SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 16T1 STATE OF NEW JERSEY, Plaintiff

- Respondent,
v. PASCAL EXILUS, a/k/a PASCEL EXILUS Defendant

- Appellant.

__________________ ____________

Submitted February 26, 2019

– Decided Before Judges Fisher and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No s . 16

- 02

- 0062 and 16

- 0 2

- 0063
. Joseph E. Krakora, Public Defender, attorney for appellant (Margaret R. McLane, Assistant Deputy Public Defender, of counsel and on the brief s ). Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

March 6, 20192 A

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PER CURIAM In this appeal, we consider the denial of defendant's suppression motion, an evidentiary ruling made during the course of trial, and the sentenc e imposed following defendant's conviction. We find no merit in any of defendant's arguments and affirm. At approximately 4:30 a.m. on November 20, 2015, a police officer patrolling the streets and highways in Flemington observed defendant's vehicle parke d along the side of Ro ute 31. The vehicle had halted in the driveway of a closed store with its hazard lights flashing, so the officer stopped to see if the vehicle had been in an accident. As he approached, the officer observed a man urinating by the pa ssenger door; defendant was in the driver's seat. The officer asked the urinating passenger
– co - d efendan t Bereka Gelin

– why the vehicle stopped there when an open convenience store with avai lable bathrooms was in sight on the highway . As he stood alongside defendant's vehicle during this discussion, the officer smell ed alcohol and the strong odor of cologne and air freshener from inside the vehicle . In response to the officer 's questions , Gelin identified himself but could not produce an identific ation card
. He asked to be permitted to sit in defendant's vehicle because it was cold outside. The officer allowed that and returned to his own vehicle's computer to verify3 A

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Gelin's id entity; as he did this the officer watched as Gelin turn ed around towa rd the vehicle's backs eat and reach ed down, as if placing something under the seat. Another officer arrived to assist , and the officer who initiated the stop returned to defendant's vehi cle and again questioned Gelin about his identification; he also aske d for de fendant's license as t he other officer walked around defendant's vehicle. The other officer saw , with the use of a flashlight, marijuana "shake " 1 and the insides of a cigar on the floor of the passenger side, and a small knotted plastic bag , of th e type used to contain drugs, on the back seat . Defendant consented to a vehicle search , 2 which produced a black plastic bag with $800 in one

- hundred dollar bills and a debit card bearing defendant's and a music company's names . Defendant advised that he put the money and the card in a bag under the seat prior to arriving at a party in Newark to avoid theft. As the search continued, o ne of the officer s observed a one

- inch separation between the passenger

- sid e door panel and d o or frame; his moving the bottom of the panel caused to fall out a black b ag containing a handgun
.

1 I.e., a small amount of marijuana shavings left over after rolling a blunt.
2 At a suppression hearing, the State did not rely on this consent but instead sought to justify the warrantless vehicle search on other grounds.4 A

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Both defendant and Gelin were then arrested. After the arrest, an officer checked the panel in the driver's side door and obtained from there a plastic bag containing cocaine. The vehicle was then towed to the police station. A grand jury handed up t wo indictments. One charged defendant with : second

- degree unlawful possession of a weapon, N.J.S.A. 2C:39

- 5(b); thi r d

degree possession of a controlled danger ous substance (CDS), N.J.S.A. 2C:35

- 10(a)(1); third

- degree CDS possession with an intent to distrib ute, N.J.S.A. 2C:35

- 5(a)(1); N.J.S.A. 2C:35

- 5(b)(5); second

- degree possession of a weapon while possessing CDS with the intent to distribute, N.J.S.A. 2C:39

- 4.1(a); second

- degree conspiracy to posses s a weapon, N.J.S.A. 2C:5

- 2; N.J.S.A. 2C: 39

- 5(b); third

- degree conspiracy to p ossess CDS, N.J.S.A. 2C:5

- 2; N.J.S.A. 2C: 35

- 10(a)(1); and second

- degree conspiracy to possess a weapon while possessing CDS with intent to distribute, N.J.S.A. 2C:5

- 2; N.J.S.A. 2C: 39

- 4.1(a). The other indictment charged defendant with second

- degree being a person not permitted to possess a weapon, N.J.S.A. 2C:39

- 7(b). Defendant moved to suppress the physical evidence obtained from the
ve hicle search. The judge denied the motion by way of a written opinion. After dismissal of some counts, the remaining charges against defendant and Gelin in the first indictment were tried to a jury over the course of six days.5 A

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Defendant was convicted of second

- degree unlawful possession of a weapon and third

- degree CDS po ssession; Gelin was acquitted of all charges. Immediately after the trial's conclusion , the judge conducted a bench trial on the certain

persons ch arge; defendant was convicted
. The St ate moved for either a discretionary or mandatory extended term pursuant to N.J.S.A. 2C:44

- 3. The judge determined that defendant qualified for both and sentenced defendant to : an extended fifteen

- year prison term, with
a seven - and

- one - half

- year period o f parole ineligibility, on the unlawful

pos session

- of

- a - weapon conviction; a concurrent seven
- year pr ison term on the CDS conviction; and a concurrent seven

- year prison term on the certain

- persons conviction. Defendant appeals, arguing: I. THE EVIDENCE FO UN D IN THE CAR MUST BE SUPPRESS ED BECAUSE SEEING AN EXTREMELY SMALL QUANTITY OF MARIJUANA DID NOT PROVIDE PROBABLE CAUSE TO SEARCH, LET ALONE SUFFICIENT PROBABLE CAUSE TO MOVE THE CAR'S DOOR PANELS. II. THE COURT ERRED IN ADMITTING EVIDENCE OF MARIJUANA I N THE CAR, AND THE LIMITING INSTRUCTION WAS INSUFFICIENT (Not Raised Below).6 A

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- 16T1 III. DEFENDANT'S FIFTEEN

- YEAR SENTENCE, WITH A SEVEN

- AND

- ONE

- HALF

- YEAR PAROLE DISQUALIFIER [,] IS MANIFESTLY EXCESSIVE. Defendant also filed a pro se supplemental brief raising t he following single point, which we renumber:

IV. DEFENDANT'S GRAVES ACT SENTENCE IS ILLEGAL IN THAT IT WAS NOT IMPOSED IN ACCORDANCE WITH STATE LAW, CONTRARY TO THE PROVISIONS OF BOTH STATE AND FEDERAL CONSTITUTIONS. We f ind insufficient merit in all def endant's arguments to warrant further discussion in a written opinion. R. 2:11

- 3(e)(2). We add only a few comments regarding Point I. At the suppression hearing, the only testimony came from the two officers , w hom the judge credited, leading the judge t o find the facts we briefly summarized above. T he judge applied correct legal principles in determining that the officer was justified in originally approaching defendant's stopped vehicle and in questioning Gelin in light of the circumstances in which he fou nd defendant's vehicle and Gelin's public urination . As that officer ask ed questions about their identities, the other officer properly walked around defendant's vehicle and, while outside the v ehicle, permiss ibly look ed in to the vehicle with the aid of a flashlight. State v. Johnson , 171 N.J. 192, 210 (2002). This7 A

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permissible look led to the officer 's observation of marijuana "shake, " cigar remains, and a plastic bag, all which gave the officers' probable ca use to inquire and search further fo r contraband despite the lack of a search warrant. State v. Witt , 223 N.J. 409, 422 (2015). That search un covered the handgun and CDS, which were admitted at trial and formed the framework for defendant's convictions
. We substantially agree with Judge Angela F. Borkowski's thorough and well

- reasoned written opinion which, in greater detail than we have provided, describes the factual and legal justification for the stop, search and seizure. Affirmed.