EXPUNGEMENT STEP 3: File and Serve the Forms

EXPUNGEMENT STEP 3: File and Serve the Forms
Make three (3) copies of your notarized Petition for Expungement (Form A), Order for Hearing (Form B), and proposed Expungement Order (Form C). The original and two (2) copies should be filed with the court. Keep one copy of each for your records. 

Form D - Cover Letter - For Filing 

The Cover Letter - For Filing is a form letter that describes to the Superior Court Criminal Case Management Office the contents of your package and the purpose of the enclosed forms. Fill in the blanks on the Cover Letter (Form D) and attach the Cover Letter to the originals and the two photocopies that you are filing (keep one copy of each for your records). Include two large self- addressed envelopes with the appropriate postage stamped on each envelope. These envelopes will be used to send filed copies of your package back to you. Mail this package to the Criminal Case Management Office in the county where you were arrested/taken into custody and/or where the prosecution/adjudication occurred. 

If you were involved in multiple cases in more than one county, mail this package to the Criminal Case Management Office in the county, which has allowed you to file for expungement of your entire record. If you prefer, you may file this package in person. A list of the Criminal Case Management Offices where these forms should be mailed, along with telephone numbers, appears at the end of this guide. 

Step 4: Distributing the Filed Copies 

One copy of thePetition for Expungement, Order for Hearing, and the proposed Expungement Order will be mailed back to you marked “Filed” and assigned an “Expungement Docket Number.” The Order for Hearing will also state the time and the date for your hearing. 

Immediately after receiving the filed copies from the court, make at least seven (7) copies of the Petition for Expungement, Order for Hearing, and the proposed Expungement Order. 

Mail one copy of each, immediately, by certified mail, return receipt requested, to each of the following government agencies that were involved with your case(s): 

• The Attorney General of New Jersey. 
• The Superintendent of State Police, 

• The County Prosecutor.
• The administrator of the municipal court if a 

municipal court heard the matter. 

• The Chief of Police or other head of the police department where the offense was committed or the arrest was made. 

• The chief law enforcement officer of any other law enforcement agency of the State that participated in the arrest. 

• The Warden or superintendent of any institution in which you were incarcerated. 

• The County Probation Division should be provided a copy if you were granted a conditional discharge, conditional dismissal, enrolled into the Pretrial Intervention Program (PTI), enrolled in a juvenile diversion program (Juvenile Conference Committee or Intake Service Conference), granted a deferred disposition, performed community service, owed fines or restitution or you served a term of probation. If your case was transferred to another county for supervision, you should send the information to the original county probation office and the county probation office where your supervision was transferred. 

• The Division of Criminal Justice, Records and Identification Unit should be provided a copy if your case was processed through the State Grand Jury. 

Source 

https://njcourts.gov/forms/10557_expunge_kit.pdf?c=d7J

More info at www.njlaws.com

EXPUNGEMENT STEP 2: Complete the following forms:

EXPUNGEMENT STEP 2: Complete the following forms:

The Petition for Expungement states that you are requesting an Expungement Order and states why you qualify. Complete the Petition for Expungement Order by following the instructions for Form A.

You must then file the petition in the county where you were arrested or prosecuted as an adult or taken into custody or adjudicated as a juvenile. If you were involved in multiple cases in more than one county, contact the Criminal Case Management Office in either county and ask whether they will allow you to file for expungement of your entire record in that county.

However, if you are filing a petition for expungement solely on a conviction for a disorderly persons or a petty disorderly persons offense, you must file the petition in the county where the most recent disorderly persons or petty disorderly persons offense was adjudged.

If you are filing a petition for expungement as a result of successful graduation from drug court that occurred prior to April 18, 2016 you must file in the county where you graduated.

Next, you must complete the Verification page and sign it in the presence of a Notary Public because this page must bear a notary seal.

Order for Hearing

The Order for Hearing is used by the judge to schedule a hearing. The Superior Court judge assigned to your case will usually schedule a hearing between 35 and 60 days after he or she gets your petition. Fill out the Order for Hearing by following the instructions for Form B.

Source https://njcourts.gov/forms/10557_expunge_kit.pdf?c=d7J

More info at

https://www.njlaws.com

To do with your attorney before sending Expungement paperwork to the court 

STEP 1: Request State Police Criminal History Record – Fingerprint Check (This step is only necessary if you do not already have your criminal/juvenile history information about your arrests, charges and dispositions) 

In order to obtain your criminal/juvenile history record (also known as a rap sheet) from the New Jersey State Police you will need to be fingerprinted. The State Police use the electronic fingerprint scanning services of a private company, IDEMIA USA. You will need to contact IDEMIA USA to schedule an appointment for fingerprinting. You can obtain additional information and schedule an appointment via the internet at www.bioapplicant.com/nj, or by calling their toll free telephone: 1-877-503-5981. 

Additional information about obtaining criminal/juvenile history record checks can also be obtained from the New Jersey State Police website https://www.state.nj.us/lps/njsp/or by calling their Criminal Information Unit at 609-882-2000
ext. 2918. 

Note: The State Police will have a criminal/juvenile history only if you were fingerprinted when you were arrested. If you were not fingerprinted, and only a complaint was signed against you when you were arrested, you will still have a record with the police department and the court, but you will not have a record sheet within the Division of State Police, State Bureau of Investigation. 

STEP 2: Complete the following forms:
 ThePetition for Expungement states that you are requesting an Expungement Order and states why you qualify. Complete the Petition for Expungement Order by following the instructions for Form A. 

You must then file the petition in the county where you were arrested or prosecuted as an adult or taken into custody or adjudicated as a juvenile. If you were involved in multiple cases in more than one county, contact the Criminal Case Management Office in either county and ask whether they will allow you to file for expungement of your entire record in that county. 

However, if you are filing a petition for expungement solely on a conviction for a disorderly persons or a petty disorderly persons offense, you must file the petition in the county where the most recent disorderly persons or petty disorderly persons offense was adjudged. 

If you are filing a petition for expungement as a result of successful graduation from drug court that occurred prior to April 18, 2016 you must file in the county where you graduated. 

Next, you must complete the Verification page and sign it in the presence of a Notary Public because this page must bear a notary seal. 

Order for Hearing  TheOrder for Hearing is used by the judge to schedule a hearing. The Superior Court judge assigned to your case will usually schedule a hearing between 35 and 60 days after he or she gets your petition. Fill out the Order for Hearing by following the instructions for Form B. 

Source https://njcourts.gov/forms/10557_expunge_kit.pdf?c=d7J

More info at 

https://www.njlaws.com

    To file an expungement petition, you must list every criminal and ordinance violation since you were age 16. Many people don't have their old records. If you don’t have all your old records, obtain a criminal history we often call CCH.

For every charge you must put down:

  Charged on [DATE]  ________________ for violation of the following:  

N.J.S.A. 2C:  ______________

Type of offense   _________________

Town ___________________                     

Summons/ Warrant/ Complaint #  ____________________

[Leave out traffic tickets ex 39:4-49.1.   Traffic tickets cannot be expunged]

The original complaint number was ___________

4.  This matter was in ___________ County.  

5. This matter was heard in the   ______________ Municipal Court on __________ 

6. On [DATE] ______, I plead guilty of the following offense: ________________________. 

I was fined _____, costs of ______ and ______. 

 Or

On ________________, charges were dismissed

    My fellow speaker Allan Marain listed how to get criminal history CCH on his great website

      You can obtain a copy of your FBI record. Every way will require that you be fingerprinted. Here are the two basic ways:

Make an appointment with an authorized FBI “channeler.” These channelers are private companies. 

https://www.fbi.gov/services/cjis/identity-history-summary-checks/list-of-fbi-approved-channelers-for-departmental-order-submissions

 Numerous channelers exist, at locations throughout the United States. These channelers contract with the FBI to gather identifying information, collect the fingerprints, and submit the criminal history request to the FBI. They submit the request electronically. Their fee is in the neighborhood of $50.00. 

The criminal history comes back to you typically within a week or less. It is provided by email in a .pdf file.   This is probably the quickest way to obtain the record. One company is called Fieldprint, Inc.
www.fieldprintusa.com
(877) 614-4364

Note: When asked your reason for seeking arrest and conviction history, specify “For Personal Reasons”, not  “For Expungement”.
 

The second way is to submit your request to the FBI yourself, https://www.fbi.gov/services/cjis/identity-history-summary-checks

In order to do that, you will need for a law enforcement agency to fingerprint you on a fingerprint card acceptable to the FBI. Form FBI I-783 (Rev. 5-15-2013)

https://za.usembassy.gov/wp-content/uploads/sites/19/2015/09/FBIFD258fingerprintcard.pdf

    You then submit that fingerprint card, together with a completed FBI criminal history application form to the FBI directly. https://www.fbi.gov/services/cjis/identity-history-summary-checks

An $18.00 fee must accompany the application. The payment must be by certified check, bank cashier's check, or money order. Personal checks, business checks, and cash are all unacceptable. Under “normal” circumstances, the FBI response time was formerly about six weeks.  A page on the FBI web site indicates that its response time can now be up to fourteen weeks.

The FBI offers three options for requesting your Identity History Summary or proof that one does not exist.

Option 1: Electronically Submit Your Request Directly to the FBI 

Step 1: Go to https://www.edo.cjis.gov.

Step 2: Follow the steps under the “Obtaining Your Identity History Summary” section. If you submit a request electronically directly to the FBI, you may visit a participating U.S. Post Office location to submit your fingerprints electronically as part of your request. You may go to any of the 80 participating U.S. Post Office locations nationwide upon completion of your request.  Additional fees may apply.

If you choose to use a U.S. Post Office location, you must complete your application and payment electronically prior to visiting a U.S. Post Office location to submit your fingerprints electronically as part of your request.

If you choose not to use a U.S. Post Office location to submit your fingerprints electronically, then you may still mail your completed fingerprint card, along with your confirmation email, to the address listed on your confirmation email.

List of FBI-Approved Channelers for Departmental Order Submissions

FBI-approved Channelers receive the fingerprint submission and relevant data, collect the associated fee(s), electronically forward the fingerprint submission with the necessary information to the CJIS Division for a national Identity History Summary check, and receive the electronic summary check result for dissemination to the individual. An FBI-approved Channeler simply helps expedite the delivery of Identity History Summary information on behalf of the FBI. 

Accurate Biometrics
www.accuratebiometrics.com
(773) 685-5699

Biometrics4All, Inc.
www.applicantservices.com
(714) 568-9888

Daon Trusted Identity Services, Inc.
www.daontis.com
(703) 797-2562

Fieldprint, Inc.
www.fieldprintusa.com
(877) 614-4364

Gemalto Cogent, Inc.
www.gemalto.com/govt
(626) 325-9600

Idemia Identity & Security USA LLC
www.idemia.com
(877) 783-4187

Inquiries Screening
www.inquiriesscreening.com
(877) 702-7107

National Background Check, Inc.
www.nationalbackgroundcheck.com
(877) 932-2435

National Credit Reporting
www.nbinformation.com
(800) 441-1661

STS SID LLC dba Sterling Identity
www.sterlingidentity.com
(844) 787-3431

Telos Identity Management Solutions, LLC
https://enroll.idvetting.com
(800) 714-3557

TRP Associates, LLC dba ID Solutions
www.trpassociates.net
(877) 885-1511

VetConnex
www.Vetconnex.com
(952)-595-5800

https://www.fbi.gov/services/cjis/identity-history-summary-checks/list-of-fbi-approved-channelers-for-departmental-order-submissions

Records You Will Need for an expungment

Records You Will Need for an expungment

In order to prepare your expungement petition and prove your eligibility, you will need to get the following information: 

• The date of your arrest as an adult or when you 

were taken into custody as a juvenile. 

• The statute(s) and the offense(s) for which you were arrested, taken into custody as a juvenile, convicted or adjudicated delinquent. 
• The original indictment, accusation, summons, docket number, warrant number or complaint number. Include all, if more than one.
• The date of the disposition, which could be the date of the conviction or adjudication of delinquency, date of not guilty verdict or date of dismissal. 
• The specific punishment or other disposition. 

Where to Locate Records 

If you had an attorney when you were arrested as an adult and/or taken into custody as a juvenile and charged, check first to see if he or she has this information in your case file; if so, this can save you quite a bit of time. 

If you must locate your records on your own for an indictable/criminal conviction or arrest, contact the Superior Court Criminal Case Management Office in the county where the arrest or conviction occurred and they will advise you how copies of those records can be obtained. A list of county Criminal Case Management Offices appears at the end of this guide. 

If you must locate your records on your own for a juvenile delinquency matter, contact the Superior Court Family Division Office in the county where you were taken into custody as a juvenile, where charges were filed, or where the adjudication occurred, and they will advise you how copies of those records can be obtained. A list of county Family Division Offices appears at the end of this guide. 

If you were taken into custody as a juvenile and no charges were filed against you, you must contact the 

appropriate law enforcement agency for information related to that incident. 

You might also contact the county prosecutor. A list of county prosecutors' offices with addresses and telephone numbers appears at the end of this guide. Explain that you are interested in expunging your records and ask for the information listed above or ask to look at your file if this is permitted. 

You may also be able to find information you need on disorderly persons offenses by contacting the administrator of the municipal court(s) in which you were prosecuted, or the police department involved in your arrest(s) as an adult or that took you into custody as a juvenile. If you cannot get all of the information, you need to follow Step 1 on the next page. 

You may be eligible for an expungement if you still owe money for restitution, fine(s), or other court- ordered financial assessment(s). If, at the time you are filing this petition, you owe money for restitution, fine(s), or other court ordered financial assessment(s), you should contact the appropriate Probation Division Office(s) for the total amount still owed. Please see the list of Probation Division Offices at the end of this packet. If your case was a municipal court matter(s), you should contact the appropriate municipal court(s) for the total amount still owed. For a full listing of Municipal Courts please visit njcourts.gov. 

If you had a legal name change, you must attach a copy of your court order. To get a copy of your court order, you should contact the county courthouse in the county where the case was heard. However, if your name change was requested and granted as a part of your divorce, you do not need to attach the divorce order with your petition. 

Note: All of your arrests, charges, or prosecutions, even those for which you are not seeking an expungement, must be listed in your petition. Source https://njcourts.gov/forms/10557_exp

Comparison of Adult and Juvenile Terms in expungements

Comparison of Adult and Juvenile Terms in expungements

The table below compares commonly understood criminal terms to terms specific to juvenile delinquency matters. Juvenile delinquency matters should not be considered the same as adult criminal actions. The process for expunging juvenile records, however, is the same as that for expunging adult criminal matters. In fact, if you have both adult and juvenile records that you wish to expunge, you should include all matters in your expungement petition.

Criminal Term Juvenile Term

Arrest Taking juvenile into custody

Conviction Adjudication of delinquency

Sentence Disposition

Indictment No equivalent - A juvenile is charged with an offense without an indictment process

Jail, prison or incarceration Secure facility, youth house or detention center or juvenile justice institution (specific names may vary)

Pretrial Intervention Program (PTI) Diversion - Juvenile Conference Committee or an Intake Services Conference

Glossary of Terms

Deferred Disposition: In a deferred disposition, the court adjudicates the juvenile delinquent and sets forth conditions for the juvenile to meet. If the juvenile meets the terms of those conditions, then the disposition will be dismissed pursuant to the court's order.

Diversion: A diversion is the process of removing minor juvenile cases from the full judicial process on the condition that the accused participates successfully in a rehabilitative process, such as a Juvenile Conference Committee or an Intake Services Conference. If conditions entered into by these diversions are met, then it results in a dismissal of the case, and no appearance before a judge is required.

Indictable Offense: A criminal offense that includes first, second, third and fourth degree crimes. An indictable offense does not include disorderly persons, petty disorderly persons or municipal ordinance violations.

Source https://njcourts.gov/forms/10557_exp

Try to Get a Lawyer

The court system can be confusing, and it is a good idea to get a lawyer if you can.

Keep Copies of All Papers

Make and keep for yourself copies of all completed forms and any canceled checks, money orders, sales receipts, bills, contract estimates, letters, leases, photographs and other important documents that relate to your case.

NOTE: Remember to also keep a copy of your final expungement order should your petition be granted. Once granted, obtaining a copy will require a judge’s order.

What is an Expungement?

What is an Expungement? 

An expungement is the removal and isolation of all records on file within any court, detention or correctional facility, law enforcement, criminal justice agency or juvenile justice agency concerning a person's apprehension, arrest, detention, trial or disposition of an offense within the criminal or juvenile justice system. Unless otherwise provided by law, if an order for expungement is granted, the adult arrest, the record of law enforcement taking you into custody as a juvenile, conviction, adjudication of delinquency, disposition and any related proceedings are considered not to have occurred. See the section on Comparison of Adult and Juvenile Terms for a glossary of terms that are specific to juvenile court. 

          The New Jersey expungement law states in detail who is eligible for an expungement. You should review the current applicable provisions of N.J.S.A. 2C:52-1 through N.J.S.A. 2C:52-32 to determine if you are eligible. If eligible you must prepare and file a Petition for Expungement. The Petition for Expungement must be filed in the Superior Court in the county where you were arrested or prosecuted as an adult or taken into custody or adjudicated as a juvenile. A judge then decides whether you should be granted an Expungement Order. 

Source https://njcourts.gov/forms/10557_expunge_kit.pdf?c=d7J

Loss of plea bargain by not appearing for sentencing State v Barnes

Loss of plea bargain by not appearing for sentencing State v Barnes

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DWIGHT J. BARNES, a/k/a
DWIGHT TYLKA,

     Defendant-Appellant.
__________________________

                   Submitted April 28, 2020 – Decided June 19, 2020

                   Before Judges Gilson and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment Nos. 16-04-
                   0594, 16-04-0608, 16-06-1074, 16-10-1559, and
                   Accusation No. 17-08-0731.
                                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.
                                                           
SUPERIOR COURT OF NEW JERSEY                                                         APPELLATE DIVISION                                                         
DOCKET NO. A-5134-17T1

PER CURIAM

      Following the denial of a motion to suppress the seizure of a handgun,

defendant Dwight J. Barnes pled guilty to two charges related to the gun:

second-degree unlawful possession of a weapon,  N.J.S.A. 2C:39-5(b); and

second-degree certain persons not to have weapons,  N.J.S.A. 2C:39-7(b)(1).

Defendant also pled guilty to three drug-related crimes: two counts of third-

degree possession of heroin,  N.J.S.A. 2C:35-10(a)(1); and third-degree

possession of heroin with the intent to distribute,  N.J.S.A. 2C:35-5(a)(1) and

(b)(3). He was sentenced to an aggregate prison term of twelve years, with seven

years of parole ineligibility.

      Defendant appeals, contending that his motion to suppress the gun should

have been granted. We disagree and affirm his convictions. Defendant also

challenges his sentence because he was given a longer prison term than the

recommendations in his plea agreements. The sentencing court did not follow

the recommendations because defendant did not appear on the date he was

originally scheduled to be sentenced. We reject defendant's argument because

when he pled guilty he was informed by the court that if he failed to appear for

sentencing he might lose the benefit of the State's plea recommendations and at

the sentencing, when he was told he would not get the benefit of the


                                                                        A-5134-17T1
                                       2
 recommendations, he did not ask to withdraw his guilty pleas. Accordingly, we

also affirm his sentence.

                                        I.

      The facts concerning the motion to suppress were developed at a hearing

where three law enforcement officers testified. Their testimony established that

in April 2015, the police were involved in a narcotics investigation. As part of

that investigation, the police obtained a warrant to search a residence located in

Perth Amboy.

      On the evening of April 8, 2015, approximately ten police officers

executed the search warrant at a residence where Ruby Toomer, Bruce Toomer

Jr., and Shlanda Toomer lived. Bruce Toomer had previously been identified as

an individual involved in a controlled drug buy. When the police arrived at the

home, Ruby Toomer, who is the mother of Bruce and Shlanda, answered the

door and shortly thereafter began to complain of chest pains. Accordingly, the

police called an ambulance, which responded to the house. While the house was

being searched, Detective Brian Jaremczak walked onto the front porch of the

home. As he was standing there, he noted a red Chevrolet parked down the

street and saw a woman get out of the car and walk towards the house. When




                                                                          A-5134-17T1
                                        3
 the woman saw Jaremczak, she turned around and began walking back to the

car.

       Jaremczak testified that he recognized the red Chevrolet as a car that had

been involved in a prior controlled narcotics purchase conducted by police as

part of their investigation. Accordingly, Jaremczak called to the other officers

in the house, asking for officers with a car. Jaremczak also testified that he

heard someone on the side of the house yell "stop, police," but the woman kept

walking. The woman then got into the red Chevrolet and drove away.

       Two police officers responded to Jaremczak's call: Detectives Bonilla and

Harris. Detective Bonilla testified that he and Harris ran to their unmarked

vehicles, activated the cars' lights and sirens, and began to follow the red

Chevrolet. Bonilla also testified that as he was running to his car, he heard

someone yell "stop, police."       According to Bonilla, when his car was

approximately one car-length behind the red Chevrolet, he saw a dark object

thrown out of the passenger side window of the vehicle.

       Bonilla contacted Sergeant Carmelo Jimenez and reported what he had

seen concerning the object. Jimenez, who also testified at the hearing, explained




                                                                         A-5134-17T1
                                        4
 that he went to the location to investigate. 1 At the location, Jimenez found a

handgun with scuff marks, a partially-loaded magazine, and several loose

handgun rounds.

      Meanwhile, Bonilla and Harris continued to follow the red Chevrolet.

After the Chevrolet travelled several more blocks, it pulled over and stopped.

When the officers approached the car, they found a woman in the driver's seat,

who was later identified as Shlanda Toomer. They also found a man in the

passenger seat, later identified as defendant. The police then seized a pair of

brass knuckles, arrested defendant and Toomer, and impounded the car.

      After hearing their testimony, the trial court found the officers to be

credible. The court then found that the police had reasonable and articulable

suspicion to believe that Toomer was engaged in criminal activity when she

walked away and drove off in the red Chevrolet. Accordingly, the court found

that the police had a lawful basis to follow and conduct an investigative stop of

the red Chevrolet. The court also found that the handgun had been abandoned

when it was thrown out of the window during the pursuit. Consequently, the

court ruled that the handgun had been lawfully seized and denied the motion to



1
  At the time of the incident, Jimenez was a sergeant. When he testified at the
hearing, he had been promoted to lieutenant.
                                                                         A-5134-17T1
                                       5
 suppress the gun. The court did grant the motion to suppress the brass knuckl es

because it found that they were not in plain view and were therefore seized

without a warrant and with no applicable exception to the warrant requirement.

      Following the denial of his motion to suppress the gun, defendant pled

guilty to the five crimes. Defendant had been charged with multiple crimes in

five separate indictments and an accusation. As noted earlier, two of the crimes

related to the gun and the other three crimes were related to drug charges.

      On May 17, 2017, defendant pled guilty to four crimes under four separate

indictments: (1) second-degree unlawful possession of a weapon (count seven

of Indictment 16-04-594-I); (2) second-degree certain persons not to have

weapons (count one of Indictment 16-04-608-I); (3) third-degree possession of

heroin (count one of Indictment 16-04-1559-I); and (4) third-degree possession

of heroin with the intent to distribute (count three of Indictment 16-06-1074-I).

On August 10, 2017, defendant pled guilty to third-degree possession of heroin

under Accusation number 17-08-731-A.

      In making his guilty pleas, defendant testified that on April 8, 2015, he

was exercising control over a gun while in a car in Perth Amboy. He also

acknowledged that at the time he had a prior domestic violence conviction.

Defendant went on to testify that on three separate dates – July 20, 2016, March


                                                                         A-5134-17T1
                                       6
 1, 2016, and June 23, 2017 – he possessed heroin. He also testified that on

March 1, 2016, when he possessed the heroin, he intended to share or distribute

the heroin.

      All the pleas were entered as part of two negotiated plea agreements. In

the May 2017 plea agreement, the State agreed to recommend that defendant be

sentenced as follows: five years in prison with three-and-a-half years of parole

ineligibility on the conviction for second-degree unlawful possession of a

weapon; five years in prison with five years of parole ineligibility on the

conviction for certain persons not to have weapons; five years in prison for

possession of heroin; and five years in prison for the conviction of possession

of heroin with the intent to distribute. The State also agreed to recommend that

all those sentences be run concurrently.

      In the August 2017 plea agreement, the State agreed to recommend that

defendant be sentenced to three years in prison with nine months of parole

ineligibility under the Accusation where he admitted to possessing heroin. The

State further agreed that it would recommend that the sentence be run

consecutive to defendant's sentences under the Indictments. Consequently,

under the plea agreements the State recommended that defendant be sentenced




                                                                        A-5134-17T1
                                       7
 to an aggregate prison term of eight years with five years and nine months of

parole ineligibility.

      When defendant pled guilty in May 2017, the judge informed him that his

sentencing date was December 1, 2017. The judge also told defendant that if he

failed to appear for sentencing, he could lose the benefit of the plea bargain.

Thereafter, defendant failed to appear for his sentencing on December 1, 2017.

      He later did appear and was sentenced on April 13, 2018. 2          At the

sentencing hearing, defendant directly addressed the sentencing judge and

explained that he had failed to appear for the scheduled sentencing date because

he had relapsed on drugs and had cut off his monitoring bracelet. His counsel

then acknowledged that the court might not be bound by the plea agreements but

asked that the sentencing recommendations still be followed. In response, the

State contended that the recommendations no longer applied, and the State

would be charging defendant with contempt for cutting off the monitoring

bracelet while he was on presentencing release. At no point did defendant or

his counsel ask to withdraw his guilty pleas.




2
  The parties do not explain if defendant was apprehended or if he turned himself
in after he failed to appear at the first sentencing hearing.
                                                                         A-5134-17T1
                                       8
       Ultimately, the sentencing judge imposed longer sentences than

recommended in the plea agreements on the two weapon charges and on the drug

charge under the Accusation. The judge found aggravating factors three, six,

and nine, and no mitigating factors. Thereafter, the sentencing judge sentenced

defendant as follows: (1) eight years in prison with three-and-a-half years of

parole ineligibility on the conviction for second-degree unlawful possession of

a gun; (2) eight years in prison with five years of parole ineligibility on the

conviction for second-degree certain persons not to have weapons; (3) five years

in prison on the conviction for possession of heroin; (4) five years in prison for

the conviction for possession of heroin with intent to distribute; and (5) four

years in prison with two years of parole ineligibility on the conviction of

possession of heroin under the Accusation. Consequently, defendant's aggregate

sentence was twelve years in prison with seven years of parole ineligibility.

Consistent with the plea agreements, the court dismissed all remaining charges

against defendant, including charges that had been asserted in a fifth indictment

under Indictment number 16-10-1551-I.

                                       II.

      On appeal, defendant makes two arguments, which he articulates as

follows:


                                                                          A-5134-17T1
                                        9
             I.  POLICE HAD NO REASONABLE SUSPICION
            TO CONDUCT AN INVESTIGATORY STOP. THE
            GUN MUST BE SUPPRESSED AS A FRUIT OF THIS
            ILLEGAL STOP.

            II. THE COURT ILLEGALLY SENTENCED
            DEFENDANT   ABOVE     THE   MAXIMUM
            CONTEMPLATED BY THE PLEA AGREEMENT.

      We are not persuaded by these arguments and we address them in turn.

      A.    The Motion to Suppress

      Appellate review of a denial of a motion to suppress physical evidence

following an evidentiary hearing is limited. Factual findings made by the trial

court will be disturbed only when they are not supported by sufficient credible

evidence in the record. State v. Hagans,  233 N.J. 30, 37 (2018) (quoting State

v. Gamble,  218 N.J. 412, 424 (2014)). This deference is required "because those

findings 'are substantially influenced by [an] opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing court cannot

enjoy.'" Gamble,  218 N.J. at 424-25 (alteration in original) (quoting State v.

Johnson,  42 N.J. 146, 161 (1964)). Accordingly, we reverse "only when the trial

court's determination is 'so clearly mistaken that the interests of justice demand

intervention and correction.'" Hagans,  233 N.J. at 37-38 (quoting Gamble,  218 N.J. at 425). We review the trial court's legal determinations de novo. Id. at 38

(citing Gamble,  218 N.J. at 425).

                                                                          A-5134-17T1
                                       10
       The United States Constitution and the New Jersey Constitution protect

individuals from "'unreasonable searches and seizures' by government officials."

Ibid. (quoting State v. Watts,  223 N.J. 503, 513 (2015)). A warrantless search

is presumptively unreasonable. Ibid. To overcome this presumption, the State

must prove by a preponderance of the evidence that the search was based on

probable cause and "f[ell] within one of the few well-delineated exceptions to

the warrant requirement." Id. at 38-39 (alteration in original) (quoting State v.

Bryant,  227 N.J. 60, 69-70 (2016)). One such exception is an investigatory stop.

State v. Alessi,  240 N.J. 501, 517-18 (2020).

      To lawfully stop a motor vehicle, a police officer must have a "reasonable

and articulable suspicion that the driver of a vehicle, or its occupants, is

committing a motor-vehicle violation or a criminal or disorderly persons

offense." State v. Scriven,  226 N.J. 20, 33-34 (2016) (citing State v. Locurto,

 157 N.J. 463, 470 (1999)). Accordingly, an investigatory stop is permissible "if

it is based on specific and articulable facts which, taken together with rational

inferences from those facts, give rise to a reasonable suspicion of criminal

activity." State v. Chisum,  236 N.J. 530, 545-46 (2019) (quoting State v.

Pineiro,  181 N.J. 13, 20 (2004)).




                                                                         A-5134-17T1
                                      11
       "[I]n determining the lawfulness of an investigatory stop, a reviewing

court must evaluate the totality of circumstances surrounding the police-citizen

encounter, balancing the State's interest in effective law enforcement against the

individual's right to be protected from unwarranted and/or overbearing police

intrusions." Id. at 546 (internal citations omitted) (quoting State v. Privott,  203 N.J. 16, 25-26 (2010)). "An investigative detention that is premised on less than

reasonable and articulable suspicion is an 'unlawful seizure,' and evidence

discovered during the course of an unconstitutional detention is subject to the

exclusionary rule." Ibid. (quoting State v. Elders,  192 N.J. 224, 247 (2007)).

      Applying these principles, the police had grounds to conduct an

investigative stop. Detective Jaremczak credibly testified that he recognized the

red Chevrolet as a car that had previously been involved in a controlled drug

buy. Accordingly, when a woman got out of that car, saw the detective, turned

around, and walked back to the car, there was a reasonable and articulable

suspicion that the woman or others in the car were involved in illegal narcotics

activities. That reasonable suspicion was heightened when an officer yelled

"stop, police" but the woman ignored the command and then drove away. In

that regard, both Detectives Jaremczak and Bonilla testified that they heard such

a command.


                                                                           A-5134-17T1
                                       12
       Accordingly, the police were lawfully following the red Chevrolet when

the handgun was thrown out of the car. At that point, defendant abandoned the

handgun and the police had the right to seize it. See State v. Dunbar,  434 N.J.

Super. 522, 528 (App. Div. 2014) (holding that a gun discarded by a fleeing

suspect who disregarded a lawful police directive to stop was abandoned); State

v. Farinch,  179 N.J. Super. 1, 5 (App. Div. 1981).

      B.    The Sentence

      Defendant argues that we should remand with instructions that he be

sentenced in accordance with his plea agreements.        He contends that the

sentencing judge erred by imposing a higher sentence because he failed to

appear for his scheduled sentencing date. We disagree.

      In general, plea agreements are to be treated like contracts between the

prosecutor and defendant. See State v. Means,  191 N.J. 610, 622 (2007); State

v. Conway,  416 N.J. Super. 406, 410-12 (App. Div. 2010). The court, however,

is not bound by the plea agreement. State v. Bieniek,  200 N.J. 601, 607 (2010).

Nevertheless, if a judge is going to impose a different sentence than the one

recommended in the plea agreement, the defendant should usually be given an

opportunity to withdraw his guilty plea. State v. McNeal,  237 N.J. 494, 499

(2019).


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                                      13
       It is acceptable to have a provision in a plea agreement allowing a judge

to impose a longer sentence if the defendant fails to appear for sentencing. State

v. Subin,  222 N.J. Super. 227, 238-39 (App. Div. 1988). A judge, however,

cannot impose a longer sentence merely because the defendant failed to appear.

State v. Wilson,  206 N.J. Super. 182, 184 (App. Div. 1985). Instead, the judge

must hold a hearing, consider defendant's reason for not appearing, and

determine whether under the totality of the circumstances an enhanced sentence

is justified. State v. Shaw,  131 N.J. 1, 16-17 (1993).

      The issue here is whether the sentencing judge violated the plea

agreements by imposing a longer sentence even though the plea agreements did

not contain a no-appearance provision. Under all the circumstances of this case,

we do not discern that the enhanced sentence was improperly imposed. When

defendant pled guilty in May 2017, he was told by the judge taking the plea that

if he failed to appear on his scheduled sentencing date, he could lose the benefit

of the plea bargain. Defendant was then released and one of the conditions of

his release was that he wear a monitoring bracelet. Defendant violated th at

condition by forcibly removing the bracelet. Thereafter, he relapsed into the use

of drugs and did not appear on the scheduled sentencing date.




                                                                          A-5134-17T1
                                       14
       When defendant finally did appear for sentencing, the court conducted a

hearing and heard from defense counsel and defendant. Significantly, defendant

never asked to withdraw his guilty plea although his counsel acknowledged that

the court might impose a longer sentence than in the plea agreements. Indeed,

the prosecutor argued that the court was not bound by the plea agreements and

should impose a longer sentence. In that regard, the prosecutor asked for a

sentence of ten years with five years of parole ineligibility on the conviction for

certain persons not to have weapons. After hearing that argument, defendant

again did not ask to withdraw his guilty pleas.

      The judge then sentenced defendant and departed from the recommended

sentence on the weapons offense. Instead of sentencing defendant to five years

in prison with three-and-a-half and five years of parole ineligibility, the judge

imposed sentences of eight years with three-and-a-half and five years of parole

ineligibility. The court also departed from the plea agreement regarding the

Accusation; instead of sentencing defendant to three years in prison with nine

months of parole ineligibility, the judge sentenced defendant to four years in

person with two years of parole ineligibility.

      In imposing that sentence, the judge found aggravating factors three, six,

and nine.    In considering those aggravating factors, the court considered


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                                       15
 defendant's arguments as to why he did not appear for the original sentencing

date but found them unpersuasive.

      Accordingly, the sentencing judge did not simply impose a longer

sentence because defendant did not appear.       Instead, the judge found that

defendant's failure to appear allowed him to impose the sentence he believed

was appropriate after evaluating all of the relevant factors, including

aggravating and mitigating factors. Consequently, this sentence was not illegal.

See Shaw,  131 N.J. at 16-17; Wilson,  206 N.J. Super. at 184.

      In addition, defendant is not asking to withdraw his guilty pleas. Instead,

he seeks a remand for the imposition of the sentences as originally recommended

in the plea agreements. To accept defendant's argument would require us to

ignore his violation of a directive from the court to appear and his destruction

of a monitoring bracelet. In other words, defendant is asking that there be no

consequences visited on him for his own willful actions. We reject that position.

      Affirmed.