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 Prosecuto r, argued the cause for respondent (Dennis Calo, Acting Bergen County Prosecutor, attorney; Annmarie Cozzi, Special Deputy Attorney General/Acting Assistant Prosecuto r, of counsel and on the brief; John J. Scaliti, Legal Assistant, on the brie f).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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
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Defendant Lee Aviles, Jr. appeals from his c onviction , 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 mat ter arises from a narcotics investigation that led
to defendant's indictment . The Bergen County Prosecutor's Office initiated an investigation of Matthew M artin, Danny Saleh and their a s socia tes in January 2012 . W ith the assistance of a

con fiden tial i n fo rmant (CI) , the police obtained evidence that Martin and Sale h were involved in a major drug trafficking operation that imported large amo unts of marijuana and cocaine from California. Based on information obtained through the CI, the police obtained a n umber of court ord e rs authorizing multiple wiretaps. These wiretaps were inco rporat ed by reference in
Det e cti ve Massaro's April 13, 2012 affidavit in support of the application for a search warrant. Massaro's affidavit stated that the police investi g at ion revealed that Martin and Saleh utilized middlemen who received narcotics on consignment and that they had partner e d with several individ uals including defendant. The a ffidavit also set forth communications evidencing Martin collecting money from these3 A - 4478
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subordinates. Se veral 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 defini tely going to see him today and if Martin "needs it" to come by his crib a n d 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 M artin w a s sup posed to stop by the job. Defendant says he is ready to d o it
and M artin agrees t o meet up with him. On A pri l 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. Wh e n u get back?" On April 9, 2012, Martin called defendant . Defendant
asks if Martin is home because he want ed to drop someth ing off, to which Martin replies to leave it in an envelope with the doorman. Subsequent ly, surveillance showed that at approximately 1:30 p.m. defendant parked his black Infini ti and entered the
lob by at the S t. Moritz where Martin had an apartment . At about the same time, Martin received a call from the doorman sta ting
that "Lee" was there to dr op something off for him. Massaro, an expert in narcotic trafficking, concluded that the above communication s were coded, and were typical of those between a drug dealer and his customer.4 A - 4478
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When the search warrant was executed, detective s 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 co unt 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 evide nce 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 proba ble cause det ermination 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 d e a l ers and their cl ients, there was sufficient evidence in the affidavit to s ustain probable cause .5 A - 4478
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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 ri ght to appeal the denial of the suppression motion . Defendant
was sentenc ed to f ive 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 REQUIRI NG 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

s ufficient probable cause as to d e fendant . Specifically,
defendant argues that the affidavit sworn by Detective Mass aro 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 ar gument in Point I.6 A - 4478
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application , providing the probable cause necessary to justify issuance and execution of a search warrant with respect to the m, 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 obse rved "[n]o controlled buys, no hand
- in
- hand transaction s, no tr a nsportation of bags
- nothing . . . u nlawful" implicating defendant.
Defend ant also asserts that the trial judge , in reviewing the sufficien c y of the affidavit, employed an erroneous standa rd. We accord substantial deference to a magistrate's decision that probable cause exists for the issuance of a warrant. State v. Chipper o , 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
pre f er e nce for warrants is mo s t appropriately effectuated by7 A - 4478
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according 'great deference,' to a magistra t e's determination.' " Spinelli v. U nited States , 3 93 U.S. 410, 419 (1969).
Probable caus e is a "'flexible, nontechnical concept'" that i ncludes a conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy. It m ust be regarded as representing an effort to accommodate these often competing interest s so as to serve th e m both in a practical fashion without unduly hampering t he one or unreasonably impairing the significant content of the other. [ State v. S ullivan , 169 N.J. 209 , 211 (quoting Kasabucki , 52 N.J. at 116 ) .]

I n 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 th e affidavit . . . there is a fair probability the contraband or evidence of a crime w ill be found in a particular p lac e." Illinois v. G ates , 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, considerin g the totality of the circumstan ces, the tr ial court did not err in finding there was sufficient evidence to support the issuing judge's finding of probable cause .8 A - 4478
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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 soun d basis for finding probable cause to issu e 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 revie w. See S tate 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 ju stification 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 er r 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.