SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2373-15T1

STATE OF NEW JERSEY

Plaintiff-Respondent,

v.

CORY L. CURE,

Defendant-Appellant.

______________________________________________

Submitted May 9, 2017 – Decided

Before Judges Rothstadt and Sumners.

On appeal from Superior Court of New Jersey, 

Law Division, Ocean County, Indictment Nos. 

14-03-0591 and 14-12-3067.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Rasheedah Terry, Designated 

Counsel and on the brief).

Joseph D. Coronato, Ocean County Prosecutor, 

attorney for respondent (Samuel Marzarella, 

Supervising Assistant Prosecutor, of counsel; 

William Kyle Meighan, Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.

July 31, 2017
2 A-2373-15T1

Defendant Corey Cure pled guilty to fourth-degree certain 

persons not to possess a weapon (metal knuckles), N.J.S.A. 2C:39-

7(a), as charged in one indictment, and to fourth-degree tampering 

with evidence, N.J.S.A. 2C: 28-6(1), as charged in a second 

indictment. The court sentenced defendant to "time served," an 

aggregate period of 321 days in jail. Defendant appeals from both 

convictions, challenging the denial of his motion to suppress as 

to the weapon he possessed and the denial of his motion to dismiss

the indictment as to the tampering charge. For the reasons stated 

herein, we affirm his conviction for possession of a weapon, but 

reverse his conviction for tampering.

An Ocean County grand jury initially charged defendant in an 

indictment on March 18, 2014, with the "certain persons" offense 

and fourth-degree possession of a prohibited weapon, N.J.S.A.

2C:39-3(e), based on his January 11, 2014 encounter with a police 

officer. While pending trial, another Ocean County grand jury 

charged defendant on December 11, 2014 with the tampering offense. 

In the weapons offense action, defendant filed a motion to 

suppress the metal knuckles found in his possession by the 

arresting officer. That officer was the only witness for the 

State at the suppression hearing. Defendant and an investigator 

for the Public Defender's Office testified on behalf of defendant. 

The facts adduced at the hearing are summarized as follows.
3 A-2373-15T1

Police officer Allen Mantz testified that, while on patrol 

at approximately 2:00 p.m. on January 11, 2014, he observed 

defendant from about two blocks away, walking in the middle of a 

street, causing passing vehicles to "swerve[] around him." At the 

time, one sidewalk along the roadway was closed and gated off. 

According to the officer, defendant was not crossing the road or 

walking diagonally to get to the other side. Defendant eventually 

made his way out of the street to a sidewalk, and the officer 

decided to "stop and talk" to defendant to "make sure everything 

was okay," that defendant was not intoxicated, or that there was 

not something wrong with him. Mantz testified there was no 

"infraction" committed by defendant. 

When the officer confronted defendant, he determined 

defendant was not intoxicated. Mantz asked defendant to remove

his hands from his pockets and observed that defendant was wearing

"pants and . . . [a] blue or black windbreaker jacket" with deep 

front pockets, located towards the bottom of his chest, that opened 

at the top. Additionally, Mantz testified the jacket may have had 

side pockets. 

The officer inquired of defendant as to why he was walking 

in the middle of the street. Defendant did not reply. The officer 

sought to obtain defendant's "pedigree" information, as he

understood it was required whenever there was "an infraction" 
4 A-2373-15T1

regardless of whether a summons was going to be issued. Mantz 

asked for a driver's license, but defendant only provided a jail 

identification card. In response to further inquiry, defendant

told the officer that he was coming from one local motel to 

another, which was close to the area the officer had stopped 

defendant. The officer understood from prior experience that the 

motel to which defendant was going was a "high-crime area."

As defendant spoke to Mantz, the officer made several

observations about defendant. He noted that defendant had 

difficulty maintaining eye contact, "stuttered," and appeared

"nervous." Moreover, despite the officer's instructions, 

defendant repeatedly placed his hands in his pockets, requiring

Mantz to tell him to remove them several times. 

When defendant removed his hands from his pockets after the 

last direction, Mantz was able to a see what he believed to be a 

black metal object in defendant's right front pocket. The officer 

observed a bulge and the top of the object protruding from above 

the pocket. 

After Mantz observed the object, he advised defendant that 

he was going to "pat him down to make sure [defendant did not] 

have any weapons on his person." Mantz "initially went right for 

[defendant's] pocket . . . where [he had seen] the object" and 

patted down the outside of the pocket using an open flat hand. 
5 A-2373-15T1

Upon feeling the object, and based on his training, the officer 

immediately recognized the item as "brass knuckles" and removed

them from the pocket. Mantz acknowledged, however, that he had

never previously encountered "someone with metal knuckles." Upon 

discovery of the metal knuckles, the officer placed defendant

under arrest, charging him with possession of a prohibited weapon 

and public nuisance, an ordinance violation.

Defendant presented his version of what transpired on the day 

of his arrest.1 According to defendant, he was walking from one 

motel to the other to retrieve an over-the-counter medication from 

his sister to give to his child's mother. Defendant testified 

that he was not walking in the middle of the street, but merely 

crossed from one side to another. He stated that he did not see 

any cars on the road and was merely "walking to [his] destination." 

He also confirmed he was not intoxicated. 

Defendant described the jacket he was wearing at the time 

differently from Mantz's description. According to defendant, it 

was a large snowboarding jacket with two zippers and five pockets 

 

1 Prior to defendant testifying, the Public Defender's 

investigator testified to photographs of the area that he took a 

year after defendant's arrest. In response to the prosecutor's 

objection, the court ruled that the photographs were inadmissible 

as not having any relevance. Ultimately, the judge gave no weight 

to the investigator's testimony.
6 A-2373-15T1

located in different places – "[t]hree on the bottom, one on the 

top and one inside." 

Defendant stated that when Mantz stopped him, he answered the 

officer's questions about where he was coming from and going to. 

Defendant confirmed that he stuttered when he spoke due to his 

"high anxiety and several mental disabilities."

When asked for identification, defendant took out a stack of 

identifying documents from his jacket's top pocket and handed the 

officer a state identification card. At that point, the officer

noticed that defendant also had a jail identification card and 

asked to see that one as well. Defendant complied and while the 

officer examined the card, defendant placed his hands in his 

pockets because it was cold. He confirmed that the officer had 

to tell him twice to remove them and after the second time, he 

never placed them inside again. 

Defendant explained that the officer asked him if he had any 

weapons and informed defendant he was going to pat him down. 

Defendant stated that he told the officer he did not consent to 

the search, but the officer proceeded despite that objection, 

telling defendant "it [was] too late for that." 

After considering the evidence adduced at the hearing, the 

motion judge denied defendant's suppression motion, placing her 

reasons on the record on May 1, 2015. The judge observed that 
7 A-2373-15T1

whether the officer's warrantless search of defendant was legal,

"turn[ed] on whether the stop . . . was a valid field inquiry that 

then escalated into [a] lawful . . . investigatory detention 

supported by a reasonable and articulable suspicion and a lawful 

Terry[2] frisk." 

The judge found the officer's testimony to be "entirely 

credible" and "consistent" and accepted his version of the events 

that led to defendant's arrest. She found defendant's testimony 

to be not "at all credible," explaining in detail the reasons for 

her conclusion. 

The motion judge determined that Mantz had a legitimate 

concern that defendant may have been intoxicated while walking in 

the middle of the roadway. The judge noted that Mantz's request

for identification was part of a legitimate field inquiry. She 

found that he had to ask defendant three times to remove his hands 

from his pockets and, upon asking a third time, Mantz observed a 

black metal object protruding from the top of his pocket, at which 

point he patted defendant down for his own safety and, "without

manipulating the item," he realized defendant was carrying metal

knuckles. 

 

2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 

(1968).
8 A-2373-15T1

The judge rejected defendant's contention that by patting him 

down with an open hand, it would have been impossible for the 

officer to know there were metal knuckles in his pocket. According

to the judge, she examined the knuckles "through the exhibit

envelope" and found the officer's testimony about what he discerned 

from the pat down to "be entirely credible." The judge concluded

the officer "had reasonable suspicion based on [d]efendant's

continued failure to follow directives to take his hands out of 

his pockets [and] that the officer['s] . . . observation of a 

black metal object justifies the pat down search." 

Based on the credible testimony and other evidence, the judge 

concluded that there "was a valid field inquiry, which was 

permissible without any suspicion at all." She found that 

defendant's continued detention beyond obtaining his 

identification was justified, relying upon the officer's 

observations of what was an ordinance violation, the metal object,

and defendant's "demeanor of [stuttering] and failing to . . . 

follow the directives to take his hands out of his pockets." 

Accordingly, she concluded that the officer "lawfully frisked" 

defendant for weapons because he had a reasonable suspicion that 

that "[d]efendant may have been armed and dangerous." The judge 

also found that the same facts supported the officer's warrantless
9 A-2373-15T1

arrest of defendant relying primarily on the officer's observation

of the black metal object protruding from defendant's pocket. 

In addition to filing the suppression motion, defendant filed 

a motion to dismiss the indictment that charged him with tampering. 

That charge arose from an incident that occurred when defendant, 

who had previously been convicted of burglary, was reporting to

probation on September 24, 2014. Before walking through a metal 

detector, defendant was told to empty his pockets. In response, 

he stated that that he had nothing in them. When defendant walked 

through the metal detector, he set off the alarm. A "wanding" of 

defendant had the same result, at which time defendant removed 

from his pocket a small piece of paper wrapped in foil that he 

threw on the ground. A sheriff's detective directed him to pick 

it up, and after complying defendant swallowed the wrapped paper. 

At the ensuing hearing before the grand jury, the detective 

testified that based on his training and experience the item's 

appearance indicated it contained "some sort of controlled 

dangerous substance [(CDS)]." Based on the detective's testimony, 

the grand jury issued its indictment.

The same motion judge considered defendant's motion to 

dismiss the indictment. At the hearing, defense counsel argued 

that there was no evidence that the small wrapped paper contained 

any CDS and that defendant complied with the detective's only
10 A-2373-15T1

instruction, which was to pick up what he threw down. Counsel 

argued those facts were insufficient to establish defendant

committed an act of tampering. The prosecutor disagreed, arguing 

that once the metal detector alarm went off, an investigation 

commenced and that defendant's swallowing of the item evinced an 

"inten[tion] to destroy the evidence." 

The motion judge concluded there was sufficient evidence to 

support the charge and denied defendant's motion. In her oral 

decision, the judge concluded that defendant was familiar with the 

process of going through the metal detectors and knew that if the 

metal detector alarm went off "there is going to be an 

investigation, that he is going to be wanded and probed further." 

Turning to the elements of the offense, the judge observed that 

passing through the detector was not an "official proceeding" but

was "certainly . . . an investigation pending or about to be 

instituted."

Defendant pled guilty to the two offenses, and the judge 

sentenced him in accordance with his plea agreement. This appeal 

followed.

On appeal, defendant argues:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

DENIED DEFENDANT'S SUPPRESSION MOTION BECAUSE 

THE POLICE SUBJECTED DEFENDANT TO A 
11 A-2373-15T1

WARRANTLESS SEARCH AND SEIZURE WITHOUT 

CONSTITUTIONAL JUSTIFICATION.

A. Officer Mantz Did Not Have A 

Constitutional Basis To Stop and 

Question Mr. Cure.

1. Officer Mantz's Initial Stop 

of the Defendant Went Beyond the 

Scope of a Field Inquiry.

2. Officer Mantz Conducted An 

Investigatory Stop Without A 

Constitutional Basis.

B. Officer Mantz Did Not Have A 

Constitutional Basis To Conduct A 

[Terry] Search Of The Defendant.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

DENIED DEFENDANT'S MOTION TO DISMISS THE 

INDICTMENT.

We turn first to defendant's challenge to the denial of his 

motion to suppress. We review a motion judge's factual findings 

in a suppression hearing with great deference. State v. Gonzales, 

227 N.J. 77, 101 (2016). In our review of a "grant or denial of 

a motion to suppress [we] must uphold the factual findings 

underlying the trial court's decision so long as those findings 

are supported by sufficient credible evidence in the record." 

State v. Gamble, 218 N.J. 412, 424 (2014); see also State v. 

Rockford, 213 N.J. 424, 440 (2013). We defer "to those findings 

of the trial judge which are substantially influenced by his 
12 A-2373-15T1

opportunity to hear and see the witnesses and to have the 'feel' 

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

Elders, 192 N.J. 223, 244 (2007) (quoting State v. Johnson, 42 

N.J. 146, 161 (1964)). We owe no deference, however, to the trial 

court's legal conclusions or interpretation of the legal 

consequences that flow from established facts. Our review in that 

regard is de novo. State v. Watts, 223 N.J. 503, 516 (2015); 

State v. Vargas, 213 N.J. 301, 327 (2013).

Applying this standard of review, we conclude that 

defendant's arguments relating to the denial of his suppression

motion are without merit. We affirm substantially for the reasons

expressed by the motion judge. We add the following comments.

The constitutional requirements for a field inquiry and an 

investigatory stop are different. "A field inquiry is essentially 

a voluntary encounter between the police and a member of the public 

in which the police ask questions and do not compel an individual 

to answer." State v. Rosario, ____ N.J. ____,____ (2017) (slip 

op. at 17). A field inquiry is the least "intrusive[] . . . 

encounter[] with police." Ibid.; see also State v. Pineiro, 181 

N.J. 13, 20 (2004). Indeed, "[t]he individual does not even have 

to listen to the officer's questions and may simply proceed on 

[his or] her own way." Id. at 18. "The test of a field inquiry 

is 'whether [a] defendant, under all of the attendant 
13 A-2373-15T1

circumstances, reasonably believed he [or she] could walk away 

without answering any of [the officer's] questions." Ibid.

(alteration in original) (quoting State v. Maryland, 167 N.J. 471, 

483 (2001)). So long as the officers "questions were put in a 

conversational manner, if he [or she] did not make demands or 

issue orders, and if his [or her] questions were not overbearing 

or harassing in nature," id. at 21 (quoting State v. Davis, 104 

N.J. 490, 497 n.6 (1986)), the interaction "could be treated as 

[a] field inquiry." Ibid. 

Unlike a field inquiry, an investigatory stop, also referred 

to as a Terry stop, is characterized by a detention in which the 

person approached by a police officer "would feel 'that his or her 

right to move has been restricted,'" even though the encounter 

falls short of a formal arrest. Id. 17-18 (quoting State v. 

Rodriguez, 172 N.J. 117, 126 (2002)); see also Terry, supra, 392 

U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. An 

investigatory stop "is a temporary seizure that restricts a 

person's movement"; accordingly, "it must be based on an officer's 

reasonable and particularized suspicion . . . that an individual 

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

Id. at 18-19 (quoting State v. Stovall, 170 N.J. 346, 356 (2002)). 

"During such a stop, if the police officer believes that the 

suspect 'may be armed and presently dangerous,' then he may conduct 
14 A-2373-15T1

a pat down" for the officer's safety. State v. Williams, 192 N.J.

1, 18 (2007) (quoting Terry, supra, 392 U.S. at 30, 88 S. Ct. at 

1884, 20 L. Ed. 2d at 911).

Applying these principles, we agree that defendant's initial 

encounter with Mantz amounted to no more than a field inquiry and 

escalated to an investigatory stop once the officer observed the 

metal object protruding from defendant's pocket and inquired about 

whether defendant possessed any weapons. See State v. Contreras, 

326 N.J. Super. 528, 540 (App. Div. 1999) (asking the defendants 

whether they were in possession of contraband escalated field 

inquiry into an investigative detention); State ex rel. J.G., 320 

N.J. Super. 21, 25, 31-32 (App. Div. 1999) (asking juvenile if 

there was "anything on him that he shouldn't have" converted field 

inquiry into a Terry stop). The officer's observation of the 

metal object and defendant's behavior and demeanor in an area 

known to be a high crime location, provided the objective 

observations needed to support the officer's suspicion that 

defendant might be in possession of a weapon and warranted the 

detention and search of defendant and seizure of the metal 

knuckles.

We part company with the judge as to her decision to deny 

defendant's motion to dismiss the tampering indictment. We review 

a trial court's decision to deny a motion to dismiss an indictment
15 A-2373-15T1

for a clear abuse of discretion. State v. Zembreski, 445 N.J. 

Super. 412, 424 (App. Div. 2016). "However, if a trial court's 

discretionary decision is based upon a misconception of the law, 

a reviewing court owes that decision no particular deference." 

Ibid. (quoting State v. Lyons, 417 N.J. Super. 251, 258 (App. Div.

2010)).

In our review of the motion judge's decision, we recognize 

that granting a motion to dismiss an indictment should occur only 

in limited circumstances. As we have stated:

One of the guiding principles to be followed 

by a court when considering a motion to 

dismiss an indictment is that "a dismissal of 

an indictment is a draconian remedy and should 

not be exercised except on the clearest and 

plainest ground." State v. Williams, 441 N.J. 

Super. 266, 271 (App. Div. 2015) (alteration 

omitted) (quoting State v. Peterkin, 226 N.J. 

Super. 25, 38 (App. Div.), certif. denied, 114 

N.J. 295 (1988)). Therefore, once returned 

by a grand jury, an indictment should be 

disturbed "only when [it] is manifestly 

deficient or palpably defective." State v. 

Hogan, 144 N.J. 216, 228-29 (1996).

[Zembreski, supra, 445 N.J. Super. at 424-25.]

With those cautionary instructions in mind, we are still 

compelled to find that the motion judge misapplied her discretion 

in this case because there was a lack of evidence as to all of the 

elements required for tampering. A criminal "tampering" occurs 

when a person, "believing that an official proceeding or 
16 A-2373-15T1

investigation is pending or about to be instituted, . . . [a]lters, 

destroys, conceals or removes any article, object, record, 

document or other thing of physical substance with purpose to 

impair its verity or availability in such proceeding or 

investigation." N.J.S.A. 2C:28-6(1) (emphasis added). "To be 

found guilty of this offense, a person must be found to have not 

simply hidden criminal contraband or evidence but to have engaged 

in conduct that resulted in 'the permanent alteration, loss or 

destruction of the evidence.'" State v. Kennedy, 419 N.J. Super.

475, 479 (App. Div.) (quoting State v. Mendez, 175 N.J. 201, 212 

(2002)), certif. denied, 208 N.J. 369 (2011). Moreover, the 

person's purpose in engaging in such conduct must have been "to 

impair [the physical evidence's] verity or availability in [an 

official] proceeding or investigation." Ibid. (alteration in 

original) (emphasis added) (quoting N.J.S.A. 2C:28-6(1)). Where 

the physical evidence is alleged to be CDS, the "statute does not 

require the State to prove that the object [destroyed] was [CDS], 

only that it was an 'article, object, record, document or other 

thing of physical substance[,]' in addition to the other elements 

enumerated under [the statute]." Mendez, supra, 175 N.J. at 214.

Unlike the motion judge, we do not include in the definition 

of a "proceeding or investigation" the public's contact with law 

enforcement at a security checkpoint before entering a public 
17 A-2373-15T1

building. That type of encounter is a far cry from a defendant

being pursued by officers who suspect him of having committed a 

crime. See id. at 204-07 (affirming a conviction for tampering 

with evidence where a defendant discarded and destroyed cocaine 

during a police car chase by emptying a clear bag of white powder 

while police watched). A police pursuit obviously places a 

defendant on notice that he is the subject of an investigation; 

whereas, an encounter with a security guard tasked with preventing 

weapons from entering a building would not.

3 Moreover, the 

 

3 We note that defendant was not charged with hindering his own 

apprehension under N.J.S.A. 2C:29-3(b)(1), which does not include 

as an element a defendant's belief that an official proceeding or 

investigation involving his conduct is or is about to be pursued 

by law enforcement. That statute states in pertinent part:

b. A person commits an offense if, with 

purpose to hinder his own detention, 

apprehension, investigation, prosecution, 

conviction or punishment for an offense or 

violation . . . he [or she]:

(1) Suppresses, by way of concealment or 

destruction, any evidence of the crime . . . 

which might aid in his discovery or 

apprehension or in the lodging of a charge 

against him . . . .

[Ibid.] 

To convict a defendant of the offense, the State is required to 

prove:

(1) that defendant knew he/she could/might be 

charged with [an offense];
18 A-2373-15T1

officer's response following defendant tossing the object to the 

floor, which was simply to ask him to pick it up, does not support 

the inference that defendant was then aware that he was the subject 

of an investigation. Because there was no evidence that defendant 

believed that an official proceeding or investigation was about 

be instituted against him, the tampering conviction must be 

reversed.

Affirmed in part; reversed and remanded in part for entry of 

an order vacating defendant's indictment, conviction and sentence 

for tampering, N.J.S.A. 2C:28-6(1). We do not retain jurisdiction. 

 

(2) that [] defendant suppress[ed], by 

way of concealment or destruction, any 

evidence of the crime . . . which might aid 

in his[/her] discovery or apprehension or in 

the lodging of a charge against him; and

(3) that [] defendant acted with purpose 

to hinder his/her own detention, apprehension, 

investigation, prosecution, conviction, or 

punishment.

[Model Jury Charge (Criminal), "Hindering 

One's Own Apprehension or Prosecution" 

(2014).]