Submitted April 25, 2018
appeal from Superior Court of New Jersey, Law Division, Essex
County, Indictment Nos. 16-04-1096 and 16-04-1097.
D. Laurino, Acting Essex County Prosecutor, attorney for
appellant (Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, of counsel and on the
E. Krakora, Public Defender, attorney for respondent
(Margaret R. McLane, Assistant Deputy Public Defender, of
counsel and on the brief).
Judges Fuentes, Koblitz and Suter.
Essex County grand jury returned Indictment No. 16-04-1096
charging defendant Deandre Parker with second degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b), fourth degree
possession of hollow-nose ammunition, N.J.S.A. 2C:39-3(f),
and third degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a).
Indictment No. 16-04-1097, arising under the same core of
operative facts, charged defendant with second degree
possession of a handgun by a person previously convicted of
one of the crimes listed in N.J.S.A. 2C:39-7(b).
moved to suppress the physical evidence seized by the police
that formed the basis for these charges. The State filed a
brief opposing the motion, which included the indictments
returned by the grand jury, an incident report prepared and
filed by one of the police officers who arrested defendant,
and the transcript of the grand jury minutes. Defendant's
reply included a computer aided dispatch (CAD) report. In an
order dated September 18, 2017, the trial court granted
defendant's motion without conducting an evidentiary
hearing or considering oral argument from counsel. The judge
explained the basis of his ruling in a letter-opinion
attached to the order.
October 7, 2017, the State filed a motion for
reconsideration. In an order dated November 22, 2017,
accompanied by a letter-opinion, the trial judge denied the
State's motion for reconsideration, again without
affording counsel the opportunity to present oral argument.
By leave granted, the State now argues the motion judge erred
when he suppressed the physical evidence without conducting
an evidentiary hearing. We agree and reverse. Because the
parties dispute the material facts that led to
defendant's arrest and subsequent indictment, the motion
judge was required to conduct an evidentiary hearing pursuant
to Rule 3:5-7(c). We gather the following account of
events from the documents the parties presented to the motion
judge in support of their respective positions.
approximately 11:44 p.m. on February 4, 2016, Newark Police
Department detectives assigned to the Firearm Interdiction
Team (FIT) responded to a report of "shots fired"
near the intersection of Avon Avenue and South 12th Street.
Upon arrival, the detectives saw two men, later identified as
defendant and Quadri Cureton, standing by the driver-side
door of a parked car. As Detective Lamin Barryoh approached
them, he saw defendant drop a silver metal object; Barryoh
also heard the sound of the object as it hit the ground.
Barryoh testified before the grand jury that Detective
Holmesretrieved the metal object and
"immediately recognized that that metal object was, in
fact, a revolver." Holmes thereafter yelled "gun,
gun" to alert the other officers at the scene.
to Barryoh, when he attempted to arrest defendant, he
resisted by "flailing his hands." He was able to
control defendant and effectuate the arrest with the
assistance of the other officers at the scene. The Crime
Scene Unit took possession of the handgun and found it was a
.38 caliber revolver that contained "two live rounds of
ball ammunition[, ] . . . one hollow-point round[, ]"
and three spent rounds. A subsequent search of
defendant's criminal history revealed he had two open
arrest warrants and prior convictions for crimes listed as
predicate offenses under N.J.S.A. 2C:39-7.
September 18, 2017 letter-opinion, the motion judge included
a "Counterstatement of Facts" derived exclusively
from defense counsel's motion brief. In this alternative
narrative of events, defendant denied every material factual
contention made by the State. Specifically, defense counsel
claimed that defendant "at no point in time dropped a
gun beneath or beside the white vehicle . . . [or] resist[ed]
arrest[.]" Despite the obvious irreconcilable material
differences between the State's version of events and the
account described by defense counsel, the motion judge found:
"Defendant has not challenged the State's facts with
sufficient specificity to warrant a hearing." After
citing State v. Elders, 192 N.J. 224, 250 (2007), a
case that involved the articulable suspicion required by
police officers to request consent to search a car, State
v. Rodriguez, 172 N.J. 117, 126-28 (2002), in which the
Court addressed the requirements for a valid investigative
detention, and other inapposite cases, the judge concluded:
"[T]he Incident Report and Grand Jury transcript did not
illustrate that the detectives, based on their experience and
training, had an inclination of what the dropped object was
between the time it was dropped and the time [d]efendant was
called over by Detective Barryoh. Therefore, this stop was
to Rule 3:5-7(c), "[i]f material facts are
disputed, testimony thereon shall be taken in open
court." Our Supreme Court has also recently made clear:
The proper mechanism through which to explore the
constitutionality of warrantless police conduct is an
evidentiary hearing. At evidentiary hearings, the State
presents witnesses to substantiate its basis for the
challenged warrantless conduct, and the defense is afforded