NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2026-17T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DEANDRE PARKER,

Defendant-Respondent. 

___________________________

Submitted April 25, 2018 – Decided May 13, 2019

Before Judges Fuentes, Koblitz and Suter.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Indictment Nos. 16-04-1096

and 16-04-1097.

Robert D. Laurino, Acting Essex County Prosecutor, 

attorney for appellant (Frank J. Ducoat, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and on the briefs).

Joseph E. Krakora, Public Defender, attorney for 

respondent (Margaret R. McLane, Assistant Deputy 

Public Defender, of counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

APPROVED FOR PUBLICATION

May 13, 2019

APPELLATE DIVISION
A-2026-17T2 2

An Essex County grand jury returned Indictment No. 16-04-1096 

charging defendant Deandre Parker with second degree unlawful possession of 

a handgun, N.J.S.A. 2C:39-5(b), fourth degree possession of hollow-nose 

ammunition, N.J.S.A. 2C:39-3(f), and third degree resisting arrest, N.J.S.A. 

2C:29-2(a)(3)(a). Indictment No. 16-04-1097, arising under the same core of 

operative facts, charged defendant with second degree possession of a handgun 

by a person previously convicted of one of the crimes listed in N.J.S.A. 2C:39-

7(b). 

Defendant moved to suppress the physical evidence seized by the police 

that formed the basis for these charges. The State filed a brief opposing the 

motion, which included the indictments returned by the grand jury, an incident 

report prepared and filed by one of the police officers who arrested defendant, 

and the transcript of the grand jury minutes. Defendant's reply included a 

computer aided dispatch (CAD) report. In an order dated September 18, 2017, 

the trial court granted defendant's motion without conducting an evidentiary 

hearing or considering oral argument from counsel. The judge explained the 

basis of his ruling in a letter-opinion attached to the order.

On October 7, 2017, the State filed a motion for reconsideration. In an 

order dated November 22, 2017, accompanied by a letter-opinion, the trial 

judge denied the State's motion for reconsideration, again without affording 
A-2026-17T2 3

counsel the opportunity to present oral argument. By leave granted, the State 

now argues the motion judge erred when he suppressed the physical evidence 

without conducting an evidentiary hearing. We agree and reverse. Because 

the parties dispute the material facts that led to defendant's arrest and 

subsequent indictment, the motion judge was required to conduct an 

evidentiary hearing pursuant to Rule 3:5-7(c). We gather the following 

account of events from the documents the parties presented to the motion 

judge in support of their respective positions. 

At approximately 11:44 p.m. on February 4, 2016, Newark Police 

Department detectives assigned to the Firearm Interdiction Team (FIT) 

responded to a report of "shots fired" near the intersection of Avon Avenue 

and South 12th Street. Upon arrival, the detectives saw two men, later 

identified as defendant and Quadri Cureton, standing by the driver-side door of 

a parked car. As Detective Lamin Barryoh approached them, he saw defendant 

drop a silver metal object; Barryoh also heard the sound of the object as it hit 

the ground. Barryoh testified before the grand jury that Detective Holmes 1

retrieved the metal object and "immediately recognized that that metal object 

 

1

 The incident report Barryoh filed indicates that the five FIT detectives who 

responded to the report of "shots fired" that day were himself, Detective J. 

Duran, Detective P. Hamilton, and Essex County Sheriff's Department 

Detectives A. Holmes and S. Dellavelle.
A-2026-17T2 4

was, in fact, a revolver." Holmes thereafter yelled "gun, gun" to alert the other 

officers at the scene. 

According to Barryoh, when he attempted to arrest defendant, he resisted 

by "flailing his hands." He was able to control defendant and effectuate the 

arrest with the assistance of the other officers at the scene. The Crime Scene 

Unit took possession of the handgun and found it was a .38 caliber revolver 

that contained "two live rounds of ball ammunition[,] . . . one hollow-point 

round[,]" and three spent rounds. A subsequent search of defendant's criminal 

history revealed he had two open arrest warrants and prior convictions for 

crimes listed as predicate offenses under N.J.S.A. 2C:39-7.

In his September 18, 2017 letter-opinion, the motion judge included a 

"Counterstatement of Facts" derived exclusively from defense counsel's 

motion brief. In this alternative narrative of events, defendant denied every 

material factual contention made by the State. Specifically, defense counsel 

claimed that defendant "at no point in time dropped a gun beneath or beside 

the white vehicle . . . [or] resist[ed] arrest[.]" Despite the obvious 

irreconcilable material differences between the State's version of events and 

the account described by defense counsel, the motion judge found: "Defendant 

has not challenged the State's facts with sufficient specificity to warrant a 

hearing." After citing State v. Elders, 192 N.J. 224, 250 (2007), a case that 
A-2026-17T2 5

involved the articulable suspicion required by police officers to request 

consent to search a car, State v. Rodriguez, 172 N.J. 117, 126-28 (2002), in 

which the Court addressed the requirements for a valid investigative detention, 

and other inapposite cases, the judge concluded: "[T]he Incident Report and 

Grand Jury transcript did not illustrate that the detectives, based on their 

experience and training, had an inclination of what the dropped object was 

between the time it was dropped and the time [d]efendant was called over by 

Detective Barryoh. Therefore, this stop was unlawful."

Pursuant to Rule 3:5-7(c), "[i]f material facts are disputed, testimony 

thereon shall be taken in open court." Our Supreme Court has also recently 

made clear:

The proper mechanism through which to explore the 

constitutionality of warrantless police conduct is an 

evidentiary hearing. At evidentiary hearings, the State 

presents witnesses to substantiate its basis for the 

challenged warrantless conduct, and the defense is 

afforded the opportunity to confront and crossexamine the State's witnesses. 

[State v. Atwood, 232 N.J. 433, 445 (2018) (citations 

omitted).]

Here, the parties made clear in their respective written submissions that 

they had diametrically irreconcilable accounts about what Detective Barryoh 

claimed occurred when he approached defendant. Under Rule 3:5-7(c), the 

motion judge must conduct an N.J.R.E. 104 evidentiary hearing to provide the 
A-2026-17T2 6

parties the opportunity to probe the veracity of Barryoh's testimony. The 

motion judge thereafter must make factual findings that will be substantially 

influenced by an opportunity to hear and see the witnesses. State v. Gamble, 

218 N.J. 412, 424-25 (2014). Equally problematic is the judge's decision to 

adjudicate this motion without affording counsel the opportunity to present 

oral argument. "The availability of oral argument on criminal motions is 

implicit within the language of [Rule] 1:6-2(a)." State v. Mayron, 344 N.J. 

Super. 382, 386 (App. Div. 2001). Oral advocacy is a fundamental aspect of 

our criminal justice system and should be encouraged, preserved, and 

protected. 

Reversed and remanded. We do not retain jurisdiction.