of between forty
and forty-five miles per hour in a twenty-five-mile-per-hour zone.
Defendant attempted to turn left on Fisk Avenue, but there were
marked police cars and emergency service units with lights
activated travelling up Fisk Avenue. Defendant then quickly made
a sharp right turn back onto Westside Avenue, but did not have
enough room and struck a large metal pole. Defendant and the
front seat passenger, later identified as co-defendant Malik
Flowers, exited the car and ran. Walsh exited his patrol car,
notified dispatch of the crash, and chased and apprehended Flowers.
Other police officers chased defendant and apprehended him.
When Walsh returned to the scene of the crash, he saw that
the trunk of the car was open. He did not see how the trunk
opened, but believed it had opened from the force of the crash.
Police Officer Mark Hennessey, who had responded to the scene of
the crash, advised Walsh that he had recovered in plain view a .40
caliber handgun in the open trunk of defendant's car.
Hennessey testified that he was traveling in the area where
defendant's car was traveling and turned around after the car
5 A-4703-13T3
passed his patrol car. He arrived at the scene of the crash thirty
seconds after the impact and saw that the front doors and trunk
of the car were open. There was no one else in the area when he
arrived, and he was the only one who had approached the car. He
exited his patrol car, went to the driver's door, and looked into
the car's interior to see if there was anyone inside. Knowing
there had been an armed robbery, he also looked to see if there
was a weapon in the interior. He then walked to the open trunk,
where he saw clothing, a blanket, and the butt of a black handgun
sticking out from under the blanket in plain view.
Defendant's expert forensic engineer, Charles Edwin Neu,
testified that he inspected defendant's car and found it sustained
damage to the right front quarter panel and door, the passenger
side airbag had deployed, and the windshield by the passenger side
was fractured from an impact from the inside. He also inspected
the trunk and found that the trunk and trunk lock were undamaged.
He opined there was no side force to the car for an object in the
trunk to activate the emergency release lever, and none of the
soft items in the trunk would have been likely to trip the latch
or force the trunk to open. He concluded that the trunk "did not
open by itself in the collision." He admitted, however, that
given the vehicle's maneuvers and crashing at a high rate of speed,
6 A-4703-13T3
it was possible a handgun in the trunk could have hit the latch
and opened the trunk.
The judge held that the warrantless search of the trunk was
valid under the plain view exception. The judge found credible
Hennessey's testimony that the trunk was open when he arrived at
the crash scene, and that he saw the butt of the gun in plain
view. The judge was not persuaded by Neu's testimony that the
crash could not have caused the trunk to open. The judge also
noted that Neu had "grudgingly" admitted that given the vehicle's
maneuvers and crash at a high rate of speed, it was possible that
a handgun in the trunk could have hit the latch and opened the
trunk.
The judge also held that the warrantless search was valid
under the inevitable discovery exception. The judge found that
defendant's car was disabled and would definitely have been towed
and inventoried, and the State would have pursued established
investigatory procedures that would have inevitably resulted in
the discovery of the gun.
Defendant argues in Point I that the record did not support
the judge's factual findings that the warrantless search was valid
under either the plain exception or the inevitable discovery
exception to the warrant requirement. We agree with respect to
7 A-4703-13T3
the inevitable discovery doctrine exception, but disagree as to
the plain view exception.
"Appellate review of a motion judge's factual findings in a
suppression hearing is highly deferential." State v. Gonzales,
227 N.J. 77, 101 (2016) (citation omitted). "We are obliged to
uphold the motion judge's factual findings so long as sufficient
credible evidence in the record supports those findings." Ibid.
(citation omitted). "Those factual findings are entitled to
deference because the motion judge, unlike an appellate court, has
the 'opportunity to hear and see the witnesses and to have the
feel of the case, which a reviewing court cannot enjoy.'" Ibid.
(quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
The inevitable discovery doctrine is an exception to the
exclusionary rule. Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct.
2501, 2509, 81 L. Ed. 2d 377, 387 (1984). "If the State can show
that 'the information ultimately or inevitably would have been
discovered by lawful means . . . the deterrence rationale [of the
exclusionary rule] has so little basis that the evidence should
be received.'" State v. Maltese, 222 N.J. 525, 551-52 (2015)
(alteration in original) (quoting Nix, supra, 467 U.S. at 444, 104
S. Ct. at 2509, 81 L. Ed. 2d at 387-88), cert. denied, ___ U.S.
___, 136 S. Ct. 1187, 194 L. Ed. 2d 241 (2016)).
8 A-4703-13T3
In order to invoke the inevitable discovery doctrine in New
Jersey, the State must show by clear and convincing evidence that:
(1) proper, normal and specific investigatory
procedures would have been pursued in order
to complete the investigation of the case; (2)
under all of the surrounding relevant
circumstances the pursuit of those procedures
would have inevitably resulted in discovery
of the evidence; and (3) the discovery of the
evidence through the use of such procedures
would have occurred wholly independently of
such evidence by unlawful means.
[State v. Keaton, 222 N.J. 438, 451 (2015)
(quoting State v. Sugar, 100 N.J. 214, 238
(1985) (Sugar II)).]
The State must demonstrate that "had the illegality not occurred,
it would have pursued established investigatory procedures that
would have inevitably resulted in the discovery of the controverted
evidence, wholly apart from its unlawful acquisition." Sugar II,
supra, 100 N.J. at 240. "[T]he central question to be addressed
in invoking the inevitable discovery rule is whether that very
item of evidence would inevitably have been discovered, not merely
whether evidence roughly comparable would have been so
discovered." State v. Worthy, 141 N.J. 368, 390 (1995) (citation
omitted). However, "the State need not demonstrate the exact
circumstances of the evidence's discovery . . . . It need only
present facts sufficient to persuade the court, by a clear and
convincing standard, that the [evidence] would be discovered."
9 A-4703-13T3
Maltese, supra, 222 N.J. at 552 (alterations in original) (quoting
State v. Sugar, 108 N.J. 151, 158 (1987)).
Neither Walsh nor Hennessey, the State's only witnesses at
the suppression hearing, testified that the police would have
towed and inventoried defendant's car and pursued proper
procedures to discover the handgun by independent lawful means.
Because the State presented no evidence, let alone clear and
convincing evidence, to invoke the inevitable discovery doctrine,
it was error to apply the doctrine in this case.
We reach a different conclusion as to the plain view
exception. The plain view exception has three elements:
(1) the police officer must be lawfully in the
viewing area; (2) the officer has to discover
the evidence inadvertently, meaning that he
did not know in advance where evidence was
located nor intend beforehand to seize it; and
(3) it has to be immediately apparent to the
police that the items in plain view were
evidence of a crime, contraband, or otherwise
subject to seizure.2
[State v. Reininger, 430 N.J. Super. 517, 535-
36 (App. Div.) (quoting State v. Bruzzese, 94
N.J. 210, 236 (1983), cert. denied, 465 U.S.
1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695
(1984)), certif. denied, 216 N.J. 367 (2013).]
2 In Gonzales, supra, 227 N.J. at 83, our Supreme Court held
prospectively "that an inadvertent discovery of contraband or
evidence of a crime is no longer a predicate for a plain-view
seizure."
10 A-4703-13T3
These three elements were satisfied here. Hennessey, whose
testimony the judge found credible, saw defendant's car prior to
the crash and knew there had been an armed robbery. He arrived
at the crash scene within thirty seconds and saw the front doors
and trunk were open. Hennessey looked into the open trunk and saw
the butt of a handgun in plain view. Neu, whose testimony the
judge rejected, could not rule out the possibility that the trunk
opened during the crash.
The evidence confirms that Hennessey was lawfully in the
viewing area; discovered the handgun inadvertently in the open
trunk in plain view; and it was immediately apparent to him that
the handgun was evidence of a crime or otherwise subject to
seizure. Accordingly, we discern no reason to reverse the judge's
application of the plain view exception to the warrant requirement.
II.
Defendant challenges his sentence in Point IV. He does not
dispute he was eligible for an extended-term sentence pursuant to
N.J.S.A. 2C:44-3(a). Rather, relying on State v. Dunbar, 108 N.J.
80 (1987), he argues that the judge improperly double counted his
criminal record in finding him eligible for an extended-term
sentence and in finding aggravating factors N.J.S.A. 2C:44-1(a)(3)
11 A-4703-13T3
and (6)3 to increase the base term. Defendant also argues that
the judge was biased and improperly relied on unproven facts and
crimes for which he was acquitted.
We review a judge's sentencing decision under an abuse of
discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience.
[Ibid. (quoting State v. Roth, 95 N.J. 334,
364-65 (1984)).]
We discern no abuse of discretion in defendant's sentence.
Defendant's reliance on Dunbar is misplaced. There, the
Court noted:
[t]he defendant's prior record of conviction
has been taken into account in deciding
whether to impose an extended term and
presumably would not have the same qualitative
weight in grading the range of the extended
sentence. But other aspects of the
defendant's record . . . will be relevant
factors in adjusting the base extended term.
[Dunbar, supra, 108 N.J. at 91-92.]
3 "The risk that the defendant will commit another offense[;]"
and "[t]he extent of the defendant's prior criminal record and the
seriousness of the offenses of which he has been convicted[.]"
12 A-4703-13T3
Thus, if a defendant only has one prior conviction, and the court
used that conviction to justify an extended term, that same prior
conviction cannot be used to extend the base term. See State v.
Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005).
Defendant has an extensive criminal record that includes the
following convictions that occurred within ten years of the
robbery:4
August 26, 1998: third-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(7); fourth-
degree simple assault, N.J.S.A. 2C:12-
1(b)(5);
November 5, 1998: third-degree distributing a
controlled dangerous substance (CDS) within
1,000 feet of school property, N.J.S.A. 2C:35-
7; third-degree unlawful possession of an
imitation firearm, N.J.S.A. 2C:39-4(e);
December 15, 1998: third-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b);
December 18, 2002: federal charges of
counterfeiting and uttering counterfeit
securities or obligations;
April 6, 2003: third-degree conspiracy to
distribute a CDS, N.J.S.A. 2C:5-2 and N.J.S.A.
2C:35-5(b)(3);
January 12, 2004: third-degree distributing a
CDS within 1,000 feet of school property,
N.J.S.A. 2C:35-7; and
March 15, 2004: third-degree possession of a
CDS, N.J.S.A. 2C:35-10(a)(1); second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1).
4 The robbery occurred on April 17, 2007.
13 A-4703-13T3
Only two of these convictions were necessary to support an
extended-term sentence. All other convictions can be considered
"other aspects of the defendant's record," Dunbar, supra, 108 N.J.
at 92, and provide a sufficient basis for the imposition of a
maximum base term. Defendant's criminal record contains enough
separate convictions to warrant both an extended term as well as
an elevated base term.
We have considered defendant's remaining sentencing argument
and conclude it is without sufficient merit to warrant discussion.
R. 2:11-3(e)(2). We are satisfied that the judge did not violate
the sentencing guidelines and the record amply supports her
findings on aggravating and mitigating factors. The sentence is
clearly reasonable and does not shock our judicial conscience.
Affirmed.
14 A-4703-13T3