STATE OF NEW JERSEY VS. JOHN J. JIMENEZ (16-09-1488, MIDDLESEX COUNTYAND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4964-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN J. JIMENEZ,
Defendant-Appellant.
______________________________
Submitted January 23, 2019 – Decided February 1, 2019
Before Judges Fisher and Hoffman.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 16-09-
1488.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the brief).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (James C. Brady,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant pleaded guilty to second-degree conspiracy to unlawfully
possess a handgun, N.J.S.A. 2C:5-2(a)(1); N.J.S.A. 2C:39-5(b)(1), and was
sentenced as a third-degree offender to a five-year probationary term. He now
appeals the denial of his suppression motion, arguing he was erroneously
deprived of an evidentiary hearing as required by Franks v. Delaware, 438 U.S.
154 (1978).
The search that was the subject of defendant's suppression motion was
authorized by a warrant. Defendant contends he was entitled to challenge the
veracity of the warrant affidavit at a Franks hearing because the affidavit only
disclosed information about drug activities and failed to disclose that police also
conducted surveillance because of a police officer's loss of a service weapon a
few days earlier. Franks held that to obtain a hearing for the purpose of
challenging the veracity of a warrant affidavit, a defendant must overcome the
presumption of validity, id. at 171, not by referencing "minor technical
problems," see State v. Broom-Smith, 406 N.J. Super. 228, 240 (App. Div.
2009), but by "mak[ing] 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," Franks, 438 U.S. at 155-56.
Defendant's argument is not that something in the affidavit is false to the degree
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described in Franks but that the affidavit left out other information he believes
relevant.
That is, defendant did not argue to the trial court that the facts recounted
in the issuing affidavit – standing alone – were subject to challenge, only that
the affiant omitted facts about the lost-weapon investigation. He claimed, in
essence, a right to challenge the affiant's credibility through the elucidation of
those things the affiant left out of the affidavit. We agree this argument was
insubstantial and that defendant failed to adequately explain or support his
contention that facts about the lost-weapon investigation would undermine those
facts included in the warrant affidavit.
We find no merit in defendant's argument and affirm substantially for the
reasons contained in Judge Michael A. Toto's thoughtful and comprehensive
written decision.
Affirmed.
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