SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5410-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM SPORMAN,

Defendant-Appellant.

_________________________

Submitted March 2, 2020 – Decided April 29, 2020

Before Judges Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Municipal Appeal No. 19-

0025.

Roberts & Teeter, LLC, attorneys for appellant 

(Michael B. Roberts, on the briefs).

Michael H. Robertson, Somerset County Prosecutor, 

attorney for respondent (Lauren R. Casale, of counsel 

and 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NOT FOR PUBLICATION WITHOUT THE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.
2

A-5410-18T1

Defendant was convicted by a municipal court and, after a de novo appeal, 

by the Law Division, for shoplifting in violation of N.J.S.A. 2C:20-11(b)(1),

possession of fifty grams or less of marijuana in violation of N.J.S.A. 2C:35-

10(a)(4), and for possession of a controlled dangerous substance (CDS), 

marijuana, in a motor vehicle while "operat[ing] . . . on any highway" in 

violation of N.J.S.A. 39:4-49.1. The municipal court sentenced defendant to 

fifteen days in county jail, imposed fines, penalties, and assessments, ordered 

two years loss of license on the motor vehicle summons and a consecutive sixmonth loss of license on the 2C:35-10(a)(4) violation. After considering the 

parties' arguments against the applicable law and standards of review, we affirm 

defendant's convictions, but we remand to the Law Division for the court to 

sentence defendant.

I.

At the municipal court trial, the State presented the testimony of Jordan 

Reagan, a loss prevention supervisor at Kohl's in Hillsborough, and Richard 

Joseph Yock, a police officer with the Hillsborough Township Police 

Department. Reagan testified that on August 9, 2018, he was monitoring the 

store security cameras and observed defendant "select a Nike pair of sunglasses 

and pull the tab off of them . . . throw [the tag] down in [the] Men's Basics 
3

A-5410-18T1

[Department] [and] conceal[] the sunglasses in his pocket." He further observed 

defendant "conceal[] a pair of socks in his pants, exit[] the store and . . . g[e]t 

into his vehicle." Reagan then contacted the local police department, gave them 

defendant's license plate number, and "one of the officers that responded stopped 

[defendant] as he was . . . exiting the parking lot." 

Reagan provided the responding officers with a printed a receipt for the 

sunglasses and socks showing a total value of $97.99, as well as a copy of the 

security camera video footage. At trial, he also identified defendant as the 

person he witnessed on the security cameras. 

Officer Yock also testified with respect to the events that day. He noted

that he was dispatched to Kohl's with another officer based on a report of a 

shoplifter who entered a vehicle with a specified license plate. After speaking 

with Reagan, both officers approached defendant who was "next to a Mercedes 

Benz," in the Kohl's parking lot. According to Yock, defendant's vehicle door 

was open, he "was wearing said sunglasses[,] and he was [having] difficulty 

starting his car." While Yock was looking in the vehicle for the socks that 

defendant allegedly stole, he "saw a small broken glass vial in plain view in the 

center console with greenish vegetative matter in it" consistent with marijuana. 
4

A-5410-18T1

The officers also discovered approximately forty vaping devices in the trunk of 

defendant's car. 

Yock further testified that prior to being arrested, defendant voluntarily 

told him that he removed "the sunglasses from the store without paying for them 

and that he made a mistake." At a subsequent interview, and after his arrest,

defendant was read his Miranda1rights, which according to Yock "he voluntarily 

waived." Defendant then told Yock that he went to Kohl's to exchange a pair of 

sneakers that he purchased earlier that day when he "saw the Nike sunglasses . . 

. placed them on his head . . . put a pair of socks in his pocket . . . [and] left 

without paying for either of them."

2

 

According to Yock, defendant then advised police that "the marijuana that 

was in his vehicle was given to him by a male that came to his house [earlier 

that day]." Yock also identified defendant at trial as the person he approached 

in the parking lot, and further identified a lab report, subsequently introduced 

 

1 See Miranda v. Arizona, 384 U.S. 436 (1966).

2 Defendant did not challenge the admissibility of any of his statements in the 

municipal court, Law Division, or before us. We accordingly consider any 

objection to our consideration of defendant's statements by the municipal or Law 

Division judges waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. 

Div. 2011) (holding that "[a]n issue not briefed on appeal is deemed waived"). 
5

A-5410-18T1

into evidence, confirming that the green matter he discovered in plain view in 

the center console consisted of 1.11 grams of marijuana. 

On cross-examination, Yock stated that the vial containing what was later 

confirmed to be marijuana was "[a]bsolutely" in the car when he approached the 

vehicle. On redirect, he also testified that but for a failure of the interlock device 

in the vehicle, defendant "[a]bsolutely" would have left the scene. 

On the second day of trial, defendant unsuccessfully moved to dismiss the 

drug-related charges arguing that police "had been called because of the 

shoplifting offense but there was certainly no reason to look into the vehicle to 

do anything pertaining to the vehicle," Yock "should have limited his 

observation to the merchandise[,] and [Yock] had no reason to go look further 

in the car." The court denied defendant's motion noting that Yock "testified that 

the vial was in plain view" and emphasized that defendant "had the sunglasses 

on his head." 

Defendant also unsuccessfully attempted to call Wendy Sporman, 

defendant's mother, as a witness. The State objected and the court requested a 

proffer of her relevant testimony. Defendant stated that Ms. Sporman would 

testify that she was "the owner of the vehicle" and with respect to "complaints 

she has made against the Hillsborough Police Department." The defense further 
6

A-5410-18T1

stated that Ms. Sporman would testify that "it is her belief that . . . the 

Hillsborough Police Department is targeting [defendant]." Significantly, 

defendant did not provide any detail on the record regarding the alleged 

complaints that either she or defendant had with the Hillsborough Police 

Department or whether they involved any of the officers involved in defendant's 

arrest. Nor did counsel claim, as he did in the Law Division and before us, that 

Ms. Sporman would testify that the marijuana was hers, and not her son's. 

Further, at no point did defendant request to supplement the record with an 

affidavit or certification of Ms. Sporman attesting to any of these alleged facts. 

In sustaining the State's objection to calling Ms. Sporman as a witness, 

the court noted that it watched the security camera footage entered into evidence 

and "it was clear what [defendant] did . . . [and the court was] not sure what 

relevance she has to the shoplifting event and . . . the fact that [defendant] 

possessed contraband in the center console, which was in plain view." The court 

further noted that the State was not made aware in a timely fashion that the 

defense would call Ms. Sporman as a witness and emphasized that had it known, 

the State would have sequestered her as she was in the court throughout the trial. 

Defendant again unsuccessfully moved to dismiss the summons for 

possessing CDS in a motor vehicle stating that there was "no testimony that the 
7

A-5410-18T1

vehicle was on [a] highway . . . [a]nd it was parked in the parking lot." In 

denying defendant's motion, the court noted that it has "testimony from an 

officer that says [defendant] was in his vehicle attempting to leave after 

committing the offense of shoplifting, allegedly, in his vehicle with contraband 

in the center console" and he was "attempting to start his vehicle, which was not 

being operated only because the interlock device malfunctioned, according to 

the testimony." The court further stated that "[t]here was an attempted operation 

at the very least, given the testimony . . . [t]here was contraband in the vehicle 

and I think if you look at the statute, you have all the elements that you need for 

a conviction based on having drugs in the motor vehicle." The court also agreed 

with the State's argument that according to the statute, "a parking lot for a store 

that is used by the public in a normal course is also considered a public road or 

highway for the purposes of our statutes." 

In its March 18, 2019 oral decision, the court determined that based on 

"post-[Miranda] admissions . . . the testimony of the officer and Jordan Reagan, 

as well as the video, which [it] was permitted to watch," the State proved the 

shoplifting count beyond a reasonable doubt. The court also found defendant 

guilty of the possession charges and imposed a custodial sentence along with 

fines and penalties. 
8

A-5410-18T1

Defendant appealed to the Law Division and in a July 29, 2019 written 

opinion and order, the Law Division judge denied defendant's appeal of his 

convictions but remanded the matter to the municipal court for resentencing. 

With respect to the municipal court's finding that the circumstances were 

sufficient to prove defendant unlawfully possessed marijuana within the 

meaning of N.J.S.A. 2C:35-10(a)(4), the Law Division judge noted that Yock

testified that defendant provided police with a post-Miranda statement admitting 

the marijuana was in his vehicle and was given to him by a male that came to 

his house that same day, the State Laboratory analyzed the recovered substance 

and submitted a report indicating that the substance in defendant's possession 

was marijuana, and Yock identified the report and testified that the results 

revealed defendant was in possession of marijuana weighing 1.11 grams. 3 

The Law Division judge also concluded there was sufficient evidence to 

establish defendant possessed CDS while operating a motor vehicle on a 

highway. Specifically, the court noted that it could draw a reasonable inference 

 

3 Although defendant challenged the introduction of the State Laboratory report 

in the municipal court and Law Division, as with his statements to the police, 

see n. 2, supra, he has not challenged the admissibility of that report before us 

and we consider any objection is similarly waived. Sklodowsky, 417 N.J. Super. 

at 657.
9

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that a parking lot is a public highway under N.J.S.A. 27:1B-3

4

as that statute 

provides that "public highways" include "rest areas" and "park-ride facilities." 

The court found those phrases to be "similar in nature to that of a parking lot"

because they are "area[s] where pedestrians and motorists frequent" and have 

"lower speed limits due to the potential danger to pedestrians and motorists in 

these areas." 

The court also relied on a Google Maps printout, submitted by the State 

without objection, showing that defendant's residence was at least three and a 

half miles away from the Kohl's parking lot, as well as defendant's statements to 

the police and testimony that he was attempting to start the car, to "reasonably 

conclude that [d]efendant transported the marijuana to the location where he was 

arrested." The Law Division judge concluded that defendant also had 

"constructive possession" of the CDS when it was discovered in plain view in 

the center console of the vehicle he was attempting to start. 

Regarding the court's preclusion of Ms. Sporman as a witness, the Law 

Division judge agreed with the State that the municipal court properly denied 

the defense from calling her as a witness. Relying on State v. Spivey, 179 N.J. 

 

4 The Law Division mistakenly cited N.J.S.A. 27:113-3. The court likely meant 

to cite N.J.S.A. 27:1B-3, which defendant cites again on appeal for the definition 

of "public highway."
10 A-5410-18T1

229, the court stated, "[a]s was proffered by [d]efendant, Ms. Sporman would 

have testified that Officer Yock and the Hillsborough Police Department were 

harassing her and [d]efendant and that she had an open [internal affairs] 

complaint against Officer Yock . . . [which] is not relevant or germane to the 

present matter." 

The Law Division judge further determined Ms. Sporman not to be 

credible because she was "[d]efendant's mother and . . . she would be interested 

in the outcome of her son's trial and, considering what was proffered, she would 

tailor her testimony to benefit her son." Further, the court noted that Ms. 

Sporman's "[i]nternal [a]ffairs complaint against Officer Yock in 2013 . . . infers 

that she would testify unfavorably against him," and in light of the evidence 

against defendant including the surveillance video, testimony, and his postMiranda statement, "even if [her testimony was] admitted during the trial, [it] 

would not have been credible or relevant." After thoroughly considering all of 

the evidence, the Law Division concluded the testimony of defendant's mother 

would not have "materially altered the outcome of the case."

Finally, the Law Division judge remanded the matter for resentencing. 

The court acknowledged that both the State and defendant agreed that the 

municipal court did not conduct a proper sentencing analysis noting that it 
11 A-5410-18T1

neither considered aggravating and mitigating factors nor did it state its reasons 

on the record before sentencing defendant to a fifteen-day custodial term. The 

Law Division judge also noted that the municipal court should have merged the 

fines, penalties, and license suspension for unlawful possession of marijuana 

with those resulting from defendant's operation of a motor vehicle on a highway

while possessing CDS. 

On appeal, defendant limits his challenge to the Law Division's July 29, 

2019 order to the following arguments:

POINT I

THE STATE DID NOT PROVE DEFENDANT 

OPERATED A MOTOR VEHICLE ON A HIGHWAY 

WHILE IN POSSESSION OF A CONTROLLED 

DANGEROUS SUBSTANCE AND THE COURT 

BELOW SHOULD HAVE GRANTED 

DEFENDANT'S MOTION FOR A DIRECTED 

VERDICT.

A. THE STATE DID NOT PROVE OPERATION.

B. THE STATE DID NOT PROVE OPERATION 

ON A HIGHWAY.

POINT II

A RETRIAL IS REQUIRED WHEN THE COURT 

IMPROPERLY DENIED THE DEFENDANT'S ONLY 

WITNESS FROM TESTIFYING.
12 A-5410-18T1

II.

An appeal of a municipal court conviction must first be addressed by the 

Law Division de novo. R. 3:23-8. The role of the Law Division is to make 

independent findings of facts and conclusions of law based on the record 

developed in the municipal court. State v. Avena, 281 N.J. Super. 327, 333 

(App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). The Law 

Division is required to decide the case completely anew on the record made 

before the municipal judge, "giving due, although not necessarily controlling, 

regard to the opportunity of the" judge to evaluate witness credibility. Johnson, 

42 N.J. at 157; see also State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. 

Div. 2000). The Law Division judge performs "an independent fact-finding 

function in respect of defendant's guilt or innocence" and must "make his [or 

her] own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 

1983).

We review the Law Division's decision employing the "substantial 

evidence rule." State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012). "Our 

review is limited to determining whether there is sufficient credible evidence 

present in the record to support the findings of the Law Division judge, not the 

municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 
13 A-5410-18T1

2005) (citing Johnson, 42 N.J. at 161-62). We owe no deference to the trial 

judge's legal conclusions. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 

140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).

III.

In his first point, defendant argues that the evidence was insufficient to 

sustain the N.J.S.A. 39:4-49.1 charge because the State did not establish beyond 

a reasonable doubt that defendant operated his motor vehicle "on a highway" 

while possessing a CDS. Specifically, defendant argues that there is no basis on 

the record below to find that he so operated his vehicle as "[t]here was no 

testimony or evidence that [defendant] drove himself to the shopping mall . . . 

no testimony how and when the vehicle arrived at the shopping mall . . . [and] 

simply no evidence of operation; direct, circumstantial, or otherwise." He 

further maintains that "[t]he municipal court erroneously held that 'attempted 

operation' was sufficient . . . while the Law Division based its decision on 

evidence that was not in the record." We disagree with defendant that the 

evidence before the Law Division was insufficient to sustain defendant's 

convictions, albeit for slightly different reasons than those stated by the Law 

Division in its decision. See State v. Scott, 229 N.J. 469, 479 (2017) ("It is a 

long-standing principle underlying appellate review that 'appeals are taken from 
14 A-5410-18T1

orders and judgments and not from opinions . . . or reasons given for the ultimate 

conclusion.'" (quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 

(2001))).

N.J.S.A. 39:4-49.1 provides that "[a] person shall not operate a motor 

vehicle on any highway while knowingly having in the person's possession or in 

the motor vehicle any [CDS] as classified in Schedules I, II, III, IV and V of the 

'New Jersey Controlled Dangerous Substances Act.'" In order to establish guilt 

under the statute, the State must prove beyond a reasonable doubt that defendant: 

1) operated a motor vehicle; 2) on a highway; 3) while in knowing possession 

of CDS located on the operator or in the vehicle. See 17A N.J. Practice, 

Municipal Court Practice §36:292 (Robert Ramsey) (rev. 3d ed. 2019); State v. 

Judge, 275 N.J. Super. 194, 201 (App. Div. 1994) ("[I]t is a serious traffic 

offense for a driver to 'operate a motor vehicle on any highway while knowingly 

having in his possession or in the motor vehicle[]any controlled dangerous 

substance . . .'" and "[m]arijuana is classified as a . . . [CDS]." (citations 

omitted)).

Here, there was substantial, credible evidence in the record to establish all 

elements of the offense, including operation of a vehicle on a highway. For 

reasons unclear in the record, both defendant and the Law Division relied on the 
15 A-5410-18T1

definition of "public highway" under the New Jersey Transportation Trust Fund 

Authority Act contained in N.J.S.A. 27:1B-3.5 Relying on that erroneous 

definition, the Law Division reasoned that a "parking lot" is a public highway 

because "rest areas" and "park-ride facilities" are substantially similar in nature 

to parking lots. 

N.J.S.A. 39:4-49.1, however, explicitly states that a person shall not 

operate a motor vehicle "on any highway" and does not refer to "public 

highway." N.J.S.A. 39:1-1 specifically defines "highway" as "the entire width 

between the boundary lines of every way publicly maintained when any part 

thereof is open to the use of the public for purposes of vehicular travel." 

 

5 N.J.S.A. 27:1B-3 defines "public highways" as:

public roads, streets, expressways, freeways, parkways, 

motorways and boulevards, including bridges, tunnels, 

overpasses, underpasses, interchanges, rest areas, 

express bus roadways, bus pullouts and turnarounds, 

park-ride facilities, traffic circles, grade separations, 

traffic control devices, the elimination or improvement 

of crossings of railroads and highways, whether at 

grade or not at grade, bicycle and pedestrian pathways 

and pedestrian and bicycle bridges traversing public 

highways and any facilities, equipment, property, rights 

of way, easements and interests therein needed for the 

construction, improvement, and maintenance of 

highways. 
16 A-5410-18T1

As noted, we conclude the reasonable inferences from the evidence before 

the Law Division supports the court's conclusion that defendant was operating a 

vehicle on a highway, with CDS in the vehicle. The statute does not state that 

defendant must be on a highway when stopped, but only that he operated a 

vehicle on a highway with drugs inside the vehicle. In that regard, there was 

sufficient direct and circumstantial evidence to support the court's determination 

that defendant's conduct satisfied that criteria. 

First, defendant admitted to Officer Yock that he visited Kohl's earlier in 

the day and bought a pair of sneakers that he then came back to return. He also 

admitted that he received the CDS from someone at his residence prior to the 

shoplifting incident. It is reasonable to conclude that defendant would have had 

to drive on a highway (public or otherwise), to arrive at Kohl's where police 

made the plain-view observation of the CDS in his vehicle. Indeed, there simply 

was no way for defendant to have arrived at the Kohl's parking lot without 

having traversed on a public road or way. See State v. Emery, 27 N.J. 348, 356 

(1958) (holding that a trial court may rely on direct and circumstantial evidence 

to determine whether the elements of the offense are met); see also State v. 

George, 257 N.J. Super. 493, 497 (App. Div. 1992) (proving operation of a car 

may be done by direct or circumstantial evidence so long as it is competent and 
17 A-5410-18T1

meets the standards of proof). Defendant's argument that the evidence just as 

likely indicates that some other individual drove him to the shopping mall or 

parked the vehicle for him to retrieve at a later time is nothing more than 

supposition unsupported by any record evidence or reasonable inference 

sufficient to challenge the State's direct proofs and reasonable inferences.

As to the Law Division's use of Google Maps showing the distance 

between defendant's residence and the parking lot, defendant notably did not 

object to the State's use of such evidence when it was introduced. While we 

acknowledge that typically the record before the Law Division is restricted to 

that considered by the municipal court, Avena, 281 N.J. Super. at 333 (citing 

Johnson, 42 N.J. 157), "[i]f a defendant, as here, does not object or otherwise 

preserve an issue for appeal at the trial court level, we review the issue for plain 

error . . . [and] must disregard any unchallenged errors or omissions unless they 

are 'clearly capable of producing an unjust result.'" State v. Santamaria, 236 

N.J. 390, 404 (2019) (quoting R. 2:10-2). Under the circumstances here, we 

find no plain error with the Law Division's consideration of the Google Maps 

document. 

Even were we to conclude that the Law Division erroneously considered 

the Google Maps exhibit, in light of defendant's admission that he received the 
18 A-5410-18T1

CDS at his home and that he traveled to and from Kohl's that day, as well as the 

fact that it is clear that he does not reside in either the Kohl's store or its parking 

lot, we are satisfied that the other proofs and inferences are sufficient to sustain 

the convictions. Any argument by defendant that someone other than him that 

no one saw, spoke about, or mentioned, drove the vehicle to Kohl's and gave 

him the keys to the vehicle he was seen attempting to start, are nothing more 

than fanciful arguments that are insufficient to challenge that the State's proofs 

and reasonable inferences that established defendant's guilt beyond a reasonable 

doubt.

IV.

Finally, we disagree that a new trial is warranted because the municipal

court precluded defendant from calling his mother from testifying, again for 

slightly different reasons than the Law Division. See Scott, 229 N.J. at 479.6 

 

6 Specifically, we part company with the Law Division to the extent it based its 

decision, in whole or in part, on adverse credibility findings of Ms. Sporman as 

she did not testify in either the municipal or the Law Division proceedings. As 

noted, on de novo appeals, the Law Division judge must make independent 

findings of fact and conclusions of law but defers to the municipal court's 

credibility findings. State v. Robertson, 228 N.J. 138, 147, (2017). A court 

should refrain, however, from making credibility determinations without the 

opportunity to see the witness or hear testimony. See State v. Porter, 216 N.J. 

343 (2013) (finding that the proper way to determine a witness's credibility was 

to assess the testimony on direct and cross-examination and that "[t]here is no 
19 A-5410-18T1

Defendant maintains that his mother "was the registered owner of the vehicle 

and had filed complaints against the Hillsborough Police Department and the 

arresting and investigating officer in this case," "[s]ome of those incidents 

involved the [d]efendant," and that "[b]oth lines of inquiry are relevant and 

admissible to challenge the State's charges." Defendant also claims that he 

should have been afforded the opportunity to present his mother as a witness "to 

testify that the marijuana recovered was in fact hers and not [his] . . . [e]ven if 

such a fact is contradicted by [Officer Yock's] testimony . . . [because] 

[d]efendant still has the right to offer evidence of third party guilt."

7

Moreover, defendant argues that Ms. Sporman "should have been 

permitted to testify in the form of an opinion regarding the credibility of the 

State's witness, the bias of the State's witness, [and] motive by the State's witness 

to lie, as well as offering positive character evidence in support of . . . 

 

substitute for placing a witness on the stand and having the testimony scrutinized 

by an impartial factfinder"). Thus, it was improper for the Law Division to base 

its decision on adverse credibility determinations of Ms. Sporman as she did not 

testify before either the municipal court or the Law Division.

7

 We note that in the municipal court, defendant never proffered that his mother 

would testify that the drugs belonged to her. In addition, as to the complaints 

she had with the Hillsborough Police Department, defendant's counsel only 

vaguely claimed that Ms. Sporman made complaints against them in the past 

and that she believed they were targeting defendant. 
20 A-5410-18T1

[d]efendant." Defendant contends that the credibility of Officer Yock was an 

issue of "paramount importance" because there were no other witnesses and his 

plain view observations at the scene were admitted unchecked. He concludes 

that without Ms. Sporman's testimony, defendant could not rebut Yock's version 

of events because such testimony would be "self-serving and likely rejected by 

the fact-finder." 

The Supreme Court has held that a defendant must be afforded "a 

meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 

U.S. 683, 690 (1986). Calling or compelling witnesses to testify in his defense 

is a fundamental right of the accused protected by the due process clause of the 

Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284, 302 (1973); 

Webb v. Texas, 409 U.S. 95, 98 (1972); see also State v. Feaster, 184 N.J. 235, 

250 (2005) ("An accused in a criminal case has a constitutional right to present 

witnesses in his defense, pursuant to the due process and the compulsory process 

provisions of the federal and state constitutions.").

A defendant is not required "to provide evidence that substantially proves 

the guilt of another, but to provide evidence that creates the possibility of 

reasonable doubt." State v. Perry, 225 N.J. 222, 238 (2016) (quoting State v. 

Cotto, 182 N.J. 316, 332 (2005)). "Indeed, even if there is no evidence linking 
21 A-5410-18T1

another specific suspect to the crime, we 'have recognized that evidence that 

tends to create reasonable doubt that someone else, generically, rather than 

defendant, committed the offense, is admissible.'" Id. at 238-39 (quoting State 

v. Loftin, 146 N.J. 295, 345 (1996) (citation omitted)).

Considering first defendant's unsupported argument that the marijuana in 

the vehicle belonged to his mother, we note that N.J.S.A. 39:4-49.1 provides 

that a person "shall not operate a motor vehicle on any highway while knowingly 

having in the person's possession or in the motor vehicle any [CDS]." (Emphasis 

added). The record before the Law Division fully supported its finding that 

defendant had constructive possession of the marijuana while operating the 

vehicle. 

Constructive possession arises out of an individual's conduct with regard 

to the subject item and is "a function of the relationship and conduct of the 

parties." State v. Schmidt, 110 N.J. 258, 268, 272 (1998). Immediate control 

and dominion over an object are not required; it must be shown a defendant had 

the capacity, by direct or indirect means, to gain almost immediate physical 

control, and the ability to affect the item during the time in question. Id. at 270-

71; see also State v. Brown, 80 N.J. 587, 597 (1979) (finding constructive 

possession does not require "[p]hysical or manual control of the proscribed item 
22 A-5410-18T1

. . . as long as there is an intention to exercise control over it manifested in 

circumstances where it is reasonable to infer that the capacity to do so exists "). 

Constructive possession, however, "cannot be based on mere presence at 

the place where contraband is located. There must be other circumstances or 

statements of defendant permitting the inference of defendant's control of the 

contraband." State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992). "A 

determination of constructive possession is fact sensitive and requires careful 

scrutiny by a court . . . ." State v. Hurdle, 311 N.J. Super. 89, 96 (App. Div. 

1998). A court must consider "the totality of the circumstances, including 

defendant's presence at the location of the [contraband], as well as other factors

before . . . an inference of constructive possession [may] be drawn." Ibid.

Here, Yock testified that the CDS was in plain view in the center console 

of the vehicle defendant was attempting to start when they approached him. As 

noted above, defendant's mere presence in that vehicle containing CDS does not 

necessarily rise to the level of constructive possession. When his presence in 

that vehicle is coupled with defendant's statement to Yock that "the marijuana 

that was in his vehicle was given to him by a male that came to his house,"

however, the Law Division judge's conclusion that defendant had constructive 

possession of the CDS was fully supported by the record, and Ms. Sporman's 
23 A-5410-18T1

unsupported claims that the marijuana belonged to her would not affect the 

court's finding that defendant violated N.J.S.A. 39:4-49.1. 

Next, defendant maintains that pursuant to N.J.R.E. 404(a)(1), he had the 

right to offer character evidence regarding any of his pertinent character traits,

and under N.J.R.E. 608, he was permitted to present opinion testimony regarding 

a witness's reputation for lack of truthfulness in the community, and the 

preclusion of his mother's testimony constituted reversible error. We disagree 

and instead concur with the Law Division that Ms. Sporman's proposed 

testimony was neither "relevant [n]or germane." 

"Traditional rules of appellate review require substantial deference to a 

trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). We 

uphold the trial court's rulings "absent a showing of an abuse of discretion, i.e., 

there has been a clear error of judgment." Perry, 225 N.J. at 233 (quoting State 

v. Brown, 170 N.J. 138, 147 (2001)). If an abuse of discretion is found, "we 

must then determine whether any error found is harmless or requires reversal."

State v. Prall, 231 N.J. 567, 581 (2018). Like the plain error standard, harmful 

error will not lead to reversal unless it is "clearly capable of producing an unjust 

result." R. 2:10-2. An error will be found "harmless" unless there is a 

reasonable doubt that the error contributed to the verdict. State v. Macon, 57 
24 A-5410-18T1

N.J. 325, 338 (1971). This is true even if the error is of constitutional dimension. 

Ibid.; State v. Slobodian, 57 N.J. 18, 23 (1970).

Under Rule 404(a)(1), "pertinent" character traits of a defendant are 

admissible if offered by the accused or by the prosecution to rebut the accused's 

assertion of his or her pertinent good character traits. See N.J.R.E. 404(a)(1); 

State v. Abril, 444 N.J. Super. 553, 560 (App. Div. 2016). Pertinent evidence 

"must relate to a character trait directly involved and apply to a relevant time 

and place in the defendant's life." Biunno, Weissbard & Zegas, Current N.J. 

Rules of Evidence, cmt. 3 on N.J.R.E. 404 (2019) (citing State v. Reyes, 50 N.J. 

454, 468 (1967); State v. Raymond, 46 N.J. Super. 463, 467 (App. Div. 1957); 

State v. Steensen, 35 N.J. Super. 103, 106-07 (App. Div. 1955)). 

As our Supreme Court explained in Scott, N.J.R.E. 608 "preclude[s] the 

use of specific instances of conduct to attack the credibility of a witness" and

"explicitly excludes specific instances of conduct as a means of proving a 

character for untruthfulness, permitting only opinion or reputational evidence."

229 N.J. at 481, 483. Rule 608 imposes a complete ban on the use of specific 

instances of conduct and "bars not only the use of extrinsic evidence but also 

cross-examination into specific instances of misconduct. Id. at 488 (Rabner, 

C.J., concurring).
25 A-5410-18T1

Our evidence rules "bar 'the use of prior instances of conduct to attack the 

credibility of a witness for two essential reasons: to prevent unfairness to the 

witness and to avoid confusion of the issues before the jury.'" Scott, 229 N.J. at 

498 (quoting State v. Guenther, 181 N.J. 129, 141 (2004)) (Albin, J., 

concurring). Furthermore, N.J.R.E. 608 "was designed to prevent unfair 

foraging into the witness's past" and to prevent "wide-ranging collateral attacks 

on the general credibility of a witness [that] would cause confusion of the true 

issues in the case." Guenther, 181 N.J. at 141-42. 

It appears from the Law Division's description of Ms. Sporman's letter to 

the Hillsborough Police Department that her testimony was intended to address

specific instances of how Officer Yock treated her and her family in the past and 

that she filed an internal affairs complaint against Officer Yock in 2013.

8

 

 

8 The Law Division's opinion describes the letter as follows: 

According to defendant, "On March 17, Wendy 

Sporman authored a three-page letter to Hillsborough 

Police Sergeant Carney detailing her internal affairs 

investigation into Officer [] Yock and her personal 

feelings about how the Hillsborough [P]olice 

[D]epartment has treated her and her family, including 

[] filing [] false allegations against her and her son." 

Defendant further explains that "this letter was 

provided to counsel for both parties in advance of Ms. 

Sporman's testimony and sets forth a detailed account 
26 A-5410-18T1

Although defendant elected not to cross-examine Officer Yock on any of these 

alleged incidents, which apparently took place years before defendant's arrest, 

defendant's merits brief similarly indicates that Ms. Sporman sought to testify 

regarding "complaints against the Hillsborough Police Department and [Officer 

Yock]," that "[s]ome of those incidents involved . . . defendant," and about her 

internal affairs complaint against him. It is clear from the limited record 

presented that Ms. Sporman's proposed testimony involved improper specific 

instances of bad conduct as opposed to proper opinion evidence related to 

truthfulness permitted by N.J.R.E. 608. 

As to the admissibility of her proposed testimony under N.J.R.E. 

404(a)(1), defendant's merits brief merely states that defendant "had an absolute 

right to call [her] as a character witness in support of his positive character of a 

pertinent trait pursuant to [Rule 404(a)(1)]." We assume from this description 

 

of her opinion that her son was being targeted by 

Hillsborough Police, but more specifically by Officer [] 

Yock who she filed an IA complaint against in 2013."

We note that because "our consideration is generally limited to the record on 

appeal, namely the appendices and transcripts," see W.H. Indus., Inc. v. 

Fundicao Balancins, Ltda, 397 N.J. Super. 455, 460 (App. Div. 2008), we could 

have rejected defendant's N.J.R.E. 608 arguments on procedural grounds as he 

did not include the letter to the Hillsborough Police Department in the record on 

appeal, frustrating an appropriate appellate review of the issue. For purposes of 

completeness, however, we address defendant's arguments on the merits. 
27 A-5410-18T1

that Ms. Sporman would have testified that defendant had an honest and truthful 

character. As noted, however, defendant did not dispute at any stage of the 

proceedings that he made the statements to the police, effectively admitting 

constructive possession of the marijuana which, based on the circumstantial 

evidence, he transported on a highway from his home to the Kohl's parking lot. 

Under these circumstances and based on the record before us, we cannot 

conclude that the court abused its discretion in precluding defendant from 

belatedly calling Ms. Sporman from testifying.

Finally, even were we to assume that the Law Division abused its 

discretion on these evidentiary issues, we conclude any error was harmless as 

there is not a reasonable doubt that the error contributed to the verdict. See

Macon, 57 N.J. at 338; see also State v. Gillespie, 208 N.J. 59, 93 (2011) (finding 

harmless error when "overwhelming proof" established guilt "independent of"

improperly admitted evidence). Defendant was witnessed on security camera 

footage taking sunglasses and socks from Kohl's without payment, he was 

wearing the stolen sunglasses when police approached him in the parking lot, 

and the CDS was found in plain view when they searched his vehicle for the 

remaining merchandise. Defendant also admitted to police officers that he both 

stole the merchandise and that he received the marijuana from someone earlier 
28 A-5410-18T1

that day and returned to Kohl's where he was seen attempting to start the vehicle. 

Consequently, no "manifest denial of justice resulted" from precluding Ms. 

Sporman's testimony as an error was not "clearly capable of producing an unjust 

result." State v. Kuropchak, 221 N.J. 368, 385-86; R. 2:10-2.

V.

We note that the Law Division's failure to sentence defendant affected the 

finality of the July 29, 2019 order. See Grow Co. v. Chokshi, 403 N.J. Super. 

443, 457-58 (App. Div. 2008) (stating generally, "only an order that finally 

adjudicates all issues as to all parties is a final order and . . . an interlocutory 

appeal is permitted only by leave of our appellate courts"). Because the matter 

was fully briefed and is otherwise ready for disposition, we exercised our 

discretion to rule on the appeal's merits. Caggiano v. Fontoura, 354 N.J. Super. 

111, 125 (App. Div. 2002). 

In sum, we affirm the Law Division's rulings with respect to defendant's 

convictions. We are, nevertheless, compelled to remand the case for sentencing. 

"The Law Division, if it finds a defendant guilty after a trial de novo from a 

municipal court conviction, is required to impose a new sentence." State v. 

Moran, 202 N.J. 311, 325 (2010); R. 3:23-8(e). The new sentence must be no 

greater than that imposed by the municipal court. See State v. Loce, 267 N.J. 
29 A-5410-18T1

Super. 10, 14 (App. Div. 1993) (citing State v. De Bonis, 58 N.J. 182, 188-89 

(1971)). Here, the Law Division did not impose a new sentence and instead 

remanded the matter to the municipal court for resentencing to consider, among 

other issues, the aggravating and mitigating factors, and to state its reasons on 

the record for sentencing defendant to a fifteen-day custodial term. 

To the extent we have not addressed any of defendant's arguments, it is 

because we have determined that they lack sufficient merit to warrant discussion 

in a written opinion. See R. 2:11-3(e)(2).

Affirmed in part and remanded in part. We do not retain jurisdiction.