STATE OF NEW JERSEY VS. ELNARDO CHANDLER STATE OF NEW JERSEY VS. RICK HAZELWOODÂ (13-09-1685, HUDSON COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-4812-14T2
A-5222-14T21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELNARDO CHANDLER,

Defendant-Appellant.
____________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICK HAZELWOOD, a/k/a RICKY
HAZLEWOOD,

Defendant-Appellant.
_____________________________

Submitted September 26, 2017 – Decided December 1, 2017

Before Judges Fasciale, Sumners and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
13-09-1685.

1
These are back-to-back appeals consolidated for the purpose of
this opinion.
 Joseph E. Krakora, Public Defender, attorney
for appellant Elnardo Chandler (Daniel V.
Gautieri, Assistant Deputy Public Defender, of
counsel and on the briefs; Sophie Kaiser,
Attorney Assistant, on the brief).

Joseph E. Krakora, Public Defender, attorney
for appellant Rick Hazelwood (David A. Gies,
Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Jennifer E. Kmieciak,
Deputy Attorney General, of counsel and on the
brief).

Appellant Rick Hazelwood filed a pro se
supplemental brief.

PER CURIAM

Elnardo Chandler appeals from his conviction for second-

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

Hazelwood appeals from his convictions for second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree

certain person not to have weapons, N.J.S.A. 2C:39-7(b). We

reverse and remand for a new trial.

Jersey City police received a 9-1-1 call at 2:19 a.m. After

providing an address and phone number, the 9-1-1 caller – self-

identified as Mike – and the dispatcher conversed:

[Mike]: I am just calling cause I
see some guys outside they look like they got
guns and they are standing in front of some
people house[.]
[9-1-1]: Did you see guns?
[M]: Yeah[.]

2 A-4812-14T2
 [9-1-1]: You saw, okay give me a description
of the person who you[] saw holding the gun.
[M]: I just see they got on all black that's
why I am calling now so you could get somebody
over there.
[9-1-1]: Okay is he[,] they black, white or
Hispanic?
[M]: They look black.
[9-1-1]: You see a black male wearing all
black is holding a gun?
[M]: Yeah[.]
[9-1-1]: Where is he holding the gun?
[M]: I just saw it across the street; I am not
getting back in the window, That's why I
called you[.]

Officer Joseph Cossolini responded to a dispatch that

informed of a black male, dressed in all black, with a gun outside

of 230 Linden Avenue, and saw two men – later identified as the

defendants, Chandler and Hazelwood – near 233 Linden Avenue. When

officers in a radio car drove past where the men were standing,

Cossolini lost sight of them after they disappeared behind a van

parked on the street. The men reappeared, and both walked a short

distance down Linden Avenue before they were stopped by the police.

Police found the gun with which defendants were charged with on

the tire of the van behind which defendants disappeared.

Defendants were charged with second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b) (Count One); second-

degree possession of a community gun, N.J.S.A. 2C:39-4(a)(2)

(Count Two); and first-degree gang criminality, N.J.S.A. 2C:33-

3 A-4812-14T2
29(a) (Count Three). Hazelwood was also charged with second-

degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)

(Count Four).

The jury found both defendants guilty of second-degree

unlawful possession of a weapon. Hazelwood was also found guilty

of second-degree certain persons not to have weapons.2 Chandler

was sentenced to a term of fourteen years with a seven-year period

of parole ineligibility. Hazelwood was sentenced to twenty years

with ten years of parole ineligibility on the second-degree certain

persons offense, concurrent to ten years with five years of parole

ineligibility on the second-degree unlawful possession of a weapon

offense.

On appeal, Chandler argues:

POINT I

THE COURT'S FAILURE TO GIVE AN INSTRUCTION ON
"MERE PRESENCE" AS AN ESSENTIAL PART OF THE
DEFINITION OF CONSTRUCTIVE POSSESSION DENIED
THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
(Partially Raised Below).

A. The Court Committed Prejudicial
Error By Failing to Give, Sua Sponte, A Mere
Presence Instruction And By Denying
Defendant's Post-Trial Motions On This Point.

B. Defense Counsel Was Ineffective In
Failing To Request A Mere-Presence Instruction
At The Charge Conference.

2
Prior to trial, the State dismissed the charges of possession of
a community gun and gang criminality.

4 A-4812-14T2
 POINT II

BECAUSE THE DEFENDANT NEVER CHALLENGED THE
PROPRIETY OF THE POLICE PROCEEDING TO THE
CRIME SCENE, THE STATE VIOLATED THE PRINCIPLES
OF BANKSTON WHEN IT INTRODUCED A 911 CALL AND
INFORMATION PROVIDED BY DISPATCH TO THE
RESPONDING OFFICER INTO EVIDENCE. (Partially
Raised Below).

A. The Court Committed Prejudicial
Error By Admitting The 911 Call, Even For A
Limited Purpose.

B. The Court Committed Prejudicial
Error by Allowing Hearsay Testimony That
Violated Defendant's Confrontation Rights.

POINT III

DEFENDANT'S SENTENCE IS EXCESSIVE AND MUST BE
VACATED BECAUSE THE COURT IMPOSED AN ILLEGAL
EXTENDED TERM, FAILED TO CREDIT AND WEIGH
AGGRAVATING AND MITIGATING FACTORS, AND
MISUNDERSTOOD WHICH VERSION OF THE GRAVES ACT
APPLIED IN IMPOSING A PAROLE INELIGIBILITY
PERIOD. (Partially Raised Below).

Hazelwood argues:

POINT [I]

DETECTIVE COSSOLINI'S HUNCH THAT THE DEFENDANT
DISCARDED A WEAPON WHEN THE POLICE OFFICER
LOST SIGHT OF HIM BEHIND A VAN FOR A FEW
SECONDS DID NOT JUSTIFY THE DETENTION AND
SUBSEQUENT SEARCH OF THE VAN WHERE, AFTER THE
INVESTIGATORY STOP, THE ENCOUNTER BETWEEN THE
DEFENDANT AND POLICE DID NOT ESCALATE AND
PROBABLE CAUSE DID NOT ARISE.

POINT [II]

REFERENCE TO A 911 CALL WHICH WAS NOT RELIED
ON BY DETECTIVE COSSOLINI TO STOP BOTH MEN

5 A-4812-14T2
 UNFAIRLY DIVERTED THE JURORS' ATTENTION FROM
THE POLICE OFFICER'S JUSTIFICATION FOR
INITIALLY DETAINING THEM.

POINT [III]

THE VERDICT AS TO THE POSSESSORY WEAPONS
OFFENSE SHOULD BE SET ASIDE WHERE THE EVIDENCE
WAS INSUFFICIENT TO ESTABLISH BEYOND A
REASONABLE DOUBT THAT THE DEFENDANT
CONSTRUCTIVELY POSSESSED THE HANDGUN.

POINT [IV]

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY
THAT THE DEFENDANT'S MERE PRESENCE AT OR NEAR
THE SCENE IS PLAIN ERROR. (NOT RAISED BELOW).

POINT [V]

WHEN CONSIDERED IN CONNECTION WITH THE
SENTENCE IMPOSED ON THE CO-DEFENDANT, THE
DEFENDANT'S SENTENCE IS EXCESSIVE.

I.

Both defendants argue the admission of the 9-1-1 call was

error. Hazelwood contends the 9-1-1 call was irrelevant because

Cossolini heard not the call, but rather truncated information

from the caller, relayed by the dispatcher. He also argues that

the "reference" to the 9-1-1 call "unfairly diverted the jurors'

attention from the information within the police officers'

knowledge at the time, especially for the limited purpose as to

why they were investigating the alleged crime." Chandler asserts

the admission of the 9-1-1 call violated the principles of State

v. Bankston, 63 N.J. 263 (1973), and his Confrontation Clause

6 A-4812-14T2
rights. We agree the admission of the 9-1-1 call violated the

tenets of Bankston and its progeny, and reverse.

The State moved in limine to admit the 9-1-1 call at trial.3

In a pretrial ruling, the judge initially admitted the call as an

excited utterance, N.J.R.E. 803(c)(2), and a present sense

impression, N.J.R.E. 803(c)(1). Just prior to opening statements,

however, the judge notified the parties that before the

presentation of the 9-1-1 call, he would issue a limiting

instruction to the jury, in line with the requirements of Bankston.

The record reflects the judge noted the State's objection to the

limiting instruction, and rejected the State's argument that the

recording of the call was offered for the truth of the matter

asserted; he ruled the recording was "not going in for that." The

State asked the court to reconsider; the judge denied the request

in a written opinion. He also orally clarified that he had changed

his mind from his original ruling and was admitting the recording

for the limited purpose of "explain[ing] why the police were there

and what they did." The entire 9-1-1 call was played before the

jury, without objection from either defendant.

3
We were not provided a copy of the motion. The trial judge did
not hold a hearing on the motion; counsel for both defendants were
allowed an opportunity to respond to the State's motion and agreed
to accept the court's decision without oral argument. We were not
provided with either defendant's response to the State's motion.

7 A-4812-14T2
 "[A] trial court's evidentiary rulings are 'entitled to

deference absent a showing of an abuse of discretion, i.e., there

has been a clear error of judgment.'" State v. Brown, 170 N.J.

138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484

(1997)). "Under that standard, an appellate court should not

substitute its own judgment for that of the trial court, unless

the trial court's ruling was so wide of the mark that a manifest

denial of justice resulted." Ibid. (quoting Marrero, supra, 148

N.J. at 484).

In Bankston, a detective testified that "before defendant was

arrested[,] the officers had been talking to an informer[,] and

that based on information received," Bankston, supra, 63 N.J. at

266, they proceeded to a tavern and located defendant, "the person

[they] were looking for," and found him in possession of drugs,

id. at 266-67. The Court ruled a police officer does not violate

the hearsay rule by testifying he took certain actions during an

investigation based on "information received," but "when the

officer becomes more specific by repeating what some other person

told him concerning a crime by the accused[,] the testimony

violates the hearsay rule[,]" id. at 268, and the defendant's

right of confrontation under the Sixth Amendment, id. at 269. The

Court, in State v. Branch, 182 N.J. 338, 352 (2005), reiterated

that an officer could reference "information received" to explain

8 A-4812-14T2
his actions, "but only if necessary to rebut a suggestion that

[he] acted arbitrarily and only if the use of that phrase does not

create an inference that the defendant has been implicated in a

crime by some unknown person."

Chandler argues because he "never challenged the propriety

of the police proceeding to the crime scene, the State violated

the principles of Bankston." The use of explanatory testimony by

police to justify their actions has been circumscribed. See

Branch, supra, 182 N.J. at 352 (finding an exception only where

"the defendant . . . opens the door by flagrantly and falsely

suggesting that a police officer acted arbitrarily or with ill

motive"); see also State v. Baker, 228 N.J. Super. 135, 139-40

(App. Div. 1988) (finding there is "seldom any justification" to

admit evidence under the Bankston exception absent a claim by the

defendant "that the police acted arbitrarily in approaching him").

The trial judge did not find either defendant suggested that

any officer acted arbitrarily in approaching the defendants on the

street. Although Hazelwood's counsel cross-examined Cossolini

about his reasons for stopping the defendants and telling them to

put their hands up, neither he nor Chandler's counsel contended

or implied any officer acted arbitrarily. Further, the 9-1-1 call

was admitted and played prior to that questioning.

Even if a brief reference was warranted under Bankston because

9 A-4812-14T2
of defense counsel's questions, the quantum of evidence presented

to the jury went well beyond that permitted to explain that the

police acted "on information and belief" in order to rebut a

suggestion of police arbitrariness. Furthermore, it not only

created an inference that a non-testifying witness implicated the

defendants, it was direct evidence of their guilt. The prosecutor

recounted the detailed information contained in the 9-1-1 call in

his summation:

So it's very early in the morning, and this
person, who identifies himself as Mike, says
-- and provides a phone number indicates that
across the street, there are individuals that
were in black with guns, and he describes them
as black males. And he was not willing to
look outside the window because they were --
they were standing there. So you know that
people were standing across the street from
the location of 230 Linden Avenue. And you
know this individual had seen them, according
to him, with actual possession of guns.

"When evidence is admitted that contravenes not only the

hearsay rule but also a constitutional right, an appellate court

must determine whether the error impacted the verdict." State v.

Weaver, 219 N.J. 131, 154 (2014). Since neither defendant

objected, we consider whether the admission of the 9-1-1 recording

impacted the verdict under the plain error standard. We will not

reverse unless the testimony was "clearly capable of producing an

unjust result." R. 2:10-2; see Branch, supra, 182 N.J. at 353

10 A-4812-14T2
(applying the plain error standard where there was no objection

to testimony that violated defendant's right to confrontation).

More specifically, we will reverse only where there is a

possibility of an unjust result "sufficient to raise a reasonable

doubt as to whether the error led the jury to a result it otherwise

might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

No trial witness saw either defendant in possession of a

handgun; and no fingerprint or DNA evidence linked defendants to

the gun that was found. The only potential evidence that placed

a gun in defendants' hands was the observations made by the non-

testifying 9-1-1 caller. Absent those observations, the State's

only incriminatory evidence was limited to Cossolini's testimony

that, when he responded to the scene, he saw the defendants

crouching near the vehicle's wheel on which the gun was found.

The practical impact is that the State obtained the benefit

of the 9-1-1 caller's testimony without calling him as a witness.

The admission of that evidence – compounded by the prosecutor's

use of that evidence in summation – in a case where there was

scant proof of possession, was plain error. The admission of the

9-1-1 recording, and the prosecutor's reference in summation to

the details contained therein, require reversal notwithstanding

the judge's limiting instruction.

Chandler also argues that the admission of the 9-1-1 recording

11 A-4812-14T2
violated his Confrontation Clause rights. No such objection was

raised at trial. "[G]enerally, a defendant must attempt to

exercise his confrontation right and object when necessary, if he

wishes later to claim that he was denied that right." State v.

Williams, 219 N.J. 89, 93 (2014), cert. denied, ___ U.S. ___, 135

S. Ct. 1537, 191 L. Ed. 2d 565 (2015). We conclude, however, the

failure to object was "so patently unreasonable and so clearly

erroneous that no rational counsel acting within the wide range

of professional norms would pursue such a course." Id. at 99.

The admission of the 9-1-1 recording, as stated, was clearly

capable of unfairly impacting the jury's finding. As such, we

conclude there was no confrontation right waiver. Playing the

recording of the 9-1-1 caller's observations precluded defendants'

right to confront the caller at trial, requiring reversal.

II.

Although we are reversing these convictions, we address

issues that may arise after remand to the trial court.

Hazelwood contends the trial judge committed plain error by

failing to instruct the jury on "mere presence." Chandler, relying

on State v. Randolph, 441 N.J. Super. 533 (App. Div. 2015), aff'd,

228 N.J. 566 (2017), also argues the judge erred by failing to sua

sponte add the "mere presence" charge to the instruction on

constructive possession; he also claims his trial counsel was

12 A-4812-14T2
ineffective for failing to request the charge until after the

trial was completed.

We apply the plain error standard because no request for the

charge was made at trial. State v. Burns, 192 N.J. 312, 341 (2007)

(citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)).

Reversal is warranted "on the basis of unchallenged error" if that

error "was 'clearly capable of producing an unjust result.'" Ibid.

(quoting R. 2:10-2). "In the context of a jury charge, plain

error requires demonstration of '[l]egal impropriety in the charge

prejudicially affecting the substantial rights of the defendant

sufficiently grievous to justify notice by the reviewing court and

to convince the court that of itself the error possessed a clear

capacity to bring about an unjust result.'" Ibid. (alteration in

the original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

"If the defendant does not object to the charge at the time it is

given, there is a presumption that the charge was not error and

was unlikely to prejudice the defendant's case." State v.

Singelton, 211 N.J. 157, 182 (2012) (citing Macon, supra, 57 N.J.

325, 333-34 (1971)). An alleged unchallenged error in the jury

charge is analyzed "in light of 'the totality of the entire charge,

not in isolation.'" Burns, supra, 192 N.J. at 341 (quoting State

v. Chapland, 187 N.J. 275, 289 (2006)).

13 A-4812-14T2
 There is no model charge on "mere presence"; it is a part of

the accomplice liability charge, and is sometimes excised and used

alone, after any reference to "accomplice" is deleted. The

instruction reads:

Mere presence at or near the scene does
not make one a participant in the crime, nor
does the failure of a spectator to interfere
make him/her a participant in the crime. It
is, however, a circumstance to be considered
with the other evidence in determining whether
he/she was present as an accomplice. Presence
is not in itself conclusive evidence of that
fact. Whether presence has any probative
value depends upon the total circumstances.
To constitute guilt there must exist a
community of purpose and actual participation
in the crime committed.

While mere presence at the scene of the
perpetration of a crime does not render a
person a participant in it, proof that one is
present at the scene of the commission of the
crime, without disapproving or opposing it,
is evidence from which, in connection with
other circumstances, it is possible for the
jury to infer that he/she assented thereto,
lent to it his/her countenance and approval
and was thereby aiding the same. It depends
upon the totality of the circumstances as
those circumstances appear from the evidence.

[Model Jury Charge (Criminal), "Liability for
Another's Conduct" (1995).]

The instruction was not warranted in this case. Each

defendant contended at trial that he did not possess the gun.

Neither defendant was seen by a testifying witness with the gun.

No forensic evidence linked either defendant to the gun. The

14 A-4812-14T2
standard possession charge, setting forth the elements of

possession, particularly constructive possession,4 provided

sufficient instruction to the jury to allow defendants to

demonstrate the State's failure of proof.

The mere presence charge is more apt when a crime has been

committed and defendant contends he merely watched the criminal

act. The first paragraph of the mere presence charge has the

capacity to confuse a jury because "spectators" are rare in most

possession cases. The second paragraph of the charge could,

4
The portion of the charge relating to constructive possession
provides:

Possession may be constructive instead of
actual. As I just stated, a person who, with
knowledge of its character, knowingly has
direct physical control over an item at a
given time is in actual possession of it.

Constructive possession means possession
in which the possessor does not physically
have the item on his or her person but is
aware that the item is present and is able to
and has the intention to exercise control over
it. So, someone who has knowledge of the
character of an item and knowingly has both
the power and the intention at a given time
to exercise control over it, either directly
or through another person or persons, is then
in constructive possession of that item.

[Model Jury Charge (Criminal), "Possession"
(2014).]

15 A-4812-14T2
likewise, confuse a jury in a possession case because a person

can't readily disapprove or oppose a possessory offense as he can

a crime such as robbery – a crime that requires affirmative action.

Failing to give the charge sua sponte was not error, and if it

were, it was not capable of producing an unjust result.

Chandler's reliance on Randolph is misplaced. That case is

distinguishable because there, unlike here, the defendant in

Randolph requested the mere presence charge during the charge

conference, Randolph, supra, 441 N.J. Super. at 557; further the

trial judge did not properly respond to the jury's question

regarding the relationship of the defendant to the location where

the item he was alleged to possess was located, id. at 558-61. We

determined although "an accurate and complete charge on possession

and constructive possession" ordinarily leaves "no room to doubt

that 'mere presence' [is] insufficient to bring about a finding

of the necessary elements of possession[,]" the facts in Randolph

presented a "limited circumstance[]" that required the jury charge

to include an instruction on mere presence. Id. at 559 (quoting

State v. Montesano, 298 N.J. Super. 597, 615 (App. Div.), certif.

denied, 150 N.J. 27 (1997)). We concluded that

given the paucity of proofs connecting
defendant to the CDS found in the apartment,
and the jury question suggesting that jurors
had concerns about the issue, it was incumbent
upon the judge to clearly apprise the jury on

16 A-4812-14T2
 the law pertaining to defendant's 'mere
presence' in the building. The failure to do
so invited the jury to speculate about a legal
issue that required a clear instruction by the
judge.

[Ibid.]

We cannot conclude the failure to give the charge denied

defendants a fair trial. The jury was told the State had to prove

beyond a reasonable doubt that each defendant, actually or

constructively, knowingly possessed – solely or jointly – the

handgun, and was given specific instructions about those concepts

as per the Model Jury Charge on possession. Even in the absence

of the mere presence instruction, the jury knew in order to convict

a defendant, it would have to find more than his mere presence on

the street that night. See State v. Randolph, 228 N.J. 566, 592

(2017) (finding "the charge, as a whole, sufficiently informed the

jury – without using the words 'mere presence' – that the

defendant's presence in the building, standing alone, would be

insufficient to establish guilt").

We will not entertain Chandler's claim that trial counsel was

ineffective on direct appeal. "Our courts have expressed a general

policy against entertaining ineffective-assistance-of-counsel

claims on direct appeal because such claims involve allegations

and evidence that lie outside the trial record." State v.

Preciose, 129 N.J. 451, 460 (1992). Courts "routinely decline to

17 A-4812-14T2
entertain ineffective-assistance-of-counsel claims on direct

appeal." State v. Hess, 207 N.J. 123, 145 (2011).

The trial record is not sufficiently developed to allow us

to determine this issue. The resolution of Chandler's argument

requires an inquiry into why counsel did not request the charge,

and whether that decision was the result of a trial strategy.

Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052,

2065, 80 L. Ed. 2d 674, 695 (1984). Accordingly, this claim would

be better raised in a petition for post-conviction relief.

We deem defendants' other arguments regarding the 9-1-1 call

to be without sufficient merit to warrant discussion in this

opinion. R. 2:11-3(e)(2). Hazelwood's argument that "reference

to a [9-1-1] call which was not relied on by Detective Cossolini

to stop both men unfairly diverted the jurors' attention from the

police officer's justification for initially detaining them,"

relates to his trial court motion to suppress his arrest, an issue

not raised here.

Likewise, Hazelwood's argument that police lacked a

reasonable and articulable suspicion to effectuate a stop of the

defendants, which he contends led to the unconstitutional search

and seizure of the handgun from the wheel well of the vehicle, is

meritless. R. 2:11-3(e)(2). Neither Hazelwood nor Chandler filed

a motion to suppress evidence. Chandler's counsel clarified on

18 A-4812-14T2
the record that his motion to suppress involved his arrest, not

the search or seizure; Hazelwood joined in that motion. Under

similar circumstances our Supreme Court "conclude[d] that it would

be unfair, and contrary to our established rules" to decide a

suppression issue not raised at the trial level, and that, "with

few exceptions . . . appellate courts will decline to consider

questions or issues not properly presented to the trial court when

an opportunity for such a presentation is available." State v.

Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson, 200

N.J. 1, 20 (2009)). Defendants' failure to raise this issue before

the trial court deprived the State of the chance to establish a

full factual record in support of the warrantless seizure of the

handgun, and deprived the court of the opportunity to find facts

and rule on this issue. As such, we deem this issue waived and

decline to address it.

We also reject Hazelwood's argument that the unlawful stop

of the defendants led to the seizure of the handgun. The gun was

seized when Cossolini went to the van – parked on a public street

– behind which he lost sight of the defendants. The gun was on

the wheel of the parked van, a location in which the defendants

had no reasonable expectation of privacy. There is no link between

the stop that Hazelwood claims was unlawful and the discovery and

seizure of the gun. Further, the record discloses that Cossolini,

19 A-4812-14T2
when responding to the 9-1-1 call, saw two men in the described

area, one of whom matched the description given by the 9-1-1

caller. Cossolini's observations, combined with the surreptitious

movements of the men disappearing behind the parked van when a

radio car drove by, justified the stop.

In light of our reversal, we need not address Hazelwood's

contention that the evidence was insufficient to establish his

constructive possession of the handgun. The evidence used to

determine defendant's motion for judgment notwithstanding the

verdict, Rule 3:18-2, and motion for a new trial, Rule 3:20-1, in

light of our ruling that the 9-1-1 recording was improperly

introduced, will be different from that considered by the trial

judge. As such, and in light of our remand, we will not decide

that issue.

Although defendants' sentences are vacated, we find no merit

in their arguments that their respective sentences were excessive,

nor in Chandler's contention that his extended term sentence was

illegal. R. 2:11-3(e)(2). We briefly add, as to Chandler, the

judge did not specifically set forth his reasons for imposing an

extended term sentence, and may have added confusion to the record

by failing to specify the sections of N.J.S.A. 2C:43-7 and N.J.S.A.

2C:44-3 to which he referred in imposing an extended term;

notwithstanding his mention of defendant's two prior gun

20 A-4812-14T2
convictions, however, it is clear the extended term was based on

the judge's finding that Chandler was a persistent offender. The

State moved to sentence Chandler to an extended term only as a

persistent offender. Chandler has no sustainable basis to contend

that the extended term was imposed under the Graves Act. Hazelwood

did not challenge the extended term sentence imposed on his certain

persons conviction. In his pro se submission, he seems to

challenge the applicability of the Graves Act and his sentencing

as a repeat Graves offender. His extended term sentence, however,

was clearly based on the judge's conclusion that he was a

persistent offender – not a repeat Graves offender.

Because the judge, before imposing sentence, considered and

weighed the applicable aggravating and mitigating factors as to

each defendant – which were supported by competent, credible

evidence in the record – and because the sentences do not "shock

the judicial conscience," we would have applied our deferential

standard of review and affirmed the base term sentences but for

our decision to reverse their convictions. State v. O'Donnell,

117 N.J. 210, 215-16 (1989). The same holds true for the

challenged period of parole ineligibility imposed on Chandler.

State v. Martelli, 201 N.J. Super. 378, 382 (App. Div. 1985).

Reversed and remanded to the trial court for further

proceedings consistent with this opinion. We do not retain

21 A-4812-14T2
jurisdiction.

22 A-4812-14T2