State of New Jersey v. Raphael G. Powell

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2657-23 STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAPHAEL G. POWELL, Defendant-Appellant. Submitted September 21, 2026 – Decided September 29, 2026 Before Judges Sabatino and Torregrossa-O'Connor. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 23-10-1806. Jennifer N. Sellitti, Public Defender, attorney for appellant (Samuel Carrigan, Assistant Deputy Public Defender, of counsel and on the brief). Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Deen, Senior Assistant Senior Prosecutor, on the brief). PER CURIAM Following a jury trial, defendant Raphael G. Powell was found guilty of all six counts of an indictment that charged him, among other things, with various weapons offenses, terroristic threats, and illegal possession of controlled dangerous substances ("CDS"). In phase two of the trial, the jury found defendant guilty of a "certain persons" firearms possession charge and another firearms possession charge. The trial court imposed an aggregate custodial sentence of twenty-five years, with a thirteen-and-a-half-year parole disqualifier. In this direct appeal, defendant argues his convictions should be reversed because of: (1) the police's warrantless search and seizure of weapons, CDS, and other incriminating evidence upon his arrest, which the trial court erroneously declined to suppress; (2) the court's failure to issue an adverse inference against the State based on (a) its lack of body worn camera ("BWC") footage and (b) its failure to preserve surveillance video recordings from the local apartment complex; and (3) the lack of an adverse-inference jury charge against the State for failing to call witnesses Janelle McBride and Anthony Galizio. Additionally, defendant argues that his sentence is excessive, and the sentence for each offense should have been imposed concurrently and not A-2657-23 2 consecutively to the others. As part of his sentencing argument, defendant contends a remand is required under State v. Cromedy, 261 N.J. 421 , 434 (2025), because a conviction under N.J.S.A. 2C:39-5(j) is not subject to the Graves Act requirement of a one-half period of parole ineligibility. N.J.S.A. 2C:43-6(c). The State agrees a Cromedy remand may be necessary. For the reasons that follow, we affirm defendant's convictions but remand for resentencing. I. We briefly summarize the State's evidence as follows. In July 2022, the victim, Jose Rivera, a state corrections officer, was accosted by a stranger who brandished a firearm and struck him in the face while he was checking on his child's mother in an apartment complex in Toms River. Before contacting the police, Rivera followed his assailant and another man (later identified as Anthony Galizio) who was driving the assailant to a different apartment complex. The police and Rivera returned to the scene of the crime, where they obtained the Ring camera footage of a neighbor, Janelle McBride. She identified defendant, an ex-boyfriend of hers who had recently been released from prison after a manslaughter conviction, as the assailant, and gave the police his name, i.e., Raphael Powell. The Ring camera's high quality A-2657-23 3 footage shows a man in a unique decaled shirt threatening and striking the victim. Police located the driver of the car by tracing the vehicle's license plate. The driver, Galizio, only knew the assailant by a nickname, "Mob," but confirmed he had dropped "Mob" off at the same apartment complex ("Freedom Village") to which Rivera had followed his car. After remotely accessing the cameras in that apartment complex, police confirmed the assailant was still there at the complex. The initial investigating officer was joined by a K-9 officer and saw defendant in the public parking lot of the complex. Defendant matched the reported features of the assailant and was wearing identical clothing. Because they believed him to be armed and the parking lot was crowded with civilians celebrating the Fourth of July holiday, the police approached defendant, handcuffed him, and issued him Miranda1 warnings before getting his name. The police initially told defendant he was not under arrest and they only wanted to ask him some questions. Defendant identified himself as Raphael Powell, and police formally arrested him immediately thereafter. They searched 1 Miranda v. Arizona, 384 U.S. 436 (1966). A-2657-23 4 him incident to his arrest without a warrant and found on his person a handgun with an extended magazine, loaded with hollow nose bullets. They additionally found fentanyl, a CDS, in a small bag on defendant's person. The police did not have BWCs in use at that time because, although the Toms River Police Department had ordered the equipment in a timely manner, global supply chain issues had caused a significant delay of the delivery of the equipment. Defendant's arrest was audio-recorded by an officer's body microphone. However, the video from that officer's vehicle camera was obstructed by a grate in his patrol car. The trial court made various rulings concerning the admissibility of evidence, the jury charges, and other matters, which we discuss, infra, in Part II. Defendant did not testify at trial on his own behalf. He called only one witness, a defense investigator who visited the Freedom Village apartments and evaluated the operability of the surveillance cameras. The jury found defendant guilty of all counts of the indictment, specifically second-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(b)(1) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree terroristic threats, A-2657-23 5 N.J.S.A. 2C:12-3(a) (count three); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count four); possession of a large capacity magazine, N.J.S.A. 2C:39-3(j) (count five); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count six); a second-degree offense of a felon in possession of a firearm, N.J.S.A. 2C:39-7(b)(1) (count seven); and a first-degree offense under N.J.S.A. 2C:39-5(j) for the unlawful possession of a firearm as a felon who been previously convicted under the No Early Release Act, N.J.S.A. 2C:43-7.2 (count eight). As noted above, the court sentenced defendant to an aggregate sentence of twenty-five years, with a thirteen-and-a-half-year parole disqualifier. II. On appeal, defendant raises the following points for our consideration: POINT I THE TRIAL COURT ERRED WHEN IT DENIED THE SUPPRESSION MOTION. POINT II THE TRIAL COURT ERRED WHEN IT DID NOT INSTRUCT THE JURY ON THE ADVERSE INFERENCE IT MAY DRAW AGAINST THE STATE BASED ON MISSING EVIDENCE. A-2657-23 6 POINT III THE COURT ERRED WHEN IT DENIED THE DEFENSE MOTION FOR A CLAWANS [ 38 N.J. 162 (1962)] CHARGE REGARDING THE TWO ABSENT STATE WITNESSES AND RESTRICTED THE DEFENSE FROM ARGUING THE INFERENCE IN SUMMATION. POINT IV THE SENTENCE IS EXCESSIVE. We address each of these points, in turn, applying the pertinent standards of review for each discrete issue. A. (Denial of the Suppression Motion) Before trial, defendant moved to suppress the evidence confiscated from his person incident to his arrest. He principally argued the police lacked probable cause to arrest him and thus should not have searched him without a warrant. "The 'standard of review on a motion to suppress is deferential.'" State v. Amang, 481 N.J. Super. 355 , 374 (App. Div. 2025) (quoting State v. Nyema, 249 N.J. 509 , 526 (2022)). In general, appellate courts must "uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" Nyema, 249 N.J. at A-2657-23 7 526 (quoting State v. Ahmad, 246 N.J. 592 , 609 (2021)). "[F]indings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The trial judge, Hon. Guy P. Ryan, conducted an evidentiary hearing on the suppression motion. At that hearing, the judge considered testimony from Police Officers Sean P. McNicholas and Anthony Carafa, two of the officers who had participated in defendant's apprehension and the associated search, and testimony from defendant himself. Judge Ryan also viewed the Ring camera video footage, and the motor vehicle recording ("MVR") from Carafa's police car. Officer McNicholas testified extensively at the hearing about the timeline of defendant's arrest and details we have described above. Officer Carafa corroborated McNicholas's account, namely that defendant was briefly detained due to his resemblance to an armed suspect and then arrested and searched after he provided his name and confirmed he was said suspect. Carafa acknowledged that the officers were not outfitted with BWCs, as was mandated by state law effective June 2021, but he explained that the Toms River Police Department had ordered the BWCs "within the appropriate time A-2657-23 8 frame," but they had not yet arrived. The audio track of the MVR provided the following evidence of the interaction between defendant and the officers: OFFICER MCNICHOLAS: Show me your hands. Show me your hands. What's your name? (Indiscernible). Is your name Raphael Powell? POWELL: For what? (Indiscernible) – the situation. MCNICHOLAS: Earlier in the night we got a call about someone with a gun. UNIDENTIFIED MALE SPEAKER: Get – stay away. UNIDENTIFIED MALE SPEAKER: (Indiscernible). POWELL: No, no I'm fine. He's asking me some questions. UNIDENTIFIED MALE SPEAKER: Who? POWELL: Just asking me some questions. Stay right there. They just asking me some questions. .... MCNICHOLAS: Raphael, I'm going to read your Miranda rights. POWELL: Am I under arrest? MCNICHOLAS: No, no. So , when anyone is detained and they're handcuff[ed] like this, we'll read the Miranda rights. [Proceeds to read the rights]. A-2657-23 9 POWELL: But I'm not under arrest. MCNICHOLAS: Not right now. All right. If you cannot afford an attorney, one will be provided to you. Do you understand these rights? POWELL: (No verbal response.) MCNICHOLAS: Okay. Listen, do you have any form of ID on you? POWELL: I have any ID? Yes, in my phone. MCNICHOLAS: Okay. On your phone? POWELL: Yes. MCNICHOLAS: Okay. All right. Is that your phone right there? POWELL: Yes, sir. MCNICHOLAS: Okay. What is your name? POWELL: Raphael Powell. MCNICHOLAS: Raphael Powell. Raphael Powell, you're under arrest. POWELL: For what? MCNICHOLAS: For possession of a weapon, aggravated assault. .... POWELL: There's no probable cause. A-2657-23 10 OFFICER CARAFA: Okay. POWELL: There's no probable cause. .... MCNICHOLAS: Do you have any other guns on you? POWELL: No, I do not. The handgun recovered from defendant contained seventeen hollow point bullets and was later identified as stolen. The wax folds tested positive for 4 - ANPP, acetyl fentanyl and fentanyl. In his own testimony at the hearing, defendant mainly countered the testimony of the two police officers concerning the pertinent timeline. He contended that Officer Carafa had searched his black mesh bag immediately after he was handcuffed, but before Carafa had confirmed his identity and he was placed under arrest. Defendant also alleged that Carafa searched his pockets and found a high capacity magazine before he was arrested. Defendant further accused McNicholas of lying because only Carafa searched him, not McNicholas. In essence, defendant argued he was effectively arrested when he was placed in handcuffs, and that at that time there existed no probable cause to arrest him because police were unsure of his identity and had only stopped him A-2657-23 11 based on a "generalized description of an individual." He argued that hours had passed since his encounter with Rivera and McBride identifying him, meaning that police had plenty of time to secure an arrest warrant. Although defendant was handcuffed before he revealed his name, the State characterized the situation as an "investigative detention" that was necessary to protect the officers and the crowd of civilians from a potentially armed individual who had, allegedly, threatened someone with a weapon hours earlier. The State additionally asserted that an arrest warrant was not necessary. In an oral decision, Judge Ryan notably found that both Officers McNicholas and Carafa were credible witnesses. The judge further noted that although defendant "was polite and respectful" in his testimony, other evidence contradicted his statements about when he was arrested and searched. Judge Ryan observed that the shirt defendant was wearing in the Ring camera video was "very distinctive" and that defendant's "overall size and height and physical appearance" were also discernable on the video. The judge also noted that defendant's location at Freedom Village was corroborated by the statements of Rivera, McBride, and Galizio, and confirmed by the complex's surveillance footage (which the judge agreed "should have" been preserved). Analyzing the sequence of events, Judge Ryan determined that when A-2657-23 12 defendant was first handcuffed, it was part of a permissible investigative stop under Terry v. Ohio, 392 U.S. 1, 21 (1968), based on an articulable, reasonable, suspicion of criminal activity. The judge found the use of handcuffs was warranted, based on the dangerous nature of the alleged offense and the potentially armed status of the perpetrator. The judge further found that because of defendant's distinctive clothing and presence at a location where he was placed by multiple witnesses, there was "more than ample" probable cause to arrest him even before he gave police his name. The judge noted that an arrest in a public place is "permissible when based upon probable cause without a warrant." Further, regardless of whether McNicholas or Carafa had performed the search, the judge determined that Carafa could have relied on the information from McNicholas in conducting the search. With regard to the lack of BWCs, Judge Ryan expressed doubt that he could draw a negative inference against the State in the context of a suppression hearing.2 However, the judge stated that even if the officers could be blamed 2 Shortly after the instant suppression hearing, we determined in a published opinion that the rebuttable presumption of N.J.S.A. 40A:14-118.5(q)(2) concerning a lack of BWC footage does apply to suppression hearings. State v. Jones, 475 N.J. Super. 520 (App. Div. 2023). At a later hearing, Judge Ryan A-2657-23 13 for not wearing BWCs, he was "still convinced and well-satisfied that there was ample probable cause to arrest the defendant even before he released his name." Accordingly, the judge denied defendant's motion to suppress the evidence seized in the search and memorialized this denial in a written order on May 22, 2023. At trial, the fruits of the search were admitted into evidence as part of the State's case. Defendant argues that the trial court erred in denying suppression, and that he was deprived of his constitutional rights to be protected from unreasonable warrantless searches and seizures. We disagree. Several well-established principles guide our review. As the trial judge correctly noted, the police constitutionally may conduct a warrantless investigative detention without performing a full-fledged arrest. As part of such a detention, a police officer is permitted to detain an individual for a brief period, and to pat him down for the officer's safety, if that stop 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. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, 392 U.S. at 21 ). acknowledged this but found no reason to alter his decision because he had already considered the possibility that such an inference would apply in the first suppression hearing. A-2657-23 14 Reasonable suspicion "involves a significantly lower degree of objective evidentiary justification than does the probable cause test." State v. Davis, 104 N.J. 490, 501 (1986). Here, we agree with the trial judge that, at the very least, the police officers had reasonable suspicion from the reports and other information they had received to detain and pat down defendant. Moreover, as an alternative rationale, the police at the scene possessed sufficient grounds to arrest defendant even though they disclaimed doing so by placing him in handcuffs. Police may make an arrest in a public place without a warrant, so long as they have probable cause. State v. Torres, 253 N.J. 485 , 503 (2023). Police officers are "entitled to rely on the underlying police work of other officers who investigated the crime [and] identified the defendant" in developing the probable cause necessary to make an arrest. State v. Williams, 404 N.J. Super. 147, 170 (App. Div. 2008) (citing State v. Crawley, 187 N.J. 440, 457 (2006)). If probable cause exists, it is not relevant whether an officer had time to obtain an arrest warrant. See State v. Brown, 205 N.J. 133, 145 (2011). Probable cause exists when the totality of the facts and circumstances presented to an arresting officer would support a person "of reasonable caution in the belief that an offense has been or is being committed." Torres, 253 N.J. A-2657-23 15 at 503 (quoting State v. Sims, 75 N.J. 337, 354 (1978)). Probable cause to arrest is "'less than legal evidence necessary to convict though more than mere naked suspicion.'" State v. Gathers, 234 N.J. 208, 220 (2018) (quoting State v. Keyes, 184 N.J. 541, 552 (2005)). In the present case, the trial court justifiably determined from the officers' credible testimony and other surrounding information that the police had probable cause to arrest defendant even before, and certainly after, he provided them with his name. Both federal and state case law have long recognized that the police are constitutionally permitted to search an individual incident to his arrest based on probable cause. See Torres, 253 N.J. at 497. The search- incident-to-arrest exception to the warrant requirement is grounded in two justifications: "(1) 'to remove any weapons that the [arrested person] might [possess and] seek to use in order to resist arrest or effect [an] escape'; and (2) 'to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.'" See id. at 503 (citing Chimel v. California, 395 U.S. 752, 763 (1969)) (alterations in original). The search of defendant here, and the confiscation of the handgun, bullets, magazine, and drugs from his possession, was permissible under this alternative rationale. A-2657-23 16 We concur with the trial judge that the lack of BWC equipment by these officers—due to unrebutted procurement delays in their police department— does not compel invalidation of this search-and-seizure. The rebuttable presumption of N.J.S.A. 40A:14-118.5(q) does not apply, or, even if it did, there are ample grounds to overcome it. The police were clearly able to recognize defendant's face, build, and clothing from the high-quality Ring camera footage. In addition, three witnesses placed defendant at the Freedom Village apartment complex at the time of the altercation. Defendant admitted he possessed the handgun and the fentanyl, and he never asserted that these items were planted on him by police. Although BWC footage hypothetically could have added more relevant evidence, the absence of the cameras was not critical in this particular case.3 We therefore affirm the trial court's denial of suppression. B. (Adverse Inference Arguments) Defendant presents three contentions of error concerning the court's omission of adverse inference charges to the jury. First, he contends an adverse inference charge was mandated by the aforesaid absence of BWC footage. 3 See also our discussion of the lack of BWC footage as to the adverse inference issue in Part II(A), infra. A-2657-23 17 Second, he argues an adverse inference charge was required due to the police's failure to preserve surveillance video from the local apartment complex. Third, he asserts that an adverse inference charge should have been issued concerning the State's failure to call McBride and Galizio as trial witnesses. We reject all three of these contentions. As a preliminary matter, we note that trial courts "exercise broad discretion in determining whether to comment on evidence during a jury instruction or to grant a defendant's request for a particular jury charge." State v. Richardson, 452 N.J. Super. 124 , 137 (App. Div. 2017) (internal citations omitted). We therefore evaluate the three alleged defects in the jury charge through this deferential prism. First, we discern no necessity, under the BWC statute or otherwise, for the trial court to have issued an adverse inference instruction concerning the officers' lack of BWC equipment. The record shows, without contradictory evidence, that the Toms River Police Department had signed a contract with a company, WatchGuard, four months after receiving a grant from the Office of the Attorney General. Due to supply chain issues, WatchGuard was unable to deliver the BWCs until early 2022, and then because the cameras were still missing parts, they were not deployed until December 2022. A-2657-23 18 The State argued that even if the failure of the Toms River Police Department to obtain BWCs were imputed to these individual officers, defendant would not be entitled to an adverse inference because he did not argue that the evidence on the BWCs would be exculpatory. In a detailed written order issued on August 28, 2023, Judge Ryan denied defendant's motion for an adverse inference against the State on this basis. The judge observed that the reasons why the police department was unable to implement the BWCs until December 2022 were "well-documented", and that the department had been fully transparent in reporting these difficulties to the Office of the Attorney General, the Ocean County Prosecutor's Office, and the Office of the Public Defender. The judge noted "the Toms River Police Department made substantial steps toward complying with the directive and were transparent regarding their overall progress or lack thereof" and that the reasons for the delay were outside of the department's control. The judge further determined that an adverse inference was not warranted when the individual officers testifying did not violate the statute. Further, it is questionable whether the BWC footage had the potential to contain any exculpatory evidence because defendant had admitted he possessed the firearm and the fentanyl. In short, there are ample grounds for the court's denial of this A-2657-23 19 particular BWC-related adverse inference, and the denial was not an abuse of discretion. Second, we also discern no abuse of discretion, nor any reversible error, in the court's denial of an adverse inference stemming from the police's failure to preserve the Freedom Village surveillance video. At a Rule 104 pretrial hearing on this subject, Sergeant Brian Doyle, who accessed the footage, testified that the cameras at Freedom Village were owned by the complex, and the police did not have control over where the cameras were placed or the retention period. The complex had granted the police "remote access" over the system and police could view the footage "in real time" as well as playback footage. Sergeant Doyle explained that police chose not to preserve the footage because they only used it for the limited purpose of confirming defendant's location, as the actual crime had occurred in a separate building. The State argued that the surveillance video contained little evidentiary value, as defendant's location had already been confirmed by Rivera and Galizio, and that it did not intend to rely upon the surveillance at trial. Judge Ryan found that Sergeant Doyle's testimony showed the police department had the ability to access and preserve the footage, and he recognized the footage contained "some information which could be . . . of evidentiary A-2657-23 20 value." He determined that the failure of police to preserve this video supported a jury instruction calling attention to this fact and explaining the jurors could determine what, "if any," impact that failure had on the State's ability to prove its case. However, the judge declined to go so far as to "direct the jury to some particular adverse inference" because it is unclear whether there was surveillance footage that filmed defendant's arrest. The judge memorialized this partial grant of defendant's request on January 2, 2024. At trial, he issued a jury instruction in accordance with his pretrial resolution of the issue. We are satisfied that the judge's disposition of this issue was a fair and reasonable solution. The judge highlighted the missing-video situation for the jury without going the more extreme step of telling the jurors they must infer the contents of the video would have been adverse to the State's case. The judge acted well within his discretion to handle the issue in this manner. Third, we detect no necessity for the court to have issued a so-called "Clawans" adverse inference charge, see State v. Clawans, 38 N.J. 162, 170 (1962), because the State did not present trial testimony from McBride and Galizio. As the Supreme Court instructed in State v. Hill, 199 N.J. 545, 562 (2009), courts must exercise considerable caution in issuing a Clawans missing- witness charge because although it may be permissible for "counsel in his A-2657-23 21 summation to point to the absence of particular witnesses; it is quite another when the court put the weight of its authority behind such a summation by telling the jury it may draw an adverse inference from their absence." Ibid. (quoting Wild v. Roman, 91 N.J. Super. 410, 415 (App. Div. 1966)). Therefore, in determining whether to issue a Clawans charge, a trial judge must analyze the following four factors on the record: (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. [Id. at 561 (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985)).] Here, the trial judge analyzed each of these factors and concluded that a Clawans charge was not warranted as to either Galizio or McBride, both of whom were hospitalized during the trial dates for medical conditions that were serious enough to be kept overnight. Both witnesses had personal relationships with defendant (McBride as his former girlfriend and Galizio as his driver) and were no less within his reach to be called to testify if they had been healthy A-2657-23 22 enough to do so. It is also not apparent that either witness would have been critical to the case. The absence of their testimony was not manifestly prejudicial to defendant. In sum, we are not persuaded the omission of any of these requested adverse inferences was "clearly capable of producing an unjust result." R. 2:10- 2. C. (Sentencing) Defendant argues the aggregate sentence he received was excessive. As part of his argument, he contends the court made a legal error in imposing under N.J.S.A. 2C:39-5(j) a Graves Act parole ineligibility period for certain enumerated firearms-related offenses. In this regard, defendant relies on the Supreme Court's opinion in Cromedy, 261 N.J. at 434, which held as a matter of statutory interpretation that a conviction under N.J.S.A. 2C:39-5(j) is not a Graves Act offense subject to the parole ineligibility period. Applying Cromedy, it is clear that defendant's sentence should be reconsidered without the Graves Act parole bar that was applied by the trial court. We therefore remand for resentencing in light of Cromedy. There is no need in the present appeal to address other components of the sentence, as the sentence as a whole will need to be reassessed by the trial court, subject of A-2657-23 23 course to any appeal taken of a revised sentence. We do not retain jurisdiction. Affirmed in part, remanded in part as to sentencing. A-2657-23 24