SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3296-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH K. COOK, a/k/a 

KEITH COOK, JACQUE BOOKER, 

JACQUES J. BOOKER, and KEITH

ROBERSON,

Defendant-Appellant.

______________________________

Submitted September, 11, 2019 – Decided

Before Judges Koblitz and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 15-06-1457.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Amira R. Scurato, Designated Counsel, on 

the brief). 

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Emily M. M. Pirro, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

September 27, 2019
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PER CURIAM

Following the denial of his motion to suppress evidence seized without a 

warrant, defendant Kenneth Cook entered a negotiated guilty plea to seconddegree eluding, N.J.S.A. 2C:29-2(b), and two counts of third-degree aggravated 

assault, N.J.S.A. 2C:12-1(b)(5)(a). The charges stemmed from a multi-car 

police pursuit of a vehicle driven by defendant with one other occupant. The 

chase ended when defendant's car struck a police vehicle, injuring the two 

officers inside, and both defendant and the passenger were apprehended when 

they allegedly attempted to flee the scene. The pursuit began when police 

attempted to conduct a motor vehicle stop of defendant's vehicle based on erratic 

driving, and because the car allegedly matched the description of a vehicle 

involved in a nearby armed robbery. After the collision, inside the car, officers 

allegedly observed two black masks, three black surgical gloves, and a plastic 

bag containing $319 in currency on the rear seat. Officers also allegedly found

ten envelopes containing suspected heroin in the center console. 

Defendant was sentenced in accordance with the plea agreement to an 

aggregate term of six years' imprisonment, and the remaining drug and weapons 

related charges contained in the nine-count indictment returned against him were 
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dismissed.

1

 On appeal, defendant raises the following points for our 

consideration:

POINT I

THE TRIAL JUDGE ERRED IN FINDING NO 

FACTUAL DISPUTE AT THE MOTION TO 

SUPPRESS.

POINT II

THE SEARCH AND SEIZURE IN THIS CASE DID 

NOT FALL WITHIN THE PLAIN-VIEW 

EXCEPTION TO THE WARRANT REQUIREMENT 

AND THEREFORE THE POLICE SEIZURE OF THE 

EVIDENCE WITHOUT FIRST OBTAINING A 

WARRANT WAS UNCONSTITUTIONAL.

POINT III

THE TRIAL JUDGE ERRED IN FAILING TO FIND 

MITIGATING FACTORS.

The State concedes that because defendant "raise[d] a dispute of material 

fact regarding the search and seizure of the car . . . at the motion hearing[,]" the 

 

1

 The remaining six counts consisted of third-degree possession of a controlled 

dangerous substance (CDS), N.J.S.A. 2C:35-10(a); third-degree possession of 

CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third-degree 

possession of CDS with intent to distribute within 1000 feet of school property, 

N.J.S.A. 2C:35-7(a); second-degree possession of CDS with intent to distribute 

within 500 feet of certain public property, N.J.S.A. 2C:35-7.1(a); fourth-degree 

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

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The passenger was also 

charged in the drug related counts of the indictment. 
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motion judge erred when he failed to conduct an evidentiary hearing. See R.

3:5-7 (providing that when a defendant files a motion "claiming to be aggrieved 

by an unlawful search and seizure[,]" R. 3:5-7(a), if "material facts are disputed, 

testimony thereon shall be taken in open court[,]" R. 3:5-7(c)). The State

acknowledged defendant disputed fleeing the vehicle "after the collision," to 

"rebut the State's contention that he abandoned the evidence seized[,]" and "cited 

to the absence of any mention of CDS on the dispatch recording" to dispute "that 

the heroin was . . . in plain view in the center console." Thus, we remand for an 

evidentiary hearing in accordance with Rule 3:5-7(c).

With regard to defendant's claim that the sentencing judge did not consider 

appropriate mitigating factors, we point out that "[a]ppellate review of the length 

of a sentence is limited[,]" State v. Miller, 205 N.J. 109, 127 (2011), and "[a] 

sentence imposed pursuant to a plea agreement is presumed to be reasonable." 

State v. Fuentes, 217 N.J. 57, 70 (2014). Thus, we review a sentence for abuse 

of discretion, State v. Pierce, 188 N.J. 155, 166 (2006), and we will affirm a 

sentence so long as the sentencing judge "properly identifies and balances 

aggravating and mitigating factors that are supported by competent credible 

evidence in the record." State v. Natale, 184 N.J. 458, 489 (2005) (quoting State 

v. O'Donnell, 117 N.J. 210, 215 (1989)). 
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Here, the judge noted defendant's extensive juvenile and adult criminal 

history, consisting of "ten juvenile delinquency adjudications[,]" and "[eleven] 

prior indictable convictions," many of them for "drug related offenses" dating 

"all the way back to 1993[.]" The judge also pointed out that defendant had 

served "several probation terms and four prison terms[,]" and admitted that he 

abused CDS. As a result, the judge found aggravating factors three, six, and 

nine. N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another 

offense"); N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant's prior criminal 

record and the seriousness of the offenses of which he has been convicted");

N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the defendant and others from 

violating the law").

The judge found no mitigating factors, rejecting defendant's claims that 

his apology and remorse as well as the birth of his child supported finding the 

applicable mitigating factors. As to the latter, the judge pointed out that 

defendant's claim that he now had a three-year-old child conflicted with his 

statement during the "[p]re-[s]entence investigation" interview that he had no 

children. The judge concluded the aggravating factors outweighed the nonexistent mitigating factors, and sentenced defendant accordingly.
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Because there is substantial credible evidence in the record supporting the 

judge's specific findings and balancing of the aggravating and mitigating factors, 

we reject defendant's argument on appeal that the judge failed to "adequately 

consider[] and weigh[]" mitigating factors 2, 8, 9, and 11. N.J.S.A. 2C:44-

1(b)(2) ("defendant did not contemplate that his conduct would cause or threaten 

serious harm"); N.J.S.A. 2C:44-1(b)(8) ("[t]he defendant's conduct was the 

result of circumstances unlikely to recur"); N.J.S.A. 2C:44-1(b)(9) ("[t]he 

character and attitude of the defendant indicate that he is unlikely to commit 

another offense"); and N.J.S.A. 2C:44-1(b)(11) ("[t]he imprisonment of the 

defendant would entail excessive hardship to himself or his dependents"). 

Thus, in the event defendant does not prevail on his suppression motion, 

we affirm the sentence. We are satisfied the sentence imposed is neither 

inconsistent with sentencing provisions of the Code of Criminal Justice,

unsupported by the record, nor so "'unreasonable . . . as to shock the judicial 

conscience.'" Fuentes, 217 N.J. at 70 (quoting State v. Roth, 95 N.J. 334, 364-

65 (1984)). 

Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.