SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5274-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD PIERRE, a/k/a 

ANDRES TADEO,

Defendant-Appellant.

____________________________

Submitted November 14, 2018 – Decided 

Before Judges Yannotti and Natali.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 15-12-2922.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Rochelle Watson, Assistant Deputy Public 

Defender, of counsel and on the brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Stephen A. 

Pogany, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

November 30, 2018
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After the court denied his motion to suppress evidence from the 

warrantless search of his car, and for admission to the Pretrial Intervention (PTI) 

program, defendant Reginald Pierre conditionally pled guilty to one count of 

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

exchange for his guilty plea, the State agreed to dismiss count two of the 

indictment which charged him with fourth-degree possession of a large capacity 

ammunition magazine, N.J.S.A. 2C:39-3(f), and recommend a non-custodial 

sentence of probation. Defendant appeals and raises the following arguments:

POINT I

BECAUSE THERE WERE NUMEROUS DISPUTES 

OF MATERIAL FACTS, INCLUDING WHETHER 

DEFENDANT VIOLATED THE OBSTRUCTION 

STATUTE – THE SOLE BASIS ASSERTED FOR 

THE STOP – THE TRIAL JUDGE WAS REMISS IN 

FAILING TO CONDUCT AN EVIDENTIARY 

HEARING. ALTERNATIVELY, EVEN UNDER THE 

STATE'S VERSION OF THE INCIDENT, THE 

PLAIN VIEW DOCTRINE DID NOT AUTHORIZE 

ENTRY INTO THE CAR. 

 

A. BY FAILING TO CONDUCT AN 

EVIDENTIARY HEARING TO RESOLVE

NUMEROUS FACTUAL DISPUTES, THE 

TRIAL JUDGE ERRED. 

B. EVEN IF THE POLICE HAD REASONABLE 

SUSPICION TO STOP DEFENDANT'S CAR, 

THE PLAIN VIEW DOCTRINE DID NOT 
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PERMIT ENTRY INTO THE CAR TO

RECOVER THE HANDGUN.

POINT II

DEFENDANT'S REJECTION FROM PTI FOR HIS 

FIRST OFFENSE, POSSESSION OF A WEAPON HE 

LEGALLY PURCHASED IN FLORIDA, 

CONSTITUTED A PATENT AND GROSS ABUSE 

OF DISCRETION.

A. DEFENDANT DEMONSTRATED 

EXTRAORDINARY CIRCUMSTANCES TO 

OVERCOME THE PRESUMPTION AGAINST 

PTI.

B. THE PROSECUTOR ABUSED HER 

DISCRETION BY PLACING UNDUE WEIGHT 

ON FACTORS INHERENT IN EVERY

UNLICENSED POSSESSION CASE AND 

PENALIZING DEFENDANT BECAUSE THE 

OFFENSE OCCURRED IN NEWARK, A CITY 

"OVERWHELMED BY GUN RELATED 

VIOLENCE."

C. DESPITE OVERWHELMING EVIDENCE TO 

THE CONTRARY, THE PROSECUTOR'S 

RELIANCE ON DEFENDANT'S PURPORTED 

GANG MEMBERSHIP, WHICH WAS BASED 

ON A HEARSAY STATEMENT, WAS AN 

ABUSE OF DISCRETION.

D. THE PROSECUTOR'S REPEATED 

REFERENCES TO PRIOR DISMISSED 

MUNICIPAL CHARGES VIOLATED THE 

SUPREME COURT'S STRICT PROHIBITION 

ON CONSIDERING ARRESTS OR 
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DISMISSED CHARGES FOR ANY 

PURPOSES.

E. DEFENDANT'S REJECTION FROM PTI 

SUBVERTS THE PURPOSES OF THE 

PROGRAM AND IS A CLEAR ERROR IN 

JUDGMENT.

Having reviewed defendant's arguments in light of the record and 

applicable law, we affirm.

I.

The charges against defendant arose out of a motor vehicle stop in 

Newark. According to the State, on July 13, 2015, at approximately 8:40 p.m., 

detectives from the Newark Violence Reduction Initiative and Gang 

Enforcement Unit were patrolling an area known for drug and gang activity and 

gun violence. Detectives reported observing a black Chevrolet Camaro with 

Florida license plates stopped in the middle of the road, obstructing traffic with 

its car doors wide open. Detectives claimed they observed defendant arguing 

with a man near the Camaro and, believing a carjacking might occur, moved 

closer to investigate. Defendant shouted to the other individual, "[l]et's get the 

fuck out of here," and entered the driver's seat of the Camaro. 

The detectives then parked one of their cars on the driver's side of the

Camaro and the other unmarked vehicle parked slightly ahead. The detectives 
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reported observing defendant fumbling with an object between his legs. As 

detectives approached the Camaro from both sides with their flashlights, they 

observed a black handgun protruding from under the driver's seat on the 

floorboard. After removing defendant and the passenger from the vehicle, the 

police seized a 9 mm handgun with one live 9 mm gold ball round in the chamber 

and fourteen, 9 mm gold ball rounds in the magazine. A box of 9 mm 

ammunition was also seized from the vehicle's center console. 

After defendant failed to provide a valid permit to carry the handgun, he 

was arrested and, in addition to the two counts in the indictment, was issued a 

motor vehicle summons for obstruction of traffic, N.J.S.A. 39:4-67. 

Subsequently, defendant provided the State with a copy of a New Jersey 

Firearms Purchaser Identification Card, issued on November 18, 2013, and a 

receipt from a firearms store in Florida, showing that the handgun was lawfully 

purchased. A search of the Firearms Investigation Unit records revealed, 

however, that defendant did not possess a firearm carry permit and the handgun 

was not registered. 

Defendant disputed the State's version of events and contended that the 

warrantless search lacked probable cause and exigency, and the seizure of the 
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evidence1"was not justified by the plain view exception." In his counter

statement of facts, defendant maintained that: (1) when the police stopped him, 

he "was safely double[-]parked on a quiet street and was in no way obstructing 

traffic;" (2) his car's doors were not wide open but only the "front passenger car 

door was ajar;" (3) he was not engaged in an argument and the individual he was 

speaking with was a friend; (4) he was not "fumbl[ing] with a gun;" and (5) 

when the police exited their cars he was sitting in his vehicle and was 

"immediately ordered . . . out of his car." 

The court denied defendant's motion based on the parties' submissions. 

The court concluded that an evidentiary hearing was unnecessary because 

defendant "readily admit[ted] to . . . [a] motor vehicle violation" and "the 

balance of defendant's counter statement of facts . . . [were] not relevant to the 

disposition of [the] case." The court explained that the defendant's admission 

of being "double[-]parked on a public street . . . provided a reasonable, 

articulable basis or cause to conduct an investigatory stop," and "the officer's 

observations and subsequent seizure of the handgun was permissible pursuant 

 

1

 On appeal, defendant does not address the ammunition seized from the console 

and we therefore consider any objections to that evidence waived. See N.J. Dep't 

of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015)

("An issue that is not briefed is deemed waived upon appeal.").
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to the plain view doctrine and, accordingly, not a violation of defendant's 

constitutional rights . . . ." 

The prosecutor denied defendant's request for admission in the PTI 

program and explained the bases for that decision in a detailed May 10, 2016 

letter that addressed the factors listed in N.J.S.A. 2C:43-12(e). The court upheld 

the prosecutor's determination and concluded in its oral ruling that the 

prosecutor's decision did not represent a patent and gross abuse of discretion or 

misapplication of the statutory criteria.

II.

Defendant first maintains that the court erred in denying his motion to 

suppress without conducting an evidentiary hearing. We review a trial court's 

denial of an evidentiary hearing for an abuse of discretion. State v. BroomSmith, 406 N.J. Super. 228, 239 (App. Div. 2009). 

When a defendant moves to suppress evidence obtained in a warrantless 

search, Rule 3:5-7(b) requires the State to file "a brief, including a statement of 

the facts as it alleges them to be." The defendant must then file "a brief and 

counter statement of facts." R. 3:5-7(b). That counter statement of facts must 

present "something more than the naked conclusion that the warrantless search 

was illegal, in order to obtain an evidentiary hearing pursuant to [Rule] 3:5-
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7(c)," State v. Hewins, 166 N.J. Super 210, 215 (Law Div. 1979), and the facts 

must be "sufficiently definite, specific, detailed, and nonconjectural." Ibid.

(quoting United States v. Ledesma, 499 F.2d 36, 39 (9th Cir. 1974)). "[O]nly 

when the defendant's counter statement places material facts in dispute [is] an 

evidentiary hearing . . . required." State v. Green, 346 N.J. Super. 87, 90 (App. 

Div. 2001). 

We disagree with defendant's argument that an evidentiary hearing was 

required because his car was allegedly "safely double[-]parked" on a quiet 

Newark street with only the passenger door slightly ajar, and thus he was not 

"interfere[ing] with or interrupt[ing] the passage of other . . . cars or vehicles . . 

. " as proscribed by the obstruction statute. N.J.S.A. 39:4-67. As the court 

correctly noted, defendant admitted to a separate motor vehicle violation when

he stated that he was double-parked. See N.J.S.A. 39:4-138(m) ("[e]xcept when 

necessary to avoid conflict with other traffic or in compliance with the directions 

of a traffic or police officer or traffic sign or signal, no operator of a vehicle 

shall . . . park the vehicle . . . [o]n the roadway side of any vehicle stopped or 

parked at the edge or curb of a street). That violation "provided a reasonable, 

articulable basis . . . [for the detectives] to conduct an investigatory stop." See

State v. Carty, 170 N.J. 632, 639-40 (2002) ("A lawful stop of an automobile 
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must be based on reasonable and articulable suspicion that an offense, including 

a minor traffic offense, has been or is being committed."); see also State v. 

Amelio, 197 N.J. 207, 211-12 (2008). Thus, a hearing was not required to 

resolve immaterial factual disputes regarding whether defendant's vehicle was 

actually impeding traffic or if defendant was arguing with his friend before the 

detectives approached his car.

2

 

Defendant also admitted he was sitting in his vehicle when the detectives 

approached. He did not allege "definite, specific [and] detailed" facts, Hewins, 

166 N.J. Super at 215, disputing that the detectives, without entering his car,

illuminated the interior of his vehicle with their flashlights, and observed the 

gun under the driver's seat on the floorboard. Thus, whether or not defendant 

was "fumbling with his gun" was irrelevant. 

 

 

2 We acknowledge that the trial court seemed to credit statements and 

observations by the detectives, disputed by defendant, that his double-parked 

vehicle was obstructing traffic. Because we have concluded an evidentiary 

hearing was not required in light of defendant's admission that he was doubleparked, we need not address whether a hearing was necessary to establish if 

defendant's car was obstructing traffic or if the detectives had a basis to stop 

defendant's vehicle because they reasonably believed defendant was engaged in 

criminal activity.
10 A-5274-16T1

III.

We also disagree with defendant's contention that even if the detectives 

had reasonable suspicion to stop him, they were not permitted by the plain view 

doctrine to seize the handgun. Under the United States Constitution and the 

New Jersey Constitution, individuals have the right to be free of unreasonable 

searches and seizures. U.S. Const., amend. IV; N.J. Const. art. I, ⁋ 7. "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). The plain view doctrine is a recognized exception to the 

warrant requirement. State v. Bruzzese, 94 N.J. 210, 235-38 (1983). The State 

bears the burden, by a preponderance of the evidence, to establish that the 

warrantless search or seizure was justified in light of the totality of the 

circumstances. State v. Mann, 203 N.J. 328, 337-38 (2010). 

For the plain view doctrine to apply, the State must establish three 

elements. Bruzzese, 94 N.J. at 236-37. First, the officer "must be lawfully in 

the viewing area." Id. at 236. Second, the officer must "inadvertently"3 discover 

 

3

In State v. Gonzales, 227 N.J. 77, 99 (2016), our Supreme Court "reject[ed] 

the inadvertence prong of the plain view doctrine because it requires an inquiry 

into a police officer's motives and therefore is at odds with the standard of 

objective reasonableness that governs [the Court's] analysis of a police officer's 
11 A-5274-16T1

the evidence, "meaning that he did not know in advance where evidence was 

located nor intend beforehand to seize it." Ibid. This requirement is intended 

to "prevent the police from engaging in planned warrantless searches." State v. 

Damplias, 282 N.J. Super. 471, 478 (App. Div. 1995). Third, the officer must 

have "probable cause to associate the property with criminal activity." 

Bruzzese, 94 N.J. at 237 (quoting Texas v. Brown, 460 U.S. 730, 741-42 (1983)).

Here, when detectives approached defendant’s double-parked car at 8:40 

p.m., they were in a lawful position when they shined their flashlights in 

defendant's car and observed the handgun. Second, there was no evidence 

before the court to conclude the detectives had prior knowledge of the gun’s 

existence or location or an intent to seize it. Finally, under the circumstances, 

the detectives had probable cause to associate a loaded handgun located under 

the driver's seat of a defendant's vehicle with criminal activity. 

 

conduct . . . ." Because the Gonzales Court's holding was applied prospectively, 

and the search here occurred before the Supreme Court's decision, we assess the 

propriety of the seizure in accordance with the pre-existing, three-prong criteria. 

Under the previous standard, the inadvertence prong was satisfied if the 

detectives "did not know in advance where evidence was located nor intend 

beforehand to seize it." Bruzzese, 94 N.J. at 236.
12 A-5274-16T1

IV.

We also conclude that the trial court did not commit reversible error in 

affirming the prosecutor's decision to deny defendant's admission into the PTI 

program. The court appropriately determined that the prosecutor's decision was 

not a patent and gross abuse of discretion.

A prosecutor's decision to admit or reject a defendant from a PTI program 

is given "extreme deference," State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 

1993), and a trial or appellate court must find "a patent and gross abuse of 

discretion" to overturn a prosecutor's decision. Ibid. The court may not 

"substitute [its own] discretion for that of the prosecutor," even if the decision 

appears harsh. Id. at 112-13 (alteration in original). Further, it must be 

presumed that a prosecutor "considered all relevant factors before rendering a 

decision." Id. at 112 (quoting State v. Dalglish, 86 N.J., 503, 509 (1981).

PTI is a "[statewide] diversionary program through which certain 

offenders are able to avoid criminal prosecution by receiving early rehabilitative 

services expected to deter future criminal behavior." State v. Nwobu, 139 N.J. 

236, 240 (1995). In assessing a defendant's fitness for PTI, a prosecutor must 

comply with Rule 3:28 and consider the factors enumerated in N.J.S.A. 2C:43-
13 A-5274-16T1

12(e), which include the details of the case and defendant's past criminal record. 

State v. Roseman, 221 N.J. 611, 621 (2015). 

The purpose of the PTI program is to "offer an alternative to prosecution 

and to promote deterrence through rehabilitation for qualified applicants." State 

v. K.S., 220 N.J. 190, 197 (2015) (citing N.J.S.A. 2C:43-12). Extreme deference 

is given to the prosecutor's decision because: 1) a prosecutor's "fundamental 

responsibility" is to "decide whom to prosecute," and 2) "a primary purpose of 

PTI [is] to augment, not diminish, a prosecutor's options." Kraft, 265 N.J. Super. 

at 111. 

The PTI guidelines provide that defendants "charged with first or seconddegree offenses [are] presumptively ineligible for admission" to PTI. Pressler 

& Verniero, Current N.J. Court Rules, cmt. 2 on R. 3:28-1 (2018). To overcome 

this presumption, a defendant must demonstrate compelling extraordinary 

circumstances or "something 'idiosyncratic' in his or her background." Nwobu, 

139 N.J. at 252 (quoting State v. Jabbour, 118 N.J. 1, 7 (1990)). 

Defendant contends that his legal purchase of the handgun in Florida 

should overcome the presumption against admission into the PTI program. He

also claims that his immigration from Haiti as a child without either parent, 

graduation from high school, completion of one year of college, former 
14 A-5274-16T1

employment, and acceptance to college establishes the necessary extraordinary 

circumstances warranting admission. We disagree.

As defendant committed a second-degree offense, he was presumptively 

ineligible for PTI and was required to demonstrate compelling extraordinary 

circumstances to over this presumption. The prosecutor correctly determined 

that defendant "has not shown anything unusual and compelling justifying his 

admission" and concluded that defendant's admittance would "depreciate the 

seriousness of his Graves Act offense." 

Defendant next argues that the prosecutor improperly placed undue weight 

on the nature of his offense when considering the N.J.S.A. 2C:43-12(e) factors. 

Specifically, he maintains that the prosecutor's assessment of certain 

aggravating factors "all rel[ied] on the same generic characteristics of every 

second-degree unlicensed gun possession offense," and undue weight was 

placed on the location of his offense and the neighborhood crime rates. 

Defendant's claim is without merit. The prosecutor thoroughly and correctly 

discussed the relevant factors in her May 10, 2016 letter, which included a 

specific analysis of seven aggravating and four mitigating factors. 

Defendant also argues that the prosecutor improperly relied on the 

detectives' allegation that defendant identified himself as a member of a Haitian 
15 A-5274-16T1

gang. Defendant claims that the prosecutor was obliged to consider defendant's 

denial of gang membership and the possible language barrier that may have 

caused the detectives to incorrectly report that defendant volunteered himself as 

a member. We are satisfied that the prosecutor examined all relevant facts and 

evidence when she exercised her discretion in rejecting defendant's application. 

Under such circumstances, she was "free to disbelieve statements presented by 

defense witnesses and to instead credit the anticipated contrary testimony of the 

State's witnesses." State v. Lee, 437 N.J. Super 555, 568 (App. Div. 2014).

Defendant next argues that the prosecutor improperly considered his prior 

dismissed municipal charges contrary to K.S., 220 N.J. 190. In K.S., our 

Supreme Court held an applicant's "prior dismissed charges may not be 

considered for any purpose" where the facts related to the arrest are in dispute, 

or have not been determined after a hearing. Id. at 199. From our review of the 

prosecutor's May 10, 2016 letter, it is clear that she alluded to defendant's 

dismissed charges to rebut his claims that his then-current charges 

"represent[ed] [his] first contact with the criminal justice system" and did not 

serve as a basis for his rejection. 

Indeed, when discussing mitigating factor nine (the applicant's criminal 

record and the extent he presents a substantial danger to others), the prosecutor 
16 A-5274-16T1

specifically acknowledged that defendant's municipal charges were dismissed. 

The prosecutor also stated that despite the dismissals, and defendant's

possession of a loaded handgun, "the State . . . consider[s] defendant's lack of 

criminal convictions or adjudications as a mitigating factor." Further, when 

discussing mitigating factor twelve (history of physical violence towards 

others), the prosecutor again noted the dismissal of defendant's municipal 

charges and concluded "defendant does not have a history of the use of physical 

violence towards others."

Finally, defendant argues that the prosecutor's decision "subvert[s] the 

goals of [PTI]." He claims criminal sanctions will harm his future education 

and employment prospects and are too burdensome for a first-time offender with 

a lawfully purchased gun. While the prosecutor noted that defendant "may 

possess some positive qualities," she determined that defendant's circumstances 

were not extraordinary to overcome the presumption against PTI. The 

prosecutor's decision was not a patent and gross abuse of discretion. 

To the extent not addressed, defendant's remaining arguments lack sufficient 

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.