State of New Jersey v. Maurice D. Ross

NOT FOR PUBLICATION WITHOUT THE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-4138-24

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE D. ROSS,

Defendant-Appellant.

_______________________

Argued February 3, 2026 – Decided March 4, 2026

Before Judges Gooden Brown, Rose and DeAlmeida.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Essex County,

Indictment Nos. 23-03-0533 and 23-03-0534.

Ashley Brooks, Assistant Deputy Public Defender,

argued the cause for appellant (Jennifer N. Sellitti,

Public Defender, attorney; Ashley Brooks, of counsel

and on the briefs).

Matthew E. Hanley, Assistant Prosecutor, argued the

cause for respondent (Theodore N. Stephens, II, Essex

County Prosecutor, attorney; Matthew E. Hanley, of

counsel and on the brief).

PER CURIAM

By leave granted, defendant Maurice D. Ross appeals from a July 1, 2025

Law Division order denying his motion to suppress a .45 caliber handgun seized

during a protective frisk conducted by a special law enforcement officer

(SLEO)1 on Newark Housing Authority (NHA) property just before midnight,

on May 14, 2022. In a written decision accompanying the order, the motion

court rejected defendant's argument that the body worn camera (BWC) statutes,

N.J.S.A. 40A:14-118.3 to -118.5, read in pari materia with the SLEO Act,

N.J.S.A. 40A:14-146.8 to -146.18, and the Attorney General BWC Policy 2

entitled defendant to the mandatory rebuttable presumption – that "exculpatory

evidence was destroyed or not captured in [his] favor" under N.J.S.A. 40A:14-

1

SLEOs are also referenced in the record as "special police officers" and

"SPOs."

2

In his April 17, 2025 supplemental submission to the motion court, defendant

provided Attorney General Directive 2021-5, issued with the May 2021 BWC

Policy, and the court cited that version of the BWC policy in its decision. See

Off. of the Att'y Gen., Law Enf't Directive No. 2021-5, Directive Revising

Policy Regarding Use of Body Worn Cameras (BWCs) and Stored BWC

Recordings (May 25, 2021). However, at the time of the incident, Attorney

General Directive 2022-1, issued with the January 2022 BWC Policy, was in

effect. See Off. of the Att'y Gen., Law Enf't Directive No. 2022-1, Update to

Body Worn Camera Policy (Jan. 19, 2022). Accordingly, we cite the applicable

sections of the May 2021 BWC Policy as those sections do not differ from the

January 2022 BWC Policy. In doing so, we use Attorney General Guidelines

and BWC Policy interchangeably.

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2

118.5(q)(2) – because the SLEO did not activate a BWC at the time of the stop

and frisk. The court concluded the handgun at issue was lawfully seized from

defendant's waistband.

On appeal, defendant reprises the same arguments raised before the

motion court:

POINT I

THE [MOTION] COURT ERRED IN FINDING THAT

THE BWC STATUTE DID NOT APPLY TO THE

SLEO. THIS COURT SHOULD EITHER ORDER

SUPPRESSION OR REMAND FOR ANOTHER

HEARING TO APPLY THE BWC STATUTE.

A. SLEOs Are Subject to the Requirements of the

BWC Statutes.

B. This Court Should Order Suppression. Or at the

Very Least, It Should Remand for a New Suppression

Hearing Before a New Judge.

We reject these contentions and affirm.

I.

We summarize the pertinent facts and events from the motion record.

Following his arrest, defendant was charged in two related Essex County

indictments with second-degree unlawful possession of a handgun, N.J.S.A.

A-4138-24

3

2C:39-5(b), and second-degree certain persons not to have weapons, N.J.S.A.

2C:39-7(b)(1). Defendant thereafter filed the present motion. 3

During the two-day testimonial hearing, the State presented the testimony

of SLEO Benjamin Mauriello and NHA Assistant Director Michael Grainger.

The State also moved into evidence footage of the BWC worn by Officer

Santiago4 of the Newark Police Department (NPD), who responded to the scene

after defendant was arrested, but did not testify. Defendant did not take the

stand or present any evidence.

At the time of the hearing, Mauriello was an SLEO for nearly sixteen

years. He explained SLEOs receive the same "full training as any other police

officer in the State of New Jersey," but after graduation from the police academy

SLEOs must "find [their] own work."

Employed by the NHA since 2018, Mauriello handles "[a]nything that

happens criminally on [NHA] property . . . from tickets to domestic violence."

3

In his notice of motion and certification in support of the motion, defense

counsel stated police seized a ".45 caliber revolver and [five] .410 gauge shotgun

shells." In its decision on the motion, the court found "Mauriello seized a black

.45 caliber handgun loaded with [five] .410 caliber shells from [d]efendant."

Although there is no information about the shells in the record provided on

appeal, seizure of the ammunition is not pertinent to the issues raised before us.

4

Santiago's first name is not included in the record provided on appeal.

A-4138-24

4

Mauriello testified he was trained by the NPD, which issued his service weapon

and radio, but he purchased his own "[u]niforms, body armor, boots, [and] duty

rig." Mauriello further stated the NPD did not issue BWCs to SLEOs.

When questioned whether the NPD provided BWC training, Mauriello

stated he could not recall the date, but sometime in 2022, 5 the NPD administered

"a test" to SLEOs. He said SLEOs "were supposed to get [BWCs], but [they]

never got them."

Mauriello testified he purchased his own BWC while working for the

Newark Board of Education before he was employed by the NHA. Mauriello

continued: "And I purchased my own" because "you're dealing with a lot of kids

and stuff like that, so I just wanted to have my own. Before -- it was before [the

NPD] even had body cams."

Mauriello stated he has activated his personal BWC during his

employment with the NHA, but "not often." He typically activates the BWC

when he believes "a situation is going to become hairy." He retains the footage

in "important" circumstances, such as "shootings" and "domestic violence []"

incidents.

5

Mauriello was not asked whether the training occurred before or after the May

14, 2022 incident date.

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5

Santiago's BWC footage depicted Mauriello in uniform wearing a BWC

at the time of the May 14, 2022 incident. Noting the light on his BWC was not

"flickering" in the video footage, Mauriello confirmed he did not activate his

BWC during the incident. When asked why he did not do so, Mauriello

explained: "Everything happened so fast, I just didn't really think about it, you

know."

On cross-examination, Mauriello acknowledged, in his incident report, he

did not indicate he was wearing a BWC. But he testified, at the bottom of the

report, he noted: "No body worn camera assigned to SPO Mauriello." Mauriello

explained, "That's what we -- I do on every report because we are not assigned

body cams, so . . . when regular officers are assigned body cams, . . . they put it

in [their reports] that it is body cam worn [sic]."

Turning to the circumstances leading to defendant's arrest, Mauriello

testified the day before the incident, he and Grainger reported to a vacant NHA

complex following "complaints of narcotics sales and trespassing." Mauriello

and Grainger performed "verticals," which entailed ascending and descending

the stairs "to make sure there's nobody inside the buildings." Upon entering one

of the buildings, Mauriello and Grainger "encountered two individuals."

"Grainger[] told them to leave, they were trespassing, and they could be

A-4138-24

6

arrested." Both individuals left the premises and the interaction was not

documented.

The following day, on May 14, 2022, Mauriello and Grainger returned and

found the same individuals inside the same building. Mauriello testified he and

Grainger sat the men down with the plan to issue summonses for trespassing in

light of Grainger's warning the previous day. While the men were sitting,

"[defendant] was fidgeting by his waistband . . . with his hand." In response,

Mauriello "took his hand away and . . . felt the butt of a gun." Defendant was

arrested and the other man was released on a summons for trespassing. 6 On

cross-examination, Mauriello acknowledged he did not "give any instructions to

[defendant] before physically moving his hand away."

Grainger testified as an NHA supervisor, he oversaw the "general duties"

of SLEOs employed by the NHA, but the NPD supervised their "policing

functions" and reviewed their reports. When asked whether he knew the

"classification level" for SLEOs, Grainger stated, "I believe their level is a two."

He further acknowledged that classification "appl[ied] across the board for

[SLEOs]."

6

The other individual is not a party to this appeal.

A-4138-24

7

At the time of the hearing, Grainger was employed by the NHA for six

years and previously worked as an NPD officer for twenty-six years. His

account of the May 13 and 14 encounters with defendant and his cohort

generally tracked Mauriello's testimony. Grainger further explained, on May

14, he followed Mauriello into the building and Mauriello "immediately

addressed two individuals that were standing in the corner near the staircase."

Grainger recognized defendant and the other man from the previous night and

stated, "they needed to be locked up for trespassing."

Grainger testified Mauriello stayed with the men and asked for their

identification while Grainger went upstairs. When questioned by the court,

Grainger explained while descending the stairs, he heard Mauriello say, "[s]top

reaching, stop reaching," but Grainger did not observe defendant's movements.

Grainger stated Mauriello approached defendant, and said, "[o]h, you got a

gun?" Mauriello arrested defendant and called for backup.

In a cogent written decision accompanying the July 1, 2025 order, the

motion court thoroughly addressed the issues raised in view of the governing

law, and made ample factual findings and legal conclusions. Crediting the

testimony of both State witnesses and citing the well-established Terry7

7

Terry v. Ohio, 392 U.S. 1 (1968).

A-4138-24

8

standard, the court was persuaded the stop and frisk were valid. In doing so, the

court noted the absence of any indication in the record implying "Mauriello

manipulated [d]efendant's clothing . . . to retrieve the handgun." Instead, the

court found the record revealed the search "was limited to [d]efendant's hand

and the waistband of his pants near his navel . . . . [t]he very area [d]efendant

was 'reaching.'"

The court also rejected defendant's argument that Mauriello's failure to

activate his BWC warranted an adverse inference under N.J.S.A. 40A:14-

118.5(q)(2). Analyzing the BWC statute and May 2021 BWC Policy, the court

noted the absence of any reference to "[SLEOs] in the definitional section of the

Guidelines." The court further found N.J.S.A. 40A:118.3(a) "only covers

certain agencies and departments" – not "a public housing entity," such as the

NHA.

Quoting Section 3.1 of the May 2021 BWC Policy, the motion court

emphasized:

[E]very law enforcement agency shall promulgate and

enforce a policy, standing operating procedure,

directive, or order, in a form as may be appropriate

given the customs and practices of the agency, which

shall comply with the policies, standards, and

requirements of this Policy. Any policy, standing

operating procedure, directive, or order promulgated by

an agency pursuant to this Policy shall provide that:

A-4138-24

9

(a) a law enforcement officer employed by the agency

may only use a BWC system that has been issued and

approved by the agency;

(b) an officer equipped with a BWC must comply at all

times with the requirements established in this Policy

and in the agency's policy, standing operating

procedure, directive, or order issued pursuant to this

Policy or by law[.]

The court further recognized Section 3.2(a) of the May 2021 BWC Policy

mandated certain officers "be equipped with BWCs," including "[a]ll uniformed

patrol officers while acting in the performance of official duties, as required by

N.J.S.A. 40A:14-118.3," which, in turn includes "[SLEOs] assigned to patrol or

traffic law enforcement duties."

With those principles in view, the court found "[i]t is unclear that

Mauriello is a[n] 'SLEO II' and that designation is not defined in the Guidelines,"

but "it is clear that Section 3.2(a) of the Guidelines cross-references the enabling

statute, and it conclusively established that [SLEO] Mauriello works for an

entity that is not covered by said statute." The court elaborated:

Mauriello is admittedly in possession of BWC

equipment that he purchased, but it is not a unit that was

issued to him as the Guidelines require. Also, the NHA

apparently has no operating procedure and policy in

place related to the use of such units, perhaps because

the NHA is not a law enforcement agency and is not

required to provide the units to its personnel.

A-4138-24

10

It occurs to the [c]ourt that there is a rather large

loophole between the statute and Guidelines. The

[c]ourt's recognition of the laudable spirit of the

respective enactments does not give it authority to close

this legislative gap.

Accordingly, this [c]ourt does not find Mauriello

is covered by the statute, nor does it find that his failure

to activate his own BWC constitutes noncompliance

with the Guidelines. Indeed, had Mauriello used his

own BWC to record the events of May 14, he would be

doing so outside the black-letter requirements of the

very Guidelines the defense asserts mandate its use.

Still, the defense's arguments are not lost on the

[c]ourt. These can be freely made to a jury that presides

over this case at a later date. However, on this record,

. . . [d]efendant is not entitled to an adverse inference

related to [SLEO] Mauriello's failure to activate the

BWC.

[(Emphasis added).]

II.

A.

Our review of a trial court's decision on a suppression motion is

circumscribed. See State v. Fenimore, 261 N.J. 364, 372-73 (2025). After a

testimonial hearing, "appellate courts defer to the trial court's factual findings

because the trial court has the 'opportunity to hear and see the witnesses and to

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

S.S., 229 N.J. 360, 374 (2017) (quoting State v. Elders, 192 N.J. 224, 244

A-4138-24

11

(2007)). We "must defer to the factual findings of the trial court on a motion to

suppress so long as its findings are supported by sufficient credible evidence in

the record." State v. Erazo, 254 N.J. 277, 297 (2023).

"An appellate court should not disturb the trial court's findings merely

because 'it might have reached a different conclusion were it the trial tribunal'

or because 'the trial court decided all evidence or inference conflicts in favor of

one side' in a close case." State v. Nelson, 237 N.J. 540, 551 (2019) (quoting

Elders, 192 N.J. at 244). "The governing principle, then, is that '[a] trial court's

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

of justice demand intervention and correction.'" Id. at 551-52 (alteration in

original) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)).

"A trial court's legal conclusions, 'however, and the consequences that

flow from established facts,' are reviewed de novo." State v. Bullock, 253 N.J.

512, 532 (2023) (quoting State v. Hubbard, 222 N.J. 249, 263 (2015)). We

therefore conduct a de novo review of issues concerning statutory construction,

including the meaning of a statute's terms. See State v. Olivero, 221 N.J. 632,

638 (2015).

A-4138-24

12

B.

The touchstone for statutory interpretation is legislative intent, Frugis v.

Bracigliano, 177 N.J. 250, 280 (2003), and the best indication of that intent is

usually the text of the provision itself, read according to its plain meaning and

in proper context, DiProspero v. Penn, 183 N.J. 477, 492 (2005); see also State

v. Keogh, 481 N.J. Super. 67, 77 (App. Div. 2025). It is not the court's "function

to rewrite a plainly written statute or to presume that the Legislature meant

something other than what it conveyed in its clearly expressed language."

Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012). Nor should the

court "'engraft requirements' on a statute 'that the Legislature did not include.'"

State v. Jones, 475 N.J. Super. 520, 531 (App. Div. 2023) (quoting Lippman v.

Ethicon, Inc., 222 N.J. 362, 388 (2015)).

The statutory framework at issue requires activation of a BWC

whenever the officer is responding to a call for service

or at the initiation of any other law enforcement or

investigative encounter between an officer and a

member of the public, in accordance with applicable

guidelines or directives promulgated by the Attorney

General . . . . The [BWC] shall remain activated until

the encounter has fully concluded and the officer leaves

the scene.

[N.J.S.A. 40A:14-118.5(c)(1).]

A-4138-24

13

Under N.J.S.A. 40A:14-118.5(q)(2):

If a law enforcement officer . . . fails to adhere to

the recording . . . requirements . . . or intentionally

interferes with a [BWC]'s ability to accurately capture

audio or video recordings:

....

(2) there shall be a rebuttable presumption that

exculpatory evidence was destroyed or not captured in

favor of a criminal defendant who reasonably asserts

that exculpatory evidence was destroyed or not

captured[.]

As we stated in Jones,

in criminal prosecutions, the rebuttable presumption set

forth in N.J.S.A. 40A:14-118.5(q)(2) provides a

statutory remedy – a rebuttable presumption

exculpatory evidence was destroyed or not captured –

to a defendant where a law enforcement officer,

employee, or agent failed to adhere to the recording or

retention requirements in N.J.S.A. 40A:14-118.3 to

-118.5, "or intentionally interfere[d] with a BWC's

ability to accurately capture audio or video recordings,"

and the court also determines the defendant "reasonably

asserts that exculpatory evidence was destroyed or not

captured."

[475 N.J. Super. at 533 (emphasis added) (quoting

N.J.S.A. 40A:14-118.5(q)(2)).]

Under the BWC statute, a "[l]aw enforcement officer" is defined as "a

person whose public duties include the power to act as an officer for the

detection, apprehension, arrest, and conviction of offenders against the laws of

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14

this State." N.J.S.A. 40A:14-118.5(a). The definition does "not include a

correctional police officer." Ibid.

Pursuant to the SLEO Act, a "[s]pecial law enforcement officer" includes,

in relevant part, "any person appointed pursuant to this act to temporarily or

intermittently perform duties similar to those performed regularly by members

of a police force of a local unit." N.J.S.A. 40A:14-146.9(h). The definition of

a "[l]ocal unit" under the SLEO Act includes, in pertinent part, a municipality,

which "ha[s] established a regular police force pursuant to law," N.J.S.A.

40A:14-146.9(c), and "may, as it deems necessary, appoint [SLEO]s sufficient

to perform the duties and responsibilities permitted by local ordinances ," subject

to certain laws. N.J.S.A. 40A:14-146.10(a).

Class Two SLEOs are "authorized to exercise full powers and duties

similar to those of a permanent, regularly appointed full-time police officer,"

N.J.S.A. 40A:14-146.11(a)(2), but are not "members of the police force of the

local unit," N.J.S.A. 40A:14-146.14(a); see also N.J.S.A. 52:17B-67 (including

SLEOs within the definition of a "[l]aw enforcement officer" under the Police

Training Act, N.J.S.A. 52:17B-66 to -77). Whereas Class One SLEOs "may

issue summonses for traffic violations and disorderly persons offenses" but may

not carry firearms, Class Two SLEOs "are authorized to perform within the

A-4138-24

15

municipality, all of the duties of a regular police officer and may, if so

authorized by the municipality, carry and use firearms" after completing the

required training and becoming certified. In re Special Police Officers, 354 N.J.

Super. 269, 272-73 (App. Div. 2002).8 However, SLEOs are supervised by the

local unit's chief law enforcement officer. N.J.S.A. 40A:14-146.14(c). SLEOs

must "comply with the rules and regulations applicable to the conduct and

decorum of the permanent, regularly appointed police officers of the local unit,"

and the "rules and regulations applicable to the conduct and decorum of

[SLEO]s." N.J.S.A. 40A:14-146.14(d).

C.

Generally, warrantless searches and seizures are per se unreasonable and

prohibited under the United States and New Jersey Constitutions absent a

recognized exception to the warrant requirement. See State v. Smart, 253 N.J.

156, 164-65 (2023). "To justify a warrantless search or seizure, 'the State bears

the burden of proving by a preponderance of the evidence that [the] warrantless

8

In 2016, the Legislature amended the SLEO Act to create a third category of

SLEOs, Class Three officers, who are "authorized to exercise full powers and

duties similar to those of a permanent, regularly appointed full-time police

officer while providing security at a public or nonpublic school or a county

college" during specified hours. N.J.S.A. 40A:14-146.11(a)(3). Class Three

SLEOs may carry a firearm subject to the SLEO Act's restrictions. Ibid.

A-4138-24

16

search or seizure falls within one of the few well-delineated exceptions to the

warrant requirement.'" State v. Vanderee, 476 N.J. Super. 214, 230 (App. Div.

2023) (alteration in original) (quoting State v. Chisum, 236 N.J. 530, 546

(2019)).

One such exception is the investigative or Terry stop. "A police officer

may conduct an investigatory stop if, based on the totality of the circumstances,

the officer had a reasonable and particularized suspicion to believe that an

individual has just engaged in, or was about to engage in, criminal activity."

State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry, 392 U.S. at 21). Thus,

"the 'touchstone' for evaluating whether police conduct has violated

constitutional protections is 'reasonableness.'" State v. Bard, 445 N.J. Super.

145, 157 (App. Div. 2016) (quoting State v. Hathaway, 222 N.J. 453, 476

(2015)); see also State v. Alessi, 240 N.J. 501, 523-24 (2020) (recognizing "an

investigatory stop is an exception justified only by reasonable suspicion of

involvement in a crime"). "[I]n determining 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

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17

and/or overbearing police intrusions.'" State v. Privott, 203 N.J. 16, 25-26

(2010) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).

A Terry stop and the frisk are analyzed under separate standards. 392 U.S.

at 21-27. "The first component of the Terry rule concerns the level of reasonable

suspicion that must exist before an 'investigatory stop' legitimately may be

undertaken." State v. Thomas, 110 N.J. 673, 678 (1988); see also Terry, 392

U.S. at 21.

To conduct a frisk under Terry's second component, "[t]he officer must be

able 'to point to particular facts from which he [or she] 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)). Accordingly, police may search

for weapons for self-protection if they reasonably believe the individual is armed

and dangerous, "regardless of whether [the officer] has probable cause to arrest

the individual for a crime." Terry, 392 U.S. at 27. As the motion court in the

present matter recognized, under Terry, an officer may "conduct a carefully

limited search of the outer clothing of such persons in an attempt to discover

weapons which might be used to assault [the officer]." Id. at 30.

In contrast to the analysis for a Terry stop, the totality of the circumstances

for a frisk may include facts adduced after police initiate the stop. See State v.

A-4138-24

18

Valentine, 134 N.J. 536, 551 (1994) (upholding a frisk after a stop based, in part,

on the defendant's refusal to remove his hands from his pockets and make eye

contact with the officer). Factors supporting an articulable and reasonable

suspicion that a suspect is armed and dangerous include: a suspect's movements

toward his or her waistband, Privott, 203 N.J. at 30; a suspect's "hand

move[ment] toward his [or her] inside jacket pocket," State v. Bellamy, 260 N.J.

Super. 449, 457 (App. Div. 1992); and a suspect's "reaching into his [or her]

pocket," Bard, 445 N.J. Super. at 157-58. Courts also may consider the officer's

knowledge and experience, Valentine, 134 N.J. at 547-48 (citing Terry, 392 U.S.

at 27), and "the lateness of the hour," id. at 547 (citing State v. Lund, 119 N.J.

35, 48 (1990)).

III.

Against that legal backdrop, we turn to defendant's reprised arguments.

In his merits brief, defendant maintains the BWC statutes' requirements applied

to Mauriello because, by definition, a Class Two SLEO is a "law enforcement

officer" under N.J.S.A. 40A:14-118.5(a). Noting the Legislature could have

expressly excluded SLEOs from the BWC statute as it did with correctional

officers, defendant contends the court erroneously construed the statutory

scheme by restricting application of the BWC statute to employees of law

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19

enforcement agencies. He further argues, in its implementation of the BWC

statutes, the Attorney General Guidelines expressly included SLEOs as "covered

parties." Defendant argues any ambiguity as to whether the BWC statutes apply

to SLEOs should be construed in accordance with the Legislature's purpose to

promote the use of BWCs and preserve BWC footage as evidence.

Asserting Mauriello failed to "adhere to the recording requirements"

defendant contends he was entitled to the adverse inference "that the missing

footage" from the stop and frisk "would have shown" he "did not fidget with his

waistband in a manner that was indicative of possessing a gun." During oral

argument before us, appellate counsel further argued Mauriello's failure to

activate his personal BWC at the time of the encounter violated N.J.S.A.

40A:14-118.5(c), which requires activation of "a" BWC and, as such, does not

limit activation to the BWC issued by the employing agency.

Defendant also challenges the court's decision upholding the stop and

frisk. He maintains Mauriello's account of the incident fell short of articulating

a "sufficient objective basis to believe" defendant "was armed and dangerous,"

and the court did not expressly make that finding. Defendant seeks reversal of

the July 1, 2025 order. In the alternative, defendant requests a remand for a new

suppression hearing before another judge.

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The State acknowledges the Attorney General Guidelines include Class

Two SLEOs among the officers "required to be equipped with BWCs." But the

State counters both the BWC statute and the Guidelines apply only "to law

enforcement agencies, not the NHA." Noting the NHA – and not a "law

enforcement agency" employed Mauriello, the State further asserts "the

Guidelines did not apply to him." Urging us to uphold the court's decision, the

State also notes "Mauriello was never issued a BWC by any law enforcement

agency."

On de novo review, we have considered defendant's renewed contentions

in view of the governing statutes and Attorney General Guidelines, and affirm

substantially for the reasons stated in the court's well-reasoned decision.

Accordingly, we conclude defendant failed to demonstrate an adverse inference

was warranted, and the substantial credible evidence in the record supports the

court's decision Mauriello had reasonable suspicion to stop defendant and

"reasonably inferred [he] was armed and dangerous." See Thomas, 110 N.J. at

678; see also Privott, 203 N.J. at 30. We add only the following brief remarks.

We part company with the motion court's determination Mauriello was not

a Class Two SLEO. At the time of the incident, Mauriello was employed by the

NHA, armed with a service weapon, and had powers of arrest and, by definition,

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21

he was a Class Two officer. See N.J.S.A. 40A:14-146.11(a) (delineating the

powers of Class One, Two, and Three officers). However, that classification

has no bearing on whether Mauriello violated the BWC statute, warranting an

adverse inference under N.J.S.A. 40A:14-118.5(q)(2). Pursuant to the plain

language of the statute, see DiProspero, 183 N.J. at 492, because the NPD did

not issue Mauriello a BWC, he did not "fail to adhere to the [statutory] recording

or retention requirements," N.J.S.A. 40A:14-118.5(q). And because Mauriello

did not activate his personal BWC during his encounters with defendant, he

complied with Section 3.1(a) of the Attorney General Guidelines, which require

the use of "a BWC system" only if that system "has been issued and approved

by the agency." 9

We recognize the NPD commenced BWC training for its SLEOs, but

never issued BWCs to those officers, including Mauriello. However, the motion

record does not include the policy, if any, the NPD promulgated for issuance of

BWCs to its SLEOs and, as such, we make no assumptions about its existence

or parameters. See N.J. Dep't of Child. & Fams. v. A.L., 213 N.J. 1, 28 (2013)

9

The reasons underscoring the Attorney General's requirement are consonant

with Section 9.1 of the BWC policy (mandating departments "establish and

maintain a system and procedures to ensure the integrity and proper handling

and storage of all BWC recordings").

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(recognizing neither trial courts nor appellate courts can "fill in missing

information on their own"). In any event, any failure by the NPD to issue

Mauriello a BWC created a factual impossibility for him to adhere to the BWC

statute and Attorney General Guidelines.

Finally, similar to the motion court, we recognize the divide between the

BWC statutory scheme and the Guidelines. We similarly conclude defendant's

argument "is best left for consideration by the [l]egislative and [e]xecutive

branches of government." State v. Burns, 462 N.J. Super. 235, 248 (App. Div.

2020) (quoting In re Declaratory Judgment Actions Filed by Various Muns., 446

N.J. Super. 259, 267 (App. Div. 2016), aff'd as modified, 227 N.J. 508 (2017));

see also State v. Saavedra, 433 N.J. Super. 501, 525 (App. Div. 2013), (declining

"to intrude into the policy-making arena, an area traditionally reserved in our

tripartite system of governance to the legislative and executive branches"), aff'd,

222 N.J. 39 (2015).

Affirmed.

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