STATE OF NEW JERSEY VS. KEVIN T. KELLY-PALLANTA (17-12-0892, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2499-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN T. KELLY-PALLANTA,
a/k/a KEVIN KELLY, KEVIN
KELLY-PALLANTA, KEVIN
PALLANTA, KEVIN K.
PALLANTA, KEVIN
KELLYPALLANTA, KEVIN
T. KELLY, KEVIN T.
KELLYPALLANTA, and
KEVIN T. PALLANTA,
Defendant-Appellant.
___________________________
Submitted April 27, 2020 – Decided July 15, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey,
Law Division, Cape May County, Indictment No. 17-
12-0892.
Joseph E. Krakora, Public Defender, attorney for
appellant (Cody Tyler Mason, Assistant Deputy Public
Defender, of counsel and on the briefs).
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (Gretchen Anderson
Pickering, Senior Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Following the denial of his motion to suppress evidence seized following
a search of his residence based on a search warrant, defendant Kevin T. Kelly-
Pallanta pleaded guilty to third-degree possession with intent to distribute a
controlled dangerous substance, methamphetamine, N.J.S.A. 2C:35-5(a)(1)
and N.J.S.A. 2C:35-5(b)(9)(b). In accordance with the plea agreement, the
court sentenced defendant to a three-year prison term and awarded 438 days of
jail credit.
Defendant appeals from the court's October 17, 2017 order denying his
motion to suppress the physical evidence seized during the search of his
residence, and he also claims the court erred by failing to award three days of
jail credit to which he was entitled. Having considered the record and
arguments presented in light of the applicable legal principles, we affirm the
court's order denying defendant's suppression motion and remand for the court
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to consider defendant's claimed entitlement to three additional days of jail
credit.
I.
The pertinent facts are not in dispute. On June 5, 2017, Cape May
County Prosecutor's Office Detective Maurice Catarcio submitted an affidavit
to a Superior Court judge in support of a request for a search warrant for what
he described in part as a single-family residence at 217 East 22nd Avenue in
North Wildwood. The affidavit included information provided by a
confidential informant that defendant was selling methamphetamine and was
"known to reside" at that address.
The affidavit explained that during the week of May 29, 2017, the
confidential informant called defendant at Detective Catarcio's direction and
arranged to purchase methamphetamine. Defendant instructed the informant to
travel to his residence at 217 East 22nd Avenue to complete the transaction.
At a pre-determined meet location, the informant was searched, was found not
to be in possession of any controlled dangerous substances, and was provided
money to make the purchase. According to the search warrant affidavit,
officers then observed the confidential informant travel to the residence.
A-2499-18T4
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A different detective observed the confidential informant approach the
residence at 217 East 22nd Avenue and walk to the rear of the residence out of
the detective's "line of sight." A short time later, the detective observed the
informant walk from the rear of the residence and proceed to a pre-determined
location to meet with the detectives.
Upon arriving at the pre-determined location, the confidential informant
handed Detective Catarcio an amount of suspected methamphetamine. The
informant reported entering the residence through a door located on its north
side and purchasing the substance, which a test later confirmed was
methamphetamine, from an individual the informant identified as defend ant
from a New Jersey Division of Motor Vehicle photograph. The affidavit also
stated the informant "was under constant surveillance from the time [he or she]
traveled from the pre-determined meet location up to the time [he or she]" met
with the detectives following the purchase.
Detective Catarcio's affidavit also detailed a second controlled purchase
of methamphetamine from defendant at the same residence during the week
beginning May 29, 2017. Again, the confidential informant contacted
defendant over the telephone, made arrangements to purchase
methamphetamine, and was instructed by defendant to travel to his residence
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at 217 East 22nd Avenue to make the purchase. Detective Catarcio searched
the confidential informant, determined the informant was not in possession of
any controlled substances, and gave the informant funds to make the purchase.
The confidential informant was kept under constant surveillance as he or
she traveled to the residence. This time, however, the informant "enter[ed] the
residence utilizing the front door of the residence." A short time later, the
informant left the residence through its front door, returned to a pre -
determined location, and turned over suspected methamphetamine he or she
said was purchased from defendant "while inside the residence of 217 E[ast]
22nd Avenue."
As explained in Detective Catarcio's affidavit, a search of the
confidential informant did not reveal any monies or other controlled dangerous
substances. The affidavit further stated the confidential informant "was under
constant surveillance from the time" he or she met with the detectives and set
up the purchase through the informant's turnover of the substance, which a test
confirmed was methamphetamine.
The affidavit further noted that in June 2017, the confidential informant
was in the residence, and defendant showed the informant a .45 caliber pistol.
The affidavit also included information provided to detectives in March 2013,
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by a confidential source "with an untested level of reliability" that defendant
said: he keeps five or six rifles and shotguns at 217 East 22nd Avenue; he
committed a home invasion in another town; he had proceeds from a theft he
committed in the attic of his residence; and that defendant asked if the
confidential source could help find a buyer for a firearm. The affidavit also
reported that a second confidential source stated defendant possessed several
firearms.
The affidavit sought a no-knock warrant for the "single family dwelling"
located at 217 East 22nd Avenue, and it included a physical description of the
exterior of the structure. Based on the affidavit, a Superior Court judge issued
a June 5, 2017 search warrant for the residence. The warrant described the
structure as a "three . . . story, single family dwelling" and described the entry
to residence as being at the top of the stairs in the front of the structure.
On the day following the issuance of the warrant, but before it was
executed, Detective Catarcio obtained new information about the residence.
As a result, he submitted an amended affidavit to a different judge and sought
the issuance of a second search warrant. The affidavit included identical
descriptions of the two controlled purchases from defendant made by the
confidential informant, as well as the information supplied by the confidential
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sources. The affidavit, however, included additional and different information
about the physical layout of the building based on the new information
Detective Catarcio received.
More particularly, the affidavit explained that on June 6, 2017, North
Wildwood Police Department Sergeant McGraw advised Detective Catarcio he
had first-hand knowledge of the "building layout" of the residence "from
previous law enforcement activity inside the structure." Sergeant McGraw
said "there are multiple, vacant apartments located on the first floor," and the
"main residence of 217 E[ast] 22nd Avenue . . . does not have access to the
multiple apartments located on the first floor."
Detective Catarcio modified the description of the premises for which he
sought the search warrant, changing the description of the building from a
"single family dwelling" to a "multi-family residence." In pertinent part, the
affidavit described the premises to be searched as follows:
217 E[ast] 22nd AVENUE, NORTH WILDWOOD,
NEW JERSEY, is a three (3) story, multi-family
residence . . . . The exterior of the first level of the
residence displays tan in color stone. The exterior of
the second and third level of the residence displays tan
in color siding. There are multiple rectangular shaped
windows on the south facing side of the structure. In
the center, of the south facing side of the structure is a
set of twelve (12) concrete steps that lead to the
second floor. Atop the set of steps is the main entry
A-2499-18T4
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door that leads to the main residence of the structure.
The main entry door is brown in color with large glass
panes. Above the main entry door are the numerals
"2-1-7." The structure's roof is an A-frame
construction with brown shingles. There is a large
covered deck area on the second floor of the east
facing side of the structure, which is outline [sic] with
wooden spindles.
[(Emphasis added).]
A photograph of the residence that was annexed to the affidavit shows the
front of the residence facing the street, with twelve steps leading up to a
second-floor doorway. 1
On June 6, 2017, the judge issued a second search warrant for the
residence, describing the premises to be searched precisely as detailed in the
affidavit. Officers then executed the second search warrant at 217 East 22nd
Avenue and searched the main residence.
The record provided on appeal does not include any competent evidence
concerning the search that was conducted and yielded the evidence defendant
sought to suppress in his motion before the trial court. 2 However, defendant
1
Defendant did not include the photographs referenced in Detective Catarcio's
second affidavit in the appendix on appeal. We rely on the photograph
included in the State's appendix.
2
The motion was decided without an evidentiary hearing, and the record does
not include any affidavits or certifications based on personal knowledge
A-2499-18T4
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relied on a police report detailing the search, and the State did not, and does
not, dispute the facts set forth in the report. Defendant also relied on a
drawing of the layout of the residence's second floor, which was drawn by one
of the officers prior to the search. It showed the second floor consists of a
living area, kitchen, and two bedrooms, one of which was labeled the "target
bedroom." It also showed stairs leading to an upper floor. We accept those
facts and defendant's reliance on the drawing as having been prepared by the
police prior to the search because, for purposes of the motion, the parties did
not dispute those facts or the accuracy of the drawing.
The report explains that at 6:00 p.m. on June 6, 2017, defendant was
arrested pursuant to an outstanding municipal court warrant after he exited the
front door of the residence. Almost three hours later, following the issu ance of
the second search warrant, police officers searched the second and third floors
of the residence, and they found controlled dangerous substances and other
drug paraphernalia in a third-floor bedroom. 3 The police found another
detailing the manner in which the search of the residence following the
issuance of the second warrant occurred. See R. 1:6-6.
3
The police also reported seizing from a second-floor bedroom what is
described as a "discovery packet" in the name of a third-party who was not
present when the search occurred. There is no evidence in the record
A-2499-18T4
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individual within the second and third floor living area and arrested her. 4 That
individual signed a written consent to search the first floor of the residence,
which was not accessible from the second and third floor living area, but
nothing of evidential value was found or seized during the first floor search.
Defendant moved to suppress the evidence. 5 He argued the warrant
violated the particularity requirements of the Fourth Amendment to the United
States Constitution and Article I, Section 7 of the New Jersey Constitution. He
claimed Detective Catarcio's second affidavit did not inform the court that the
second and third floors consisted of numerous separately occupied bedrooms
and the affidavit failed to identify that a bedroom was "targeted" for the
search. Defendant claimed the second and third floors of the residence were
not the "main residence" as stated in the search warrant but instead comprised
separate residences in "a multiple tenant rooming house."
establishing the third-party's relationship, if any, to defendant or the main
residence.
4
During defendant's plea colloquy, he testified the methamphetamine found in
the residence was his and the other individual had no knowledge of it. Based
on that testimony, the charges against the other individual were dismissed.
5
The other individual joined in defendant's suppression motion.
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Defendant also asserted he was entitled to a Franks6 hearing because the
search warrant affidavit falsely stated the confidential informant was under
constant surveillance by the officers when, in fact, he or she was not under
surveillance when he or she traveled to the rear of the residence to make the
first controlled purchased and when he or she entered the residence to make
the second purchase. Defendant asserted the statements created a false
impression for the search warrant judge and, therefore, he was entitled to a
Franks hearing.
The court heard argument on the motion and issued a detailed written
decision. The court noted defendant did not dispute there was probable cause
for the issuance of a search warrant, and, for that reason, the court focused on
whether the warrant satisfied the particularity requirement.
The court found "it is arguable that the actual search warrant . . . went
beyond the description . . . of the particular place to be searched" described in
the affidavit and repeated in the warrant. The court therefore applied the
"practical accuracy" standard to determine if the warrant was valid.
The court found that based on all the information available to the
officers, they could reasonably ascertain the place to be searched from the
6
See Franks v. Delaware, 438 U.S. 154 (1978).
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warrant's description. The court noted the warrant generally described the
structure as a multi-family residence, but made no mention of the first floor,
and it instead specifically mentioned only the method of access to the second
floor and described the area comprising the second and third floor as the "main
residence." The court further observed the search warrant affidavit described
that the confidential informant entered the front door of the residence and
purchased methamphetamine from defendant while inside the residence. The
court found that, employing the "practical accuracy" standard, the warrant on
its face authorized entry into the main residence and, as such, satisfied the
particularity requirement.
The court also found the third floor was part of the main residence for
which the warrant was issued. The court explained the search was not invalid
simply because the police may have discovered after entering the residence on
the second floor that it also included a living area on the third floor.
The court denied defendant's request for a Franks hearing, finding
defendant failed to demonstrate the affidavit contained any deliberate or
intentional falsehood that the confidential informant was under constant
surveillance. The court noted the affidavit disclosed the informant was out of
the detectives' view when he or she went to the rear of the residence to make
A-2499-18T4
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the first purchase, and the informant entered the residence when he or she
made the second purchase. The court also rejected defendant's claim the
affidavit misrepresented the second and third floors as the main residence
rather than a rooming house, reasoning there was no evidence the second and
third floors were comprised of separate and distinct living units.
The court concluded defendant failed to sustain his burden of
establishing the warrant was invalid and entered an order denying defendant's
suppression motion. As noted, defendant appeals from the court's order.
Defendant makes the following arguments:
POINT I
THE COURT ERRED IN DENYING THE MOTION
TO SUPPRESS EVIDENCE BECAUSE THE
WARRANT DID NOT SPECIFY THE FLOORS OR
UNITS TO BE SEARCHED. ALTERNATIVELY,
THE COURT ERRED IN NOT HOLDING AN
EVIDENTIARY HEARING, SUCH THAT A
REMAND IS REQUIRED.
A. The Warrant Was Invalid Because It Did Not
Specify the Floors of the Building to Be Searched and
the Affidavit and Affiant's Knowledge Could Not
Cure that Deficiency.
B. The Warrant Was Invalid Even If It Limited the
Search to the Second and Third Floors Because There
Were Multiple, Separate Units on Those Floors.
A-2499-18T4
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C. Alternatively, the Matter Must Be Remanded
Because the Court Erred in Not Holding an
Evidentiary Hearing.
POINT II
A REMAND IS NEEDED TO AWARD
DEFENDANT THREE DAYS OF JAIL CREDIT.
II.
"It is well settled that a search executed pursuant to a warrant is
presumed to be valid and . . . a defendant challenging its validity has the
burden to prove 'that there was no probable cause supporting the issuance of
the warrant or that the search was otherwise unreasonable.'" State v. Jones,
179 N.J. 377, 388 (2004) (citation omitted). "[S]ubstantial deference must be
paid by a reviewing court to the determination of the judge who has made a
finding of probable cause to issue a search warrant." State v. Evers, 175 N.J.
355, 381 (2003). Any "[d]oubt as to the validity of the warrant 'should
ordinarily be resolved by sustaining the search.'" State v. Keyes, 184 N.J. 541,
554 (2005) (quoting Jones, 179 N.J. at 389).
The Fourth Amendment to the Federal Constitution and Article I,
Paragraph 7 of the New Jersey Constitution require that a search warrant
"particularly" describe the place to be searched. U.S. Const. amend. IV; N.J.
Const. art. I, ¶ 7. The purpose of the "particularity requirement [is] to prevent
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general searches. By limiting the authorization to search to the specific areas
and things for which there is probable cause to search, the requirement ensures
that the search will be carefully tailored to its justifications . . . ." State v.
Marshall, 199 N.J. 602, 611 (2009) (quoting Maryland v. Garrison, 480 U.S.
79, 84 (1987)).
"The particularity requirement, in general, mandates that a warrant
sufficiently describe the place to be searched so 'that the officer with a search
warrant can with reasonable effort ascertain and identify the place intended.'"
State v. Feliciano, 224 N.J. 351, 366 (2016) (quoting Marshall, 199 N.J. at
611); see also Steele v. United States, 267 U.S. 498, 503 (1925) (same). Our
Supreme Court has characterized the particularity requirement as
"uncomplicated," Marshall, 199 N.J. at 611, but its application has presented
challenges where a search warrant is sought for a multi-unit structure.
In State v. Ratushny, we found invalid a search warrant that was issued
for a building comprised of four separate apartments. 82 N.J. Super. 499, 505
(App. Div. 1964). We determined that "[a] warrant which describes an entire
apartment building when cause is shown for searching only one apartment is
void" because it violates the particularity requirement. Ibid. We explained
that where the police know or reasonably should know that premises for which
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a search warrant is sought is "being utilized for the occupancy of more than
one family, the search warrant must contain as specific a description of the
particular area to be searched as the nature of the circumstances reasonably
permit." Id. at 506. Where an apartment number is known, such information
should be included in the warrant to identify the particular premises to be
searched and, where "such information is not known, . . . a more general
limitation will suffice." Ibid.In State v. Wright, the search warrant affidavit referred to alleged
criminal activity occurring on the top floor of a building, but the warrant did
not state there were three apartments on the top floor. 61 N.J. 146, 148-49
(1972). The Court issued a search warrant for the top floor, and the defendant,
whose apartment was searched pursuant to the warrant, argued the warrant
violated the particularity requirement. Id. at 148. The Court disagreed,
finding that although "a search warrant must describe the premises to be
searched with reasonable accuracy, pin-point precision is not demanded." Id.
at 149. The Court concluded the particularity requirement was not violated
because the search warrant affidavit stated that the intended apartment was the
one occupied by the defendant, and that designation was sufficient under our
holding in Ratushny. Ibid. The Court also explained that one of the officers
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previously searched the defendant's apartment and the officer could take the
information gleaned from that search into account in executing the warrant.
Ibid.The search warrants at issue in Ratushny, Wright, and Marshall broadly
permitted searches on multi-unit areas without any express identification of the
subunit or specific portion of the building for which the search was authorized.
Here, the warrant does not suffer from the same infirmity. Defendant's claim
the warrant "did not provide any information as to what areas" of the multi -
family residence were to be searched is inaccurate. The warrant specifically
defined the "[p]remises to be searched" to include the "main residence of the
structure," the entry door to which is "[a]top the set of steps" facing the
building's south side and which has the numbers "2-1-7" above it. Thus, the
warrant included the requisite description of the premises to be searched such
that the executing officers "with reasonable effort [could] ascertain and
identify the place intended." Marshall, 199 N.J. at 611 (quoting Steele, 267
U.S. at 503). Indeed, if the search warrant was intended to permit an
unconstitutional general search of the entire multi-dwelling building, it would
have been unnecessary to identify with particularity the main residence
A-2499-18T4
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because the affidavit made clear there was no access to the first floor
apartments from the main residence.
The description of the main residence as the premises to be searched is
also supported by Detective Catarcio's affidavit, which establishes that
defendant twice directed the confidential informant to meet him at his
residence at 217 East 22nd Avenue to complete the methamphetamine sales,
and the detectives' observations of the confidential informant going to the
residence on both occasions to complete the transactions. The affidavit further
showed the informant was observed by the detectives entering the front door of
the main residence to make the second purchase. Following the receipt of the
information provided by Sergeant McGraw, the affidavit was amended to
reflect three significant facts about the residence. The first floor consisted of
vacant apartments, the front door provided access to the main residence, and
there was no access between the first floor and the main residence.
A search "warrant must be read realistically in light of the proofs upon
which it was issued." State v. Schumann, 156 N.J. Super. 563, 565 (App. Div.
1978). Based on the facts set forth in the affidavit, it could only reasonably be
concluded defendant's residence was located through the front door at the top
of the steps on the second floor. There was no basis to conclude defendant
A-2499-18T4
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resided on the first floor because Sergeant McGraw reported the apartments on
that floor were vacant. The affidavit effectively excluded the first floor as a
place for which the State sought permission to search because defendant had
no access to the first floor from the main residence, and therefore the State
complied with the mandate that "the affidavit in support of the search warrant
must exclude those units for which police do not have probable cause."
Marshall, 199 N.J. at 611. Unlike in Marshall, where the Court noted the
search warrant affidavit showed the police did not know which of two
apartments in a building that criminal activity took place, 199 N.J. at 613,
here, the affidavit precisely defined the main residence where, based on all the
information presented, defendant resided.
Given all those circumstances, and when considered in context, the
reference in the search warrant to the "three (3) story, multi-family residence"
constituted only a general description of the structure and did not define the
premises for which the search was authorized. The warrant expressly uses the
description to define only what the structure "is," and the specific location for
which the search warrant was sought—defendant's residence—is described
with particularity.
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That the plain language of the warrant permitted only a search of the
main residence, and did not authorize a search of the first floor, is borne out by
the fact the officers searched only the area the warrant described as the main
residence. The officers recognized the warrant did not authorize a search of
the first floor; instead, they requested and obtained consent to search the first
floor from the individual who was found in the main residence when the
warrant was executed. We recognize the conduct of the police during the
execution of a warrant cannot establish its validity, see, e.g., State v. Sheehan,
217 N.J. Super. 20, 24 (App. Div. 1987) ("As a general rule, questions
concerning the validity of a search warrant hinge upon the information
contained within the four corners of the supporting affidavit.") , but the actions
of the officers in the warrant's execution confirm that a plain reading of the
warrant permitted only a search of the main residence and no other part of the
structure.
In Marshall, the Supreme Court recognized "the unquestioned
proposition that, in describing a place to be searched . . . , '"reasonable
accuracy" not "pin-point precision" is required.'" 199 N.J. at 623 (citations
omitted). The sufficiency of a warrant's description "'is judged "on a
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common[-]sense basis rather than upon a super technical basis requiring
elaborate specificity."'" Ibid. (citations omitted).
Defendant's claim the warrant broadly authorized a search of the entire
structure and did not particularly describe the place to be searched ignores the
warrant's plain language and is inconsistent with a common-sense
interpretation of the warrant based on the circumstances presented. "A warrant
may not be condemned upon some hypothetical set of facts, foreign to the
evident intent of the officers who sought the warrant and the magistrate who
issued it." State v. De Simone, 60 N.J. 319, 325-26 (1972). The warrant
permitted only the search of the main residence, which was described with
more than sufficient detail to satisfy the particularity requirement. We
therefore reject defendant's claim the warrant was invalid based on any alleged
deficiency in describing the particular place to be searched.
We also find no merit in defendant's claim the warrant was
constitutionally deficient because it did not define the particular rooms or
floors within the main residence for which the search was authorized.
Defendant argues the area comprising the main residence included multiple
living units and, as a result, to satisfy the particularity requirement the warrant
should have identified the "specific unit" within the main residence to be
A-2499-18T4
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searched. There is no support in the record for this contention. The fact that a
police drawing revealed two bedrooms in the main residence did not establish
the presence of separate residential units within the main residence. See
Sheehan, 217 N.J. Super. at 29 (explaining "[t]he mere fact that a structure
contains several residents who are not related to one another 'does not
automatically convert its rooms into [separate and private] "subunits"'"
(citation omitted)). At most, the drawing suggested only that there might be
multiple occupants in the main residence.
As we explained in Sheehan, "[t]he 'essential ingredient' regarding the
specificity requirement for search warrants . . . 'relates not to the number of
occupants but to the existence of separate units or subunits within a structure.'"
Ibid. (citation omitted). "In the community living or multiple-occupancy
situation, the courts have generally held that a 'warrant describing the entire
[dwelling unit] so occupied is valid and will justify a search of the entire
premises.'" Ibid. (citation omitted).
Here, there is no evidence the main residence contained separate
dwelling units, and a police drawing showing the residence had two bedrooms,
with a shared living room and kitchen, does not demonstrate otherwise.
Defendant did not make any showing the bedroom on the third floor, where the
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seized evidence was found, constituted "an independent living unit, separately
locked, or otherwise identifiable as a private space." Id. at 31.
The evidence was seized within the main residence as described in
Detective Catarcio's affidavit, depicted in the police officer's drawing, and
defined with particularity in the search warrant. 7 We discern no basis to
conclude there were separate living units within the main residence, and we
reject defendant's claim the warrant was invalid because it did not identify
with particularity the precise location within the main residence where the
evidence was found. 8 For the reasons noted, the warrant's authorization of a
search of the main residence satisfied the particularity requirement.
We find defendant's arguments the court erred by rejecting his request
for an evidentiary hearing or for a Franks hearing to be without sufficient merit
7
We note the drawing showed stairs leading from the first floor of the main
residence to the floor above.
8
Because we find there is no evidence the main residence consisted of
separate living units, it is unnecessary that we decide whether the search was
otherwise lawful because the alleged "multiple-unit character of the premises
[was] not known or [was] not reasonably apparent to the officer[s] applying for
and executing the warrant." Sheehan, 217 N.J. Super. at 28 n.1; see also
Garrison, 480 U.S. at 85 (observing officers would be required to further
particularize the request for a search of a structure's third floor "if the officers
had known, or even if they should have known, that there were two separate
dwelling units on the third floor"); see also Wright, 61 N.J. at 149; Ratushny,
82 N.J. Super. at 506.
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23
to warrant discussion, R. 2:11-3(e)(2), beyond the following brief comments.
Defendant's claim is founded on the contention Detective Catarcio's affidavit
falsely asserted the two floors comprising the main residence were a single
"main residence." For the reasons we have explained, there is no evidence the
descriptions of the structure or the main residence are either inaccurate or false
or omitted material facts known to Detective Catarcio. See State v. Marshall,
148 N.J. 89, 193 (1997) (explaining the Franks standard applies to false
statements as well as the omission of material facts from a search warrant
affidavit). To warrant a Franks hearing, a defendant must make a "substantial
preliminary showing" that the detective deliberately or with reckless disregard
for the truth made a false statement, Franks, 438 U.S. at 170, or "failed to
apprise the issuing judge of material information which, had it been included
in the affidavit, would have militated against issuance of the search warrant,"
Sheehan, 217 N.J. Super. at 25. Defendant made no such showing here.
Defendant's claimed entitlement to an evidentiary hearing suffers from
similar infirmities. An evidentiary hearing is required only if there are
material facts in dispute. R. 3:5-7(c). Defendant argues he presented
information demonstrating that the two floors comprising the main residence
were shared by a number of residents. The State does not dispute that the
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24
search revealed that the main residence appeared to consist of bedrooms that
may have been used by different occupants sharing the main residence's
common living spaces. We agree with the trial court that any such
information, which was discovered after the warrant was executed, is not
material to whether the warrant satisfied the particularity requirement. That is
because there is no evidence there were separate living units within the main
residence, and the mere presence of more than one bedroom in the main
residence did not require that the court identify with particularity each room
within the main residence that could be searched. Sheehan, 217 N.J. Super. at
29. Lacking any material factual dispute concerning the warrant's validity, the
court correctly denied defendant's request for an evidentiary hearing.
III.
Defendant also argues the court erred in calculating jail credits at
sentencing. More particularly, he asserts he is entitled to three additional days
of jail credit because, following his arrest on the drug charges that resulted in
his conviction in this matter, he was incarcerated from August 21 to 23, 2017
"following a contempt charge." He contends he is therefore entitled to jail
credit for those days of incarceration under Rule 3:21-8(a) and the principles
explained by the Supreme Court in State v. Hernandez, 208 N.J. 24, 28 (2011).
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The State does not dispute defendant's entitlement to jail credits for time
spent incarcerated on other charges following his arrest on the charges in this
matter. The State, however, argues the records provided by defendant in
support of his claim for the jail credit do not disclose whether he was
incarcerated on a contempt charge during the three-day period or he was
serving a sentence for contempt during that time. The State correctly notes
that if it was the former defendant is entitled to three days of jail credits, but if
it was the latter, he is not. See Hernandez, 208 N.J. at 47-48.
We agree with the State that the records related to defendant's
incarceration from August 21 to 23, 2017, that are included in the record on
appeal, do not permit a determination of whether defendant is entitled to the
claimed three days of jail credit. No request for the claimed jail credit was
made at sentencing, and, in our view, the request should be first addressed by
the sentencing court. We do not express any opinion on defendant's
entitlement to the requested credit, and we remand for the court to address the
issue on a more complete record.
Affirmed and remanded for the limited purpose of allowing the court to
determine defendant's entitlement, if any, to three-days jail credit from August
21 to 23, 2017. We do not retain jurisdiction.
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26