A-1028-13t2

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1028-13T2

STATE OF NEW JERSEY,

APPROVED FOR PUBLICATION

Plaintiff-Respondent,

August 7, 2015

v. APPELLATE DIVISION

AMIR RANDOLPH,

Defendant-Appellant.

_____________________________________

Submitted February 25, 2015 – Decided August 7, 2015

Before Judges Ashrafi, Kennedy and O'Connor.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 12-02-0279.

Joseph E. Krakora, Public Defender, attorney

for appellant (Emily A. Kline, Designated

Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County

Prosecutor, attorney for respondent

(Gioiella A. Mayer, Special Deputy Attorney

General/Acting Assistant Prosecutor, on the

brief).

The opinion of the court was delivered by

KENNEDY, J.A.D.

Following a jury trial, defendant was found guilty of

various controlled dangerous substance (CDS) offenses and was

sentenced in the aggregate to seven years of imprisonment,

subject to three years of parole ineligibility. Defendant

appeals and raises the following arguments:

POINT I: THE TRIAL COURT ERRED IN FAILING

TO GRANT DEFENDANT'S MOTION TO SUPPRESS

WHERE THE EVIDENCE SEIZED WAS IN VIOLATION

OF DEFENDANT'S FOURTH AMENDMENT RIGHT.

POINT II: THE COURT COMMITTED PLAIN ERROR BY

CHARGING THE JURY ON FLIGHT.

POINT III: THE COURT ERRED IN FAILING TO

GIVE A REQUESTED INSTRUCTION ON "MERE

PRESENCE" AS AN ESSENTIAL PART OF THE

DEFINITION OF CONSTRUCTIVE POSSESSION.

POINT IV: THE SENTENCE WAS EXCESSIVE BECAUSE

THE TRIAL JUDGE FAILED TO CONSIDER

APPLICABLE MITIGATING FACTORS.

We have considered these arguments in light of the record and

applicable law, and for reasons expressed hereinafter, we

reverse defendant's conviction and we remand for a new trial.

I.

We initially address the Law Division's denial of

defendant's motion to suppress evidence. We discern the facts

that follow from the record developed at the suppression

hearing.1

1

"'[O]n appeal, we may only consider whether the motion to

suppress was properly decided based on the evidence presented at

that time.'" State v. Robinson, 200 N.J. 1, 15 (2009) (citation

(continued)

2 A-1028-13T2

On September 19, 2011, at about 10:00 a.m., Jersey City

Detective Anthony Goodman was conducting a surveillance of the

area at Grant Avenue and Martin Luther King Drive in Jersey City

– a known high crime area. From his unmarked patrol car,

Goodman observed a group of men standing on the sidewalk in

front of a three-story apartment building on Grant Avenue (the

building). As the group dispersed, one individual, later

identified as co-defendant, Markees King, entered the building.

Approximately fifteen minutes later, Goodman saw an older man,

later identified as co-defendant, Edward Wright, standing across

the street from the building who appeared to be watching one of

the upper level windows. Goodman noticed King watching the

street from a window on the building's second floor.

Shortly thereafter, King exited the front entrance of the

building, met briefly with Wright, and engaged in what Goodman

believed to be a narcotics transaction. Goodman continued

watching as King participated in another hand-to-hand

transaction with another individual. King then went back into

the building.

(continued)

omitted); see also State v. Tavares, 364 N.J. Super. 496, 501-02

(App. Div. 2003) (on appeal from a judge's decision regarding

the justification of a warrantless search, parties generally

cannot rely on factual testimony or other proof not submitted as

part of the record at the suppression hearing).

3 A-1028-13T2

Goodman alerted perimeter police units that he "had a

sale" and provided a description of Wright. Sergeant Stephen

Trowbridge was with a perimeter unit and he stopped Wright a

short distance from the building. Trowbridge recovered one

glassine bag containing heroin from Wright's pants pocket and

placed him under arrest. At this time, Goodman watched King

leave the building, and he requested his perimeter units to stop

and arrest him. Officers in the perimeter units quickly stopped

and arrested King as he walked toward Martin Luther King Drive.

A search of King revealed a small amount of marijuana and $132

in small denominations.

Following the arrests of Wright and King, Trowbridge

decided to "close in," and began moving from his perimeter

location toward the building. However, before Trowbridge got to

the front door, a man later identified as Andrew Bentley left

the building and began walking toward the vehicle from which

Goodman was conducting his surveillance. Goodman testified that

Bentley was using a cell phone and he heard Bentley state, "They

are at the front door. They’re coming in."

Having arrived at the building's locked front door,

Trowbridge knocked repeatedly on the door and the first floor

windows, until the first floor tenant opened the door and

permitted him to enter the building. While in the first floor

4 A-1028-13T2

vestibule, Trowbridge heard someone "running" from the second to

the third floor, and saw a barbeque grill situated near the

staircase. He opened the lid to the grill and found a handgun.

Within a minute, another Jersey City officer arrived in the

vestibule. Trowbridge gave him the handgun and walked up the

staircase to the second floor.

From the hallway in the second floor, Trowbridge observed

one of the doors to the second floor apartment was open.

Peering into the apartment from the hallway, Trowbridge could

see "debris thrown about" inside, a couch, and nothing else. He

concluded that the apartment was "vacant" or "abandoned," and

entered to see if there were "any additional actors in there."

The apartment door opened directly into the living room.

Trowbridge walked through the apartment from the back to the

front and found no one inside. During this walk-through, he

observed in various rooms of the apartment, an open backpack and

a pair of shoes near the front door, clothing draped over the

couch, a television, and a gaming console. Trowbridge also saw

marijuana, empty glassine bags and a small amount of cash on the

floor next to the gaming console. Before leaving the apartment,

Trowbridge found a silver box containing glassine envelopes of

heroin and a Newport cigarette box containing additional amounts

of marijuana.

5 A-1028-13T2

A few pieces of mail were also on the floor near the gaming

console, one of which was addressed to defendant, Amir Randolph,

on Mallory Avenue in Jersey City. At this point, Trowbridge

left the apartment and walked downstairs where he encountered

members of the U.S. Marshals Fugitive Task Force, who,

unbeknownst to the Jersey City police officers, were also

watching the building at the time.

The federal agents advised Trowbridge they had a warrant

for defendant’s arrest for an alleged homicide, and believed he

either resided there or was staying at the building. The

federal agents then proceeded directly to the third floor

apartment where defendant was found hiding in a closet. A woman

and young child also occupied the third floor apartment. No one

from the Narcotics Unit was present when defendant was arrested,

and the Marshals subsequently took defendant into custody.

Bentley was also taken into custody by federal agents.

Following the State's presentation at the suppression

hearing, at which only Trowbridge and Goodman testified, the

judge denied an application by defendant to call Jersey City

Detective Matthew Stambuli. Defense counsel indicated that

Stambuli had "investigated" Bentley's cellphone and would

testify it was "inoperable." The State opposed the motion,

arguing that the defense had indicated it would offer no

6 A-1028-13T2

witnesses, and proffered that cellphone records showed the phone

was "on and working" on September 19, and had first been

cancelled on September 25. The judge then denied defendant's

application and explained that there was "no testimony

indicating that that phone call was actually made . . ." and

that "it's irrelevant to what the police officers did at the

time."

The judge denied the motion to suppress and explained, in

part, that:

The door to the second floor apartment was

open, and from his vantage point, Sergeant

Trowbridge observed that the apartment was

vacant.

Sergeant Trowbridge entered the apartment to

search for additional actors. He observed

drugs, debris and paperwork scattered on the

floor of the apartment. Finding no actors,

he chose to return to the first floor where

he met with U.S. Marshals who informed

Sergeant Trowbridge that they had been

investigating the premises as the residence

of Mr. Randolph.

. . . .

In regards to the search of [the apartment],

none of the defendants have provided any

evidence that they had an expectancy of

privacy in the first floor hallway where the

gun was recovered, in the second floor

vacant apartment where narcotics, narcotic

paraphernalia and paperwork was recovered,

or in the third floor apartment where Mr.

Randolph was arrested.

7 A-1028-13T2

As an overall rule, social and legal norms

dictate whether . . . an expectation of

privacy will be held to exist and/or be

reasonable in particular factual

circumstances.

. . . .

Absent any evidence, this Court does not

find an expectation of privacy, and as such,

the search of [the apartment] is valid. See

State versus Linton, 356 New Jersey Super.

at 255, at page 256, Appellate Division

2002, holding a defendant who hid his drugs

in someone else's vacant property had no

reasonable expectation of privacy.

The judge then entered an order denying the motion for

suppression.

On appeal, defendant relies upon State v. Brown, 216 N.J.

508 (2014), and argues that the Law Division erred in concluding

that defendant had no reasonable expectation of privacy in

"someone else's vacant apartment" and that, in making such a

finding, the judge improperly imposed a burden of proof upon

defendant. The State argues that defendant has no standing to

object to the search because police had an "objectively

reasonable belief" that the apartment was abandoned, and that,

even if the judge's legal conclusions were flawed, the

warrantless search was nonetheless valid because "exigent

circumstances . . . required immediate police action." In

making the latter argument, the State relies, in part, on the

alleged fact that "Bentley called [defendant]" to advise police

8 A-1028-13T2

were entering the building as Trowbridge had gained access to

the first floor hallway.

Under the Fourth Amendment of the United States

Constitution and Article I, Paragraph 7 of the New Jersey

Constitution, "[a] warrantless search is presumed invalid unless

it falls within one of the recognized exceptions to the warrant

requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing

State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of

the warrantless seizure of a person or property. Terry v. Ohio,

392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889,

904-06 (1968) (seizure of a person); State v. Hempele, 120 N.J.

182, 216-17 (1990) (seizure of property). It is the burden of

the State to show by a preponderance of the evidence that the

search falls within a recognized exception to the warrant

requirement and that the search was permissible. Brown, supra,

216 N.J. at 527.

In the case before us, it appears that the Law Division

concluded the apartment on the second floor was vacant or

abandoned and that, consequently, defendant had no reasonable

expectation of privacy therein. In reaching this conclusion,

the judge apparently found that defendant had a burden of proof

to show he had a reasonable expectation of privacy in the

9 A-1028-13T2

premises. In reaching these conclusions, the Law Division

erred.

In New Jersey, "a criminal defendant [has standing] to

bring a motion to suppress evidence obtained in an unlawful

search and seizure if he has a proprietary, possessory or

participatory interest in either the place searched or the

property seized." Alston, supra, 88 N.J. at 228; accord Brown,

supra, 216 N.J. at 528-29. "[S]tanding to seek suppression of

evidence" is a "separate issue" from "the existence of a

reasonable expectation of privacy," which pertains to the merits

of the police action. State v. Hinton, 216 N.J. 211, 235

(2013). Defendant's automatic standing to contest the

constitutional validity of the seizure "does not equate to a

finding that he . . . has a substantive right of privacy in the

place searched that mandates the grant of that motion." Ibid.

"'[A]lthough we do not use a reasonable expectation of privacy

analysis for standing purposes in criminal cases, we do apply

that analysis to determine whether a person has a substantive

right of privacy in a place searched or an item seized.'" Ibid.

(quoting State v. Johnson, 193 N.J. 528, 547 (2008)). "[T]he

objective reasonableness of the defendant's expectation of

privacy in that property, for purposes of Article I, Paragraph

10 A-1028-13T2

7, turns in large part on his or her legal right to occupy the

property at issue." Id. at 236.

A defendant cannot successfully "challenge a search if an

officer had an objectively reasonable basis to believe he was a

trespasser." Brown, supra, 216 N.J. at 535. "That follows

because a trespasser, by definition, does not have a possessory

or proprietary interest in property where he does not belong —

where he does not have permission or consent to be." Ibid.

Thus, "a trespasser who hides drugs in someone else's vacant and

unsecured property" does not have a "'constitutionally-

reasonable expectation of privacy'" in that vacant property.

Id. at 537 (quoting State v. Linton, 356 N.J. Super. 255, 259

(App. Div. 2002)).

In State v. Smith, 291 N.J. Super. 245, 250-52 (App. Div.

1996), rev'd on other grounds, 155 N.J. 83, 102, cert. denied,

525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998), for

example, the defendant was storing drugs in an apartment without

the permission of the tenant, who was in the hospital. We held

that because the "defendant had no right to enter the

apartment," the "defendant lacked a sufficient privacy interest

in the apartment to support the conclusion that the search

violated his constitutional rights." Id. at 261.

11 A-1028-13T2

"Establishing an abandonment of real property is 'a

difficult standard to meet.'" Brown, supra, 216 N.J. at 530

(quoting United States v. Harrison, 689 F.3d 301, 309 (3d Cir.

2012)). "'Before the government may cross the threshold of a

home without a warrant, there must be clear, unequivocal and

unmistakable evidence that the property has been abandoned.'"

Id. at 530-31 (internal citations omitted). The test is one of

objective reasonableness, State v. Edmonds, 211 N.J. 117, 132

(2012), and turns on whether, given the totality of the

circumstances, an objectively reasonable police officer would

believe the property is abandoned. Harrison, supra, 689 F.3d at

308. Because the officer’s subjective beliefs are irrelevant to

this inquiry, a police officer’s sincere, good-faith but

unreasonable belief that real property is abandoned will not

justify a warrantless search when a defendant has an apparent

possessory interest in that property. Brown, supra, 216 N.J. at

531.

In Brown, the Supreme Court identified a number of factors

to be considered in determining whether a police officer has an

objectively reasonable basis to believe a property is abandoned:

In deciding whether a building is abandoned,

or a person is a trespasser, one reasonable

step an officer might take is to examine

readily available records on ownership of

property. Deeds are kept in the county

recording office and provide the address of

12 A-1028-13T2

the property owner. See 13A New Jersey

Practice, Real Estate Law and Practice §

33.2 at 502, § 33.10(4) at 508 (John A.

Celentano, Jr. (2d ed. 2002).

. . . .

Moreover, utility records, which can be

secured by a grand jury subpoena, will

reveal not only the name of the property

owner, but also whether electricity has been

used in the premises. Such record checks

are not the exclusive means of determining

whether property is abandoned, but just one

factor in assessing whether a police officer

acted in an objectively reasonable manner.

Other factors to consider in assessing

whether a building is abandoned is the

property’s condition and whether the

putative owner or lessee has taken measures

to secure the building from intruders.

There are impoverished citizens who live in

squalor and dilapidated housing, with

interiors in disarray and in deplorable

condition, and yet these residences are

their homes. As succinctly stated, there is

not a "'trashy house exception' to the

warrant requirement." Harrison, supra, 689

F.3d at 311. Yet, a police officer may be

familiar with an unoccupied building with

missing doors and broken windows, and an

interior in utter shambles and lacking

electricity, and reasonably conclude that

the structure is abandoned. The decrepit

condition of the exterior and interior of a

building is a factor, but other

circumstances will necessarily come into

play. For example the boarding of windows

and bolting of doors of a shabby-looking

building will suggest an intent to keep

people out by a person exercising control

over the property and therefore may be

evidence that conflicts with abandonment.

. . . .

13 A-1028-13T2

A Home is not deemed 'abandoned' merely

because a person is dealing drugs from it.

Id. at 533-34.

Finally, the legitimacy of a search will not depend on what was

learned by the police after entry into the home. Wong Sun v.

United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415, 9 L. Ed.

2d 441, 453 (1963)("A search unlawful at its inception may [not]

be validated by what it turns up.").

The State relies on Linton, supra, 356 N.J. Super. 255, to

validate the reasonableness of Trowbridge's belief that the

apartment was abandoned. In Linton, two police officers were

informed that a man was selling drugs from a certain address in

the municipality. Id. at 257. Upon arriving at that address,

the officers observed garbage in the front and back yards, a

broken lock on the front door, a broken front window, a living

room littered with garbage and damaged furniture, and no lights

on in the residence. Ibid. Additionally, the officers had not

seen anyone at the residence for a month despite frequently

patrolling the area. Ibid. We reversed the trial court's

suppression of drugs that the officers had found hidden in a

torn couch, concluding that there was no Fourth Amendment

violation because "a defendant who hides drugs in someone else's

14 A-1028-13T2

vacant property has no constitutionally-reasonable expectation

of privacy." Id. at 259.

Linton is not persuasive here. First, in the case before

us, the State offered only a few, equivocal observations about

the condition of the apartment. Trowbridge merely saw a couch

and what he characterized as "debris" on the floor, when he

peered into the open door. The windows in the apartment were

intact; one needed a key to enter the locked building; King

apparently had a key to get into the locked building; other

tenants lived in the building, one of whom permitted Trowbridge

to enter; and the door to the apartment itself did not appear to

have been forced open. In Linton, by contrast, the police

offered much more detail respecting the property at issue.

Second, in Brown, supra, the Supreme Court opined that

"whether the evidence of abandonment in Linton meets our current

Article I, Paragraph 7 jurisprudence is certainly debatable."

216 N.J. at 538. In Brown, the Supreme Court affirmed our

decision upholding the trial court's order suppressing evidence,

concluding that the following facts did not objectively support

the conclusion that a property was abandoned: one of two front

windows to the residence was broken; the front door had a

padlock; the rear door was off the hinges and propped closed;

trash bags filled with old clothes and soda cans littered the

15 A-1028-13T2

living room; and the electric meter was missing. Unlike the

neighboring houses, the residence in question was not boarded

up. Id. at 523. The Supreme Court explained also that nothing

in the record showed that some basic research into the ownership

of the property "would have been difficult or unduly

cumbersome." Id. at 542.2

We conclude that, in the circumstances of this case, the

fact that the apartment appeared to contain only one couch and

"debris" was seen on the floor is an insufficient basis on which

to reasonably conclude that the apartment was vacant, unrented

or abandoned. The fact that the door to the apartment was left

open does not warrant a contrary conclusion. The law is clear

that "[t]he Fourth Amendment does not . . . protect only

hermetically sealed residences" and the rule prohibiting the

police from entering a residence to conduct a warrantless search

applies even if the door to the residence is left open. State

v. Penalber, 386 N.J. Super. 1, 11-12 (App. Div. 2006) (quoting

United States v. Oaxaca, 233 F.3d 1154 (9th Cir. 2000)).

In the circumstances of this case, the State cannot argue

credibly that defendant had no expectation of privacy in an

apartment where he was allegedly conducting an illegal drug

2

Goodman testified that while it appeared to him that the

landlord was not renting the unit at the time, he "didn't speak

to the landlord to verify that."

16 A-1028-13T2

distribution operation. In fact, at one point, the judge

determined that the presence of a letter addressed to defendant

found inside the apartment was "sufficient evidence" that he

"occupied the area." Trowbridge testified that he assumed the

apartment was "not rented out" but conceded no effort had been

made to ascertain from the landlord or building superintendent

whether that was so.

Beyond this, the apartment had furniture inside, as well as

a gaming console, other electronic equipment, clothing, bags,

Nike sneakers and Timberland boots. This is not consistent with

an apartment being abandoned or vacant, and, more importantly,

does not suggest in any manner that the apartment is being

occupied by a trespasser. Given these proofs, the Law Division

erred in finding that defendant had no reasonable expectation of

privacy in the apartment.

The Law Division compounded its error by requiring

defendant to meet a burden of proof demonstrating his reasonable

expectation of privacy. Defendant has no such burden, however.

"[T]he State bears the burden of proving by a preponderance of

the evidence" that, "in light of the totality of the

circumstances, a police officer had an objectively reasonable

basis to conclude that . . . a defendant was a trespasser before

17 A-1028-13T2

the officer entered or searched the home." Brown, supra, 218

N.J. at 529, 535-36.

Now, the State argues that even if the judge's reasoning in

denying the suppression motion was flawed, we should nonetheless

uphold the order denying suppression on grounds of exigency or

protective sweep. While it is true that "we affirm or reverse

judgments and orders, not reasons[,]" State v. Maples, 346 N.J.

Super. 408, 417 (App. Div. 2002), we decline to do so on the

basis of this record, and, given our holding hereinafter

reversing defendant's judgment of conviction. Instead, we elect

to vacate the order of suppression and remand the issue to the

Law Division for further hearing.3

In part, our decision to order a further hearing on

suppression is prompted by our conclusion that the Law Division

erred in refusing to grant defendant's application for leave to

call Detective Stambuli as a witness with respect to the

operability of Bentley's cell phone. Indeed, we find it

3

On remand for a rehearing of a pretrial motion to suppress

physical evidence, the second trial judge is not bound by the

findings of fact or conclusions of law reached by the trial

judge in the first instance. State v. Hale, 127 N.J. Super. 407

(App. Div. 1974)(explaining that "law of the case" doctrine most

commonly applies to the binding nature of appellate decisions

upon a trial court on remand for further proceedings).

Accordingly, on remand, the trial court may conduct an expanded

hearing to gather additional information relevant to the issue

of suppression. State v. Henderson, 208 N.J. 208, 300 (2011).

18 A-1028-13T2

especially ironic that the State now urges us to accept as a

fact that Bentley called "[defendant] and indicated, 'they're at

the front door. They are coming in[,]'" when, in fact, the judge

made no such finding and explicitly found the claim to be

"irrelevant," partially at the urging of the State.

"Where there is a dispute as to material facts on a motion

to suppress . . . the trial court should not restrict the State

or defendant in the presentation of all relevant evidence so

that, if appellate review is had, the record will be complete,

and a final adjudication can be made." State v. Hope, 85 N.J.

Super. 551, 555 (App. Div. 1964); see also State v. Wilson, 178

N.J. 7, 14 (2003); State v. Gaudiosi, 97 N.J. Super. 565, 568-69

(App. Div. 1967).

In this case, the Law Division denied defendants' motion to

suppress without hearing all of the evidence because the judge

concluded that potentially key evidence was "irrelevant."

Indeed, even if such reasoning were correct, the judge should

not have precipitously aborted the hearing without allowing the

defense to complete its case. It is not self-evident that the

telephonic transmission was irrelevant to the suppression of

evidence discovered in the apartment. Moreover, such evidence

was at least pertinent to the issue of the credibility of the

testifying officer. While we express no opinion regarding the

19 A-1028-13T2

significance of this evidence, the complexities attendant upon

the issues of exigency and protective sweeps underscore the

point that the judge should not have undertaken to decide the

motion to suppress without hearing all the evidence.

Whether there were exigent circumstances sufficient to

justify a warrantless search or seizure is a "highly fact-

sensitive" inquiry. State v. Alvarez, 238 N.J. Super. 560, 568

(App. Div. 1990)(internal quotes omitted); see also Johnson,

supra, 193 N.J. at 552. The pertinent factors include:

the degree of urgency and the amount of time

necessary to obtain a warrant; the

reasonable belief that the evidence was

about to be lost, destroyed, or removed from

the scene; the severity or seriousness of

the offense involved; the possibility that a

suspect was armed or dangerous; and the

strength or weakness of the underlying

probable cause determination.

[State v. Walker, 213 N.J. 281, 292 (2013).]

"[E]xigent circumstances will be present when inaction due to

the time needed to obtain a warrant will create a substantial

likelihood that the police or members of the public will be

exposed to physical danger or that evidence will be destroyed or

removed from the scene." Johnson, supra, 193 N.J. at 553.

A protective sweep of the home may only occur when:

(1) police officers are lawfully within

private premises for a legitimate purpose,

which may include consent to enter; and (2)

the officers on the scene have a reasonable

20 A-1028-13T2

articulable suspicion that the area to be

swept harbors an individual posing a danger.

Where those substantive conditions are met,

as a matter of procedure, the sweep will be

upheld only if (1) it is conducted quickly;

and (2) it is restricted to places or areas

where the person posing a danger could hide.

[State v. Davila, 203 N.J. 97, 102 (2010).]

When the sweep is performed in the non-arrest setting, and "not

due to the execution of an arrest warrant, the legitimacy of the

police presence must be probed." Id. at 126. It is obvious,

therefore, that both issues are exquisitely fact-sensitive and

require the court's most discerning analysis.

In addition, it is unclear whether the State and the

defense presented all evidence relevant to the issues of

exigency and a protective sweep – issues that, in any event,

were not considered by the Law Division. Therefore, the State

should be afforded the opportunity to present any additional

evidence it may have relevant to these issues. Defendant also

should be afforded the opportunity to present evidence regarding

the claimed exigency and protective sweep.

Accordingly, the order granting defendants' motion to

suppress is reversed, and the matter is remanded to the trial

court for such further hearings it determines, after

consultation with the parties, are appropriate.

21 A-1028-13T2

II.

We turn now to the trial itself and we address defendant's

argument that he was denied a fair trial as a consequence of the

court's charge to the jury on flight, and the court's refusal to

give a "mere presence" charge.

The trial testimony of Trowbridge and Goodman was, in large

measure, similar to their testimony at the suppression hearing.

However, at trial, both testified in greater detail respecting

the alleged cellphone call made by Bentley. Goodman testified

that as Trowbridge was knocking on the front door of the

building, Bentley, who had left the building moments earlier,

walked near the surveillance vehicle with a cellphone held to

his face and said, "They're at the door, they're coming in now."

He conceded that he could not ascertain who Bentley was speaking

to at the time, and that Bentley was not arrested by Jersey City

police officers. He added that Bentley was taken from the scene

by "another agency."

Trowbridge testified that he "believe[d]" Goodman relayed

his purported conversation with Bentley over the radio and that

he heard the transmission. Moreover, although he had no

awareness that there was anyone inside the apartment on the

second floor, he decided to enter that apartment based on

Goodman's transmission, and the fact that he had heard someone

22 A-1028-13T2

running on the second floor. He conceded he could not identify

the person he heard running upstairs, and that defendant did not

have a cellphone at the time he was arrested.

Trowbridge also testified that "alerting individuals

involved in drug activity that there are police present" is a

crime; however, he explained that Bentley was not arrested in

connection with the narcotics investigation because Bentley's

phone call could have been made "for — the reason the other

agency was there for or it could have been for what [the

narcotics officers] were there for. [He] didn’t determine that.

The other agency at the time took [Bentley] with them."

Sergeant Trowbridge added, "I couldn’t determine if [Bentley]

was notifying them that, you know, as part of the drug

investigation, or the other investigation that was being

conducted." The nature of the "other investigation" – that the

U.S. Marshals were pursuing defendant on a warrant for an

alleged homicide — was not revealed at trial.

During the charge conference, defense counsel asked the

judge to give the jury a "mere presence" charge, in view of the

fact that the only link between defendant and the second floor

apartment was the presence of a letter bearing defendant's name.

That letter had a different address than the building where it

was found. The only other fact was that defendant was arrested

23 A-1028-13T2

in the apartment on the third floor. The judge declined to give

the charge because, in his view, "there is no such charge."

Additionally, the judge gave the jury an instruction on

flight as evidence of guilt. Model Jury Charges, Criminal—Flight

(May 2010). The instruction given by the judge on the issue of

flight, while otherwise consistent with the Model Charge,

nonetheless was untethered to any facts developed at trial. The

judge stated only that "some evidence" had been elicited at

trial from which the jury "may infer" that defendant fled.

During the State's closing statement, the prosecutor

argued, "You can consider the fact that [defendant] ran from the

second floor to the third floor as consciousness of guilt. . . .

He was putting distance between himself and those police

officers, who he knew, based upon Mr. Bentley's phone call, were

on their way into [the building]." This argument was made

without objection by defendant.

At the beginning of the first full day of deliberations,

the jury asked the court:

What happens if we are not unanimous about

the decision of one of the Defendants? Was

there statements provided about the

relationship between Randolph and tenant,

Randolph and Markees, Markees and tenant?

. . . .

24 A-1028-13T2

Where in the third floor apartment was

Randolph arrested from and where was he

hiding?

In response, the trial court instructed the jurors that they

should rely upon their own memory of the testimony at trial,

"use [their] own good common sense[,]" and to send a note if

they wanted a read-back of particular testimony. As we have

noted, the jury subsequently returned a guilty verdict on all

counts of the indictment.

Addressing first defendant's argument that the trial judge

erred in refusing to charge "mere presence," we hold that, in

the circumstances of this case, the judge's refusal to craft

that charge and instruct the jury with respect to its

applicability was prejudicial error, despite the judge's

comprehensive charge to the jury on the principle of

"constructive possession."

"Clear and correct jury instructions are essential for a

fair trial." State v. Brown, 138 N.J. 481, 522 (1994). "'A

[jury] charge is a road map to guide the jury, and without an

appropriate charge, a jury can take a wrong turn in its

deliberations.'" State v. Nelson, 173 N.J. 417, 446 (2002)

(quoting State v. Martin, 119 N.J. 2, 15 (1990)). Trial courts

have a sua sponte obligation to provide correct charges, State

v. Robinson, 136 N.J. 476, 489 (1994), and erroneous

25 A-1028-13T2

instructions are "poor candidates for rehabilitation under the

harmless error philosophy." State v. Loftin, 146 N.J. 295, 412

(1996)(quoting State v. Simon, 79 N.J. 191, 206 (1979)).

"Mere presence" at the place where the contraband is

located is insufficient to establish constructive possession.

State v. Whyte, 256 N.J. Super. 518, 523 (App. Div. 1992).

There must "be circumstances beyond mere presence" that permit a

reasonable inference of the defendant's intention and capacity

to exercise control over the object and the defendant's

knowledge of what the object is. Ibid.; see also State v.

Palacio, 111 N.J. 543, 551-54 (1988), and State v. Shipp, 216

N.J. Super. 662, 664-65 (App. Div. 1987).

We recognize that ordinarily the model jury instruction

leaves no "room to doubt that 'mere presence' [is] insufficient

to bring about a finding of the necessary elements of

possession." State v. Montesano, 298 N.J. Super. 597, 612-15

(App. Div.), certif. denied, 150 N.J. 27 (1997). However, we

have also held that in limited circumstances the jury charge

must be tailored to ensure that the jury understands that "mere

presence" will not suffice.

In Montesano, we held that an accurate and complete charge

on possession and constructive possession, read "as a whole, . .

. left no room to doubt that 'mere presence' was insufficient to

26 A-1028-13T2

bring about a finding of the necessary elements of possession."

Ibid. However, in the case before us, 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 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.

"When a jury requests clarification, the trial judge is

obligated to clear the confusion." State v. Conway, 193 N.J.

Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984).

"A question . . . means that one or more jurors need help and

that the matter is of sufficient importance that the jury is

unable to continue its deliberations until the judge furnishes

that help." State v. Parsons, 270 N.J. Super. 213, 221 (App.

Div. 1994). Here, the jury's question, reasonably understood,

sought guidance from the court respecting the relationship of

defendant to the apartment. That question had an unambiguous

and well-settled legal answer, which is that defendant's mere

presence in the building, without more, is a legally

insufficient basis to support a finding of constructive

possession, and that "all of the surrounding circumstances" must

27 A-1028-13T2

be considered in their "totality" in evaluating whether the

State has established that a defendant was in constructive

possession of contraband. Palacio, supra, 111 N.J. at 547

(quoting the jury charge given by the trial court with

approval).

In Shipp, supra, we concluded that the defendant's mere

presence, without more, in a vehicle where a passenger is

carrying drugs does not necessitate the conclusion that "he was

sharing in the international control and dominion over the

contraband." 216 N.J. Super. at 666. In Montesano, supra,

while we concluded that it was not reversible error for the

trial judge to refuse defendant's request to charge the jury on

"mere presence," 298 N.J. Super. at 614, we noted that unlike

Shipp, the defendant was the driver of a car containing CDS,

that he made inculpatory statements after the drugs were found,

and that he also had the same drug in his bag which he admitted

belonged to him. Thus "the charge, combined with the evidence .

. . and the jury charge taken as a whole, resulted in an

accurate statement of the law." Montesano, supra, 298 N.J.

Super. at 615.

In Palacio, supra, the Supreme Court approved a jury

charge which is instructive here. There, a large quantity of

cocaine was found hidden in a secret compartment in a vehicle

28 A-1028-13T2

behind the seat. 111 N.J. at 545. Both the driver and the

defendant, a passenger, were arrested. Ibid. At trial, the

judge instructed the jury that:

the fact that the defendant was an occupant

of a vehicle, which undoubtedly contained

cocaine, . . . the status of the defendant

in relation to the vehicle, how long . . .

the defendant [was] in the vehicle, . . .

the proximity of the defendant to the drugs

that were ultimately found in the vehicle, .

. . whether or not those drugs were easily

accessible to him, . . . his demeanor when

he was confronted by the police, his

nervousness, if any, [and] his feigning lack

of knowledge of the English language, if

any.

. . . .

[The jury may also] consider whether or not

it was reasonable for him to be an innocent

occupant of the motor vehicle, and . . . any

other evidence or lack of evidence that has

a bearing upon the elements in this case,

[including] anything that might have, or

might not have been found of an

incriminatory nature on the defendant's

person, [and proximity or lack thereof] . . .

of the defendant's personal articles . . .

to where the drugs were located.

[Id. at 547-48.]

The Court explained that the large quantity of cocaine, the

value of the drugs, and the conduct of the defendant as the

drugs were being seized were evidence that the defendant had

"guilty knowledge of the presence of the drugs." Id. at 552.

29 A-1028-13T2

In the present case, however, the judge gave no instructions to

the jury which explicated the significance of its fact-finding.

The judge should have provided direction focusing the

jurors' attention on relevant circumstances — the placement and

accessibility of the contraband in the apartment and defendant's

access to and connection with the apartment and its occupants.

Ibid.

We recognize that the model jury charge on constructive

possession does not include a charge on mere presence, but the

instruction given by the trial court and quoted by the Supreme

Court in Palacio illustrates how a court can fashion one that

gives the jurors guidance in considering the facts of a

particular case.

The difficulty here is that by directing the jurors, in

essence, to resolve a question about the law by using "their own

good common sense," the judge misinformed them. The question of

guilt was for the jury's determination based on their "common

sense" consideration of the evidence, but the legal sufficiency

of "mere presence" is a matter of law, not a question committed

to the common sense of the jurors deciding individual cases.

The court's response to the jurors' question, read as whole, was

clearly capable of leading the jurors to conclude that they were

free to infer that the State proved defendant's constructive

30 A-1028-13T2

possession by showing that he was in the building. Because we

have serious doubt about whether the jurors' verdicts are based

on a misunderstanding of the law, we reverse his conviction and

remand for a new trial. R. 2:10-2; State v. Macon, 57 N.J. 325,

335-36 (1971).

We shall briefly address the judge's charge on flight,

although, given our conclusion above, it is not necessary to do

so. Because the issue may arise again at trial, and because we

do not wish our failure to address the issue as signaling our

approval of the judge's instruction here, we provide the

following brief exegesis on the issue of flight.

It is well-established that certain conduct after the

commission of a crime may indicate a defendant's consciousness

of guilt. State v. Phillips, 166 N.J. Super. 153, 159 (App.

Div. 1979), certif. denied, 85 N.J. 93 (1980). To be

admissible, the conduct must be "intrinsically indicative of a

consciousness of guilt, such as unexplained flight, or an

unusual exhibition of remorse for the victim of the crime, or

the switching of clothes with a cell mate before a lineup."

State v. Pindale, 249 N.J. Super. 266, 283 (App. Div. 1991)

(quoting Phillips, supra, 166 N.J. Super. at 160). If the

alleged conduct is not intrinsically self-inculpatory but is

admitted to show culpability, there is the risk a jury will

31 A-1028-13T2

impermissibly "speculate, unaided by any evidential base, as to

defendant's motive in so conducting himself." Phillips, supra,

166 N.J. Super. at 160.

The most common example of conduct that can give rise to an

inference of consciousness of guilt is flight. Flight from

custody or the scene of a crime is generally admissible to draw

an inference of guilt, State v. Mann, 132 N.J. 410, 418 (1993),

if done with the purpose of avoiding apprehension, prosecution,

or arrest. Id. at 418-19; State v. Ingram, 196 N.J. 23, 46

(2008); State v. Wilson, 57 N.J. 39, 49 (1970). "Mere departure"

is not enough. State v. Long, 119 N.J. 439, 499 (1990).

"For departure to take on the legal significance of flight,

there must be circumstances present and unexplained which, in

conjunction with the leaving, reasonably justify an inference

that it was done with a consciousness of guilt and pursuant to

an effort to avoid an accusation based on that guilt." Ingram,

supra, 196 N.J. at 46. Accordingly, an adequate jury

instruction on flight would require the jury to find not only a

departure, but also "a motive for the departure, such as an

attempt to avoid arrest or prosecution, that would turn the

departure into flight." Mann, supra, 132 N.J. at 421.

Although evidence of flight is generally admissible, "[t]he

potential for prejudice to the defendant and the marginal

32 A-1028-13T2

probative value of evidence of flight," requires the court to

carefully consider the manner in which such evidence is

presented to a jury. Id. at 420. The probative value of flight

evidence depends on:

the degree of confidence with which four

inferences can be drawn: (1) from the

defendant's behavior to flight; (2) from

flight to consciousness of guilt; (3) from

consciousness of guilt to consciousness of

guilt concerning the crime charged; and (4)

from consciousness of guilt concerning the

crime charged to actual guilt of the crime

charged.

[Ibid. (quoting United States v. Myers, 550

F.2d 1036, 1049 (5th Cir. 1977)).]

Even in those instances where evidence of a defendant's

consciousness of guilt is admitted for another purpose, such

evidence must be accompanied by a limiting instruction advising

the jury that the evidence is probative for only that other,

limited purpose and may not be used to draw any inference of

defendant's consciousness of guilt. See State v. Williams, 190

N.J. 114, 134 (2007).

The conclusion we draw from examining precedent on flight

is that such evidence must unequivocally support a reasonable

inference that the actor's conduct following the commission of a

crime may be relied upon as evidence of the actor's guilt.

Given the indirect value of such evidence, and its potential for

profound prejudice to a defendant, we do not permit equivocal

33 A-1028-13T2

evidence to be utilized by a jury in this manner, and we

carefully craft a charge to the jury explaining the proper uses

and limits of such evidence. On re-trial, the judge must

carefully consider whether it is appropriate to charge flight,

and, if so, must tailor the charge to the facts of the case to

prevent juror confusion.

Finally, given our holdings as set forth above, we need not

address defendant's challenge to the sentence imposed.

Reversed and remanded.

34 A-1028-13T2