SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4478-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEE AVILES, JR., a/k/a

JOSE CORTIJO,

Defendant-Appellant.

_____________________________

Argued June 5, 2018 – Decided July 9, 2018

Before Judges Reisner and Mitterhoff.

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Indictment No. 

13-12-1603.

Alan L. Zegas argued the cause for appellant 

(Law Offices of Alan L. Zegas, attorneys; Alan 

L. Zegas and Joshua M. Nahum, on the briefs).

William P. Miller, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued 

the cause for respondent (Dennis Calo, Acting 

Bergen County Prosecutor, attorney; Annmarie 

Cozzi, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the 

brief; John J. Scaliti, Legal Assistant, on 

the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4478-16T3

Defendant Lee Aviles, Jr. appeals from his conviction, based 

on his guilty plea to firearm possession while committing a 

controlled dangerous substance (CDS) offense, N.J.S.A. 2C:39-

4.1(a). His appeal focuses on the trial court's June 16, 2016 

denial of his motion to suppress. We affirm. 

This matter arises from a narcotics investigation that led 

to defendant's indictment. The Bergen County Prosecutor's Office 

initiated an investigation of Matthew Martin, Danny Saleh and 

their associates in January 2012. With the assistance of a 

confidential informant (CI), the police obtained evidence that 

Martin and Saleh were involved in a major drug trafficking 

operation that imported large amounts of marijuana and cocaine 

from California. Based on information obtained through the CI, 

the police obtained a number of court orders authorizing multiple 

wiretaps. These wiretaps were incorporated by reference in 

Detective Massaro's April 13, 2012 affidavit in support of the 

application for a search warrant.

Massaro's affidavit stated that the police investigation 

revealed that Martin and Saleh utilized middlemen who received 

narcotics on consignment and that they had partnered with several 

individuals including defendant. The affidavit also set forth 

communications evidencing Martin collecting money from these
3 A-4478-16T3

subordinates. Several of these calls took place between Martin 

and defendant.

In a March 18, 2012 call from Martin to defendant, defendant 

tells Martin that he is definitely going to see him today and if 

Martin "needs it" to come by his crib and that he is only ten 

minutes away. In a March 21, 2012 call from defendant to Martin, 

defendant asks Martin if he forgot about him because Martin was 

supposed to stop by the job. Defendant says he is ready to do it 

and Martin agrees to meet up with him. On April 2, 2012, Martin 

sends defendant a text stating, "If u cud drop that change for me. 

I cud use it." Defendant texts back "I'll pass by later. When u 

get back?" On April 9, 2012, Martin called defendant. Defendant 

asks if Martin is home because he wanted to drop something off, 

to which Martin replies to leave it in an envelope with the 

doorman. Subsequently, surveillance showed that at approximately 

1:30 p.m. defendant parked his black Infiniti and entered the 

lobby at the St. Moritz where Martin had an apartment. At about 

the same time, Martin received a call from the doorman stating 

that "Lee" was there to drop something off for him. Massaro, an 

expert in narcotic trafficking, concluded that the above 

communications were coded, and were typical of those between a 

drug dealer and his customer. 
4 A-4478-16T3

When the search warrant was executed, detectives found over 

$15,000 in cash, nine different cell phones, marijuana, a digital

scale and two stolen handguns. Defendant was charged with (1) one 

count of the third-degree offense of manufacturing, distributing, 

or dispensing a CDS, N.J.S.A. 2C:35-5(b)(11); (2) two counts of 

the second-degree offense of possessing a firearm during the 

commission of a CDS offense, N.J.S.A. 2C:3-4.1(a); (3) one count 

of the fourth-degree offense of possessing body armor penetrating 

bullets, N.J.S.A. 2C:39-3(f); (4) one count of the third-degree 

offense of money laundering, N.J.S.A. 2C:21-2; and (5) two counts 

of the second-degree offense of wrongful possession of a weapon 

by a convicted felon, N.J.S.A. 2C:39-7(b). 

On June 6, 2016, the trial judge denied defendant’s motion 

to suppress physical evidence that the police had seized from his 

home pursuant to the search warrant. The judge noted State v. 

Kasabucki, 52 N.J. 110, 115 (1968), required him to accord 

substantial deference to the probable cause determination of a 

judge of equal jurisdiction. Regardless, the judge found that 

based on the evidence of the phone calls between Martin and 

defendant, the delivery of the envelope to Martin, the surveillance 

of defendant, and Detective Massaro's experience in coded 

conversations typical of drug dealers and their clients, there was 

sufficient evidence in the affidavit to sustain probable cause. 
5 A-4478-16T3

On November 28, 2016, defendant pled guilty to one count of 

second-degree possessing a firearm during the commission of a CDS

offense, N.J.S.A. 2C:39-4.1(a), with the condition that he had the 

right to appeal the denial of the suppression motion. Defendant 

was sentenced to five years in prison with three years of parole 

ineligibility. This appeal ensued.

On appeal, defendant makes the following arguments:

POINT 1: NEW INFORMATION CREATES REASON TO 

BELIEVE THAT THERE IS INCORRECT INFORMATION 

IN THE WARRANT AFFIDAVIT REQUIRING THAT THIS 

MATTER BE REMANDED TO THE TRIAL COURT FOR AN 

EVIDENTIARY HEARING AND REDETERMINATION. (Not 

raised below).

1

POINT 2: THE EVIDENCE RECOVERED PURSUANT TO 

THE WARRANT SHOULD BE SUPPRESSED BECAUSE THE 

WARRANT WAS ISSUED WITHOUT SUFFICIENT PROBABLE 

CAUSE. 

POINT 3: THE LOWER COURT ERRED BY APPLYING 

AN IMPROPER INTERPRETATION OF THE LEGAL 

STANDARD OF THE DEGREE OF DEFERENCE TO BE 

GIVEN TO THE WARRANT DETERMINATIONS OF A COURT 

OF THE SAME LEVEL.

Defendant argues the search warrant application lacked 

sufficient probable cause as to defendant. Specifically, 

defendant argues that the affidavit sworn by Detective Massaro was 

“extremely detailed” with respect to other subjects of the warrant 

 

1 Defendant did not make a motion to supplement the record and the 

new information is not part of the appellate record. Therefore, 

we will not address defendant's argument in Point I. 
6 A-4478-16T3

application, providing the probable cause necessary to justify 

issuance and execution of a search warrant with respect to them,

However, defendant argues that as to him, the warrant was devoid 

of adequate probable cause to believe that (1) defendant was 

generally involved in criminal activity of any kind or that, (2) 

drugs or other contraband would be found at defendant’s residence. 

Specifically, defendant notes that the police observed "[n]o 

controlled buys, no hand-in-hand transactions, no transportation 

of bags - nothing . . . unlawful" implicating defendant. 

Defendant also asserts that the trial judge, in reviewing the 

sufficiency of the affidavit, employed an erroneous standard.

We accord substantial deference to a magistrate's decision 

that probable cause exists for the issuance of a warrant. State 

v. Chippero, 201 N.J. 14, 33 (2009) (quoting State v. Terry, 59 

N.J. 383, 393 (1971). We must sustain the magistrate's decision

if sufficient evidence is contained in the affidavit to sustain 

a finding of probable cause. Id. at 32. Any "[d]oubt as to the 

validity of a warrant 'should ordinarily be resolved by 

sustaining the search.'" State v. Keyes, 184 N.J. 541, 555 

(2005) (quoting Kasabucki, 52 N.J. at 115). Although 

"reasonable minds frequently may differ on the question whether 

a particular affidavit establishes probable cause, . . . the 

preference for warrants is most appropriately effectuated by 
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according 'great deference,' to a magistrate's determination.'" 

Spinelli v. United States, 393 U.S. 410, 419 (1969). 

Probable cause is a "'flexible, nontechnical concept'" that

includes a conscious balancing of the 

governmental need for enforcement of the 

criminal law against the citizens' 

constitutionally protected right of privacy. 

It must be regarded as representing an effort 

to accommodate these often competing interests

so as to serve them both in a practical fashion 

without unduly hampering the one or 

unreasonably impairing the significant 

content of the other.

[State v. Sullivan, 169 N.J. 209, 211 (quoting 

Kasabucki, 52 N.J. at 116).]

In making a probable cause determination, the issuing judge 

is called upon to consider the totality of the circumstances and 

make a "practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit . . . there is a fair 

probability the contraband or evidence of a crime will be found 

in a particular place." Illinois v. Gates, 462 U.S. 213, 238

(2003). See State v. Novembrino, 105 N.J. 95, 122-23 (1987) 

(adopting the totality of the circumstances test set forth in 

Illinois v. Gates).

In this case, considering the totality of the circumstances, 

the trial court did not err in finding there was sufficient 

evidence to support the issuing judge's finding of probable cause. 
8 A-4478-16T3

Specifically, as the trial judge found, the evidence of the phone 

calls between Martin and defendant, the delivery of the envelope 

to Martin, the surveillance of defendant, and Detective Massaro's 

experience in coded conversations typical of drug dealers and 

their clients, provided a sound basis for finding probable cause 

to issue the search warrant.

Defendant's argument that the trial judge accorded the 

issuing judge's probable cause determination undue deference has 

no merit. First, the trial judge applied the correct standard 

of review. See State v. Kasabucki, 52 N.J. at 177 (holding 

"another trial court judge of equal jurisdiction should consider 

as binding the decision of his brother that probable cause has 

been sufficiently shown to support a warrant, unless there was 

clearly no justification for it.") (citing State v. Tanzola, 83 

N.J. Super. 40, 43 (App. Div. 1964)). The judge also 

independently determined that the totality of the circumstances 

supported probable cause to issue the warrant. Accordingly, the 

trial court did not err in denying defendant's motion to 

suppress the physical evidence obtained after the search warrant 

was executed. We affirm the trial judge's denial of the motion 

to suppress.

Affirmed.