SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4810-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TE'MON M. MOLLEY,

a/k/a TEMON M. MOLLEY, 

Defendant-Appellant.

________________________

Submitted December 9, 2020 – Decided February 22, 2022

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 17-09-1991.

Jacobs & Barbone, PA, attorneys for appellant (Louis 

M. Barbone, on the brief).

Damon G. Tyner, Atlantic County Prosecutor, attorney 

for respondent (Melinda A. Harrigan, Assistant 

Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

NOT FOR PUBLICATION WITHOUT THE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.
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Following the denial of his suppression motion, defendant Te'Mon M. 

Molley pleaded guilty to first-degree possession with intent to distribute over 

five ounces of cocaine and heroin, N.J.S.A. 2C:35-5(b)(1), in exchange for a 

recommended ten-year prison term, including five years of parole ineligibility. 

Three months after the entry of his guilty plea, but before sentencing, 

defendant obtained new counsel and filed a motion to withdraw the plea, 

premised on the alleged ineffective assistance his first lawyer provided him in 

connection with his suppression motion. The trial court denied the motion

without an evidentiary hearing, finding defendant could not establish 

ineffective assistance of counsel under the two-part Strickland1standard nor

any entitlement to withdraw his plea under State v. Slater, 198 N.J. 145, 157 

(2009).

Defendant appeals, raising two issues for our consideration:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN 

DENYING DEFENDANT'S MOTION TO 

WITHDRAW HIS PLEA.

POINT II

DEFENDANT PROVED THAT COUNSEL'S 

REPRESENTATION ON [THE] MOTION TO 

1

 Strickland v. Washington, 466 U.S. 668, 693-94 (1984).
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A-4810-18

SUPPRESS WAS CONSTITUTIONALLY 

DEFICIENT BY FAILURE TO INVESTIGATE, 

PRESENT AND PROFFER CRITICAL EVIDENCE 

THAT WOULD HAVE EVISCERATED THE 

STATE'S CLAIM OF REASONABLENESS ON THE 

WARRANTLESS SEARCH.

Finding no reversible error, we affirm.

Patrolman Ryan VanSyckle, a five-year veteran of the Pleasantville City 

Police Department assigned to the street crimes unit, was the only witness to 

testify at the suppression hearing. In his investigation report, VanSyckle 

stated that he and his partner, Patrolman Girard Tell, were patrolling in the 

area of a particular apartment complex when they "observed a black BMW 

535i bearing North Carolina registration . . . with dark tinted side and rear 

windows parked facing west next to the wooden fencing that surrounds the 

dumpster located in the far northwest corner of the complex." VanSyckle 

wrote:

It should be noted that this vehicle has bullet ricochets 

on the driver side from an unreported shooting that 

occurred on June 21, 2017 . . . which Officer Tell and 

I investigated. Additionally[,] this agency has 

received private citizen complaints in regards to 

suspected narcotic sales within the . . . apartment 

complex and specifically occurring next to the 

dumpster. As we pas[sed] by the vehicle in question, 

the brake lights illuminated and we observed it to be 

running and occupied. We then circled around and 

approached the vehicle to conduct a suspicious motor 
4

A-4810-18

vehicle stop. As we approached the rear of the 

vehicle, we observed a black male wearing a purple 

shirt with short hair and a beard exiting from the front 

passenger side compartment. We immediately 

recognized that male to be Tackeem Molley.

The report continued:

Once we exited, Tackeem Molley began to walk away 

and attempted to conceal an item within a yellow 

plastic bag under the left side of his shirt. I 

subsequently ordered Tackeem to stop and show me 

his hands. He did so without incident. As we were 

standing next to the open front passenger side door, 

Officer Tell advised he smelt the odor of raw 

marijuana emanating from inside the vehicle. At this 

time, I removed the yellow bag from Tackeem and 

placed him in handcuffs. Inside the open unsealed bag 

was a large amount of U.S. paper currency about the 

size of a brick, wrapped in rubber bands and black hair 

ties. A further search of the yellow plastic bag 

revealed suspected cocaine residue, as well as a small 

rubber band, commonly used to hold together 

packages of narcotics, based on my training and 

experience.

At the suppression hearing, VanSyckle testified he and Tell were in an 

unmarked, white Chevy Tahoe patrolling the parking lot of the apartment 

complex when they spotted a black BMW in a spot next to the dumpster. It 

was July 8, 2017, about 2:20 in the afternoon, and the officers were there 

because there'd been a number of complaints about hand-to-hand drug 

transactions occurring at all hours in the parking lot near that dumpster. 
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A-4810-18

The officers immediately recognized the BMW as they drove past as the 

same car involved in a shooting incident a few weeks earlier the officers were 

investigating. The car had been hit with gunfire, and a ricochet mark was still 

visible on the driver's side. VanSyckle testified the officers circled back

around the lot, intending to "conduct a suspicious vehicle stop in regards to 

that shooting." As they were two car lengths away from the BMW, which was 

legally parked with the engine running, nose into the curb, the officers saw a 

man get out of the front passenger seat and turn to look at them.

VanSyckle testified he and Tell immediately recognized the man as 

Tackeem Molley, a convicted drug dealer. VanSyckle claimed Tackeem 

recognized them as well and began to walk hurriedly away, tucking a bright 

yellow bag under his shirt.

2

 The officers activated their emergency warning

lights, got out of the car, and VanSyckle ordered Tackeem to stop and show 

his hands. When the prosecutor asked how Tackeem would have recognized 

him in an unmarked car, VanSyckle explained the white Tahoe was a wellknown police vehicle, and when the two made eye contact through the Tahoe's 

2

 Because defendant and Tackeem Molley share the same last name, we 

hereafter refer to Tackeem Molley by his first name to distinguish him from 

his brother, intending no disrespect in doing so.
6

A-4810-18

windshield, Tackeem appeared startled, with a "deer-in-the-headlights" look, 

and his "demeanor changed immediately" as he tried to conceal the yellow bag.

Tackeem obeyed the order to stop, standing near the open passenger 

door. VanSyckle claimed that as the officers approached, both he and Tell 

smelled burnt marijuana "coming from his person," although he acknowledged 

it could have been coming from the car because Tackeem "was standing within 

five to six feet" from it. According to VanSyckle, he immediately grabbed the 

bag from Tackeem, and based on the marijuana smell, handcuffed him and 

placed the bag on the trunk. VanSyckle searched Tackeem, finding cash but

no contraband, and placed him in the backseat of the Tahoe. In the bag, which 

was open, VanSyckle found $12,000 in cash wrapped in rubber bands and hair 

ties, and some white residue, which the officer suspected was cocaine.

Officer Tell meanwhile had defendant, Tackeem's brother, step out of 

the car and likewise handcuffed him and patted him down, finding cash but no 

contraband. VanSyckle testified that one of the brothers had over $600 on him 

and the other around $1,700. Given the odor of marijuana and the amount of 

cash in the brothers' possession, the officers called for a canine unit. 

Following the dog's positive indication of drugs near one of the backdoors, the 

officers searched the car, finding a black digital scale in the backseat, also with 
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A-4810-18

white residue. In the trunk, the officers found a bag containing over seven 

ounces of cocaine, some packaged separately, and seven packages of heroin. 

At the station house, officers discovered an additional ounce of cocaine, a 

couple of grams of marijuana, presumably for personal use, and 127 individual 

packs of heroin in defendant's possession.

On cross-examination, the lawyers for the brothers inquired into the 

basis for the stop, the sequence of events, which of the officers had smelled the 

marijuana, whether it was raw or burnt and where exactly they had smelled it. 

In response to their questions, VanSyckle testified the officers had two reasons 

for looping back to the BMW — the shooting investigation and the car being 

parked with its engine running right where residents had complained about 

drug activity. The officer explained in his experience, shootings and drug 

dealing are often related, and people and cars that get shot at are often 

involved in the same sorts of crimes. 

VanSyckle testified he couldn't see into the car because the rear and side 

windows were heavily tinted and thus didn't know that defendant or his brother 

were inside. He confirmed that neither was a suspect in the shooting. Asked 

whether he knew the owner of the BMW, VanSyckle testified the officers had 

looked up the registration at the time of the shooting, but he didn't remember 
8

A-4810-18

the owner's name. According to VanSyckle, a canvass of the area where the 

shooting occurred had yielded no information, and he had not interviewed the 

registered owner between the time of the shooting and finding the car parked 

next to the dumpster. 

On redirect, VanSyckle repeated the "reasons why [they] approached" 

the BMW, including "to make contact with who was in that vehicle . . . in 

regards to the shooting to further follow up with that investigation." 

According to VanSyckle, he and Tell had already decided they were "going to 

definitely check . . . out and investigate" the BMW before they saw Tackeem

get out, "at least find out who was in that vehicle." But "[a]s [they] were 

approaching prior to activating [their] lights, Tackeem exited the vehicle." 

After hearing that testimony and the argument of counsel, the judge 

denied defendant's motion in a comprehensive written opinion. The judge 

found the officers were patrolling the specific area of the stop in response to 

citizen complaints of drug trafficking when they spotted a car they recognized 

as having been involved in a recent shooting. Their attention having been 

drawn to the car, they observed Tackeem, whom they knew to be a drug dealer, 

get out and look over at them. Upon observing the officers, Tackeem appeared 

nervous and tried to "conceal a large item wrapped in a yellow bag under his 
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shirt." Based on the totality of those circumstances, the judge found the 

officers had reasonable and articulable suspicion to conduct an investigatory 

stop. 

The judge was also satisfied the smell of burnt marijuana coming from 

Tackeem and the car he had just exited provided the officers probable cause to 

search defendant and his brother, as well as the yellow bag and the interior of 

the car. See State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995) 

(noting the smell of marijuana constitutes probable cause "that a criminal 

offense ha[s] been committed and that additional contraband might be 

present").3 The smell of marijuana, the discovery of the cash, the canine sniff 

indicating the presence of drugs in the car, and the digital scale found in the 

backseat made the further search of the trunk permissible under State v. Witt, 

223 N.J. 409, 447 (2015) (approving a warrantless search under the automobile 

3

 The legalization of marijuana in New Jersey has obviously changed that. 

The New Jersey Cannabis Regulatory, Enforcement Assistance, and 

Marketplace Modernization Act took effect on February 22, 2021. L. 2021, c.

16. The Act amended N.J.S.A. 2C:35-10, by providing "[t]he odor of 

marijuana or hashish, or burnt marijuana or hashish, shall not constitute 

reasonable articulable suspicion to initiate a search of a person to determine" if 

the person is in possession of an amount of either marijuana or hashish 

constituting the commission of a crime. N.J.S.A. 2C:35-10(a)(3)(b)(i); L.

2021, c. 16, § 56. The amended statute does not apply here because this search 

took place more than three years before its effective date.
10 A-4810-18

exception when "police have probable cause to believe that the vehicle 

contains contraband or evidence of an offense and the circumstances giving 

rise to probable cause are unforeseeable and spontaneous").

Following the denial of his motion for reconsideration and the entry of 

his guilty plea, defendant retained new counsel and moved to withdraw his 

plea based on the alleged ineffective assistance of his counsel in connection 

with the suppression motion. Specifically, defendant averred he told his first 

lawyer that his girlfriend's cousin Hector Olivo owned the black BMW, and 

that VanSyckle had stopped Olivo several times, harassed him and 

groundlessly searched his car for drugs, which were not present, because the 

BMW had an out-of-state license plate. 

Defendant proffered the affidavit of his girlfriend and a summary of a 

recorded statement Olivo provided to new counsel's investigator in support of 

his motion. In the summary, Olivo claimed he lived in Georgia, but had stayed 

some months in Pleasantville with his mother prior to defendant's arrest in July 

2017. According to Olivo, VanSyckle and Tell had stopped him 

approximately six times over those few months, resulting in four or five tickets 

for illegally tinted windows. Each time the officers had asked whether there 

were guns or drugs in the car, conducted a search and found nothing. Olivo 
11 A-4810-18

was sure VanSyckle knew he owned the BMW because, in addition to those 

stops, VanSyckle had stopped him again after the car was struck by a bullet 

while parked in front of Olivo's uncle's house. Olivo claimed he'd been out of 

town when the car was damaged, but VanSyckle informed him of what 

happened and accused him of having been in the area when the shooting 

occurred.

Defendant's girlfriend said in a statement incorporated into her affidavit

that she told defendant's lawyer that when VanSyckle assisted her in retrieving 

her belongings from the BMW in impound, he asked her relation to Olivo and 

told her to tell "[her] cousin he better change his address or [VanSyckle] was 

going to make it his business to take all [Olivo's] vehicles until he does follow 

the law." She claimed VanSyckle "already knew the owner" of the BMW and

"decided to pull it over . . . simply to [h]arass [her] cousin." She claimed 

VanSyckle "was wrong for the intentions he had when he noticed the vehicle 

and decided to proceed with the stop." 

Defendant claimed his first lawyer told him before the suppression 

hearing "that all of that was irrelevant, and that the only important issue had to 

do with the search of the trunk." Defendant contended that because his lawyer 

failed to investigate VanSyckle's history with Olivo, she was unprepared to 
12 A-4810-18

effectively cross-examine him on his reasons for stopping the BMW, including 

"his lie" about not having had "contact information or interviews with the 

vehicle owner." In addition, he argued his lawyer should have requested the 

State produce the alleged complaints about drug activity at the apartment 

complex where he was arrested and cross-examined VanSyckle about the 

discrepancies between his report of the stop and his testimony, including the 

chronology of the stop, and the omission of the odor of marijuana or any eye 

contact with Tackeem and his startled reaction from the officer's report.

Defendant's motion was heard, and denied, by the same judge who 

presided over the suppression motion and took defendant's plea. Being careful 

to analyze defendant's claim of ineffective assistance separately from his Slater

motion, see State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014), the 

judge found defendant could not prevail on either claim. Applying the twoprong Strickland standard, the judge found counsel's decision not to pursue the 

information of VanSyckle's history with Olivo was strategic because she 

deemed it irrelevant to defendant's suppression motion. 

The judge found whether VanSyckle knew the identity of the owner of 

the BMW was irrelevant because the tinted windows made it impossible to see 

who was inside and "there was ample independent probable cause for the stop; 
13 A-4810-18

namely that the vehicle was part of an active shooting investigation, parked in 

the precise area where complaints of illegal CDS activity had been made." 

The judge concluded that "even if defense counsel had elicited that VanSyckle 

was aware who owned the BMW, that fact would not have undermined the 

basis for the stop."

The judge rejected defendant's claims that the differences between 

VanSyckle's report and his testimony were significant. As to the chronology, 

the judge noted the only difference between the report and VanSyckle's 

testimony was when Tackeem started to walk away once he was out of the car. 

The report stated it was after the officers got out of their car that "Tackeem

Molley began to walk away and attempted to conceal an item within a yellow 

plastic bag under the left side of his shirt," while VanSyckle testified that as 

soon as Tackeem exited "he appeared to be in shock, bladed his body away and 

concealed the bag." 

The judge found VanSyckle didn't specifically testify whether Tackeem

concealed the bag before or after he was ordered to stop, and "[a]s such there 

is no real inconsistency between the report and the testimony." The judge 

noted VanSyckle's unequivocal testimony that the officers had already decided 

"to make an investigatory stop before they even saw Tackeem exit," and thus 
14 A-4810-18

"[h]is acting in a suspicious manner afterwards only strengthened their 

reasonable suspicion and further justified their decision to conduct a stop."

The judge also found counsel's decision "not to spend time and 

resources" obtaining citizen complaints of drug activity in the area, "which 

may have only reinforced the State's case" was "a valid strategic choice," 

especially as defendant offered no evidence "to suggest either officer had a 

history of falsifying reports to justify motor vehicle stops." Because the judge 

found none of defendant's suggested subjects for cross-examination of the 

officer would have undermined his valid basis for effecting the stop — seeing 

Tackeem, a known drug dealer, get out of the car parked in an area the police 

were patrolling based on complaints of drug transactions, and try to hide the 

yellow bag — and thus would not have changed the outcome of the 

suppression hearing, the judge concluded defendant could not establish 

prejudice under Strickland.

Turning to the Slater4factors, the judge concluded defendant had not 

asserted a colorable claim of innocence, his reason for wishing to withdraw his 

4

 The four Slater factors are: "(1) whether the defendant has asserted a 

colorable claim of innocence; (2) the nature and strength of defendant's 

reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether 

withdrawal would result in unfair prejudice to the State or unfair advantage to 

the accused." 198 N.J. at 157-58.
15 A-4810-18

plea — the alleged ineffective assistance of his counsel — was unavailing; the 

plea was the product of a plea bargain, and the State was not required to 

establish prejudice in light of defendant's failure to offer proof of the other 

factors, see 198 N.J. at 162. Accordingly, the judge denied defendant's 

motion, and he was sentenced three days later. This appeal followed.

Because the viability of defendant's Slater motion rested on his ability to 

establish a prima facie case of ineffective assistance of counsel entitling him to 

an evidentiary hearing, we, like the trial judge, turn first to defendant's 

Strickland claim. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)

(noting "[w]here defense counsel's failure to litigate a Fourth Amendment 

claim competently is the principal allegation of ineffectiveness, the defendant 

must also prove that his Fourth Amendment claim is meritorious" and there 

exists a reasonable probability the outcome would have been different without 

the excludable evidence); State v. Johnson, 365 N.J. Super. 27, 35 (App. Div. 

2003) (same). And because it is readily apparent that had defendant been 

successful on his motion to suppress the drugs, he would not have pleaded 

guilty to a charge the State couldn't prove, see State v. Nunez-Valdez, 200 N.J. 

129, 142 (2009), we focus on the first Strickland prong. See Johnson, 365 N.J. 
16 A-4810-18

Super. at 35 (focusing on "the performance component" because a successful 

suppression motion "would most likely have affected the outcome").

Like the trial judge, we reject defendant's claim that he established a 

prima facie case that his first lawyer incompetently litigated the suppression 

motion, albeit for different reasons from those expressed by the judge. See

State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002) (noting "we affirm 

or reverse judgments and orders, not reasons"). We agree with the judge that 

most of the differences between VanSyckle's written report and his testimony 

at the suppression hearing were insignificant, and note that most, like the 

discrepancy between whether the officers had smelled raw or burnt marijuana,

were thoroughly explored by the brothers' lawyers. 

We disagree, however, that the reason defendant claims his first lawyer

provided for failing to investigate VanSyckle's history with Olivo — that it 

was irrelevant — which we assume for these purposes is correct, see State v. 

Fisher, 156 N.J. 494, 498-99 (1998), or the trial court's surmise for counsel's 

failure to obtain discovery of the complaints the department had received 

about drug transactions in the vicinity of the dumpster — that it was a waste of 

time and money to seek the State's production of items that could have 

strengthened its case — could be fairly characterized as strategic choices. 
17 A-4810-18

Counsel is duty-bound to make "reasonable investigations or to make a 

reasonable decision that makes particular investigations unnecessary." 

Strickland, 466 U.S. at 691. "[S]trategy decisions made after less than 

complete investigation are subject to closer scrutiny." State v. Savage, 120 

N.J. 594, 617-18 (1990). Only when "counsel thoroughly investigates law and 

facts, considering all possible options, [is] his or her trial strategy . . . 'virtually 

unchallengable.'" Id. at 617 (quoting Strickland, 466 U.S. at 690). 

Had defendant's first lawyer sought the State's production of any prior 

tickets issued to Olivo, police reports involving the BMW, and complaints of 

drug activity at the apartment complex, she may have uncovered information 

to support the report defendant had received from Olivo that defendant claimed 

he sought to assert at the suppression hearing — that VanSyckle and his 

partner knew who owned the BMW because they had been harassing Olivo 

over the past several months. That information would have supported what 

defendant claimed he told his counsel — that this stop had nothing to do with 

complaints of drug activity at the apartment complex but was simply another 

opportunity for VanSyckle and Tell to harass Olivo. 

It is easy to imagine that had the information been favorable to the 

defense, and had VanSyckle been confronted on cross-examination with proof
18 A-4810-18

the officers had repeatedly stopped the BMW over the past few months and

groundlessly searched the car, or that the department had never received any 

complaints about drug activity at the apartment complex, the officer's

credibility would certainly have been affected, see State v. Fritz, 105 N.J. 42, 

65 (1987) (discussing the importance of impeachment evidence), perhaps 

shaking the court's confidence in the accuracy of his account about whether he 

smelled marijuana or the sequence of events leading up to the warrantless 

search, an always critical consideration in assessing its validity, see State v. 

Gamble, 218 N.J. 412, 427 (2014) (noting "circumstances of an encounter 

between a private citizen and police may evolve quickly, thereby progressing 

rapidly from a simple field inquiry to a search"). 

Defendant may have similarly been able to call the officer's credibility 

into question had Olivo been subpoenaed to appear at the suppression hearing,

and testified VanSyckle and Tell had stopped his car several times and 

searched it without cause. In that regard, we note the only video the State 

admitted was of the dog sniff and subsequent search. There is no video in the 

record of the officers approaching the BMW or of the actual stop, and thus no 

video confirming VanSyckle's account that Tackeem got out of the car, saw the 
19 A-4810-18

officers and tried to hide the yellow bag — all before the officers activated 

their lights to initiate the stop.

But it is not enough for a defendant pressing an ineffective assistance 

claim to point to possibly fruitful lines of cross-examination a more thorough 

investigation might have allowed. The defendant must be able to establish 

what such an investigation would have revealed and how its absence 

prejudiced him. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 

1999) (noting when a defendant "claims his trial attorney inadequately 

investigated his case, he must assert the facts that an investigation would have 

revealed"). And he must do so with competent evidence. See State v. Porter, 

216 N.J. 343, 353-55 (2013). This record lacks that competent evidence.

Although defendant presented a summary of a recorded statement from 

Olivo on his motion, there is no sworn statement from Olivo in the record. A 

defendant claiming his trial counsel inadequately investigated his case must 

assert the facts the investigation would have uncovered, "supported by 

affidavits or certifications based upon the personal knowledge of the affiant or 

the person making the certification." Porter, 216 N.J. at 355 (quoting 

Cummings, 321 N.J. Super. at 170). There is no affidavit or certification from 

Olivo in the record. And the affidavits from defendant and his girlfriend about 
20 A-4810-18

Olivo's history with VanSyckle consist of inadmissible hearsay on those 

points. Although the girlfriend's sworn statement also recounts a conversation 

she had with VanSyckle, that conversation occurred after the stop and was 

limited to VanSyckle asking who Olivo was to her, and why did she have his 

car, and him telling her to tell Olivo to change the registration of the BMW or 

risk having his cars seized. 

Nothing about that conversation impugned VanSyckle's account of the 

stop, even the testimony that he couldn't remember the name of the BMW's 

registered owner. Nor did defendant proffer other competent evidence on his 

Slater motion that might have permitted an effective cross-examination of the 

officer, as for example, the traffic tickets Olivo claims he was issued. Those 

tickets, if indeed they existed, would have been competent evidence that could 

have been used to impeach VanSyckle's testimony. But defendant presented 

no proof of them on his motion to withdraw his plea, nor any proof that the 

Pleasantville Police Department had not received the complaints of drug 

transactions near the dumpster that VanSyckle mentioned in his report and 

testified to at the suppression hearing. 

As we explained in Johnson, a defendant urging ineffective assistance on 

direct appeal for failure to mount an effective suppression motion must 
21 A-4810-18

succeed in convincing us he has a potentially meritorious suppression motion 

on the existing record. 365 N.J. Super. at 34-35. We cannot make that finding 

here because the report of what Olivo would say if called to testify is not

competent evidence, and defendant did not muster any other relevant proofs —

and thus any entitlement to an evidentiary hearing. See State v. Marshall, 148 

N.J. 89, 158 (1997) (noting an evidentiary hearing is not warranted if "the 

defendant's allegations are too vague, conclusory, or speculative"). 

Nevertheless, we would be remiss if we did not note certain misconceptions 

about the current state of the law of search and seizure apparent on this 

record.5

Van Syckle testified he and Tell circled back around the parking lot 

intending to conduct an investigatory or suspicious vehicle stop of the BMW

for two reasons — the citizen complaints about drug activity near the dumpster 

where the BMW was lawfully parked, and because they wanted to make 

contact with the driver, whom they had not interviewed, to follow up on the 

shooting investigation. The judge rejected defendant's claim that he could 

establish VanSyckle had testified falsely because Olivo's statement made clear 

5

 We hasten to add that one of the cases we note below was decided only 

weeks before the officers conducted this stop and another several months after 

the judge rendered his decision on defendant's motion to withdraw his plea.
22 A-4810-18

VanSyckle had already interviewed him about the shooting, thereby 

"eviscerating" any reasonable basis for the stop. The judge found Olivo's 

statement would not have undermined the officer's testimony. According to 

the judge, whether VanSyckle knew Olivo owned the BMW was irrelevant 

because the officers had "independent probable cause for the stop; namely that 

the vehicle was part of an active investigation, parked in the precise area 

where complaints of illegal CDS activity had been made," which VanSyckle 

"was clear in his testimony . . . was the reason for the stop."

We disagree the officers had probable cause to conduct a de facto arrest 

of defendant and his brother or reasonable suspicion to conduct an 

investigatory detention of the BMW based only on the car having previously 

been hit by gunfire and being lawfully parked in an area where drug 

transactions had allegedly occurred. Those facts would only have permitted 

the officers to conduct a field inquiry, not an investigatory detention. See

State v. Rosario, 229 N.J. 263, 274 (2017) (distinguishing the "more casual 

and conversational interactions with a person in a parked car" characterized as 

field inquiries from an investigative detention created by police "partially 

blocking in [the defendant's] car from the rear [and] activating the alley light 

to flood the area with light"); State v. Stampone, 341 N.J. Super. 247, 252 
23 A-4810-18

(App. Div. 2001) (noting an occupied car parked on a residential street in the 

afternoon with out-of-state plates in an area where a crime was committed a 

week or two earlier is not suspicious, and if the rule were different, "a 

significant portion of our urban population would be susceptible to constant 

police investigation"). We also disagree the officers could have lawfully made 

an "investigatory stop" of the BMW simply "to make contact with who was in 

that vehicle . . . in regards to the shooting" or to "conduct a suspicious vehicle 

stop in regards to that shooting." See State v. Alessi, 240 N.J. 501, 508, 518-

23 (2020) (holding police may not pull over a driver for questioning in 

furtherance of an investigation without reasonable suspicion the driver had 

committed a crime or a traffic violation). 

Those errors, however, do not change our decision, because the law is 

well-established that an officer's subjective intent for making a stop is 

irrelevant so long as there is an objectively reasonable basis for the action. 

See State v. O'Neal, 190 N.J. 601, 614 (2007) (noting "[a]lthough an officer 

may testify to his or her subjective intent, the crucial inquiry is whether the 

officer's conduct was objectively reasonable"). Although the location of the 

car and its involvement in the shooting would not have been a sufficient basis 

to conduct an investigatory detention of the BMW, the judge accepted
24 A-4810-18

VanSyckle's testimony that he saw Tackeem, a known drug dealer, get out of 

the car and try to hide the yellow bag while the officers were still two car 

lengths away and before they activated their lights initiating the stop. We 

agree those facts, in combination with the location of the car and its 

involvement in the shooting, were sufficient to permit the officers to conduct a 

Terry6stop of Tackeem and the BMW, given how near he was standing to its 

open front door. See State v. Pineiro, 181 N.J. 13, 20 (2004) (holding "an 

investigatory stop, sometimes referred to as a Terry stop, is valid 'if it is based 

on specific and articulable facts which, taken together with rational inferences 

from those facts, give rise to a reasonable suspicion of criminal activity.'" 

(quoting State v. Nishina, 175 N.J. 502, 510-11 (2003)) (footnote omitted)).

Defendant's colorable claim of innocence and his reason for wishing to 

withdraw his plea, the first two Slater factors, rested entirely on his contention 

that his first lawyer provided ineffective representation on the suppression 

motion, which we do not find defendant established any prima facie claim. 

Accordingly, we cannot find the judge abused his discretion in denying 

defendant's motion to withdraw his plea, even under the more liberal "interests 

of justice" standard applicable to motions made before sentencing. See R. 3:9-

6

 Terry v. Ohio, 392 U.S. 1 (1968).
25 A-4810-18

3(e); Slater, 198 N.J. at 156. Our ruling is without prejudice to a postconviction relief proceeding. See State v. Preciose, 129 N.J. 451, 460 (1992) 

(noting the appropriateness of deferring ineffective-assistance-of-counsel 

claims to post-conviction relief proceedings when such claims involve 

allegations and evidence outside the trial record).

Affirmed.