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(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0581-11T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES F. GARNER, a/k/a JAMES GARNER,
Defendant-Appellant.
April 4, 2013
Submitted February 4, 2013 - Decided
Before Judges Graves and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Union County,
Indictment Nos. 09-06-0512 and 09-08-0758.
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Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein,
Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Deborah
Bartolomey, Deputy Attorney General, of counsel and on the brief).
PER CURIAM
Defendant James F. Garner appeals from the February 25, 2011 judgment of conviction entered after
his guilty plea to third-degree possession of heroin with intent to distribute within a school zone, N.J.S.A.
2C:35-7. Defendant argues that evidence seized by police should have been suppressed because they relied
on an unconstitutional statute as the basis for stopping defendant's vehicle. Defendant also seeks a remand
to determine the length of time he was detained before the arrival of a canine unit at the scene of the
vehicle stop. Finally, defendant argues that the trial judge did not engage in an appropriate analysis of the
aggravating and mitigating factors when sentencing him. Having reviewed the arguments of both parties in
light of the record and applicable law, we affirm defendant's conviction but remand for resentencing.
I.
On April 13, 2009, Detective Blake Clay of the Union County Police Department observed a black Dodge
Charger with dark tint on the front driver-side and passenger-side windows. Clay followed the car briefly,
activated his lights, and pulled the car over.
Defendant was driving the car, and Yurie Henao was sitting in the front passenger seat. As Clay approached
the vehicle, he thought he smelled marijuana coming from inside of the car, although he was "not clearly
sure." The officer requested defendant's license, registration, and proof of insurance and returned to his
police car to check defendant's credentials. After learning that defendant's insurance had been cancelled
and his insurance card was invalid, Clay decided to impound the vehicle.
As Clay returned to the vehicle on the passenger-side, Henao attempted to get out of the car and asked if
she could leave. Clay then noticed a stronger smell of marijuana coming from the vehicle. Clay ordered both
parties out of the car and called for a backup unit. As Clay suspected drugs were present in the Charger,
but could see none in plain view, he also called for a canine unit.
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Once the dog arrived, the handler walked the dog around the exterior of the car. The dog registered several
"hits," indicating the presence of drugs in the car. A search warrant was obtained, and drugs were found.
Defendant and Henao were arrested and charged with possession of the drugs. Defendant was also issued
citations for having tinted windows and driving an uninsured vehicle.
On June 6, 2009,1 a Union County grand jury returned Indictment No. 09-06-0512, charging defendant and
Henao with drug charges alleged to have occurred on February 5, 2009, and apparently unrelated to this
incident. On August 27, 2009, Indictment No. 09-08-0758 was returned charging defendant and Henao with
third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin
with intent to distribute, N.J.S.A 2C:35-5b(3) and N.J.S.A. 2C:35-5a(1) (count two); third-degree possession
of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three); fourth-degree possession
of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(12) (count four); third-degree
possession of marijuana with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count five); fourth-
degree possession of over 50 grams of marijuana, N.J.S.A. 2C:35-10a(3) (count six); third-degree
possession of one ounce or more of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(11)
(count seven); and third-degree possession of marijuana with intent to distribute in a school zone, N.J.S.A.
2C:35-7 (count eight).
Defendant moved to suppress the evidence which formed the basis of the charges under Indictment
No. 09-08-0758, on the grounds that the officer did not actually observe tint on the windows of defendant's
car. Defendant's argument was based on video from Clay's police vehicle which showed that, after Clay
activated his lights to pull defendant's vehicle over, the driver-side and passenger-side windows were rolled
down, with the tint not visible. The court denied the motion and credited Clay's explanation that
defendant's windows were rolled up with the tinting visible when he initially saw the Charger. The video
camera was not activated until Clay turned on his police lights to pull the car over.
On October 25, 2010, defendant pled guilty to count six of Indictment No. 09-06-0512, charging
N.J.S.A. 2C:35-7, in exchange for the State's recommendation of a five-year sentence. Defendant entered
an "open" guilty plea to all eight counts of Indictment No. 09-08-0758. While the State recommended a
ten-year sentence, the trial judge indicated that he would impose a sentence not to exceed nine years, with
a fifty-three month period of parole ineligibility. Defendant accepted this condition.
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On February 18, 2011, the court sentenced defendant on count six of Indictment No. 09-06-0512, to a five-
year term with a thirty-six month parole bar. On Indictment No. 09-08-0758, the court merged counts one
and two into count three, count four into count five, and counts six and seven into count eight. On count
three, defendant was sentenced to nine years in prison with a fifty-three month period of parole ineligibility.
On count five, the sentence was five years with one year of parole ineligibility; and on count eight, the
sentence was five years with three years of parole ineligibility. The sentencing court determined that all of
the sentences, including the one imposed on Indictment No. 09-06-0512, would run concurrently. As to
count three, the State requested, and the court imposed, a mandatory extended term pursuant to N.J.S.A.
2C:43-6f, based on defendant's prior convictions for possession with intent to distribute.
On appeal, appellant raises the following points:
POINT ONE
THE  STOP  OF  DEFENDANT'S  CAR  WAS  UNJUSTIFIED  BECAUSE  THE  NEW
JERSEY  STATUTE  THAT  THE  POLICE  USED  AS  THE  BASIS  OF  THE STOP  IS
VOID FOR VAGUENESS. THEREFORE, ALL FRUITS OF THE STOP SHOULD HAVE
BEEN SUPPRESSED (Not raised below).
POINT TWO
BECAUSE THE OFFICER HAD NO MORE THAN A SUSPICION    THAT DEFENDANT
WAS  GUILTY  OF  ANYTHING  OTHER  THAN  A  TRAFFIC  VIOLATION,  AND
BECAUSE  THE  RECORD  IS  SILENT  AS  TO  HOW  LONG  DEFENDANT  WAS
DETAINED PENDING THE ARRIVAL OF THE CANINE UNIT, AT A MINIMUM, THE
MATTER SHOULD BE REMANDED TO ESTABLISH THE MANNER AND LENGTH OF
THE DETENTION.
POINT THREE
THE  EXTENDED  TERM  IMPOSED  ON  THE  DEFENDANT  WAS  EXCESSIVE AND
MUST BE REDUCED.
II.
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We begin by noting the standard of review that applies to a judge's findings on a motion to suppress. We
must uphold the factual findings underlying the judge's decision, so long as those findings are supported by
sufficient credible evidence in the record. State v. Mann, 203 N.J. 328, 336 (2010) (citing State v. Elders,
192 N.J. 224, 243 (2007)). We "should give deference to those findings of the trial judge which are
substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).
However, we owe no deference to the trial court's rulings on questions of law. State v. Gandhi, 201 N.J.
161, 176 (2010).
Defendant argues, for the first time on appeal, that the tinted windows statute, N.J.S.A. 39:3-74, is
unconstitutionally vague, and thus, the stop of his vehicle was illegal. "It is a well-settled principle that our
appellate courts will decline to consider questions or issues not properly presented to the trial court when
an opportunity for such a presentation is available unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public interest." Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973) (citation and internal quotation marks omitted). As this claim of error was not
raised before the trial court, our review is governed by Rule 2:10-2, which requires that we disregard the
claim "unless it is of such a nature as to have been clearly capable of producing an unjust result . . .            ."
Detective Clay initiated the stop of defendant's vehicle after observing tinting on the front driver and
passenger windows. N.J.S.A. 39:3-74 provides in pertinent part:
No person shall drive any motor vehicle with any sign, poster, sticker or other
non-transparent material upon the front windshield, wings, deflectors, side
shields, corner lights adjoining windshield or front side windows of such vehicle
other than a certificate or other article required to be so displayed by statute or
by regulations of the commissioner.
No person shall drive any vehicle so constructed, equipped or loaded as to
unduly interfere with the driver's vision to the front and to the sides.
While N.J.S.A. 39:3-74 refers to "non-transparent material" and does not actually mention tinted windows,
it has been construed to prohibit tinting that fails to meet the standard set forth in N.J.A.C. 13:20-33.7(d).
State v. Cohen, 347 N.J. Super. 375, 380 (App. Div. 2002). N.J.A.C. 13:20-33.7 does contain a specific
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prohibition against tinting:
A motor vehicle . . . shall not be certified which has tinted spray or plastic
material added to previously approved glazing in the front windshield or windows
. . . because such condition changes the vision and light transmission properties
of the glazing in areas where driver visibility shall not be obscured or obstructed
It matters not whether the tinting on defendant's vehicle actually violated N.J.S.A. 39:3-74, or for that
matter, if the statute is unconstitutional, as defendant now claims, as long as Clay's initial stop was based
on his reasonable suspicion that a motor vehicle violation had occurred. See Cohen, supra, 347 N.J. Super.
at 380 (a reasonable suspicion, even if later found to be untrue, that car windows are tinted in violation of
N.J.S.A. 39:3-74, and the standards set forth in N.J.A.C. 13:20-33.7, is reasonable articulable suspicion on
which to base a motor vehicle stop). This motor vehicle violation justified Clay pulling defendant's vehicle
over and asking for credentials. See State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990).
Defendant relies on State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005), as authority that Clay had
no reasonable basis to stop defendant's car. Puzio is distinguishable. There, an officer observed a
passenger car with a commercial license plate, but without a business name or address on the car itself. Id.
at 380. The officer believed this to be a violation of N.J.S.A. 39:4-46a.2 Ibid. When the driver was arrested
for driving while intoxicated, he moved to suppress on the basis that the stop was unlawful. Ibid. We held
that the evidence should have been excluded, as the statute's "plain and unambiguous terms" excluded
passenger cars from its coverage, thereby depriving the officer of an objectively reasonable basis for the
stop. Id. at 382. A stop based on conduct that is entirely lawful, but which an officer believes to be
unlawful, is a far cry from a stop based on an actual violation of a statute. In the first instance, there is
only the subjective belief of the officer that the law has been violated. In the second, there is an objective
belief that there has been a violation of a presumptively constitutional motor vehicle statute. Thus, the
conduct that required suppression in Puzio is absent here.
Defendant argues that N.J.S.A. 39:3-74 is unconstitutionally vague as it offers no guidance as to
what is proper or violative behavior. "Vagueness in this sense is essentially a procedural due process
concept grounded in notions of fair play." State v. Lashinsky, 81 N.J. 1, 17 (1979). "A statute is
unconstitutional if it is couched in terms so vague that 'men of common intelligence must necessarily guess
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at its meaning' and differ as to its application." Ibid. (quoting Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.
Ct. 1686, 1688, 29 L. Ed.2d 214, 217 (1971)). Defendant must show that the statute "does not with
sufficient clarity prohibit the conduct against which it is sought to be enforced." State v. Afanador, 134 N.J.
162, 175 (1993).
The statutory reference to "non-transparent material" is not technical, nor is it a word that would
"send the average citizen scrambling for a dictionary." Id., at 171. Transparent simply means "having the
property of transmitting light without appreciable scattering so that bodies lying beyond are seen clearly."
Webster's II New College Dictionary 1172 (2004). A person of common intelligence would understand "non-
transparent material" to mean something that obstructs viewing of an object on the other side. Defendant
has not demonstrated that N.J.S.A. 39:3-74 is unconstitutionally vague on its face as it describes the
elements of the offense in common, well-understood terms and therefore affords notice of the potential
liability for its violation.
Defendant challenges his sentence on Indictment No. 09-08-0758 as excessive because he claims it
was unjustifiably "close to the top of the range for an extended term on a third-degree offense." He also
contends that the sentencing court failed to discharge its duty to "state on the record the reasons for
imposing the sentence . . . and the factual basis supporting its findings of particular aggravating or
mitigating factors affecting the sentence." N.J.S.A. 2C:43-2e.
Appellate review of sentencing decisions is limited, and consists of three essential tasks. First, we must
determine whether the sentence is in "compliance with statutory sentencing authority and stated
parameters for a sentence to be lawful." State v. Hudson, 209 N.J. 513, 528 (2012). Second, we must
determine whether the aggravating and mitigating factors found by the sentencing court "were based upon
competent and credible evidence in the record." Ibid. And third, we must determine whether the facts of
the case make the sentence "clearly unreasonable so as to shock the judicial conscience." Ibid. Review is
governed by an abuse of discretion standard. State ex rel. V.A., 212 N.J. 1, 24 (2012).
Our courts have long recognized that the pronouncement of sentence is "among the most solemn and
serious responsibilities of a trial court." State v. Roth, 95 N.J. 334, 365 (1984). To ensure that this
solemnity is respected, and to facilitate uniformity in punishment, our sentencing scheme channels a
judge's discretion through various procedural requirements. As relevant here, before imposing sentence,
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"the trial court must identify and weigh all the relevant aggravating factors that bear upon the appropriate
sentence as well as those mitigating factors that are 'fully supported by the evidence.'" State v. Blackmon,
202 N.J. 283, 296-97 (2010) (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). The Supreme Court
has called the requirement of a clear articulation of reasons for a given sentence "fundamental" and
"particularly important." State v. Pillot, 115, N.J. 558, 565-66 (1989).
As an initial matter, we note that defendant's sentence is within the relevant sentencing ranges.
Under N.J.S.A. 2C:43-6f, after the court found that defendant had the necessary predicate conviction for
possession with intent to distribute, it was required to impose "an extended term as authorized" by N.J.S.A.
2C:43-7. That section provided that, because defendant was convicted of a third-degree crime, he was to
be sentenced to a base term of between five and ten years. N.J.S.A. 2C:43-7a(4). In addition, the court
was required to impose a term of parole ineligibility of between one-third and one-half of the sentence
imposed. N.J.S.A. 2C:43-6f. The sentence imposed, nine years with fifty-three months of parole ineligibility,
fits within these guidelines.
On appeal, defendant cites State v. Mirakaj, 268 N.J. Super 48 (App. Div. 1993), in arguing that the
sentencing court should have considered two mitigating factors that were not raised at sentencing: that
defendant did not contemplate serious harm, N.J.S.A. 2C:44-1b(2), and that imprisonment would impose a
hardship on his two minor daughters, N.J.S.A. 2C:44-1b(11). While we encourage judges to address each
factor raised, we do not require "that trial courts explicitly reject every mitigating factor . . .             ." State v.
Bieniek, 200 N.J. 601, 609 (2010). Defendant did not raise these mitigating factors prior to sentencing and
there is scant factual support for them in the record. The only evidence defendant cites to suggest that his
incarceration will pose a hardship to his children is his statement in the presentence report that he "sold
drugs to support [his] family." Although defendant now argues that he did not contemplate physical harm
based on the nature of his offense, he admitted to possession of heroin with intent to distribute in a school
zone. The trial court did not abuse its discretion in failing to consider these mitigating factors.
The judgment of conviction (JOC) indicates that the court applied three aggravating factors: the risk
that the defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent and seriousness of
defendant's prior criminal record, N.J.S.A. 2C:44-1a(6); and the need for deterrence, N.J.S.A. 2C:44-1a(9).
The JOC also contains the conclusory language that these aggravating factors "significantly and
substantially outweigh the non-existent mitigating factors."
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We have reviewed the record on appeal, including transcripts of the plea and sentencing, and can
find no discussion by the sentencing judge as to why he applied these aggravating factors or why he
imposed a nine-year sentence. We understand that defendant entered this plea on the eve of trial with the
understanding that the court would sentence him to a term "not to exceed nine years in state prison, and .
. . a 53-month period of parole ineligibility . . . to run concurrent to [the sentence imposed] on Indictment
09-06-512." We also realize that, at sentencing, defendant's counsel urged the court "to impose the plea
[sic] negotiated between the defendant and yourself on both counts." However, even negotiated pleas
require the sentencing judge to comply with Rule 3:21-4(g), and explain the reasons for imposing a
particular sentence.
In remanding this matter, we do not suggest that the sentence imposed was improper. Rather, we simply
require the judge to clearly state the reasons for his sentence consistent with Rule 3:21-4(g).
We affirm defendant's conviction but remand for resentencing. We do not retain jurisdiction.
1 Although both indictments are included in the scant record on appeal, they are undated and we rely on
the State's letter brief in determining the dates they were returned by the grand jury.
2 N.J.S.A. 39:4-46a applies to "[e]very vehicle used for commercial purposes on a street or highway, except
for passenger automobiles" and pharmacy-owned vehicles used to transport or deliver drugs. N.J.S.A. 39:4-
46a.
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