SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0155- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. ISMAEL LORENZO, a/k/a ISMAEL LORENZO, JR., JOEL LORENZO, and ISAMEL LORENZO, Defendant-Appellant.

_______________________

Submitted March 20, 2024

– Decided Ju ly 2, 202 4 Before Judges Currier and Vanek. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 20

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- 0155. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Robert J. Carroll, Morris County Prosecutor, attorn ey for respondent (Tiffany M. Russo, Assistant Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0155

- 22 Appellant filed a pro se supplemental brief.
PER CURIAM After representing himself at trial with stand-by counsel, defendant was convicted of third-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) a nd (b)(11); third-degree financial facilitation of criminal ac ti vity, N.J.S.A. 2C:21-25(a); second-degree unlawful possession of a weapon while committing a CDS offense, N.J.S.A. 2C:39-4.1(a); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1)

. After reviewing the contentions raised by counsel and defendant in a supplemental brief, in light of the facts and applicable principles of law, we affirm the convictions

. However, because there is a discrepancy between th e oral sentence imposed by the court and the sentence reflected in the Judgment of Conviction (JOC) , we remand for the court to clarify its sentence and amend the JOC if necessary.
I. Defendant was charged in an indictment with one cou nt of fourth-degree possession of a (CDS) (count one ); one count of third-degree possession with intent to distribute a CDS (count two); one count o f third-degree financial facilitation of criminal activity (count three); on e count of second-degree3 A- 0155

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unlawful possession of a weapon while committing a CDS offen se (count four); and one count of second-degree certain persons not to have weapons (count five). We derive the facts from the evidence presented dur ing hearings on numerous pre-trial motions and at the July 2022 tri al.
A. After several anonymous tips, law enforcement used a confidential informant (CI ) to complete several controlled purchases of CDS fro m defendant. The CI bought marijuana fro m defendant on two occasions in November 2019. There were law enforcement officers present at the time

. After each purchase, the CI turned over the suspected marijuana to th e police, who log ged it and stored it in a temporary evidence locker. Thereafter, the court issued a knock and announce s earch warrant for defendant's premises. Investigators determined def endant's family resided in the main living area of a house and defendant lived in the basement, which was separately accessible. Representatives of the Sheriff's Emergency Respons e Team (SERT) testified regarding their execution of the search w arrant. The court and the jury also reviewed two security videos of the search. A SERT member explained he4 A- 0155

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was the breacher, responsible for "facilitat[ing] t he opening" of the entry point

— the door. Another individual was responsible for k nocking on the door . The SERT member stated the "knocker" knocked on the doo r, and "[r]oughly [thirty] seconds" later, when there was no response , he was instructed to breach the door. A separate individual timed the interval after the knock. The SERT member viewed the security camera footage and stated it ac curately depicted the approximately thirty seconds between the knock and announce and breach

. The SERT member testified the officers knock ed and announced at "[t]he main breach point to the residence, the outside ent ry door." The security camera footage showed SERT arriv ing at the door at 5:59:01 a.m. and breaching the door at 5:59:31 a.m. The officers accessed defendant's apartment throug h the rear basement door of the main residence. Detective Michael McMa hon of the K-9 section of the Morris County Sheriff's Office testified he ent ered defendant's residence with his dog, Kai, and walked through each room. Kai's nar cotics sniff resulted in five indications that led to the discovery of ma rijuana and paraphernalia: two indications on a chair and sofa in the living room, two indications on shelves in the closet, and one indication in a ceiling vent. During the search of the chair5 A- 0155

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in the living room, officers discovered a loaded ha ndgun. In subsequent testing, defendant's fingerprints were not found on the gun, magazine, or bullets. Detective Supervisor Jimmy Atoche, in the Special Enforcement Unit of the Special Operations Division of the Morris Count y Prosecutor's office, testified that the door to the basement had a deadb olt, aftermarket brackets, and looked like it was fortified by a two- by -four piece of wood. Atoche stated the search of defendant's bedroom revealed green vegeta tive matter, 1 approximately twenty-one small Ziplock baggies inside a leather d igital scale pouch, a scale described as often used in gram-sized weights, a ce ll phone, and a New Jersey vehicle registration renewal form bearing defendant 's name. A search of defendant's closet uncovered three sta cks of money in rubber bands totaling $2,910 and a box with seven plastic baggies containing green vegetation. Atoche stated he noticed "a patchy pai nt job/sheetrock job" with a hole in the wall and peeled it back to find two cel l phone boxes and a portable speaker box. One cell phone box had "10K" written on it and contained $10,000 in rubber-banded stacks of bills. A second cell pho ne box had "10K" written on

1 This term was used by the court when law enforcem ent suspect ed the substance was marijuana.6 A- 0155

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it and contained $9,900 in rubber-banded stacks of bills. The portable speaker box was larger and contained $20,000 in rubber-band ed stacks of bills

. Near the second bedroom, there was an access panel that had been taken off the wall before the breach. In the panel, Atoc he found green vegetation in a "standard sandwich Ziploc baggie" that was "full al l the way." A narcotics task force officer testified he search ed behind a television in defendant's apartment and found two boxes of sandwich ba gs, a silver container containing eight individual sandwich bags of green vegetation, and "some blunt wraps." He also searched a desk in defendant's bed room and saw defendant's driver's licens e. In a couch in the living room, the officer found six gallon-size Ziploc bags filled with individual Ziploc bags cont aining green vegetation in the area between the springs and the fabric bottom of t he couch

. He found a package of green vegetation in the arm of the couch inside a gray winter hat. A forensic scientist in the Drug Unit of the New J ersey State Police, Office of Forensic Sciences tested the submitted samples o f green vegetation and concluded it was marijuana. The State also presented an expert in forensic exa mination of mobile devices who extracted text messages and photographs from defendant's cell phone. The court admitted two photographs into evidence th at showed7 A- 0155

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defendant holding a bag of marijuana and two boxes of rubbe r-banded stacks of bills

. The expert read the jury text messages from an individual named KP beginning on December 4, 2019, and spanning multiple days, as well as text messages from an individual named Bam starting on N ovember 11, 2019. Sergeant James Bruno was admitted as an expert wit ness in narcotics, including coded language, drug dealer hierarchies, and packaging. He explained coded language is "a word, a term, or a phrase that's used to discus s or explain . . . an actual word." Bruno explained what street -, mid-, and high-level drug dealers were, described the organization and record keeping that drug dealers use for their money, and the types of packaging use d by the different levels of dealers. He also testified about the range of pric es and profits of different quantities of marijuana. Bruno described the terms associated with certain narcotics, and then interpreted some of the terms u sed in the text messages previously read to the jury. Bruno stated the text messages revealed that Bam a nd KP were selling marijuana to defendant. He explained that higher-level dealers would sell t o lower-level dealers and defendant was asking KP in the messages what the price per pound of marijuana was.8 A- 0155

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In one of defendant's three pre-trial motions to s uppress evidence, heard in September 2021, he stated the search was illegal because he possessed a California document that permitted him to possess a nd cultivate medical marijuana for medical purposes under the Compassionat e Use Act of 1996, Cal. Health & Safety Code § 11362.5. He contended that because the affidavit f or the search warrant was supported by the CI's observ ations and information regarding selling and possessing marijuana, the aff idavit was invalid because he was not performing any illegal act

. Therefore, the search was illegal, requiring the suppression of the items seized during it. In response, the assistant prosecutor advised that defendant was not registered as a medical marijuana patient on the Ca lifornia cannabis website. Furthermore, defendant was a resident of New Jersey , not California. In

a ddition, the State asserted any recent changes to New Jerse y's marijuana laws did not apply to this December 2019 search during w hich officers recovered "nearly five pounds of marijuana," "distribution pa raphernalia, multiple scales, $43,000 in cash, and a loaded handgun." The court denied the motion, stating defendant's a rguments concerned an affirmative defense

— that he had a legitimate license applicable in New Jersey at the time of these events to possess and use medi cal marijuana. Defendant had9 A- 0155

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the burden of proof as to the affirmative defense. Therefore, the issue was left to the jury for its determination. After the State rested its case, defendant raised the issue of the California medical marijuana card. The court ad vised defendant that if he discussed the card with the jury, the court would charge the jury with the applicable New Jersey law under the Compassionate Use Medical Mari juana Act (CUMMA),
N.J.S.A. 24:6 I-1 to - 16. Thereafter, defendant re-called Bruno who testified that during a search of defendant's car, he found a California marijuana card bearing defendant's name and a May 21, 2020 expiration date. Bruno fur ther stated that defendant was a New Jersey resident in 2019, although he was not sure how l ong defendant had live d in this st at e. On July 25, 202 2, during the testimony of the prosecutor's office' s records custodian, defendant requested a side bar, during w hich the following colloquy took place: [DEFENDANT]: Uh , one of the jurors are sleeping

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THE COURT : I'm sorry? [DEFENDANT]:

— one of the jurors are sleeping. I know that

— I've indicated to [stand-by counsel]. Uh, so

—10 A- 0155

- 22 [STAND-BY COUNSEL]: The person in the middle of the front row of the jury box.
THE COURT : Well (indiscernible)

— [STAND-BY COUNSEL]: Doing my best.
THE COURT:

— all right. Thank you. Pertinent to this appeal, the court included the f ollowing jury instruction in its charge:

In this case the defendant has put forth evidence t o assert that his marijuana possession was for medica l necessity, specifically, by introducing a Californi a marijuana card. A medical marijuana card, if valid , is not an absolute defense to the charge in Count 2. However, a card was allowed into evidence by this [c]ourt as it may reflect on the defendant's intent in possessing marijuana[,] if you find that he did, in fact, possess marijuana. For the defendant to establish a medical necessity for the legal possession of marijuana, he must pres ent evidence that he is a qualified patient in New Jers ey for the issuance of a valid [CUMMA] [c]ard . . . . A qualified patient is defined as a resident of th e State who has been authorized for the medical use o f cannabis by a healthcare practitioner. To be consi dered a qualifying patient in New Jersey[,] the defendant must: 1. Register with the New Jersey Cannabis Regulatory Commission; 2. Supply the commission with:11 A- 0155

- 22 A. Documentation of the healthcare practitioner's authorization for the patient or the medical use of cannabis; B. Proof of the application or renewal fee; C. The name, home address[,] and date of the patient, and date, uh, birth of the patient and any applicable designated caregiver; [ D. ] The name, address[,] and telephone number of the patient's healthcare practitioner; and E. Up to one alternate address of the patient for the delivery of medical cannabis. . . . [I]f approved as a qualifying patient, the commission will register a registration card which includes the name, address[,] and date of birth of the patient, the name of any designated caregiver, the expiration date of the registration[,] and a photo identification of the patient. If the defendant is classified as a qualifying patient and possesses a valid CUMMA card in another [s]tate other than New Jersey, and then subsequentl y moves to New Jersey, the other State CUMMA card is considered valid in New Jersey for a period of up t o six months. Upon relocating to New Jersey, the defendant must provide proof of registration in and a valid photo identification card issued by the other State or jurisdiction. To legally obtain and possess medica l cannabis during the six-month period after relocati on to New Jersey, the defendant is required to provide wr itten12 A- 0155

- 22 instructions for medical cannabis dispensation issu ed by a New Jersey healthcare practitioner to a dispen sary. To retain a valid CUMMA card after six months of relocation to New Jersey, . . . the defendant mu st register as a qualifying patient in New Jersey as detailed above. No individual shall be authorized to acquire, possess, use or engage in other conduct in connection with medical cannabis in New Jersey pursuant to a medical cannabis registration from another [s]tate or jurisdiction for more than six m onths unless the individual registers with the New Jersey CUMMA Commission as a qualifying patient.

. . . . A qualifying patient may be dispensed a maximum of [thirty-six] ounces in one year. An exception to this maximum amount exists if a patient is terminally ill or is currently receiving hospice ca re through a licensed hospice. A qualifying patient t hat meets this exception may be dispensed an . . . unli mited amount of medical cannabis. Qualifying patients th at do not meet this exception may petition the commiss ion for an exemption of the monthly limits and such petition can be approved if the commission finds an exemption is necessary to meet the patient's treatm ent needs. Prior to dispensation to a qualifying patient, every batch of medical cannabis is tested by a laboratory. A written report summarizing the resul ts of the testing shall be included in any packaging mate rials for medical cannabis. A stamp will be affixed to e ach package of medical cannabis prior to delivery to th e qualifying patient.13 A- 0155

- 22 To find that the defendant possessed the marijuana for medical necessity, as . . . defendant has proffered, you must find that he is, first, a quali fied patient. . . . . [1.] [T]he defendant must register with the New Jersey Cannabis Regulatory Commission; and 2. Supply the [C]ommission with: A. Documentation of the healthcare practitioner's authorization for the patient for th e medical use of cannabis; B. Proof of the application or renewal fee; C. The name, . . . home address, and date of birth of the patient and any applicable designated caregiver; [D.] The name, address, telephone number of the patient's healthcare practitioner; [a nd] [E.] Up to one alternate . . . address for the patient for delivery of the medical cannabis. If approved as a qualifying patient, the [C]ommission will register a registration card whic h includes the name, address[,] and date of birth of the patient, the name of a designated caregiver, the expiration date of the registration[,] and a photo identification of the patient. If the defendant has demonstrated that he is a qualified patient, the following requirements must also be met to validly possess a CUMMA card:14 A- 0155

- 22 Possess a valid [CUMMA] registration card issued by the New Jersey Cannabis . . . Regulatory Commission; Possess no more than [a] maximum year's . . . medicinal marijuana supply, i.e., [thirty-six] ounc es per year, . . . possessing a valid CUMMA card unless th e defendant meets the exception for . . . possess ing over the maximum year's medical marijuana supply for being terminally ill or . . . presently receiving h ospice care; Provide[] proof of written reports that validate the medical marijuana the defendant possesses [w]as tested by a laboratory prior to dispensation; and Provide[] proof that the marijuana possessed by the defendant was dispensed to him, was packaged wi th a stamp signifying that the marijuana [w]as medicin al marijuana. It is for you, the jury, as triers of the fact to determine whether the defendant has met the requirements under New Jersey law for the possessio n of a valid New Jersey CUMMA card or a valid out- of

state card. If you find the defendant possessed a valid medical marijuana card, you may use that evidence along with the other evidence presented to determin e the defendant's intent in possessing the marijuana purportedly found in his residence. If you believe that the defendant has not presented sufficient evidence of medical necessity for the possession of medical marijuana, then you may disregard the evidence.15 A- 0155

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After the court concluded the jury instructions, i t inquired at sidebar whether there were any objections to the charge. The State and defendant's stand-by counsel both replied "[n]o." Although defendant was present during the sidebar conference, the transcript does not ref lect any response to the question. As stated, defendant was found guilty of possessio n of marijuana with intent to distribute, financial facilitation of a c riminal act, and possession of a firearm while committing a CDS offense. Af ter a separate trial, defendant was found guilty of a certain persons not to have weapo ns offense.
B. Defendant was sentenced on August 25, 2022. Although the court found defendant met the criteria of a persistent offender under N.J.S.A. 2C:44-3(a) , it denied the State's motion, because there was a gap between defendant's 2008, 2013, and current convictions, and defendant's pres ent convictions required consecutive sentences, meaning, he "fac[ed] a signi ficant sentence." The court found aggravating factors N.J.S.A. 2C:44 -1(a)(3), the risk of reoffending; (a) (6), the defendant's prior criminal record; and (a) (9), the need for deterrence. The court did not find any mitigating factors. As a result, it found the aggravating factors outweighed the mitigating f actors.16 A- 0155

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On count two, third-degree possession of marijuana with intent to distribute, the court sentenced defendant to five y ears in prison with no period of parole ineligibility. On count three, third-deg ree financial facilitation, the court sentenced defendant to a five-year sentence t o run consecutively to the sentence imposed under count two. On count four, second-degree possession of a firearm during a CDS offense, the court imposed a sentence of ten years in prison, with a five-year period of parole ineligibi lity, to run consecutively to the sentence under count two. On count five, second-degree certain persons not to have weapons, the court sentenced defendant to ten years to run concu rrently to the sentence imposed for count four, with a five-year period of parole ineligibility. The court stated the overall sentence was twenty years with a five- year parole ineligibility period. The JOC reflected defendant was guilty of counts t wo, three, four, and five. The JOC sentenced defendant to five years on count two; fi ve years on count three, to run consecutive to count two; ten y ears with a five-year parole ineligibility period to run consecutive to counts t wo and three on count f our ; and ten years with a five-year parole ineligibility per iod to run concurrently to the sentences imposed on counts two, three, and four on count five

.17 A- 0155

- 22 II. On appeal, in a counselled brief, defendant raises the following arguments for our consideration:

POINT I DEFENDANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND TO PRESENT A DEFENSE BY A JURY INSTRUCTION THAT UNFAIRLY EVISCERATED HIS DEFENSE THAT HE POSSESSED THE MARIJUANA FOR PERSONAL USE, NOT WITH THE INTENT TO DISTRIBUTE. POINT II THE FAILURE OF THE TRIAL COURT TO VOIR DIRE A SLEEPING JUROR DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY, AND REQUIRES THE REVERSAL OF THE CONVICTIONS. POINT III THE MATTER SHOULD BE REMANDED FOR CORRECTION OF THE JUDGMENT OF CONVICTION TO REFLECT THE ORAL PRONOUNCEMENT OF SENTENCE OF A FIFTEEN-YEAR TERM WITH FIVE YEARS OF PAROLE INELIGIBILITY, NOT A TWENTY-YEAR TERM WITH FIVE YEARS OF PAROLE INELIGIBILITY In a pro se supplemental brief, defendant presente d the following nineteen points for our consideration:

POINT 1 Conflict of

Interest POINT 2 Affiant[']s Affidavit18 A- 0155

- 22 POINT 3 Knock-and-Announce Search Warrant Violation POINT 4 Defendant[']s Medical Marijuana Card POINT 5 Probable Cause [] Was Solely Based on the Two Alleged CI Buys POINT 6 Officer Confirms the CI Made a Phone Call
POINT 7 CDW POINT 8 Lead Det[ective] D[anny] Co rr ales Fabricates a Phone [Number] That Does Not Belong to [t]he Defendant POINT 9 Det. Corrales [T]estifies [T]hat [B]oth CI Purchases [W]ere [S]ent to the Lab
POINT 10 Det. Co rr ales Commits Perjury POINT 11 Probable Cause [W]as [N]ot Established POINT 12 Omnibus Opinion Filed on 11/04/2021 POINT 13 Rules & Laws That Were Made [u] p [d]uring Trial POINT 14 Judge's Tactics [T]owards Defense POINT 15 Prosecutor Erin Callahan [U]ses May 2019 Surveillance Testimony POINT 16 Jurors & Jury Selection POINT 17 Judge Stephen J. Taylor on Sentencing Day POINT 18 Cross Examination of the Witnesses19 A- 0155

- 22 POINT [ 19 ] CI [W]as [N] ot Present at Trial
A. We begin with the counselled arguments. Defendant contends he introduced his California medical marijuana card to establish he cou ld permissibly possess large quantities of marijuana f or person al use. His intent was to disprove the State's charge of distribution. Neither stand- by counsel no r defendant objected to the jury charge, even when questioned directly by the court. Therefore, we review for plain error. We will only reverse if the error "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10

- 2. Prior to defendant elici ti ng and presenting information about the California card during his direct case, the court c autioned him it would instruct the jury as to the particular requirements under Ne w Jersey law to use an outof

- sta te medical marijuana card. The court also stated i t would advise the jury the card wa s " not necessarily a defense to possession with intent to distribute, that it was introduced as it may reflect on the def endant's intent only." Therefore, the court charged the jury exactly what defendant sought to use the card for during trial: to demonstrate he did n ot have an intent to distribute marijuana because he had a valid marijuana card. The j udge 's instructions were20 A- 0155

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appropriate given that many of the jurors may have been unfamiliar with CUMMA or what was required to have a valid medical marijuana card in New Jersey. See State v. Butler, 27 N.J. 560, 594

- 95 (1958)

. The instructions detailed what the law required for a valid marijuan a card and how a resident with an out- of -state marijuana card could transfer their license to New Jersey.
As required, the court's instruction on this issue "e xplain[ed] to the jury in an understandable fashion its function in relati on to the legal issues involved." State v. Green, 86 N.J. 281, 287 (1981). De fendant has not shown any "legal impropriety in the charge prejudicially affecting t he substantial rights of the defendant and sufficiently grievous to justify noti ce by the reviewing court and to convince the court that of itself the error poss essed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 52 6, 538 (1969). We turn to defe nda nt's allegations regarding the sleeping juror

. He contends the court should have placed its observatio ns of the juror on the record or questioned the juror when it was alerted to the situation. As stated, during the testimony of a chain- of -custody witness, defendant informed the court he thought a juror was sleeping. In State v. Mohammed , 226 N.J. 71, 87- 90 (2016), the Court detailed the appropriate procedure a judge should follow when th ere is an allegation of an21 A- 0155

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inattentive juror. The Court explained that when a party alerts the judge of an inattentive juror, the judge should provide their o wn personal observations about the juror's attentiveness on the record. Id. at 89 . If the judge did not observe the behavior, the y should voir dire the juror to determine if they w ere inattentive. Ibid. If the judge determines the juror was inatte ntive, but it was "an inconsequential part of the trial," the judge has " broad discretion to determine the corrective action that must be taken." Ibid. If the judge finds the juror was inattentive, but it was "a consequential part of th e trial," the judge must provide the information the juror missed or if necessary, e xcuse the juror. Id. at 89-90. In reviewing the judge's actions, we apply a harmfu l error standard and consider whether the error was "clearly capable of producing an unjust result." Id. at 89 (quoting R. 2:10 -2). From our reading of the record, it appears th e court did not observe the inattentive juror. There fore, under Mohammed , the court should have examined the juror to determine w hat they missed, although

no one asked the court to do so. Ibid. Our review of the record also reveals this was not a critical portion of the evidence. De fendant only asked the witness one question on cross-examination , whether she checked evidence in and out. Furthermo re, other witnesses also testified regarding the chain of custody of the evi dence and were subject to22 A- 0155

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defendant's cross-examination. Therefore, it was h armless error not to further inquire of the juror their level of attentiveness. Defendant's final contention, through counsel, con cerns his sentence. He contends the JOC does not align with the court's or al sentence, regarding the running of consecutive terms. The court orally imposed a five-year sentence on c ount two, a consecutive five-year sentence on count three, a term of ten-ye ars on count four that was to run consecutive to count two, and a ten-year term o n count five to run concurrently to the sentence on count four. The oral sentence totaled fifteen years. However, the court stated "the overall sent ence " is twenty years with a mandatory five-year period of parole ineligibility. The JOC states the sentence

on count four runs consecutively to counts t wo and three, which results in a total sentence of twenty years. There is no discrepancy between the total sentence announced by the court and the JOC. But there is a question of the court's intent regarding the consecutive running of the sentences. Therefore, w e find it appropriate to remand solely for the court to clarify its intent. See State v. Murray, 338 N.J. Super. 80 , 91 (App. Div. 2001).23 A- 0155

- 22 B. We turn then to defendant's contentions in his pro se supplemental brief. In Points one, two, three, and eleven, defendant raise s issues regarding the affidavit submitted to support the application for a search w arrant and the lack of probable cause for the issuance of the warrant. Defendant also as serts the search warrant was not executed during "st an dard business hours" and SERT did not wait the required time before breaching the door. Defendant raised these issues in his pre-trial moti ons and the court heard extensive argument. On February 12, 2021, the cour t considered and denied defendant's motion to suppress evidence in which he allege d there was a lack of probable cause in the affidavit used to secure the search wa rrant and a failure to adhere to the knock and announce rule. In a comprehensive written opinion, the court foun d there was probable cause for the search warrant because of the tips re ceived from the CI, the surveillance verified the CI's information, and the CI's controlled purchases of marijuana from defendant. After detailing the inve stigation and corroboration of the CI's information, the court concluded "there was ample evidence set forth in the four corners of the affidavit" to support a finding of probable cause.24 A- 0155

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The court also found the officers' actions in exec uting the search warrant "were objectively reasonable under all the circumstances. " It explained that the officers were trained and briefed regarding the exe cution of search warrants, and the officer's testimony about the events "was forth right, direct and credible in all regards." Our review of a motion to suppress is limited. St ate v. Ahmad, 246 N.J. 592, 609 (2021). The "trial court's factual findin gs in support of granting or denying a motion to suppress must be upheld when '" those findings are supported by sufficient credible evidence in the re cord."'" State v. A.M., 237 N.J. 384, 395 (2019) (quoting State v. S.S., 229 N. J. 360, 374 (2017)). Similarly, our review of a search warrant is limite d. State v. Chippero, 201 N.J. 14, 32- 33 (2009). We "'pay substantial deference' to judicial findings of probable cause in search warrant applications." Sta te v. Andrews, 243 N.J. 447, 464 (2020) (quoting State v. Kasabucki, 52 N.J. 110 , 117 (1968)). In addition to evidence regarding the controlled b uys, the judge is sued the search warrant as supported by the officer's affida vit, which was based on his surveillance of defendant and defendant's residence , anonymous tips, and information from the CI. We are satisfied, in cons idering the totality of the25 A- 0155

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circumstances, that the court did not err in findin g there was probable cause for the issuance of the search warrant. In addressing defendant's arguments regarding the knock and announce procedure, the court noted the security camera foot age showed the officers complied with the "reasonable wait time" standard an d that the officers knocked twice, "announced 'police search warrant' multiple times," waited about thirty seconds, and then breached the door. While acknowl edging that the officers may not have waited exactly thirty seconds, the cou rt explained the "reasonable wait time" standard is measured by the time it take s an individual to dispose of drugs, not how long it takes them to reach the door

. The court found no merit in defendant's argument t hat the officers violated the knock and announce rule when they knocked on th e main door to the residence, but not the door to his apartment. The court stated th e officers did not have to knock and announce on every door they encounter, but only the external door to the residence. There was no evide nce that the basement area defendant occupied had multiple residences. Before this court, defendant reiterates the argume nts previously raised before the trial court

. We discern no reason to disturb the court's ruling denying26 A- 0155

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the suppression motion as defendant has presented n o evidence that law enforcement did not comply with the knock and annou nce rule. Points one, four, twelve, thirteen, fourteen, fifte en and seventeen set forth defendant 's allegations regarding the judge's misconduct and i mpartiality. We need only briefly address these contentions as we f ind them lacking in merit. In Point one , defendant contends the judge had a conflict of in terest and should not have considered the pretrial motions or presided over the trial because he issued the search warrant. In addressin g this argument , the court cited to Rule 1:12 -1, finding there were no grounds to recuse himself because he had issued the search warrant. The judge noted this court's holding in State v. Smith, 113 N.J. Super. 120 , 137-38 (App. Div. 1971), that issuing a warrant is ex parte and Rule 1:12

- 1( d) does not prevent a judge from hearing a case because they have made a ruling on an issue in the pending action. Point four concerns an evidential issue addressed b y the court during trial. We see no abuse of discretion in denying defendant' s request to present a discrete piece of evidence. Points twelve, thirtee n, fourteen and seventeen allege the court showed bias and prejudice against him. Our careful review of the record shows no support for defendant's content ions. To the contrary, the court was patient with defendant, providing guidanc e on the law and manner of27 A- 0155

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presentation and extending great leeway to him in h is self-representation. The court permitted defendant to fully and fairly parti cipate in the trial. In Point fifteen, defendant asserts the State used surveillance testimony that was barred by a prior court order, amounting t o prosecutorial misconduct. The order defendant relies on to support this argum ent is not contained within the record. And we have discerned no evidence in t he record tha t "was so egregious that it deprived

. . . defendant of a fair trial." State v. Frost, 158 N .J. 76, 83 (1999). In Points six, eight, nine, ten and eighteen, defen dant alleges certain officers perjured themselves in their testimony. W hile there may have been inconsistencies in some witnesses' testimony, there is no evidence to support the allegations of perjury. See N.J.S.A. 2C:28-1. In Point nineteen, defendant argues he attempted bu t was not allowed to call the CI to testify, which resulted in a violati on of his right to confront his accuser. Defendant provides no citation to the rec ord to support his argument

no r to any court ruling on the issue. Therefore, we cannot properly review the contention. Nevertheless, we note the following. N.J.R.E. 516 provides that [a] witness has a privilege to refuse to disclose t he identity of a person who has furnished information28 A- 0155

- 22 purporting to disclose a violation of a provision o f the laws of this State . . . to a representative of the State . . . , unless the judge finds that (a) the identit y of the person furnishing the information has already been otherwise disclosed or (b) disclosure of [the perso n's] identity is essential to assure a fair determination of the issues. In State v. Milligan, the Court instructed that wh en considering whether to disclose the identity of a witness, the trial co urt should weigh "the public interest in protecting the flow of information agai nst the individual's right to prepare his defense." 71 N.J. 373, 384 (1976) (quoting Roviaro v. United States , 353 U.S. 53, 62 (1957)). Article I, Paragraph 10 of the New Jersey Constitu tion permits an accused individual "to be confronted with the witnesses against him." As a result, a court is not allowed to "admit[] testimony of a witness w ho directly or indirectly provides information derived from a non-testifying witness that incriminates a defendant at trial." State v. Weaver, 219 N.J. 131 , 151 (2014). In his appellate brief, defendant has not presente d any evidence that the CI's testimony was necessary to the presentation of his case or that the CI's identity should have been disclosed under N.J.R.E. 516. In a ddition, defendant has not presented any evidence that the trial court admitted incriminating testimony of a non-testifying witness. See Weaver, 219 N.J. at 151. The29 A- 0155

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testimony regarding the CI's controlled buys was on ly used in the affidavit supporting the application for a search warrant, no t as evidence before the jury. To the extent we have not commented on them specif ically, all other points defendant raises on appeal lack "sufficient merit t o warrant discussion in a written opinion." R. 2:11 -3(e)(2). Affirmed. We remand solely for the trial court to conduct proceedings regarding defendant's sentence as discussed above. We do not retain jurisdiction.