STATE OF NEW JERSEY VS. EMAN HASSENBEY (15-03-0237 AND 15-06-0448, UNION COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1442-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMAN HASSENBEY, a/k/a
EMOND HASSENBAY, AMAN A. HASSENBEY,
and EMAN A. HASSENBEY,
Defendant-Appellant.
Submitted March 7, 2018 – Decided June 29, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment Nos.
15-03-0237 and 15-06-0448.
Joseph E. Krakora, Public Defender, attorney
for appellant (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Arielle E. Katz and Steven A.
Yomtov, Deputy Attorneys General, of counsel
and on the brief).
PER CURIAM
After a judge denied his motion to suppress evidence seized
during a warrantless search (Indictment No. 15-03-0237), and his
pretrial motions, including an application for a Franks1 hearing,
on a second set of charges (Indictment No. 15-06-0448), defendant
Eman Hassenbey entered into a plea agreement with the State. In
exchange for his guilty pleas to one count of the first indictment,
third-degree possession of a controlled dangerous substance (CDS)
with intent to distribute, N.J.S.A. 2C:35-10(a)(1), and second-
degree CDS possession with intent to distribute more than half an
ounce, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) on the
second indictment, defendant was sentenced to concurrent terms of
imprisonment on November 2, 2016. On the earlier indictment, the
judge imposed five years imprisonment, subject to two and one-half
years of parole ineligibility. On the later indictment, he
received twelve years state prison, subject to six years of parole
ineligibility. He now appeals the denial of his motion and his
sentence, and we affirm.
Plainfield Police Sergeant Jerry Plum testified during the
suppression hearing that at approximately 1:30 a.m. he was on
patrol with a partner. A confidential informant had told him a
few minutes earlier that a man named Eman was delivering narcotics
1
Franks v. Delaware, 438 U.S. 154 (1978).
2 A-1442-16T4
"stashed in his crotch area" to that location. The informant also
said defendant was driving a gold-colored Infiniti and was seated
in his car in the back of the lot. The informant saw defendant
pull into the parking lot, although Plum did not explain how the
informant learned that defendant stored the drugs in his crotch
area.
The confidential informant had been useful in many prior
narcotics investigations and was currently working with other
detectives. Plum had previously arrested defendant on drugs and
weapons charges and was familiar with the car he drove.
When Plum and his partner drove through the lot, they saw
defendant's vehicle towards the back. Plum stopped the patrol car
at an angle in front of defendant's automobile about five feet
away from his front bumper, so that defendant could not drive
away. Once Plum approached, he could see defendant's face,
illuminated by his cell phone. The car engine was running, and
defendant was in the driver's seat.
Once defendant made eye contact with Plum, his phone went
down, he sat up, and he made an outward gesture with his right
hand. Although concerned that the movement might mean defendant
had a weapon, Plum continued to approach the vehicle, and he
engaged defendant in idle chitchat.
3 A-1442-16T4
Plum knew defendant did not have his driver's license. As
Plum spoke to defendant, who had rolled down his window, the
officers illuminated the interior with their flashlights.
Defendant admitted driving his car although he was unlicensed.
The officers saw a scanner in the middle console of the car, which
Plum testified were often used by drug dealers in order to monitor
police activity. He also saw six or seven small rubber bands
commonly used to package heroin on the floor of the vehicle.
When Plum's partner flashed his light at defendant's crotch
area, Plum saw the pants zipper was open. When Plum asked
defendant about that, defendant "completely changed [his]
demeanor, became short of breath, he was like what, he was
relatively speechless." Plum told him to "zip up [his] pants,"
and defendant took about thirty seconds because he was shaking and
"convulsing."
Plum asked defendant to exit the vehicle so he could pat him
down. Defendant was not free to leave as he "would have
investigated further." In his opinion, defendant may have
"technically" been under arrest because he was not free to leave.
Plum believed the tip was corroborated by the rubber bands on the
floor, the police scanner, defendant's movements and demeanor, and
defendant's dubious claim to have just been waiting for a friend
in the back of an empty parking lot. The officer opined that
4 A-1442-16T4
defendant's nervous responses were "out of character." Plum added
that defendant became so nervous when the open zipper was drawn
to his attention that he literally could not close it.
As Plum conducted a pat-down, he felt a bulge below
defendant's belt buckle and asked him about it. Defendant gestured
that he did not know. Suspecting the bulge contained narcotics,
as predicted by the informant, Plum pulled up defendant's shirt
and ran his thumb around the inside of defendant's waistband.
Defendant had a sock, attached to his underwear, hooked on his
waistband.
Stating the obvious, that socks are not typically sewn to
underwear, Plum pulled out a large quantity of narcotics. He
removed the drugs, but not the sock. Defendant was immediately
cuffed, and a large quantity of cash was found in his front pocket.
The radio scanner was tuned to the police channel. The officers
also retrieved the rubber bands, two cell phones, and a package
of AA batteries for the scanner.
In a written opinion, the judge ruled that the officers
reasonably relied on the confidential informant's tip and the
details provided, which indicated personal observations. The
officers approached defendant at night in a high-crime, high-
narcotics area. The informant used defendant's first name and
accurately described his car.
5 A-1442-16T4
Additionally, Plum knew defendant had been previously
convicted for drug offenses, and he was involved with guns and
drugs. Once the officers looked into the vehicle and saw the
rubber bands and scanner, as well as defendant's open pants zipper
and his nervous reaction to the inquiry about it, the officer had
a sufficient basis to perform a pat-down. During the pat-down,
the officer felt the bulge exactly where the confidential informant
said it would be located. Thus, the judge denied the motion to
suppress.
As to the second indictment, Union County Detective Filipe
Afonso received information that defendant was "actively involved
in the distribution of [CDS], specifically, cocaine, within the
City of Plainfield, which he store[d] in his residence[] . . . and
from [his car]." That information was known to the authorities
not only from a confidential informant's tip but from two
controlled buys performed by the confidential informant. The
substance purchased through the controlled buys tested positive
for cocaine. Afonso's affidavit submitted in support of a search
warrant set forth defendant's prior criminal history, information
about his address and car, the tip, and the controlled buys. On
the strength of that affidavit, a no-knock search warrant issued
authorizing a search of defendant's car and home.
6 A-1442-16T4
On December 16, 2014, the police stopped defendant's car and
drove him to his apartment. On defendant's person, police found
$173, numerous bags of suspected cocaine and heroin in a sock
attached to his underwear, and two cell phones. The officers
seized a scanner from defendant's car and rubber bands, sandwich
bags, wire cutters, and $15,677 in cash from his apartment.
On December 11, 2015, defendant moved for a dismissal of the
second indictment and a venue change. He also moved for disclosure
of the identity of the confidential informant and information
about the confidential informant and the controlled buys. In
support of his motion for a Franks hearing, defendant alleged that
the information regarding the controlled buy was not credible
because the drug testing was too brief, thus raising doubt as to
whether testing had occurred.
The court found sufficient probable cause for the issuance
of the warrant, and denied all of defendant's related motions.
The confidential informant had provided information leading to
twelve arrests and the seizure of drugs, money, and motor vehicles.
The informant's controlled buys from defendant were verified by
the officers' observation when the purchases were made. The
officers were also present when the informant called defendant to
arrange the meetings. Officers saw defendant drive to the agreed-
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upon location in his car. Therefore, the certification supporting
the application of a search warranted sufficed.
The court found aggravating factors three, six, and nine,
N.J.S.A. 2C:44-1(a)(3), (6), and (9), when sentencing defendant.
The judge commented defendant's prior record was "very extensive,"
consisting of eight indictable and three disorderly persons
offense convictions, including a second-degree CDS offense,
certain persons offense, and a school zone CDS offense. Thus, the
judge was "clearly convinced" that the aggravating factors
"substantially outweigh" the non-existent mitigating factors.
On appeal, defendant raises the following points:
POINT I
EVIDENCE SEIZED AS THE RESULT OF THE OFFICERS'
UNCONSTITUTIONAL INITIAL STOP AND SUBSEQUENT
ARREST OF HASSENBEY MUST BE SUPPRESSED AS TO
INDICTMENT NO. 15-03-237.
POINT II
THE OFFICERS' STRIP SEARCH OF HASSENBEY IN A
PUBLIC PARKING, WAS ILLEGAL AND UNREASONABLE,
AND THEREFORE, THE EVIDENCE SEIZED MUST BE
SUPPRESSED AS TO INDICTMENT NO. 14-03-237 (NOT
RAISED BELOW).
POINT III
AS TO INDICTMENT NO. 15-06-0448, THE MOTION
JUDGE ERRED IN DENYING HASSENBEY'S REQUEST FOR
A FRANKS HEARING, BASED ON AN ALLEGATION THE
BUYS WERE FABRICATED AFTER DENYING HIS MOTION
FOR DISCOVERY RELATED TO THOSE SUPPOSED
CONTROLLED BUYS.
8 A-1442-16T4
POINT IV
THE JUDGE'S SENTENCING UTTERLY FAILED TO
COMPLY WITH THE REQUIREMENTS OF STATE V. CASE,
220 N.J. 49 (2013), RESULTING IN A MANIFESTLY
EXCESSIVE SENTENCE THAT MUST BE REVERSED.
I.
When reviewing motions to suppress, we "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." State v. Rockford, 213 N.J. 424, 440 (2013) (citing
State v. Robinson, 200 N.J. 1, 15 (2009)). This is particularly
true when the findings of the trial court are "substantially
influenced by his [or her] opportunity to hear and see the
witnesses and to have the 'feel' of the case," even if we might
have reached a different conclusion. State v. Elders, 192 N.J.
224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). "A trial court's findings should be disturbed only if
they are so clearly mistaken 'that the interests of justice demand
intervention and correction.'" Ibid. (quoting Johnson, 42 N.J.
at 162).
We address defendant's first and second points together. He
begins by contending that the investigatory stop was illegal
because it was based on a confidential informant's unsubstantiated
tip. He argues that Plum's visual confirmation of the information
he received was so superficial as to be meaningless. Building on
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that premise, defendant argues that the investigatory stop was
illegal.
The Fourth Amendment of the United States Constitution and
article one, paragraph seven of the New Jersey Constitution
guarantee the right of people to be secure against unreasonable
searches and seizures, by requiring warrants issued upon probable
cause. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Warrantless
searches "are presumptively unreasonable and invalid unless
justified by a recognized exception to the warrant requirement."
State v. Bolte, 115 N.J. 579, 585 (1989) (citations omitted).
One such exception is an investigatory stop. See State v.
Patino, 83 N.J. 1, 7 (1980) ("The warrant requirement . . . may
be dispensed with in only a few narrowly circumscribed exceptions.
The prima facie invalidity of any warrantless search is overcome
only if that search falls within one of the specific exceptions
created by the United States Supreme Court."); see also Terry v.
Ohio, 392 U.S. 1, 27 (1968); United States v. Hensley, 469 U.S.
221, 226 (1985) (finding that police officers may stop a motor
vehicle and detain its occupants temporarily while they
investigate a criminal offense). To subject a person to an
investigatory stop and detention, however, the police must have
reasonable, articulable suspicion of conduct that violates the
law.
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In New Jersey, a police officer may conduct an investigatory
stop if, based on the totality of the circumstances, there is
reasonable suspicion to believe an individual has just engaged in,
or about to engage in, criminal activity. State v. Maryland, 167
N.J. 471, 487 (2001) (citing Terry, 392 U.S. at 21). Our Supreme
Court defines "reasonable suspicion" as "a particularized and
objective basis for suspecting the person stopped of criminal
activity." State v. Stovall, 170 N.J. 346, 356 (2002) (quoting
Ornelas v. United States, 517 U.S. 690, 696 (1996)). Under the
totality of the circumstances analysis, weight is given to the
officer's experience and knowledge, and the "rational inferences
that could be drawn from the facts objectively and reasonably
viewed in light of the officer's expertise." State v. Todd, 355
N.J. Super. 132, 137-38 (App. Div. 2002) (quoting State v. Arthur,
149 N.J. 1, 10-11 (1997)).
The Supreme Court has articulated specific guidelines for
cases involving police informants. State v. Sullivan, 169 N.J.
204, 212 (2001). Such information may constitute a basis for a
finding of even probable cause to search, so long as substantial
grounds exist crediting the information. State v. Smith, 155 N.J.
83, 92 (1998). Whether probable cause is established "is determined
by a standard that calls for consideration and analysis of all
relevant circumstances." Ibid.; see also Illinois v. Gates, 462
11 A-1442-16T4
U.S. 213, 238 (1983) (finding that the reliability of an
informant's tip must be analyzed under the totality of
circumstances); State v. Novembrino, 105 N.J. 95, 122 (1987)
(adopting the totality of circumstances analysis from Gates).
"Two factors generally considered [as] highly relevant, if
not essential," in the totality of circumstances analysis are the
informant's "veracity" and the informant's "basis of knowledge."
Smith, 155 N.J. at 93 (quoting Gates, 462 U.S. at 238). "A
deficiency in one of those factors 'may be compensated for, in
determining the overall reliability of a tip, by a strong showing
as to the other, or by some other indicia of reliability.'" State
v. Zutic, 155 N.J. 103, 110-11 (1998) (citations omitted).
Additionally, our courts have stressed that a factor, "though
insufficient if considered in isolation, may in combination
reinforce or augment another and become sufficient to demonstrate
probable cause." Id. at 113 (citing Gates, 462 U.S. at 233).
Regarding an informant's veracity, past instances of
reliability are "probative of veracity, although [their] weight
in the ultimate determination of probable cause may vary with the
circumstances of each case." Smith, 155 N.J. at 94. An
informant's veracity may be shown by demonstrating that the
informant proved to be reliable in previous police investigations.
Novembrino, 105 N.J. at 123. However, since the totality of the
12 A-1442-16T4
circumstances must be examined, "past instances of reliability do
not conclusively establish an informant's reliability." Smith,
155 N.J. at 94.
In the absence of a disclosure that relates expressly the
manner in which the informant acquired knowledge, "the nature and
details revealed in the tip may imply that the informant's
knowledge of the alleged criminal activity is derived from a
trustworthy source." Ibid. (citing Novembrino, 105 N.J. at 113).
"By providing sufficient detail in the tip or recounting
information that could not otherwise be attributed to circulating
rumors or be easily gleaned by a casual observer, an informant can
implicitly disclose a reliable basis of knowledge as the foundation
of the information related to the police." Id. at 95.
Independent police "corroboration is necessary to ratify the
informant's veracity and validate the truthfulness of the tip, and
is considered an essential part of the determination of probable
cause." State v. Jones, 179 N.J. 377, 390 (2004) (citation
omitted). The degree of corroboration the police must present to
the court depends on a qualitative analysis of "the unique facts
and circumstances presented in each case." Ibid. Whether the
police corroboration suffices to justify the police intrusion
"turns ultimately on the totality of the circumstances." State
13 A-1442-16T4
v. Rodriguez, 172 N.J. 117, 128 (2002) (citing Alabama v. White,
496 U.S. 325, 330 (1990)).
Defendant contends Plum's description of the informant's
history with the police was "vague and conclusory," thus
establishing the informant's lack of veracity. Even if the
informant's history is sufficient, defendant argues, the
informant's basis of knowledge was unknown. Since, according to
defendant, the officers did not corroborate predicted or hard-to-
know information before the search, the drugs should be suppressed.
This argument lacks merit.
Where an informant has previously proven reliable, that
satisfies the first factor. See Novembrino, 105 N.J. at 123. This
informant's history consists of numerous occasions where the
informant's information proved useful not only to Plum, but to
other detectives in Plainfield. Thus, Plum's testimony readily
satisfied the veracity prong.
Furthermore, the informant furnished information that could
only have been obtained from personal observations. The informant
advised that a man named "Eman" was dealing drugs out of his gold
or tan Infiniti that was backed into a spot in the rear of a
deserted parking lot for that purpose. The informant expressly
indicated he had seen defendant conducting an illegal drug sale,
thus also demonstrating the basis of knowledge.
14 A-1442-16T4
The informant's tip in this case, in contrast to the cases
defendant cites, contained details including defendant's name and
specific location. Plum knew defendant and his drug history.
Defendant's exaggerated reaction when Plum mentioned his open
pants zipper itself validates the information given by the
informant. The credible evidence in the record supports the trial
judge's conclusion that the information was sufficiently
corroborated, and therefore reliable. See Rockford, 213 N.J. at
440.
Defendant also contends that Plum lacked probable cause to
arrest or search his person. The argument hinges, however, on the
conclusion that the totality of the circumstances did not give
Plum a basis for an investigatory stop. Not only did Plum have a
basis for an investigatory stop, once defendant engaged in furtive
movements and reacted in a highly suspicious fashion when asked
about his open zipper, Plum was entitled to pat defendant down for
his own safety.
An officer's protective frisk for weapons is lawful where,
"a reasonably prudent [person] in the circumstances would be
warranted in the belief that his [or her] safety or that of others
was in danger." State v. Lund, 119 N.J. 35, 39 (1990) (quoting
Terry, 392 U.S. at 27).
As the Law Division judge said:
15 A-1442-16T4
As he approached the car, Sergeant Plum
observed the defendant using his cellphone and
moving something in the car with his right
hand. Sergeant Plum believed the defendant did
not have a driver's license. This was
confirmed by the defendant. The Infinit[i]'s
engine was running when the officers
approached. In the car, Sergeant Plum saw a
police radio scanner, commonly used by drug
dealers, and drug packaging material.
Sergeant Plum observed the defendant's zipper
being down. When he asked the defendant about
it, the defendant became extremely nervous and
evasive. Based on the facts present[ed], there
was sufficient basis for Sergeant Plum to ask
the defendant to exit the car for his safety,
and to perform a pat[-]down for weapons. In
defendant's pants in the crotch area, Sergeant
Plum felt a sock in the exact area the
[informant] said the defendant was concealing
CDS. Based on the [informant's] information,
the officer's corroboration of the
[informant's] information, and the officer's
knowledge and observations, there was probable
cause for the defendant's arrest and search
incident to arrest.
In other words, once Plum corroborated the tip, there was a basis
for an investigatory stop and pat-down. As the circumstances
evolved, Plum had probable cause to search. The trial court's
ruling denying defendant's motion to suppress evidence should be
affirmed.
For the first time on appeal, defendant argues that the
officer dragging his thumb along the inside of defendant's pants
was the equivalent of a strip search. This argument also lacks
merit.
16 A-1442-16T4
A strip search is "the removal or rearrangement of clothing
for the purpose of visual inspection of the person's undergarments,
buttocks, anus, genitals or breasts." N.J.S.A. 2A:161A-3(a). The
strip search statute, N.J.S.A. 2A:161A-1, was adopted "to provide
greater protection than is afforded by the Fourth Amendment [of
the Federal Constitution]." State v. Hayes, 327 N.J. Super. 373,
381 (App. Div. 2000). Conducting a strip search in violation of
this statute renders the search unreasonable and requires
suppression of any evidence discovered. U.S. Const. amends. IV,
XIV; N.J. Const. art. I, ¶ 7; see State v. Harris, 384 N.J. Super.
29, 49 (App. Div. 2006); Hayes, 327 N.J. Super. at 373; Harris,
384 N.J. Super. at 49.
Plum's search of defendant's upper pants area did not require
removal or significant rearrangement of his clothing. He pulled
up defendant's shirt and ran his thumb around the inside of
defendant's waistband. Once he felt the drugs hidden in the sock
hanging from the waistband, and removed the narcotics, he went no
further. Although he did lift defendant's shirt, Plum's conduct
was not for the purpose of visual inspection of defendant's
undergarments or private parts.
Furthermore, Plum's seizure of the contents of the sock was
proper pursuant to the "plain feel doctrine." Minnesota v.
Dickerson, 508 U.S. 366 (1993); State v. Evans, 449 N.J. Super.
17 A-1442-16T4
66, 82 (App. Div. 2017) (citations omitted). According to the
doctrine, "police officers may seize nonthreatening contraband
detected during a protective patdown search" as long as the search
remained within its bounds. Dickerson, 508 U.S. at 373. The
Court said:
If a police officer lawfully pats down a
suspect's outer clothing and feels an object
whose contour or mass makes its identity
immediately apparent, there has been no
invasion of the suspect's privacy beyond that
already authorized by the officer's search for
weapons; if the object is contraband, its
warrantless seizure would be justified by the
same practical considerations that inhere in
the plain-view context.
[Id. at 375-76.]
As the Dickerson Court noted, the plain-view and plain-feel
doctrines both require probable cause if the object of a
warrantless seizure is contraband. Id. at 376.
Under the plain-feel doctrine, Plum had sufficient probable
cause to immediately seize the drugs from defendant at the scene
of incident. See State v. Toth, 321 N.J. Super. 609, 612-14 (App.
Div. 1999) (finding that an officer's observation of a large bulge
and feeling of suspected CDS in defendant's groin area during the
course of a protective frisk gave rise to probable cause to seize
the CDS). It was immediately apparent to Plum that the peculiar
18 A-1442-16T4
waistband/sock arrangement concealed contraband, but Plum's
conduct did not equate to a strip search.
II.
We accord substantial deference to a trial court's decision
to issue a search warrant. State v. Keyes, 184 N.J. 541 (2005).
A search warrant is presumed valid, and defendant bears the burden
to prove "there was no probable cause supporting the issuance of
the warrant or that the search was otherwise unreasonable." State
v. Valencia, 93 N.J. 126, 133 (1983) (citation omitted). "Doubt
as to the validity of the warrant should ordinarily be resolved
by sustaining the search." Keyes, 184 N.J. at 554 (citation
omitted).
Defendant suspects that the controlled buys were fabricated
and the affidavit in support of the issuance of the search warrant
therefore contained willful falsehoods, and argues he should have
been granted a Franks hearing for that reason. He supports the
argument by reasoning that if officers are not compelled to better
document controlled buys, they could simply engage in fictional
buys at will.
The primary purpose of a Franks hearing is to "determine
whether the police made material misrepresentations and/or
omissions in seeking [a search warrant] and, if so, whether the
evidence gathered from [a] defective warrant[] [must] be
19 A-1442-16T4
suppressed." State v. Smith, 212 N.J. 365, 413-14 (2012). The
Fourth Amendment requires the court to hold a hearing at the
defendant's request when a criminal defendant "makes a substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable
cause." Franks, 438 U.S. at 155-56. These requirements also
apply where the allegations are that the affidavit, though facially
accurate, omits material facts. State v. Stelzner, 257 N.J. Super.
219, 235 (App. Div. 1992).
A defendant cannot rely on unintentional falsification, but
"must allege 'deliberate falsehood or reckless disregard for the
truth.'" State v. Howery, 80 N.J. 563, 567 (1979) (quoting Franks,
438 U.S. at 171). "These allegations should be supported by an
offer of proof including reliable statements by witnesses, and
they must be proved by a preponderance of the evidence." Id. at
568-69 (citing Franks, 438 U.S. at 171). Finally, the
misstatements claimed to be false must be material to the extent
that when they were excised from the affidavit, that document no
longer contained facts sufficient to establish probable cause.
Ibid. (citing Franks, 438 U.S. at 171).
20 A-1442-16T4
The sole factor defendant can point to in support of his
contention that the affidavit contained a material
misrepresentation is that the turnaround time between the buy and
the testing of the drugs was too brief. That is not enough of a
showing to justify discovery that would be nothing more than a
fishing expedition. See State v. Broom-Smith, 406 N.J. Super.
228, 239 (App. Div. 2009) (A defendant's broad discovery rights
under Rule 3:13-3 does not entitle him to a launch a fishing
expedition).
Defendant has failed to make the necessary substantial
preliminary showing that Afonso's statements were intentionally
false. See Howery, 80 N.J. at 567-69. Nothing but speculation
fuel's defendant's claim that Afonso's affidavit contains material
misrepresentation or a reckless disregard for the truth. Unfounded
suspicion is not the equivalent of a substantial preliminary
showing. See id. at 567.
On its face, Afonso's affidavit clearly supports probable
cause for a search warrant. See Broom-Smith, 406 N.J. Super. at
240. We observed in that case:
For purposes of the warrant application, it
was sufficient that [the Investigator] had
listened in to the phone conversation in which
defendant told the informant to come over to
his house, that the informant reported to her
right after the controlled buy that defendant
sold him a substance purported to be cocaine,
21 A-1442-16T4
and that the investigators field-tested the
purchased substance immediately. . . .
Whether more extensive later testing
conclusively proved the substance to be [CDS]
. . . [is] irrelevant to the validity of the
warrant.
[Ibid.]
The court's refusal to turn over lab reports and money
requsition forms, attendant to a Franks hearing, was not error.
III.
We overturn a trial court's sentencing decision only where
it constitutes a "patent and gross abuse of discretion." State
v. Roth, 95 N.J. 334, 364 (1984) (quoting State v. Bender, 80 N.J.
84, 93 (1979)). A patent and gross abuse of discretion occurs
when the decision either "(a) was not premised upon a consideration
of all relevant factors, (b) was based upon a consideration of
irrelevant or inappropriate factors, or (c) amounted to a clear
error in judgment." Ibid. (citation omitted). A sentence
justifies reversal only where it "shocks the judicial conscience."
Ibid.Defendant also argues that because the court could have
imposed a lower sentence, it was an abuse of discretion to impose
the negotiated term. The plea agreement defendant entered into
called for ten years imprisonment, subject to fifty-seven months
of parole ineligibility under Indictment No. 15-06-0448, to run
22 A-1442-16T4
consecutive to the sentence under Indictment No. 15-03-0237, of
five years with two-and-a-half years of parole ineligibility. The
judge reduced the aggregate sentence from the agreed-upon fifteen
years to twelve years. Defendant was sentenced, albeit to a
discretionary extended term, on Indictment No. 15-06-0448 in the
first-degree range to the lowest state prison term possible. The
twelve-year sentence he received does not shock our conscience.
See Roth, 95 N.J. at 364.
Affirmed.
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