State of New Jersey v. Ishawn A. Collazo

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0979-23 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ISHAWN A. COLLAZO a/k/a ISHAWN COLLARZO, Defendant-Appellant. _________________________ Submitted September 16, 2026 – Decided October 13, 2026 Before Judges Mayer and Vinci. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 22-04- 0642. Jennifer N. Sellitti, Public Defender, attorney for appellant (Andrew R. Burroughs, Designated Counsel, on the briefs). Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Alexandra E. Harrigan, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Ishawn A. Collazo appeals from an October 30, 2023 judgment of conviction (JOC) after entering a guilty plea to attempted murder, N.J.S.A. 2C:5-1(a)(1) and 2C:11-3, and certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). He focuses his argument on November 23, 2022 orders denying his motions to suppress physical evidence and his statement to police. In addition, he appeals from the sentence imposed. We affirm. In December 2021, defendant and co-defendant, Kahniaha Dean, attempted to shoot co-defendant's former boyfriend. A few days later, defendant again attempted to shoot co-defendant's former boyfriend. After failing in the second shooting attempt, defendant and co-defendant fled the scene in a gray Lexus. At the time, defendant was twenty-five years old and co-defendant was twenty-four years old. On the night of January 14, 2022, the police responded to reports of a black man with a gun accompanied by a black woman driving a gray Lexus. The police saw a gray Lexus driving erratically and were told by dispatch there were reports of a dark-colored car shooting into a public parking lot. The dispatcher described "a black male with dreads," wearing a hoodie and jeans, as the suspected shooter driving in a car with a black female. A-0979-23 2 The police saw co-defendant in the driver's seat of the Lexus and defendant in the front passenger seat. The police stopped the car and ordered the occupants out of the car. The car doors remained open. Co-defendant and defendant were handcuffed and placed in separate patrol vehicles. One officer saw defendant "fumbling around the front seat" and another officer commanded defendant to stop moving. Because the car's doors were open, one officer looked under the front seat and noticed a discarded round of ammunition. Defendant objected to the officers searching the car. Despite defendant's protest, an officer shined his flashlight under the passenger seat, moved a piece of paper, and saw the butt of a handgun. Defendant told the officer the handgun belonged to him. Shell casings discovered at the shooting scenes matched the handgun found in the Lexus. The police arrested defendant and impounded the Lexus. At the police station, defendant told officers he wanted to speak with detectives. The detectives testified defendant showed no signs of intoxication or any mental or physical impairment preventing defendant from making informed decisions. A-0979-23 3 The detectives advised defendant of his Miranda1 rights and defendant acknowledged those rights by affixing his initials on the waiver form. Ten days after defendant's arrest, police obtained a warrant to search the Lexus, including any contraband, GPS information, cell phones, ballistics evidence, or other evidence potentially related to the shootings. The affidavit in support of the warrant recounted the relevant facts and recited the evidence from the investigation into the two shootings, including evidence discovered from the on-scene search of the Lexus. The police searched the Lexus pursuant to the warrant. During the search, the police found two black ski masks, forty-one grams of cocaine, a digital scale, cutting agent, and a loaded machine gun. In April 2023, a grand jury indicted defendant on offenses associated with the shootings, including attempted murder, drugs, and illegal firearm use, ownership, and possession. Defendant filed several pre-trial motions. Defendant sought to exclude evidence found during the on-scene search of the Lexus, arguing the police did not have reasonable suspicion to stop the car or order its occupants out of the 1 Miranda v. Arizona, 384 U.S. 436 (1966). A-0979-23 4 car. Defendant further argued there was no probable cause to search the car after it was stopped. Defendant also claimed his confession to detectives should be suppressed because he did not voluntarily waive his Miranda rights and was intoxicated at the time. Additionally, defendant asserted the search warrant was invalid and all evidence discovered pursuant to the warrant should be suppressed. Based on these arguments, defendant moved to dismiss the indictment. The judge conducted evidentiary hearings on defendant's pre-trial motions. The State called Officer James Ganci to testify about the events from the night of January 14 into the early morning of January 15. Officer Ganci testified he was on patrol when he received a dispatch call about a black man wearing a hoodie and jeans and firing a gun accompanied by a black woman. When he arrived at the scene, the officer "noticed a dark colored car speed [and] accelerate very quickly diagonally through the parking lot" which led him to activate his "lights and sirens." Officer Ganci testified the speeding car made a U-turn past his patrol car and he saw other police cars pursuing the speeding car. Officer Ganci also learned through dispatch that "there was a dark colored car involved" in an incident, which matched the car the other officers were pursuing. Officer Ganci conducted a stop of the vehicle. A-0979-23 5 The State also called Officers Justin Nerney and Jeian Rastegarpanah who searched the Lexus at the scene. Because the officers were unable to see into the backseat of the Lexus, they could not determine if any other passengers were in the car and had to physically search the vehicle. The officers originally reported defendant was intoxicated. However, they testified that they were mistaken as to defendant's intoxication during the evidentiary hearing. The State presented body-worn camera footage from the on-scene responding officers. The State also called Detective Michael Barbato who interviewed defendant. According to the detective, defendant did not appear intoxicated at the time and acknowledged and waived his Miranda rights. The State proffered the videotape from defendant's police interrogation. Following the testimony, the judge heard argument on defendant's motion to suppress evidence discovered from the search of the Lexus. Defendant argued the officers who stopped the Lexus lacked reasonable suspicion to stop the car and order defendant out of the car. On November 23, 2022, the judge denied defendant's motions to suppress evidence and dismiss the indictment. Regarding the officers' decision to stop the Lexus, the judge explained that because the Lexus drove erratically, "[t]here were sufficient facts establishing Patrolman Ganci had a reasonable or A-0979-23 6 articulable suspicion that a motor vehicle violation had occurred, justifying his stop of the car." Regarding the officers ordering defendant out of the Lexus, the judge found the conduct reasonable because the officers were responding to a potentially dangerous situation, the Lexus drove erratically posing a safety threat, and defendant acted suspiciously following the stop. The judge further found the on-scene search of the Lexus reasonable because the "surrounding circumstances[] indicat[ed] a threat to officer safety" and "it would not [have] be[en] practical" for the officers to obtain a warrant despite defendant and co-defendant having been removed from the Lexus. In finding probable cause the judge highlighted defendant's conduct in the vehicle, how defendant and co-defendant matched the physical description of the suspects as reported by dispatch, and the fleeing pedestrians in the parking lot as evidence of a safety threat to the officers. Regarding evidence seized pursuant to the search warrant, the judge found "the search warrant promulgated sufficient probable cause to believe that a crime had been committed, and evidence of that crime would be found in the place sought to be searched." The judge concluded defendant was in custody once he exited the Lexus but noted defendant was not "subject to interrogation" at that time because the officers did not ask defendant "any questions [in]volving the A-0979-23 7 incident nor did the police make any statements to [defendant] which would elicit an incriminating response." The judge further found any statements made by defendant before he was given his Miranda warnings, including admitting to ownership of the gun, were voluntary and would not be suppressed. The judge also concluded defendant "knowingly and intelligently waived" his Miranda rights because Detective Barbato read defendant his rights, defendant acknowledged he understood those rights, and defendant agreed to speak with the detectives. Based on the detective's testimony and review of the interrogation video, the judge found defendant "did not appear to be under the influence" and "appeared to be 'fully coherent' during his interview." The judge concluded defendant "was able to provide an adequate waiver" of his Miranda rights and the fact he "may have been intoxicated d[id] not preclude him from rendering a valid waiver." Thus, the judge deemed defendant's statement to the detectives admissible. Following the pre-trial evidentiary rulings, defendant and the State discussed a plea in which defendant would agree to plead guilty to one count of first-degree attempted murder and one count of second-degree certain persons to not have weapons. Pursuant to the negotiated plea, on the attempted murder charge, the State would recommend a fifteen-year prison sentence, eighty-five A-0979-23 8 percent to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a seven-year sentence for the certain persons offense, five years to be served without parole eligibility. Further, the State agreed to dismiss all outstanding charges in exchange for a plea. In signing the plea forms, defendant expressly reserved the right to challenge his sentence following his guilty plea. On October 23, 2023, the judge sentenced defendant. The State recited the terms of the plea agreement and its sentencing recommendation. The State asked the judge to apply the following aggravating factors: defendant's recidivism risk, the extent of defendant's prior criminal record, and the need for deterrence. See N.J.S.A. 2C:44-1(a)(3), (6), (9). The State also recommended the judge apply mitigating factor fourteen because defendant was under twenty- six years old when he committed his crimes. N.J.S.A. 2C:44-1(b)(14). Defense counsel argued for leniency, citing defendant's difficult upbringing (including several juvenile offenses), mental illnesses, mother's recent death, and prior good conduct while on parole. Defense counsel stated defendant's infatuation with co-defendant clouded his judgment. A-0979-23 9 Additionally, defendant's father testified at the sentencing hearing. He stated defendant's actions were a result of his infatuation with co-defendant and defendant was a morally upstanding person who was led astray. At sentencing, defendant told the judge he abandoned his criminal lifestyle and explained the shooting incidents were aberrational. Defendant stated his relationship with co-defendant influenced his criminal activity. Defendant also expressed remorse for his actions. In imposing the sentence, the judge noted defendant had several prior adult convictions, committed serious offenses as a juvenile, and struggled with substance abuse at the time of these crimes. The judge minimized co- defendant's influence on defendant, stating the violent nature of defendant's offenses "escalate[d] it to a whole new level" beyond a mere crime of passion. The judge stated defendant needed treatment and "a new outlook on life" because "he ha[d]n't been able to live a law abiding life from 2010 to present for any significant period of time." The judge applied aggravating factor three, N.J.S.A. 2C:44-1(a)(3), because defendant "ha[d] not lived a law abiding life . . . from 2010 to present" and had several parole violations. The judge also applied aggravating factor six, N.J.S.A. 2C:44-1(a)(6), based on defendant's adult and juvenile criminal A-0979-23 10 records. Further, the judge further applied aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), explaining the need to deter defendant from future criminal conduct. The judge applied mitigating factor fourteen, N.J.S.A. 2C:44-1(b)(14), because defendant was under twenty-six when he committed these crimes. In balancing the aggravating and the mitigating factors, the judge found the aggravating factors outweighed the mitigating factors. The judge deviated from the State's recommended sentence "due to . . . defendant's youthful age." On the certain persons conviction, the judge sentenced defendant to five years' in prison with no parole eligibility. On the attempted murder conviction, the judge sentenced defendant to sixteen years in prison with parole eligibility after eighty-five percent time served pursuant to NERA. Citing State v. Yarbough, 100 N.J. 627 (1985), the judge found defendant's crimes were independent of one another and imposed consecutive sentences. On October 30, 2023, the judge entered a JOC and an amended JOC on February 25, 2024. On appeal, defendant raises the following arguments: POINT I AS THE STOP AND SEARCH OF DEFENDANT'S VEHICLE WAS UNCONSTITUTIONAL, THE A-0979-23 11 TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS ALL EVIDENCE SEIZED THEREOF. (1) As the police lacked sufficient justification to make a felony vehicle stop, all evidence seized thereof must be suppressed as fruit of the poisonous tree. (2) As the police lacked sufficient probable cause to search his vehicle, all evidence seized therein must be suppressed. (3) As the police lacked sufficient justification to order defendant out of his vehicle, his seizure was unconstitutional and all incriminating evidence thereafter must be suppressed. (4) As there was no imminent danger to the police or the public, the warrantless search cannot be justified as a protective sweep. (5) As the subsequent search warrant relied on unconstitutionally seized evidence in defendant's vehicle to support probable cause, all evidence seized thereafter must also be suppressed. POINT II THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT. POINT III THE SENTENCE IMPOSED WAS EXCESSIVE. I. A-0979-23 12 We first address defendant's arguments related to the stop and search of the Lexus and the judge's denial of the motion to suppress evidence seized as a result. We reject defendant's arguments on this point. The Fourth Amendment of the United States Constitution guarantees "t he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. 1 para. 7. "Despite the overlap between the standards, it is well known that our State Constitution 'provides greater protection against unreasonable searches and seizures than the Fourth Amendment.'" State v. Smart, 253 N.J. 156 , 165 (2023) (quoting State v. Carter, 247 N.J. 488 , 504 (2021)). Defendant argues the stop and the subsequent search of the Lexus were unreasonable. Defendant further asserts the finding of probable cause to support issuance of a warrant to search the impounded Lexus was improperly based on unreasonably seized evidence during the illegal on-scene search of the car. The scope of review of a decision on a motion to suppress is limited. State v. Ahmad, 246 N.J. 592 , 609 (2021). "Generally, on appellate review, a trial court's factual findings in support of granting or denying a motion to suppress must be upheld when 'those findings are supported by sufficient credible evidence in the record.'" State v. A.M., 237 N.J. 384, 395 (2019) (quoting State A-0979-23 13 v. S.S., 229 N.J. 360, 374 (2017)). We accord deference to a trial court's factual findings based on the trial court's "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 224, 244 (2007). A. THE STOP OF THE LEXUS WAS REASONABLE AND BASED ON ARTICULABLE FACTS KNOWN TO POLICE AT THE TIME OF THE STOP. "A lawful roadside stop by a police officer constitutes a seizure under both the Federal and New Jersey Constitutions." State v. Dunbar, 229 N.J. 521, 532 (2017) (citations omitted). "An investigative stop or detention does not offend the Federal or State Constitution, and no warrant is needed, '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. Goldsmith, 251 N.J. 384 , 399 (2022) (internal quotation marks omitted) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)). Reasonable and articulable suspicion, while less than probable cause, may not be satisfied by "inarticulate hunches" or "an arresting officer's subjective good faith." Id. at 399 (quoting State v. Stovall, 170 N.J. 346, 372 (2002) (Coleman, J., concurring in part and dissenting in part)). "[R]aw, inchoate suspicion grounded in speculation cannot be the basis for a valid stop." State v. A-0979-23 14 Scriven, 226 N.J. 20, 34 (2016). Reasonable suspicion requires "some minimal level of objective justification for making the stop." State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Specifically, "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. " State v. Davis, 104 N.J. 490, 501 (1986) (emphasis removed) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Whether a stop was adequately justified "is based on the totality of the circumstances and takes into consideration numerous factors, including officer experience and knowledge." Goldsmith, 251 N.J. at 400 (citing State v. Pineiro, 181 N.J. 13, 22 (2004)). "[T]he totality of the circumstances of the encounter must be considered in a very fact-sensitive analysis to determine whether officers objectively possessed reasonable and articulable suspicion to conduct an investigatory stop." Id. at 401 (citations omitted). Here, under the totality of the circumstances and because the Lexus was driving erratically through a public parking lot, the judge found "[t]here were sufficient facts establishing [Officer] Ganci had a reasonable or articulable suspicion that a motor vehicle violation had occurred, justifying his stop of the car." The judge explained "Officer Ganci testified that he witnessed the dark- A-0979-23 15 colored vehicle traveling at a high rate of speed, recklessly, through the parking spaces in the parking lot." Contrary to defendant's argument, dispatch's description of defendant, co- defendant, and the Lexus reasonably matched Officer Ganci's observations. Although defendant was not wearing a hoodie or jeans, defendant was a black male with dreadlocks and co-defendant was a black woman in a dark-colored car. Officer Ganci did not need a perfect description to stop and search the Lexus. See State v. Williamson, 138 N.J. 302, 304 (1994) ("Constitutional precedent requires only reasonableness on the part of the police, not legal perfection."). Notwithstanding the similarity between Officer Ganci's descriptions of the suspects and the car and the descriptions as relayed by dispatch, defendant argues that because the officers never issued a traffic ticket it is implied that the officers' testimony about the car's speed and reckless driving was simply a pretext to stop the Lexus. Defendant acknowledges "a stop founded on a suspected motor vehicle violation essentially is governed by the same case law used to evaluate a stop based on suspected criminal or quasi-criminal activity." State v. Golotta, 178 N.J. 205, 213 (2003). The State contends it "need prove only that the police A-0979-23 16 lawfully stopped the car, not that it could convict the driver of the motor -vehicle offense." Williamson, 138 N.J. at 304 ; see also State v. Oliveri, 336 N.J. Super. 244, 247 (App. Div. 2001) (upholding a stop because the police officer "had a reasonable and articulable suspicion defendant had committed a motor vehicle violation" even though the defendant was not convicted of any violation). Officer Ganci testified the Lexus drove erratically and sped through a public parking lot filled with pedestrians, which resulted in his decision to stop the car. According to Officer Ganci, pedestrians in the parking lot were reportedly running "frantically" away from the Lexus as it careened wildly through a public parking area. Even assuming the driver of the Lexus did not violate N.J.S.A. 39:4-97 by driving in the manner described by Officer Ganci, the driving was suspicious enough to reasonably warrant stopping the car. We are satisfied the actions of the Lexus placed people and property in danger in violation of N.J.S.A. 39:4-97 to justify stopping the car. B. THE POLICE WERE JUSTIFIED IN ORDERING DEFENDANT OUT OF THE LEXUS FOLLOWING THE STOP. "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person" under the Fourth Amendment. A-0979-23 17 Davis, 104 N.J. at 498 (quoting Terry v. Ohio, 392 U.S. 1, 16 (1968)). "Ordering a person out of a car constitutes a seizure under the Fourth Amendment because the person's liberty has been restricted." State v. Smith, 134 N.J. 599, 609 (1994). "Whether such a seizure is constitutional depends on the reasonableness of the order." Ibid. In Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), the United States Supreme Court reasoned police officers may order a driver to step out of a vehicle during a lawful traffic stop without requiring suspicion of a crime. The Court balanced the safety interest of the officers with the liberty interest of the driver and concluded officers safety was the more compelling interest. Ibid. New Jersey courts endorse the Mimms test as applied to drivers. Smith, 134 N.J. at 610 . Here, co-defendant was driving the Lexus at the time of the stop. Both co-defendant and defendant were ordered out of the car following the stop. In Smith, the Court stated, "an officer must be able to point to specific and articulable facts that would warrant heightened caution to justify ordering the [non-driving] occupants to step out of a vehicle detained for a traffic violation." Id. at 618 . Additionally, "[f]urtive movements may satisfy the heightened A-0979-23 18 caution standard" for ordering a passenger out of a car stopped for a suspected traffic violation. State v. Bacome, 228 N.J. 94, 107 (2017). The judge relied on the testimony of Officer Rastegarpanah, who observed defendant's furtive movements inside the Lexus. The judge cited the dangerous nature of a car careening through a public parking lot and the other erratic movements of the Lexus to find the officers possessed the requisite "heightened caution" to justify ordering defendant out of the Lexus. We are satisfied the judge did not abuse his discretion in concluding defendant's actions satisfied the heightened caution standard, thereby justifying the officers ordering defendant out of the car. C. THE ON-SCENE SEARCH OF THE LEXUS WAS A JUSTIFIED WARRANTLESS SEARCH UNDER THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT. Government action constitutes a search under the Fourth Amendment when it intrudes on a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 350-51 (1967). Searches generally "require the approval of an impartial judicial officer before most searches may be undertaken." State v. Hill, 115 N.J. 169, 173 (1989) (citing State v. Patino, 83 N.J. 1, 7 (1980)). "Any warrantless search is prima facie invalid, and the invalidity may be overcome A-0979-23 19 only if the search falls within one of the specific exceptions created by the United States Supreme Court." Ibid. (citing Patino, 83 N.J. at 7 ). The United States Supreme Court has recognized an "automobile" exception to the warrant requirement. Carroll v. United States, 267 U.S. 132 (1925); see also Hill, 115 N.J. at 173 (adopting the automobile exception in New Jersey). "[A] search warrant [is] unnecessary where there is probable cause to search an automobile stopped on the highway, the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained." Smart, 253 N.J. at 166 (quoting Chambers v. Maroney, 399 U.S. 42, 51 (1970)). However, "there are significant differences between the federal automobile exception as explained by the United States Supreme Court and the automobile exception in New Jersey." Ibid. In New Jersey, the automobile exception requires "the circumstances giving rise to probable cause be 'unforeseeable and spontaneous'" in addition to the federal requirements. Id. at 171 (quoting State v. Witt, 223 N.J. 409, 447 (2015)). In determining whether police officers had probable cause arising from spontaneous circumstances, courts apply a "totality-of-the circumstances test." State v. Lewis, 116 N.J. 477, 486 (1989) (citing State v. Novembrino, 105 N.J. A-0979-23 20 95, 122-23 (1987)). "Probable cause must be judged on the basis of the composite information in the hands of the police," including information gathered by other officers or dispatch. State v. Farinich, 179 N.J. Super. 1, 5 (App. Div. 1981). In denying defendant's motion to suppress the evidence found during the on-scene search of the Lexus, the judge explained the "surrounding circumstances[] indicat[ed] a threat to office safety" and, therefore, "it would not [have] be[en] practical" for the officers to obtain a warrant even though defendant and co-defendant exited the vehicle. The judge explained "every fact establishing probable cause to search the vehicle arose from the scene of the incident and the information gathered" supporting "probable cause [based on] unforeseeable and spontaneous circumstances." Defendant contends the on-scene warrantless search of the Lexus was impermissible because the police "lacked sufficient probable cause" to perform the search. Defendant argues his conduct in the front seat of the car was insufficient to warrant a finding of probable cause because "[m]ere furtive gestures of an occupant of an automobile do not give rise to an articulable suspicion suggesting criminal activity." State v. Lund, 119 N.J. 35, 47 (1990) (quoting State v. Schlosser, 774 P.2d 1132, 1137 (Utah 1989)). A-0979-23 21 While "it is well-settled that seemingly furtive movements by the suspect, without more, are insufficient to constitute reasonable and articulable suspicion," the circumstances surrounding the on-scene search of the Lexus satisfied the "more" requirement supporting probable cause. Goldsmith, 251 N.J. at 400 (emphasis added); accord Lund, 119 N.J. at 46 ("[T]here might be circumstances in which furtive movement and nervous appearance would establish the basis for a protective search."). Here, police responded to the scene based on reports of "a man with a gun." The Lexus and its occupants matched the description relayed by dispatch. Additionally, after the stop, the police saw defendant "fumbling around in the front seat." Based on the totality of the circumstances, the judge correctly concluded the officers had probable cause to search the Lexus at the scene and probable cause arose from unforeseen circumstances during the officers' response to a potentially dangerous incident. D. EVEN IF THE EVIDENCE FOUND DURING THE ON-SCENE SEARCH WAS IMPROPER, THE SEARCH WARRANT WAS INVALID. The scope of review of a search warrant is limited. State v. Chippero, 201 N.J. 14, 32 (2009). "[R]eviewing courts 'should pay substantial deference' to judicial findings of probable cause in search warrant applications." State v. A-0979-23 22 Andrews, 243 N.J. 447 , 464 (2020) (quoting State v. Kasabucki, 52 N.J. 110, 117 (1968)). However, legal conclusions to be drawn from those facts are reviewed de novo. State v. Radel, 249 N.J. 469 , 493 (2022). "A search based upon a warrant is presumed to be valid once the State establishes that the search warrant was issued in accordance with the procedures prescribed by the rules governing search warrants." State v. Valencia, 93 N.J. 126, 133 (1983). "The burden of demonstrating the invalidity of such a search is placed upon the defendant." Ibid. "The defendant must establish that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable." Ibid. Defendant argues the evidence discovered under the search warrant should be suppressed as the warrant lacked probable cause. "When determining whether probable cause exists, courts must consider the totality of the circumstances, and they must deal with probabilities." State v. Jones, 179 N.J. 377, 389 (2004) (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000)). Following the on-scene stop and search of the Lexus, the police impounded the car. On January 24, 2022, the police obtained a warrant to search the Lexus. In support of the warrant, the police provided an affidavit attesting to the relevant facts surrounding the two shootings, the police investigations into A-0979-23 23 those shootings, including surveillance footage matching the Lexus to the getaway vehicle used by the shooter, and the evidence discovered during the on- scene search of the Lexus. Further, the search warrant was supported by statements from the target of the shooting. Additionally, the affidavit supporting the search warrant included ballistics evidence that the gun found in the Lexus matched ballistics evidence recovered at the shootings. In its totality, this evidence supported probable cause for the search warrant and evidence seized pursuant to the lawful warrant was proper. II. We next address defendant's arguments regarding the denial of defendant's motion to suppress his statement to the police. "The Fifth Amendment to the United States Constitution guarantees that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself.'" State v. O.D.A.-C., 250 N.J. 408 , 419 (2022) (alteration in original) (quoting U.S. Const. amend. V). "[T]he United States Supreme Court [has] imposed procedural safeguards to try to dispel the inherent pressures of custodial interrogations and protect the right against self-incrimination." Id. at 419-20 (citing Miranda, 384 U.S. at 467, 478-79 ). A-0979-23 24 "'Custodial interrogation' was defined by the United States Supreme Court as 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" State v. Hubbard, 222 N.J. 249, 265-66 (2015) (quoting Miranda, 284 U.S. at 444). "[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 267 (alteration in original) (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)). Under Miranda, suspects subject to custodial interrogation must be advised they have the right to remain silent, anything they say may be used against them, and they have the right to an attorney, which will be provided if they cannot afford one. 384 U.S. at 479 . However, "New Jersey's privilege [against self-incrimination] 'offers broader protection than' the Fifth Amendment." O.D.A.-C., 250 N.J. at 420 (quoting Ahmad, 246 N.J. at 610). "Before the police can interrogate a suspect in custody, they must inform the person of his constitutional rights in accordance with Miranda." Ibid. (citing State v. Hreha, 217 N.J. 368, 382 (2014)). If the suspect elects to waive those A-0979-23 25 rights and make a statement, "the State must . . . prove beyond a reasonable doubt that the individual knowingly, intelligently, and voluntarily waived those rights 'in light of all the circumstances.'" Ibid. (quoting State v. Sims, 250 N.J. 189 , 211 (2022)). Defendant argues his on-scene admission that the handgun belonged to him must be suppressed because it was unreasonable for the police to order him to exit the car. The judge acknowledged defendant was in custody once he exited the Lexus but found defendant was not "subject to interrogation" at that time because the officers did not ask defendant "any questions revolving the incident nor did the police make any statements to [defendant] which would elicit an incriminating response." For the reasons we previously stated, explaining the police were justified under the circumstances in ordering defendant out of the car, and the seizure of the gun was reasonable under the circumstances, defendant's statement admitting to ownership of the gun was admissible. The judge did not abuse his discretion in denying the motion to suppress the statement. Defendant further argues the judge abused his discretion in failing to suppress defendant's on-scene statement to the police because "there was sufficient contemporaneous evidence that defendant may have been A-0979-23 26 intoxicated." In support of this argument, defendant cites a notation in the police report that defendant appeared intoxicated. Notwithstanding the police report, the detectives who testified at the pretrial hearing stated defendant did not appear intoxicated when defendant waived his rights and he gave an interview. The judge also saw the video recording from defendant's statement to the police and concluded defendant did not appear intoxicated. Defendant also asserts the State failed to meet its burden of proving beyond a reasonable doubt that the waiver of his rights was made knowingly, intelligently, and voluntarily. Based on the pretrial evidence, the judge found defendant "knowingly and intelligently waived his Miranda rights" because the detectives read defendant his rights, defendant acknowledged he understood those rights, and defendant then proceeded to speak with the detectives. The judge further concluded defendant "was able to provide an adequate waiver" of his Miranda rights and the fact he "may have been intoxicated d[id] not preclude him from rendering a valid waiver." "A confession made by a person while [intoxicated] is not per se involuntary." State v. Wade, 40 N.J. 27, 35 (1963) (citing State v. Wise, 19 N.J. 59, 85-92 (1955)). In State v. Warmbrun, 277 N.J. Super. 51, 61 (App. Div. 1994), the defendant argued his statements to police were inadmissible " because A-0979-23 27 he was too intoxicated to knowingly and intelligently waive his rights." The officer in that case "testified that although [the] defendant was obviously intoxicated, his answers were responsive and he understood the questions." Ibid. There, the trial judge concluded that "although defendant was very intoxicated, he was capable of communicating and that he was responsive in answering questions and could answer correctly questions such as his name, age, etc." Id. at 64 . In Warmbrun, we deferred to the trial court's assessment that the defendant's waiver was knowing and intelligent and concluded the trial court's finding was "supported by substantial credible evidence in the record." Ibid. Here, the judge had an opportunity to hear the officers' testimony that defendant was not so intoxicated he could not provide a statement to detectives. Additionally, the State presented a video recording of defendant's interview with the detectives which showed defendant was not so sufficiently inebriated that he could not freely and voluntarily waive his rights. Because the judge's finding was supported by substantial credible evidence in the record, we defer to his determination that defendant knowingly, intelligently, and voluntarily waived his Miranda rights. We are satisfied the judge did not abuse his discretion in declining to suppress defendant's statement to detectives. III. A-0979-23 28 We next address defendant's claim challenging the sentence as excessive. "In general, a trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citations omitted). "An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid. (citations omitted). We "must affirm the sentence of a trial court unless: (1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). This test applies to "sentences that result from guilty pleas, including those guilty pleas that are entered as part of a plea agreement." State v. Fuentes, 217 N.J. 57, 71 (2014) (quoting State v. Sainz, 107 N.J. 283, 292 (1987)). A-0979-23 29 Here, the judge applied aggravating factors three, six, and nine, as well as with mitigating factor fourteen, in sentencing defendant. Applying these factors, the judge imposed a nineteen-year sentence with parole eligibility after approximately sixteen years, plus five additional years of parole. Defendant argues the judge should have applied mitigating factor eigh t, "defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8). Defendant asserts the judge should have applied this mitigating factor because he "was clearly on the road towards rehabilitation obtaining steady employment, financial security, and independence." At sentencing, the judge found defendant "ha[d]n't been able to live a law abiding life from 2010 to present for any significant period of time." The judge stated defendant had a substance abuse problem but never sought treatment. Further, the judge cited defendant's outstanding charges on a separate matter, demonstrating defendant remained connected to criminal activity. We are satisfied the judge did not abuse his discretion in declining to apply mitigating factor eight. See State v. DeRoxtro, 327 N.J. Super. 212, 226 (App. Div. 2000) (rejecting mitigating factor eight because the defendant's criminal activity was "ongoing and continual"). A-0979-23 30 Defendant also argues the judge abused his discretion by not applying mitigating factor nine, N.J.S.A. 2C:44-1(b)(9). ("The character and attitude of the defendant indicate that the defendant is unlikely to commit another offense."). This mitigating factor requires the sentencing judge to " view a defendant as he . . . stands before the court on the day of sentencing." State v. Jaffe, 220 N.J. 114, 124 (2014). At sentencing, defendant's father testified regarding defendant's general moral character. Also, defendant appeared remorseful at the sentencing hearing. However, at sentencing and on appeal, defendant portrays himself as a victim of co-defendant's manipulation rather than as someone who acted on his own accord. Defendant's statements reflect a lack of responsibility for his actions and failed to evidence the unlikelihood of his committing another offense. We are satisfied the judge did not abuse his discretion in declining to apply mitigating factor nine. Finally, defendant asserts the judge abused his discretion in not applying mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13). ("The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant."). Courts apply this mitigating factor when a defendant is "under the virtual domination" of an older person at the time they commit the offenses. A-0979-23 31 State v. Henry, 323 N.J. Super. 157, 166 (App. Div. 1999); accord State v. Toro, 229 N.J. Super. 215, 228 (App. Div. 1988) (applying mitigating factor thirteen when a thirty-year-old played a "dominant role" over a twenty-year-old defendant). Defendant depicted co-defendant as a criminal mastermind who manipulated defendant to do her bidding because she went to college and studied psychology. The sentencing judge rejected this argument, explaining defendant's decision to engage in violence should be attributed to defendant rather than to co-defendant. Here, co-defendant is younger than defendant. That co-defendant may have taken psychology courses does not render her more mature than defendant. Thus, the judge did not abuse his discretion in finding mitigating factor thirteen inapplicable. We are satisfied the judge considered the relevant facts and adequately balanced the applicable aggravating and mitigating factors based on substantial and credible evidence when imposing the sentence. Affirmed. A-0979-23 32