SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0436-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARREN E. RICHARDSON,

Defendant-Appellant.

______________________________

Submitted October 20, 2020 – Decided

Before Judges Yannotti and Haas.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 17-10-0966.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Robert Carter Pierce, Designated Counsel, 

on the brief).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Mark Niedziela, Assistant 

Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE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.

December 1, 2020
2

A-0436-18T1

Defendant was tried before a jury and found guilty of third-degree 

possession of a controlled dangerous substance (CDS), namely marijuana, with 

intent to distribute, and other offenses. He was sentenced to an aggregate term 

of eight years of incarceration, with four years of parole ineligibility. He appeals 

from the judgment of conviction dated July 26, 2018. We affirm.

I.

In October 2017, a Passaic County grand jury returned a twenty-fourcount indictment in which defendant was charged with fourth-degree 

distribution of a CDS (marijuana), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-

5(b)(12) (count five); fourth-degree possession of a CDS (marijuana), N.J.S.A. 

2C:35-10(a)(3) (count six); third-degree possession of a CDS (marijuana), with 

intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count 

seven); third-degree distribution of a CDS (marijuana), N.J.S.A. 2C:35-5(a)(1) 

and N.J.S.A. 2C:35-5(b)(11) (count eight); fourth-degree possession of a CDS 

(hashish), N.J.S.A. 2C:35-10(a)(3) (count nine); and third-degree possession of 

a CDS (hashish), with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 

2C:35-5(b)(11) (count ten). Beatrice J. Ramirez, George E. Thomas, Shaina M. 

Harris, Daniel F. Valerio, Leonardo J. Barragan, and Kenneth Coe also were 
3

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charged in the indictment with various offenses related to the possession of a 

CDS.

1

The trial court denied defendant's motion to dismiss count five of the 

indictment and his motion to sever certain counts in the indictment. In addition, 

the court denied defendant's motions to suppress evidence based upon a 

warrantless search, preclude the State from presenting certain laboratory 

evidence, compel the State to provide additional discovery, and require the State 

to disclose the identity of a confidential informant. 

Prior to trial, Barragan pled guilty to count twenty-two of the indictment, 

in which he was charged with third-degree possession of marijuana with intent 

to distribute. In addition, Coe pled guilty to count twenty-three in which he was 

charged with fourth-degree possession of marijuana. It is unclear from the 

record how the charges against Cespedes and Harris were resolved. Defendant, 

Ramirez, and Valerio were tried before a jury. 

At the trial, Detective Vincent Ricciardelli testified that in August 2017, 

he was employed by the Wayne Township Police Department (WTPD) and 

assigned to its Special Operations and Narcotics Bureau. He was assisting the 

1

 The State and defendant refer to Thomas as George Thomas Cespedes. 
4

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Passaic County Prosecutor's Office (PCPO) in its investigation of Harris and 

Cespedes regarding the illegal possession and distribution of marijuana. 

Ricciardelli said the officers had search warrants for Harris's residences 

on Lake Drive in Haskell, New Jersey, and on Front Street in Paterson, New 

Jersey, but Harris could not be found at those locations. The officers contacted 

an informant who told them Harris was going to be at a Ramada Inn in Wayne.

On August 2, 2017, Ricciardelli and Detective Paul Kindler of the WTPD went 

to that location.

Ricciardelli testified that he observed Harris enter the hotel. Ricciardelli

and Kindler then set up surveillance at the hotel, using the hotel's surveillance 

cameras. Ricciardelli saw defendant, whom he knew from a prior narcotics 

investigation. According to Ricciardelli, defendant was supposed to be on home 

detention as a condition of bail related to other CDS charges. The hotel manager 

informed Ricciardelli that defendant was staying in Room 245. 

Ricciardelli stated that it appeared drug activity was taking place in and 

around defendant's room. Ricciardelli observed several persons coming in and 

out of the room. Early in the afternoon, Ricciardelli observed a female, who 

was later identified as Ramirez, arrive at the hotel in a white Mercedes. She 
5

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parked in the rear parking lot near Room 245 and used a key card to enter the

room. 

Ramirez thereafter exited the room, got into the Mercedes, and drove to 

the front of the hotel. She later drove the Mercedes to the rear of the building 

and parked the car alongside a Jeep. She used a key fob to open the doors to the 

Jeep and placed an object in that vehicle. She then returned to Room 245. 

On August 3, 2017, Ricciardelli and Kindler continued their surveillance 

at the hotel. Ricciardelli observed defendant and Barragan entering and exiting

Room 245. He saw defendant leave the room with a brown paper bag, go to the 

white Mercedes, place the bag on the car's rear passenger seat, and return to the 

room. A short time later, defendant left the room with a small paper bag, which 

he placed in the front passenger seat of the Mercedes. Defendant then returned 

to the room, while Ramirez and an unknown male drove off in the Mercedes. 

That afternoon, Ricciardelli observed a white Nissan Maxima arrive and 

park in the rear of the Ramada Inn. Two males, who were later identified as Coe 

and Valerio, exited the car. Coe had been driving the Nissan and Valerio was 

the passenger. They met defendant on the second-floor balcony outside Room 

245 and had a short conversation. Coe entered the room but remained in the 
6

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open doorway. Coe had a black plastic bag in his hand. He appeared to open 

the bag and show defendant its contents. Ramirez and Barragan left the room. 

A short time later, Coe emerged from the room. He was holding a small, 

white plastic shopping bag. Coe and Valerio went down the stairs and departed 

in the white Nissan Maxima. Ricciardelli radioed police units in the area and 

informed them that it appeared a drug transaction had taken place. He directed 

the units to make an investigatory stop of the car. 

At the time, Detective Gary Bierach of the Totowa Police Department 

(TPD) and another detective were stationed at a location on Route 46 in Totowa, 

a short distance from the hotel. They followed the Nissan and conducted a motor 

vehicle stop. Bierach reported to Ricciardelli what had happened during the 

stop. Ricciardelli decided to secure Room 245 at the Ramada Inn and either 

obtain consent to search the room or apply for a search warrant. He was 

concerned evidence could be altered or destroyed. 

Ricciardelli knocked on the door and loudly announced, "Police." The 

door was ajar and he could smell a heavy odor of raw marijuana. Defendant, 

Ramirez, and Barragan were in the room. The officers placed them under arrest

and removed them from the room. The officers closed and locked the door. Two 
7

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officers were posted outside to ensure no one went in or out of the room. 

Officers also monitored the Mercedes. 

Ricciardelli and another detective submitted an affidavit in support of an 

application for search warrants for defendant's room and the Mercedes. On 

August 4, 2017, a judge issued the warrants, which were executed that day. 

Ricciardelli testified that on a writing desk, the officers found a partiallysmoked marijuana cigarette, a box of unused sandwich bags, a box of tin foil, 

an open roll of black garbage bags, a box of rubber bands, a pipe used to smoke 

tetrahydrocannabinol (THC) oil, and two containers with a residue of oil. In a 

wastepaper basket under the table, the officers found a clear Tupperware 

container with a digital scale and two bags of suspected raw marijuana. 

Behind the door, the officers found a black garbage bag with trash. In the 

bag, the officers recovered a large food bag with suspected marijuana and a bag 

containing three empty plastic bags. On the bed, the officers found an open 

suitcase with a food saver bag. They found $3055 in cash on the nightstand, of 

which $3000 was wrapped in $1000 bundles with rubber bands. In the 

refrigerator, the officers found two sheets of THC wax wrapped in wax paper. 

In a compartment in the trunk of the Mercedes, the officers recovered 

$17,500 in cash, of which $17,000 was wrapped in $1000 bundles with rubber 
8

A-0436-18T1

bands similar to those found in the room. The money was in white and black 

plastic bags, which were stuffed inside an empty box that had been placed into 

another box. 

On cross-examination, Ricciardelli stated that he contacted the Passaic 

County Sheriff's Office and requested a K-9 team to examine Room 245 and the 

Mercedes for the presence of CDS. The team arrived after the officers secured 

the room. Ricciardelli said the dog sniffed the Mercedes and the area of the 

room but did not provide a conclusive "alert" of the presence of CDS at either 

location. 

Bierach testified that in August 2017, he was employed by the TPD and

assigned to the PCPO's Narcotics Task Force. He stated that on August 3, 2017, 

he was with another detective in an unmarked car. After receiving a 

communication from Ricciardelli, Bierach observed the white Nissan traveling 

east on Route 46. Bierach activated the lights and sirens on his vehicle and 

stopped the Nissan. 

Coe and Valerio were in the car. Bierach approached the car from the 

driver's side and detected a strong odor of marijuana. He asked Coe and Valerio

to exit the vehicle. According to Bierach, Valerio blurted out that he had "a bag 
9

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of weed."

2 He removed the bag from the waistband of his pants and handed it 

to Bierach. Valerio and Coe were arrested. 

Bierach performed a visual search of the interior of the car. He observed 

a white plastic bag and marijuana. On the passenger side door, Bierach found a 

pull-string bag that contained marijuana and a grinding device. In a 

compartment in the trunk, the officers recovered $17,500 in cash bundled in 

rubber bands similar to those found in the room. Valerio and Coe were taken to 

the TPD. Bierach transported the evidence to police headquarters and then 

returned to the Ramada Inn to assist in securing the individuals found Room 

245. The following day, he returned to the hotel and assisted the other officers

in executing the search warrants. 

Lieutenant Harrison Dillard of the Morris County Prosecutor's Office 

testified as an expert in street-level drug distribution. Dillard described 

marijuana and its characteristics, including its odor. He discussed the use of 

hotel rooms and automobiles in drug-distribution schemes and the packaging of 

2

 During trial, the court conducted a N.J.R.E. 104 hearing and struck from the 

record Bierach's testimony that Valerio said he had a "bag of weed" on the basis 

that it was made in violation of Miranda v. Arizona, 384 U.S. 436 (1966). 

Consequently, Valerio's charge was reduced to the possession of marijuana, a 

disorderly persons offense. 
10 A-0436-18T1

marijuana. He described THC, THC wax, and the significance of the packaging 

of cash in bundles using rubber bands. 

Valerio testified that on August 3, 2017, he went with Coe to the Ramada 

Inn in Coe's white Nissan. Valerio acknowledged that earlier that day, he had 

smoked marijuana. Valerio and Coe got out of the car and went to defendant's

room. Coe was carrying a black plastic bag with White Owl cigars. Defendant 

greeted them. Coe went into the room and Valerio remained outside on the 

second-floor balcony, smoking a cigarette. 

Valerio testified that when Coe left the room, he was carrying a white 

plastic bag but he did not know what was in the bag. They got into the car. 

Valerio said he did not know what Coe did with the white plastic bag. They left 

the hotel and drove to Totowa. On the way, the police stopped the car. 

Defendant did not testify at trial; however, he called his mother as a 

witness. She stated that she had been living with defendant, Harris,

3

and others 

at a home on Lake Drive in Haskell. Defendant's mother said the family had to 

vacate the Lake Drive residence by the end of July 2017. She moved to a hotel 

in Ramsey, and defendant rented a room at the Ramada Inn in Wayne. She 

3

 Harris is defendant's sister.
11 A-0436-18T1

testified that suitcases from Harris's room at the Lake Drive residence were 

transported to defendant's room at the Ramada Inn. 

The judge dismissed count eight in which defendant was charged with

third-degree distribution of marijuana. The jury found defendant guilty on 

counts five (fourth-degree distribution of marijuana), six (fourth-degree 

possession of marijuana), seven (third-degree possession of marijuana, with 

intent to distribute), and nine (fourth-degree possession of hashish). The jury 

found defendant not guilty on count ten (third-degree possession of hashish, with 

intent to distribute. The jury also found Ramirez guilty on count three (fourthdegree possession of hashish), and Valerio not guilty of the disorderly persons 

charge of possession of marijuana. 

As stated previously, the trial court sentenced defendant to an aggregate 

term of eight years of incarceration with four years of parole ineligibility. The 

court filed a judgment of conviction dated July 26, 2018. This appeal followed.

On appeal, defendant's attorney raises the following arguments:

POINT I

[DEFENDANT'S] CONVICTIONS FOR THIRDDEGREE POSSESSION OF ONE OUNCE OR MORE 

OF MARIJUANA WITH THE INTENT TO 

DISTRIBUTE, POSSESSION OF FIFTY GRAMS OR 

MORE OF MARIJUANA AND POSSESSION OF 

FIVE GRAMS OR MORE OF HASHISH MUST BE 

REVERSED BECAUSE THE TRIAL COURT 
12 A-0436-18T1

PROVIDED ERRONEOUS JURY CHARGES AND A 

FATALLY FLAWED VERDICT SHEET. (Not Raised 

Below).

A. THE JURY DID NOT DETERMINE THE 

QUANTITY OF THE MARIJUANA POSSESSED 

WITH THE INTENT TO DISTRIBUTE OR THE 

AMOUNT OF MARIJUANA AND HASHISH 

POSSESSED.

B. THE INDICTMENT DID NOT PROVIDE FOR 

AGGREGATION OF WEIGHT.

C. THE JURY INSTRUCTION WAS ERRONEOUS.

POINT II

THE TRIAL COURT ERRED BY NOT 

SUPPRESSING THE EVIDENCE FROM THE 

WARRANTLESS SEARCH OF [DEFENDANT'S] 

HOTEL ROOM.

POINT III

THE TRIAL COURT ERRED BY NOT 

SUPPRESSING THE PHYSICAL EVIDENCE 

OBTAINED FROM THE SEARCH WARRANTS OF 

[DEFENDANT'S] ROOM AND RAMIREZ'[S] 

MOTOR VEHICLE BECAUSE THERE WERE 

MATERIAL MISSTATEMENTS IN THE SEARCH 

WARRANT AFFIDAVIT.

POINT IV

THE TRIAL COURT ERRED BY PERMITTING 

DETECTIVE RICCIARDELLI TO PROVIDE 

HEARSAY EXPERT TESTIMONY AS TO WHY K-9 

JUSTUS DID NOT ALERT TO CDS AT 

[DEFENDANT'S] ROOM OR RAMIREZ'[S] MOTOR 

VEHICLE.
13 A-0436-18T1

POINT V

THE TRIAL COURT ERRED BY DENYING 

[DEFENDANT'S] REQUEST FOR AN ADVERSE 

INFERENCE JURY CHARGE FOR THE STATE'S 

FAILURE TO CALL THE K-9 HANDLER AS A 

WITNESS AND A SPOLIATION JURY CHARGE 

FOR THE STATE'S FAILURE TO SECURE THE 

VIDEO SURVEILLANCE TAPE FROM THE 

RAMADA INN.

POINT VI

THE TRIAL COURT COMMITTED PLAIN ERROR 

BY NOT STRIKING, SUA SPONTE, 

INADMISSIBLE N.J.R.E. 404(B) EVIDENCE THAT 

[DEFENDANT] CONTINUALLY SMOKED 

MARIJUANA AND THEN FAILING TO GIVE THE 

JURY A CURATIVE INSTRUCTION. (Not Raised 

Below).

POINT VII

THE TRIAL COURT ERRED BY NOT RULING ON 

[DEFENDANT'S] MOTION FOR A NEW TRIAL.

POINT VIII

THE TRIAL COURT ERRRED BY NOT 

ADJOURNING [DEFENDANT'S] ACCELERATED 

SENTENCING DATE.

Defendant filed a pro se supplemental brief, in which he argues:

POINT I

THE LOWER COURT'S ORAL DECISION WAS IN 

CLEAR CONFLICT WITH THE NEW JERSEY 

SUPREME COURT'S RULING IN BROWN v. 

STATE, 230 N.J. 84 (2017).

A. THE LOWER COURT ERRED BY AGREEING 

WITH LAW ENFOCEMENT OFFICIALS THAT 
14 A-0436-18T1

THEIR INITIAL [WARRANTLESS] ENTRY INTO 

THE HOTEL ROOM WAS CONSTITUTIONALLY 

PERMITTED IN ORDER TO "SECURE" THE 

ROOM.

B. THE LOWER COURT ERRED BY FAILING TO 

MAKE A DETERMINATION REGARDING THE 

WARRANTLESS SEIZURE OF DEFENDANTS, 

MADE UPON A WARRANTLESS ENTRY.

C. THE LOWER COURT'S FINDING THAT 

OFFICERS CONDUCTED AN "INVESTIGATORY 

SWEEP," WHICH WAS WHOLLY THE STATE'S 

ARGUMENT IN ITS BRIEF AND AT THE 

FEBRUARY 21, 2018 NON-TESTIMONIAL 

HEARING, WAS IN EFFECT A FINDING THAT A 

WARRANTLESS SEARCH WAS CONDUCTED.

i. IF AN "INVESTIGATORY SWEEP" IS A 

"PROTECTIVE SWEEP," SUCH ACTION 

WAS NOT PERMISSIBLE IN THIS MATTER.

POINT II

THE LOWER COURT ERRONEOUSLY BASED ITS 

DECISION UPON MISAPPLICATION OF STATE v. 

ALVAREZ, 238 N.J. SUPER. 560 (APP. DIV. 1990).

POINT III

THE LOWER COURT ERRONEOUSLY BASED ITS 

DECISION UPON MISAPPLICATION OF STATE v. 

CLEVELAND, 371 N.J. SUPER. 286 (APP. DIV. 

2004).

A. THE LOWER COURT ERRONEOUSLY FOUND 

THAT DEFENDANT'S HOTEL ROOM'S INTERIOR 

WAS VISIBLE, CONTRARY TO THE FACTS 

PRESENTED BY THE STATE.
15 A-0436-18T1

B. STATE v. CLEVELAND DEALT WITH THE 

"PLAIN VIEW" EXCEPTION, WHICH IS NOT 

CONSISTENT WITH THE CASE AT BAR.

C. STATE v. CLEVELAND PERMITTED ENTRY 

INTO A HOTEL ROOM PURSUANT TO A VALID 

ARREST WARRANT BECAUSE "MILLER 

FACTORS" WERE SATISFIED TO JUSTIFY A 

WARRANTLESS ENTRY TO ARREST AN ARMED 

FUGITIVE.

POINT IV

THE LOWER COURT'S BRIEF GENERAL CLAIM 

OF EXIGENCY WAS UNSUPPORTED AND NO 

OBJECTIVELY REASONABLE BASIS WAS 

PROVIDED TO JUSTIFY A FINDING THAT THERE 

WAS AN OPPORTUNITY FOR DESTRUCTION OF 

EVIDENCE.

A. DESTRUCTION OF EVIDENCE WAS NOT 

IMMINENT IN THIS MATTER[] AND WAS 

NOTHING MORE THAN POLICE-CLAIMED 

SPECULATION.

B. THE LOWER COURT FAILED TO CONSIDER 

WHETHER "INVESTIGATIVE DETENTION" OF 

THE OCCUPANTS OF THE WHITE NISSAN WAS 

AN OPTION PENDING A WARRANT 

APPLICATION; OR, WHETHER AN 

ANTICIPATORY WARRANT WAS AN OPTION; 

OR, WHETHER POLICE COULD HAVE TIMELY 

OBTAINED A TELEPHONIC WARRANT.

C. THE LOWER COURT IMPROPERLY 

CONSIDERED THAT AN OPENED BAG OF 

MARIJUANA HAD A STRONG ODOR IN THE 

COURTROOM. 
16 A-0436-18T1

II. 

Defendant argues, for the first time on appeal, that his convictions on 

counts six, seven, and nine must be reversed because the trial court provided the 

jury with erroneous instructions regarding these charges and a fatally flawed 

verdict sheet regarding these offenses. 

"[C]lear and correct jury charges are essential to a fair trial . . . ." Wade 

v. Kessler Inst., 172 N.J. 327, 341 (2002) (alteration in original) (quoting Das 

v. Thani, 171 N.J. 518, 527 (2002)). "Jury charges 'must outline the function of 

the jury, set forth the issues, correctly state the applicable law in understandable 

language, and plainly spell out how the jury should apply the legal principles to 

the facts as it may find them . . . .'" Velazquez v. Portadin, 163 N.J. 677, 688 

(2000) (quoting Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966)).

Generally, "an appellate court will not disturb a jury's verdict based on a 

trial court's instructional error 'where the charge, considered as a whole, 

adequately conveys the law and is unlikely to confuse or mislead the jury, even 

though part of the charge, standing alone, might be incorrect.'" Wade, 172 N.J. 

at 341 (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)). The same 

standard applies "when evaluating the adequacy of a jury's interrogatories or 
17 A-0436-18T1

verdict sheet." Ibid. (citing Mogull v. CB Com. Real Est. Grp., Inc., 162 N.J. 

449, 467-68 (2000)).

"Without an objection at the time a jury instruction is given, 'there is a 

presumption that the charge was not error and was unlikely to prejudice the 

defendant's case.'" State v. Montalvo, 229 N.J. 300, 320 (2017) (quoting State 

v. Singleton, 211 N.J. 157, 182 (2012)). When a party fails to object to a jury 

instruction, an appellate court reviews the instruction for plain error. Ibid.

(citing R. 1:7-2; State v. Wakefield, 190 N.J. 397, 472-73 (2007)).

"Plain error refers to any error 'clearly capable of producing an unjust 

result.'" Id. at 320-21 (quoting R. 2:10-2). "Regarding a jury instruction, 'plain 

error requires demonstration of legal impropriety in the charge prejudicially 

affecting the substantial rights of the defendant and sufficiently grievous to 

justify notice by the reviewing court and to convince the court that of itself the 

error possessed a clear capacity to bring about an unjust result.'" Id. at 321 

(quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

N.J.S.A. 2C:35-5(c) states "[w]here the degree of the offense for violation 

of this section depends on the quantity of the substance, the quantity involved 

shall be determined by the trier of fact." The Model Jury Charge provides that:

N.J.S.A. 2C:35-5 grades this offense for sentencing 

purposes by the type, quantity and purity of the CDS 
18 A-0436-18T1

involved. In certain cases, the defendant is guilty of an 

offense regardless of the quantity and purity of the CDS 

distributed. This charge is sufficient for such cases. 

However, in cases in which the quantity and/or purity 

of the CDS is an element of the offense, N.J.S.A. 

2C:35-5c requires that this element be determined by 

the jury. In such a case, this charge would have to be 

supplemented to add this element.

[Model Jury Charges (Criminal), "Possession of a 

Controlled Dangerous Substance with Intent to 

Distribute (N.J.S.A. 2C:35-5)" (rev. June 8, 2015).]

The supplemental charge referred to above states:

[THE FOLLOWING IS TO BE CHARGED WHEN 

MARIJUANA OR HASHISH IS INVOLVED N.J.S.A. 

2C:35-5(b)(10) - (12)]

Specifically, you must determine which one of the 

following quantities has been proven: . . .

2. (One (1) ounce) or more of (marijuana) (hashish) 

. . . including any adulterants and dilutants.

3. Less than (one (1) ounce) (five (5) grams) of 

(marijuana) (hashish) including any adulterants and

dilutants.

After determining which one of these quantities the 

State has proven beyond a reasonable doubt, you should 

mark the appropriate section of the verdict sheet which 

will be supplied to you.

[Model Jury Charges (Criminal), "Supplemental 

Charge to Offenses Set Forth in N.J.S.A. 2C:35-5" (rev. 

Feb. 3, 1992).]
19 A-0436-18T1

At trial, the parties agreed to a stipulation that provided, among other 

things, that: (1) the marijuana in the State's exhibits S-1, S-3, and S-4 had a 

combined weight of 368.5 grams, which is more than one ounce but less than 

five pounds; (2) the marijuana in exhibits S-5 through and including S-7 had a 

combined weight of 58.51 grams which is in excess of 50 grams, and (3) the 

hashish in exhibit S-2 had a combined weight of 24.3 grams which is in excess 

of five grams but less than one pound.4 

In count six, defendant was charged under N.J.S.A. 2C:35-10(a)(3) with 

possession of marijuana in a quantity in excess of fifty grams. The jury found 

defendant guilty of this offense. The jury also found defendant unlawfully 

possessed S-1, S-3, and S-4. As noted, the parties stipulated that the combined 

weight of these three exhibits was 368.5 grams. 

Furthermore, in count seven, defendant was charged under N.J.S.A. 

2C:35-5(a)(1) and 35-5(b)(11) with possession of marijuana, in a quantity of one 

ounce or more but less than five pounds, with intent to distribute. The jury found 

defendant guilty of this offense. As noted above, the jury found defendant 

4

 The record indicates that the exhibits were: a partially-smoked marijuana cigar 

(S-1); THC wax (S-2); two bags of marijuana from Room 245 (S-3); a vacuumsealed package containing marijuana from Room 245 (S-4); a bag of marijuana 

seized from defendant's pants (S-5); two plastic bags containing marijuana from 

the Nissan (S-6); and a pull-string jewelry bag containing marijuana (S-7). 
20 A-0436-18T1

unlawfully possessed S-1, S-3, and S-4. According to the stipulation, these three 

exhibits had a combined weight of 368.5 grams, which is more than one ounce 

but less than five pounds.

In addition, in count nine, defendant was charged under N.J.S.A. 2C:35-

10(a)(3) with possession of hashish in a quantity of more than five grams. As 

noted, the parties stipulated that the hashish in S-2 had a combined weight of 

24.3 grams. 

Defendant contends the judge erred by failing to instruct the jury that it 

must find beyond a reasonable doubt that he possessed the requisite quantities 

of CDS to be found guilty on counts six, seven, and nine. We disagree. The 

stipulation obviated the need for specific instructions or findings by the jury on 

the weight of the CDS required for conviction on each count. Nevertheless, in 

charging the jury on these three counts, the judge instructed the jury that it had 

to find that defendant possessed the CDS in the specific quantities applicable to 

each charge. 

In addition, the jury specifically found that defendant possessed S-1, S-3, 

and S-4, which represented a determination that defendant possessed marijuana 

in the quantities charged under counts six and seven. Moreover, the jury's 
21 A-0436-18T1

decision on count nine represents a determination that defendant possessed 

hashish in the amount charged. 

Defendant further argues that the trial judge erred by failing to instruct the 

jury on the manner for aggregating the weight of the drugs in the State's exhibits. 

Again, we disagree. N.J.S.A. 2C:35-5(c) states that "[w]here the indictment or 

accusation so provides, the quantity involved in individual acts of . . . possessing 

with intent to distribute may be aggregated in determining the grade of the 

offense . . . ."

Defendant asserts that under State v. Rodriguez, 234 N.J. Super. 298, 306-

10 (App. Div. 1989), aggregation of the quantity of the CDS is only permissible

"if the indictment so provides." In this case, the indictment clearly placed 

defendant on notice of the quantities of CDS charged in counts six, seven, and 

nine. Thus, aggregation was permissible. Moreover, the parties stipulated to 

the combined amounts of marijuana and hashish in certain exhibits. Thus, 

defendant's reliance upon Rodriguez is misplaced. 

Defendant also contends the jury instructions were flawed because the 

stipulation did not set forth the individual weight of the CDS is certain exhibits, 

the judge "lumped" the hashish with the marijuana, and did not give the jury the 
22 A-0436-18T1

opportunity to exclude some of the marijuana. These arguments are without 

merit. 

As noted, defense counsel agreed to the stipulation and had no objection 

to the instructions. In addition, the stipulation separately addressed the 

marijuana and hashish, and there was no basis in the evidence for the jury to 

exclude some of the marijuana. 

Even if a more specific instruction should have been provided to the jury 

regarding aggregation of the CDS, the absence of such an instruction did not rise 

to the level of plain error. It was not an error "clearly capable of producing an 

unjust result." R. 2:10-2. 

Defendant's remaining arguments concerning the jury instructions and 

verdict sheet regarding counts six, seven, and nine lack sufficient merit to 

warrant discussion. R. 2:11-3(e)(2). 

III.

Next, defendant argues the trial judge erred by denying his motion to 

suppress the evidence obtained from the search of the hotel room. Here, the 

judge found that the law enforcement officers had a reasonable belief that a 

crime had been committed and the officers acted lawfully in securing the room 

and detaining defendant, Ramirez, and Barragan while they sought the search 
23 A-0436-18T1

warrants. Defendant argues that the State failed to establish exigent 

circumstances that justified the warrantless entry into the hotel room. 

When reviewing the denial of a motion to suppress, we defer to the trial

court's findings of fact "so long as those findings are supported by sufficient 

evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015). We

disregard those findings of fact only if "clearly mistaken." Ibid. However, a 

trial court's legal conclusions are not entitled to special deference and are 

reviewed de novo. Id. at 263. 

"The Fourth Amendment to the United States Constitution and Article I, 

paragraph [seven] of the New Jersey Constitution require that police officers 

obtain a warrant 'before searching a person's property, unless the search falls 

within one of the recognized exceptions to the warrant requirement.'" State v. 

Cassidy, 179 N.J. 150, 159-60 (2004) (quoting State v. DeLuca, 168 N.J. 626, 

631 (2001); U.S. Const. amend IV; N.J. Const. art. I, ¶ 7).

"Exigent circumstances" is a recognized exception to the warrant 

requirement, and when "coupled with the existence of probable cause, will 

excuse a police officer's failure to have secured a written warrant prior to a 

search for criminal wrongdoing." Cassidy, 179 N.J. at 160 (citations omitted). 

"[C]ircumstances have been found to be exigent when they 'preclude 
24 A-0436-18T1

expenditure of the time necessary to obtain a warrant because of a probability 

that the suspect or the object of the search will disappear, or both.'" Ibid.

(quoting State v. Smith, 129 N.J. Super. 430, 435 (App. Div. 1974)). In

determining if there is an exigency, the court should consider: 

the degree of urgency and the amount of time necessary 

to obtain a warrant; the reasonable belief that the 

evidence was about to be lost, destroyed, or removed 

from the scene; the severity or seriousness of the 

offense involved; the possibility that a suspect was

armed or dangerous; and the strength or weakness of 

the underlying probable cause determination.

[Deluca, 168 N.J. at 632.]

When the State contends the threatened removal of drugs from a residence 

is an exigent circumstance, the court must consider "whether the physical 

character of the premises is conducive to effective surveillance, as an alternative 

to a warrantless entry," while the officers seek a warrant. State v. De La Paz, 

337 N.J. Super. 181, 196 (App. Div. 2001) (quoting State v. Alvarez, 238 N.J. 

Super. 560, 568 (App. Div. 1990)). Exigent circumstances that arise "from 

unreasonable investigative conduct cannot justify [a] warrantless home entr[y]." 

Ibid.

Here, the trial judge noted that the officers at the hotel had observed 

defendant go back and forth from the room to the Mercedes several times and 
25 A-0436-18T1

place a bag in the car. The officers also observed Coe arrive at the hotel and 

show defendant a bag. Coe entered the room and later left with a different bag. 

The judge found that, based on their training and experience, the officers had a 

good faith basis for believing defendant and others had committed a crime. 

The judge also noted that after Coe and Valerio left the hotel, the officers 

at the hotel had Coe's Nissan stopped on Route 46. Bierach approached the car 

and detected the odor of marijuana. The judge found that Bierach had a 

reasonable suspicion to believe the Nissan contained narcotics. The judge stated 

that the officers validly undertook a warrantless search of the Nissan.

The judge further found that thereafter, the officers at the hotel had 

sufficient information to undertake an investigatory sweep of Room 245 and 

detain defendant and the other occupants of the room so that the suspected CDS

in the room was not destroyed. The judge rejected the assertion that the officers 

created an exigency. We are convinced there is sufficient credible evidence in 

the record to support the trial court's findings. 

Defendant argues, however, that there is no evidence indicating he had

knowledge he was under police investigation and surveillance at the hotel, or 

that he posed a threat to the police or the public. He contends the distribution 
26 A-0436-18T1

of thirty grams of marijuana to Coe is a fourth-degree offense, and that such a 

minor offense did not justify the warrantless entry into the hotel room. 

We are convinced, however, that there is sufficient credible evidence in 

the record to support the trial court's finding that the officers' entry into the hotel 

room was justified because, under the circumstances, there was an opportunity 

for the alteration or destruction of the evidence, particularly after the officers 

stopped and arrested Valerio and Coe. Moreover, a fourth-degree offense is a 

felony and not a minor offense. 

In support of his argument that there was no exigency to justify the 

warrantless entry into the hotel room, defendant cites Brown v. State, 230 N.J. 

84 (2017). In that case, the Court considered whether the defendant member of 

the State Police was entitled to qualified immunity on the plaintiff's claim under

the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. Id. at 89. 

In Brown, the plaintiff loaned her vehicle to her boyfriend, who was a 

suspect in a home invasion. Id. at 91. State Troopers stopped the vehicle, 

arrested the plaintiff's boyfriend for driving with a suspended license, 

impounded the vehicle, and notified the plaintiff. Ibid. The State Police kept 

the impounded vehicle for a week while continuing to investigate the home 

invasion. Ibid. 
27 A-0436-18T1

Thereafter, the State Police obtained a warrant to search the vehicle and 

found contraband, a gun holster, and other items that linked the car to the home 

invasion. Ibid. The officers did not, however, find a locket that had been

reported stolen in the home invasion. Ibid. Accordingly, the State Police 

decided to search the plaintiff's apartment. Ibid. The plaintiff refused to consent 

to the search. Id. at 92. 

The defendant told the plaintiff that if she refused consent, he would seek 

a search warrant and, in the interim, either prevent her from entering the home 

or allow her access, accompanied by police, to prevent loss or destruction of 

evidence. Ibid. The plaintiff decided to enter the apartment with an officer. Id.

at 93. The State Police obtained a search warrant several hours later and 

returned to search the apartment. Ibid. 

The State Police found a black drawstring bag that was similar to a bag

described by the victims and eyewitnesses to the home invasion, but they did 

not find the locket. Ibid. The Court held that under the circumstances, the 

defendant State Trooper was entitled to qualified immunity because "regardless 

of whether his conduct amount[ed] to a violation of [the plaintiff's]

constitutional right, that right was not clearly established at the time that he 

acted." Id. at 110 (citing Pearson v. Callahan, 555 U.S. 223, 227 (2009)). 
28 A-0436-18T1

The Court also provided guidance regarding application of the exigency 

exception to the warrant requirement. Ibid. The Court stated that a policecreated exigency does not justify a warrantless entry into a home, "in 

comparison to exigency that arises 'as a result of reasonable police investigative 

conduct intended to generate evidence of criminal activity,' which can justify 

entry." Id. at 111 (quoting State v. Hutchins, 116 N.J. 457, 460 (1989)). 

Moreover, a person's refusal to consent to a search "cannot be the 

justification for the warrantless entry into a home." Ibid. (quoting State v. 

Frankel, 179 N.J. 586, 611 (2004)). The Court also stated that law enforcement 

officers may not enter an apartment to secure the premises while awaiting a 

search warrant. Id. at 111-12. "They must get a warrant and, if reasonably 

necessary, may secure the apartment for a reasonable period of time from the 

outside." Id. at 112. 

In our view, defendant's reliance on Brown is misplaced. Here, the trial 

court found that the exigency was not police-created, but rather the result of the 

officers' investigation of the suspected drug-distribution activity involving the 

hotel room and the Mercedes. The exigency arose when the police stopped 

Valerio and Coe. 
29 A-0436-18T1

It was reasonable for the officers at the hotel to assume defendant could 

learn that Valerio and Coe had been stopped and arrested, and defendant and the 

other occupants of the hotel room might destroy evidence. Furthermore, the 

police reasonably chose to enter the room to remove the occupants to ensure 

they did not alter or destroy evidence therein, while they sought the search 

warrants. 

IV.

Defendant contends the trial court erred by denying his motion to suppress 

evidence obtained in the execution of the search warrants for the hotel room and 

Mercedes. Defendant argues there were material misstatements and omissions 

in the application for the search warrants which rendered the searches invalid. 

It is well-established that an affidavit for a search warrant is presumed to 

be valid. Franks v. Delaware, 438 U.S. 154, 171 (1978). A defendant who 

challenges the validity of a search warrant affidavit is entitled to a Franks

hearing only if the "defendant makes a substantial preliminary showing that a 

false statement knowingly and intentionally, or with reckless disregard for the 

truth, was included by the affiant in the warrant affidavit, and if the allegedly 

false statement is necessary to the finding of probable cause . . . ." Id. at 155-

56. 
30 A-0436-18T1

In making this showing, the defendant "must allege 'deliberate falsehood 

or reckless disregard for the truth,' pointing out with specificity the portions of 

the warrant that are claimed to be untrue." State v. Howery, 80 N.J. 563, 567 

(1979) (quoting Franks, 438 U.S. at 171)). The defendant also must show that 

the misstatements claimed to be false are material "to the extent that when they 

are excised from the affidavit, that document no longer contains facts sufficient 

to establish probable cause." Id. at 568 (citing Franks, 438 U.S. at 171). 

Here, defendant argues the affidavit submitted in support of the 

application for the search warrants did not include certain facts that "rendered 

the affidavit materially false." He asserts that Ricciardelli willfully failed to

disclose that the K-9 officer had reported that the dog did not alert to the 

presence of CDS. However, Ricciardelli testified that the dog did not provide a

conclusive positive "alert." These facts had no material bearing on whether a 

warrant should issue. 

Defendant also contends that in the affidavit, the officers falsely stated 

they continued their surveillance at the hotel in an attempt to locate Harris, with 

negative results. He contends this statement was willfully false because the 

police had already seen Harris in Paterson. 
31 A-0436-18T1

The record shows, however, that the detectives learned through a 

confidential informant that Harris would be visiting the hotel. They saw Harris 

enter the hotel, where the officers observed defendant and others engage in what 

appeared to be the unlawful distribution of CDS and therefore continued the 

surveillance. The statement regarding the investigation of Harris was not false 

or material to the issuance of the warrants. 

In addition, defendant contends that in the affidavit, the officers failed to 

state that when Ricciardelli inserted the key card into the slot on the door to the 

hotel room, the door was already open. Defendant has not shown, however, that 

this fact had any bearing on the probable cause determination. 

Thus, defendant has not shown that the alleged misstatements and 

omissions were material, were made deliberately or with reckless disregard for 

the truth. Furthermore, the other facts in the affidavit established probable cause 

for the search of the hotel room and the Mercedes. Therefore, the judge did not 

err by denying defendant's motion to suppress evidence recovered in the search 

of the hotel room and Mercedes. 

V.

Defendant argues that the trial judge erred by allowing Ricciardelli to 

testify as to the reasons that the K-9 team's dog did not provide a conclusive 
32 A-0436-18T1

alert to the presence of CDS in the hotel room or the Mercedes. Defendant 

contends this testimony was inadmissible hearsay. We disagree. 

"A statement, made other than by the witness while testifying, offered to 

prove the truth of the content of the statement is hearsay evidence and is 

inadmissible unless it falls within one of the hearsay exceptions." State v. 

Savage, 172 N.J. 374, 402 (2002) (quoting State v. Phelps, 96 N.J. 500, 508 

(1984)). "If evidence is not offered for the truth of the matter asserted, the 

evidence is not hearsay and no exception to the hearsay rule is necessary . . . ." 

State v. Long, 173 N.J. 138, 152 (2002) (citing State v. Chavies, 345 N.J. Super. 

254, 274 (App. Div. 2001)). 

During cross-examination, Ricciardelli acknowledged that in the affidavit 

for the search warrants, he did not state that the K-9 team's dog did not give a 

positive "alert" for CDS in the room or Mercedes. Defense counsel did not 

permit Ricciardelli to explain his reasons for omitting this information. On 

redirect, Ricciardelli stated that the K-9 officer informed him the dog could not 

pinpoint the location of the CDS because of windy conditions and the 

overwhelming odor of marijuana in the area. 

The judge correctly found that this testimony was not hearsay because it 

was not "offered for the truth of the matter asserted . . . ." Long, 173 N.J. at 
33 A-0436-18T1

152. Rather, Ricciardelli's testimony explained why he did not include that 

information in the affidavit for the search warrants. See Russell v. Rutgers 

Cmty. Health Plan, 280 N.J. Super. 445, 456-57 (App. Div. 1995) (noting that 

statements are not hearsay when made to explain the reasons for the witness's

actions).

VI.

Next, defendant argues that the trial judge erred by denying his request 

for an adverse inference charge based on the State's failure to call the K-9 dog's

handler as a witness at trial. We disagree. 

We review a lower court's decision on whether to provide an adverse 

inference charge for abuse of discretion. State v. Dabas, 215 N.J. 114, 132 

(2013). On appeal, we rely on the lower court's "dispassionate assessment of 

the circumstances to determine whether reference to an inference in summation 

is warranted and, further, whether a jury instruction should be injected into the 

mix of the parties' arguments, informing the jurors that they may draw such an 

inference from a party's failure to call a witness." State v. Hill, 199 N.J. 545, 

561 (2009) (citing State v. Clawans, 38 N.J. 162, 172 (1962)). 

"Care must be exercised because the inference is not invariably available 

whenever a party does not call a witness who has knowledge of relevant facts." 
34 A-0436-18T1

Ibid. When making a decision on an application for an adverse inference, the 

trial judge should consider the following: 

(1) that the uncalled witness is peculiarly within the 

control or power of only the one party, or that there is 

a special relationship between the party and the witness 

or the party has superior knowledge of the identity of 

the witness or of the testimony the witness might be 

expected to give; (2) that the witness is available to that 

party both practically and physically; (3) that the 

testimony of the uncalled witness will elucidate 

relevant and critical facts in issue [;] and (4) that such 

testimony appears to be superior to that already utilized 

in respect to the fact to be proven.

[Ibid. (quoting State v. Hickman, 204 N.J. Super. 409, 

414 (App. Div. 1985)).]

Here, defendant argues the State should have called the K-9 team's dog 

handler to testify about the dog's reactions concerning the possible presence of 

CDS at the hotel room and Mercedes. The trial judge denied defendant's request 

for an adverse charge but permitted defendant's counsel "to argue to the jury in 

any way" regarding the State's failure to call this witness. 

The K-9 officer was "within the control" of and available to the State "both 

practically and physically." Id. at 561. In addition, the officer's testimony about 

the dog's reactions would have been "superior" to Ricciardelli's testimony on 

this issue. Ibid.
35 A-0436-18T1

However, the officer's testimony would not have addressed a critical fact 

at issue in this case. Although the dog did not provide a conclusive, positive 

"alert" for the presence of CDS in the hotel room or the Mercedes, the State 

presented evidence that the police recovered CDS in both locations. The judge 

did not mistakenly exercise his discretion by refusing to provide the jury with 

an adverse inference charge. 

Defendant also argues that the judge erred by failing to provide the jury 

with a spoliation charge. He contends the charge was warranted because the 

State did not preserve the surveillance videos from the hotel. Again, we 

disagree. 

A spoliation inference "allows a jury . . . to presume that the evidence the 

spoliator destroyed or otherwise concealed would have been unfavorable to him 

or her." Dabas, 215 N.J. at 140 n.12 (quoting Rosenblit v. Zimmerman, 166 N.J. 

391, 401-02 (2001)). "An adverse inference charge balances the equities, in that 

the factfinder is permitted to presume that the evidence the spoliator destroyed 

or concealed would have been unfavorable to him or her. " Bldg. Materials Corp. 

of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 472 (App. Div. 2012). "When 

the duty to preserve evidence is violated, the party is responsible regardless of 
36 A-0436-18T1

whether the spoliation occurred because of intentional or negligent conduct." 

Id. at 472-73. 

In this case, Ricciardelli used the surveillance camera in the hotel 

manager's office to observe defendant. Ricciardelli returned to the hotel a week 

or a week-and-a-half after the surveillance to obtain a recording of the hotel's 

surveillance footage. He testified that he was told the footage had been 

"overwritten." 

There is no evidence that Ricciardelli ever possessed or exerted control of 

the footage, or that he "destroyed" or "concealed" evidence that would have been 

"unfavorable" to the State. Id. at 472. The trial court found Ricciardelli's 

testimony to be credible. The court's refusal to provide a spoliation charge was 

not an abuse of discretion. 

VII.

Defendant argues that the trial judge committed plain error by failing to 

strike, sua sponte, Valerio's testimony regarding his use of marijuana. Valerio 

testified that he and defendant smoked marijuana together "whenever we get a 

chance . . . ." He stated that defendant asked him and Coe for marijuana. He 

also testified that "Coe went inside [the hotel room] and rolled a cigar for him." 

Defendant's attorney did not object to the testimony. 
37 A-0436-18T1

N.J.R.E. 404(b)(1) does not permit the admission of evidence of other 

crimes, wrongs, or acts "to prove a person's disposition in order to show that on 

a particular occasion the person acted in accordance with such disposition." 

Such evidence may, however, "be admitted for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence 

of mistake or accident when such matters are relevant to a material issue in 

dispute." N.J.RE. 404(b)(2). 

In determining whether to admit evidence of another crime, wrong or act, 

the trial court must apply the four-part analysis established in State v. Cofield, 

127 N.J. 328, 338 (1992). Under Cofield, the evidence: (1) must be relevant to 

a material issue; (2) it must be similar in kind and reasonably close in time to 

the offense charged; (3) the evidence of the other crime, bad act or wrong must 

be clear and convincing; and (4) the apparent prejudice from the admission of 

the evidence must outweigh its probative value. Ibid. See also State v. Green, 

236 N.J. 71, 81-82 (2018) (noting that Cofield test must be applied in 

determining whether to admit evidence pursuant to N.J.R.E. 404(b)). 

Where, as here, there is no objection to the admission of the evidence, we 

review the admission of the evidence for plain error. State v. Wint, 236 N.J. 

174, 205 (2018). Therefore, we must determine whether the trial court erred by 
38 A-0436-18T1

admitting the evidence and, if so, whether the error was "clearly capable of 

producing an unjust result." R. 2:10-2.

Here, Valerio's testimony about defendant's use of marijuana met the test 

for admission under Cofield. The testimony was relevant. It corroborated 

Ricciardelli's testimony as to what he observed at the hotel. The evidence 

regarding defendant's possession and use of marijuana was reasonably close in 

time to the offenses charged in the indictment. Valerio's testimony also was 

clear and convincing, and its probative worth was not outweighed by any 

potential for undue prejudice. 

Even if the trial judge erred by failing to strike the testimony sua sponte, 

the error does not rise to the level of plain error. R. 2:10-2. In view of the other 

evidence presented regarding defendant's possession and distribution of CDS, 

Valerio's testimony about defendant's use of marijuana was not "clearly capable 

of producing an unjust result." Ibid.

VIII.

As noted previously, defendant has filed a pro se supplemental brief in 

which he argues that the trial judge erred by denying his motion to suppress 

evidence obtained in the search of the hotel room and the Mercedes. He 
39 A-0436-18T1

contends the trial court erroneously relied on Alvarez and misapplied State v. 

Cleveland, 371 N.J. Super. 286 (App. Div. 2004). 

Defendant further argues that the trial court's decision on the suppression 

motion is inconsistent with Brown, and the court erred by finding that the 

officer's warrantless entry into the hotel room was permissible. Defendant also 

contends the trial court erred by failing to make a decision regarding the 

warrantless seizure of defendants, and by finding that the search was the product 

of a "protective sweep" or "investigatory sweep." He asserts the record does not 

support the court's finding that the interior of the hotel room was visible to the 

officers conducting surveillance, and the court erroneously found an exigency 

existed that justified the officers' entry into the hotel room to secure the 

evidence. 

We have addressed the arguments regarding the searches of defendant's 

hotel room and the Mercedes. Defendant's additional arguments on these and 

other issues lack sufficient merit to warrant discussion in this opinion. R. 2:11-

3(e)(2). 

Affirmed.