STATE OF NEW JERSEY VS. JOHN E. MCDANIEL(14-04-0973, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-1281-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN E. McDANIEL,

Defendant-Appellant.
___________________________________

Submitted May 2, 2017 – Decided August 8, 2017

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Indictment
No. 14-04-0973.

Joseph E. Krakora, Public Defender, attorney
for appellant (Theresa Yvette Kyles, Assistant
Deputy Public Defender, of counsel and on the
brief).

Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Chief Appellate Attorney, of counsel; Nicholas
Norcia, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John McDaniel appeals from his November 5, 2015

judgment of conviction, after conditionally pleading guilty to
second-degree possession with intent to distribute heroin,

N.J.S.A. 2C:35-5(a)(1), -5(b)(2). Defendant argues there was

insufficient probable cause for issuing a search warrant; the

trial court should have held an evidentiary hearing to explore

alleged falsehoods in the warrant affidavit; the trial court should

have ordered disclosure of a confidential informant's identity,

so he or she could be questioned at the hearing; and the trial

court erred in its sentencing determination. We affirm.

On January 29, 2014, a municipal court judge issued a search

warrant authorizing the Toms River Police Department (TRPD) to

search room 142 of a particular hotel in Toms River. The court

issued the search warrant based on a sworn affidavit of Toms River

Patrolman Andrew Chencharik. He revealed that during the week of

January 12, 2014, a confidential informant (John Doe)1 told him

and Detective Duncan MacRae that an individual named "John John"

was selling controlled dangerous substances (CDS) in Ocean County.

According to Doe, "John John" used various hotel rooms to sell CDS

to avoid detection; he explained, however, that he would be able

to facilitate a controlled purchase of heroin from "John John."

Aware that defendant was known as John John, Chencharik obtained

1
The record does not disclose the informant's gender; however,
for convenience's sake we will use a masculine pseudonym when
referring to the informant.

2 A-1281-15T4
his photograph from the New Jersey Motor Vehicle Commission and

showed it to Doe, who confirmed he bought heroin from the person

pictured.

Sometime during the week of January 26, 2014 — the day was

unspecified — Chencharik and MacRae met with Doe at a prearranged

location to conduct a controlled purchase of heroin from defendant.

In Chencharik's presence, Doe contacted defendant by cell phone

to negotiate the purchase of heroin, and defendant instructed him

to go to room 142 of the hotel in Toms River. Chencharik stated

that "Patrolman Ruiz . . . then established surveillance in the

area of room 142 . . . ." Before allowing Doe to conduct the

controlled purchase, the officers searched him. After ensuring

that Doe did not have any money or drugs, Chencharik and MacRae

then provided Doe with confidential funds with which to make the

purchase.

While under the constant surveillance of Chencharik and

MacRae, Doe drove directly to the hotel. MacRae observed Doe

enter and later exit room 142. Thereafter, Doe returned to the

prearranged location while Chencharik and MacRae observed him. At

that point, Doe gave Chencharik a quantity of what he believed was

heroin. Ibid. Doe explained that once he entered the hotel room,

he successfully exchanged the confidential funds for the quantity

of suspected heroin from defendant. Before being released, the

3 A-1281-15T4
officers searched Doe, again finding no money or drugs. Chencharik

then returned to TRPD headquarters, where a field test confirmed

the substance to be heroin.

According to the affidavit, "at a separate and distinct time"

during the week of January 26, 2014, Doe contacted Chencharik to

report he spoke again with defendant, who told Doe he had

additional heroin for sale.

Chencharik also described his efforts to corroborate Doe's

tip. A review of NJDMV records revealed defendant's home address,

driver's license, and date of birth. A criminal history check

disclosed that defendant had eleven prior arrests, eight for drug-

related offenses, and five prior drug-related convictions.

Chencharik also described his training and experience.

The affidavit stated that an assistant prosecutor reviewed

and approved Chencharik's affidavit on January 29, 2014 at 12:51

p.m., although the prosecutor's signature does not appear on the

affidavit.2 Both Chencharik and the municipal court judge's

signature appear on the affidavit, although neither reflect the

time of day. The separate warrant indicated that the judge

approved and signed it at 1:42 p.m. Police executed the warrant

seven minutes later.

2
On appeal, the State contends, without reference to any record
evidence, that the assistant prosecutor did so "telephonically."

4 A-1281-15T4
 Upon entering room 142, police saw defendant try to flee

through the rear sliding door. Police arrested defendant and

Danielle Giberson, who was also in the room. Police seized eighty-

five wax folds of heroin and $4,014 in cash from defendant, as

well as other drugs and paraphernalia in the room. Once back at

TRPD headquarters, defendant gave a Mirandized3 statement,

admitting he distributed heroin, the seized heroin and money

belonged to him, and the money was from selling heroin. Roughly

four months later, defendant was indicted and charged with two

counts of third-degree possession of heroin, N.J.S.A. 2C:35-

10(a)(1), along with second-degree possession with intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2).

Defendant thereafter challenged the veracity of Chencharik's

affidavit in a motion to suppress. He sought a hearing under

Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667

(1978), and an order disclosing Doe's identity. Defendant relied

on two unsworn reports of a defense investigator, Charles Milani,

and Chencharik's January 29, 2014 unsworn post-search report.

Milani asserted, based on the hotel's registration

information, that Giberson was the registered guest for room 142

3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

5 A-1281-15T4
on January 29, 2014. Milani reported that an unnamed person told

him Giberson checked in at 12:31 p.m. and checked out two days

later.4 Milani also reported that a desk clerk told him defendant

checked into room 137 on January 28, and room 142 was unoccupied

between January 25 and 28.

Chencharik's report stated that he obtained the warrant to

search room 142 on January 29. He reported that surveillance was

set up "in the area of room 142" at about 11:00 a.m. At some

point thereafter, police identified McDaniel exit and return to

the room. Chencharik stated that the warrant was executed at

about 1:49 p.m. Chencharik said nothing expressly about a

controlled buy.

Based on Milani's reports, defendant contended the controlled

buy could not have occurred as Chencharik claimed in his affidavit,

because defendant allegedly did not occupy room 142 before 12:31

p.m., which, as a practical matter, did not leave enough time to

prepare the affidavit by 12:51 p.m. Defendant argued the

questionable timeline satisfied his burden to make a substantial

preliminary showing of a deliberate falsehood in the affidavit,

which warranted a Franks hearing. Defendant also contended that

4
Milani claimed he obtained a copy of Giberson's registration but
it was not attached to his report and is not in the record.

6 A-1281-15T4
Doe's identity should be disclosed so he could be questioned

regarding the timeline.

The assistant prosecutor conceded — albeit without the

support of any competent evidence — that "this did occur within

the 20 or 21-minute period that . . . is alleged"; the warrant

affidavit was already drafted; the prosecutor was standing by; and

the debriefing location, police headquarters and hotel were all

close to each other. She also argued that the accuracy of Doe's

information about defendant demonstrated Doe's reliability. The

State also contended that disclosing Doe's identity was

unwarranted, because probable cause was established and he was not

an active participant in the case.

The trial court denied defendant's motions. The court

declined to find "any kind of falsification intentional or

otherwise with regard to this timeline . . . ." The court concluded

that the events reported in Chencharik's affidavit could have

occurred within the twenty-minute period, noting the proximity

between the hotel and police headquarters.

Thereafter, defendant entered his negotiated guilty plea,

conditioned on his right to appeal the denial of his pre-trial

motions. The State agreed to dismiss the two possession charges

and recommended a fourteen-year sentence, with a fifty-month

7 A-1281-15T4
period of parole ineligibility. The court thereafter sentenced

defendant in accord with the plea agreement.

Defendant raises the following points on appeal:

POINT I

THE TRIAL JUDGE ERRED IN DENYING MR.
MCDANIEL'S MOTION TO SUPPRESS EVIDENCE AS
THERE WAS INSUFFICIENT PROBABLE CAUSE TO
SUPPORT THE SEARCH BECAUSE THE WARRANT
AFFIDAVIT DID NOT PROVIDE ANY INFORMATION
CONCERNING THE RELIABILITY OF THE INFORMANT.
U.S. CONST. AMEND. IV; N.J. CONST. (1947),
ART. I, PARA. 7.

POINT II

THE TRIAL JUDGE ERRED IN DENYING MR.
MCDANIEL'S MOTION TO SUPPRESS EVIDENCE AS
THERE WAS INSUFFICIENT PROBABLE CAUSE TO
SUPPORT THE SEARCHES BECAUSE APPARENT
FALSEHOODS OR INACCURACIES IN THE WARRANT
AFFIDAVIT REQUIRED A FULL FRANKS HEARING BE
CONVENED. U.S. CONST. AMEND. IV; N.J. CONST.
(1947), ART. I, PARA. 7

POINT III

THE TRIAL JUDGE ABUSED HIS DISCRETION AND
DENIED THE DEFENDANT HIS RIGHT TO DUE PROCESS
IN FAILING TO GRANT THE MOTION TO REVEAL THE
IDENTITY OF THE CONFIDENTIAL INFORMANT. U.S.
CONST. AMENDS. VI, XIV; N.J. CONST. (1947),
ART. I, PARS. 1, 9, AND 10.

POINT IV

THE MATTER SHOULD BE REMANDED FOR RE-
SENTENCING TO CORRECT AN ERROR IN THE
SENTENCING COURT'S FINDINGS.

8 A-1281-15T4
 I.

Defendant argues the warrant lacked sufficient probable cause

because it was based primarily on information provided by Doe, and

the State failed to establish the basis of Doe's knowledge or his

reliability.

"It is well settled that a search executed pursuant to a

warrant is presumed to be valid and that 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) (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). "[A]n

appellate court's role is not to determine anew whether there was

probable cause for issuance of the warrant, but rather, whether

there is evidence to support the finding made by the warrant-

issuing judge." State v. Chippero, 201 N.J. 14, 20-21 (2009).

Therefore, we "accord substantial deference to the discretionary

determination resulting in the issuance of the [search] warrant."

State v. Sullivan, 169 N.J. 204, 211 (2001) (internal quotation

marks and citation omitted).

"When determining whether probable cause exists, courts must

consider the totality of the circumstances . . . ." Jones, supra,

179 N.J. at 389 (internal quotation marks and citations omitted).

Information from confidential informants may constitute grounds

9 A-1281-15T4
for probable cause if there is "a substantial basis" to credit it.

Ibid. In evaluating an informant's tip, "an informant's veracity

and his or her basis of knowledge . . . [are] the two most important

factors[.]" Sullivan, supra, 169 N.J. at 212. A trial court may

also consider corroborating factors in making its probable-cause

determination. See Jones, supra, 179 N.J. at 390. "[R]elevant

corroborating facts may include a controlled drug buy performed

on the basis of the tip, positive test results of the drugs

obtained, records confirming the informant's description of the

target location, the suspect's criminal history, and the

experience of the officer who submitted the supporting affidavit."

State v. Keyes 184 N.J. 541, 556 (2005).

While a controlled buy, alone, "would not conclusively

establish probable cause," it is "persuasive evidence." Jones,

supra, 179 N.J. at 392 (internal quotation marks and citation

omitted). "[E]ven one additional circumstance might suffice, in

the totality of the circumstances, to demonstrate probable cause

when the police successfully have performed a controlled drug

buy." Ibid. "[T]he test is qualitative and not quantitative."

Ibid. In Sullivan, supra, the Court adopted the following

description of a controlled buy that may support a probable cause

finding:

10 A-1281-15T4
 (1) a police officer meets the informant at a
location other than the location where [it is]
suspected that criminal activity is occurring;
(2) the officer searches the informant to
ensure the informant has no drugs on his
person and (usually) furnishes the informant
with money to purchase drugs; (3) the officer
escorts or follows the informant to the
premises where it is alleged illegal activity
is occurring and watches the informant enter
and leave those premises; and (4) the
informant turns over to the officer the
substance the informant has purchased from the
residents of the premises under surveillance.

[169 N.J. at 215 (quoting Commonwealth v.
Desper, 643 N.E.2d 1008, 1011 (Mass. 1994)).]

Here, we are satisfied that Chencharik's warrant affidavit,

including the information Doe provided, were sufficient to support

a probable cause finding. The facts set forth in the warrant

affidavit clearly described compliance with the key components of

a controlled buy: (1) Chencharik and MacRae met with Doe at an

arranged location; (2) the officers searched Doe before and after

the controlled buy, to ensure he had no drugs or money, and also

provided Doe with confidential funds to make the purchase; (3)

MacRae followed Doe to the hotel, and observed him enter and leave

room 142; and (4) Doe handed over the purchased substance, which

tested positive for heroin.

The record also reflects additional corroboration of Doe's

veracity and basis of knowledge. Doe provided explicit details

about how defendant conducted his drug transactions, explaining

11 A-1281-15T4
that he used different hotel rooms to avoid detection, which police

later confirmed. A criminal history check of defendant revealed

multiple prior drug-related convictions.

We reject defendant's argument that since the warrant

affidavit failed to establish whether both entrances to the hotel

room were under surveillance, there was insufficient evidence to

support a finding of probable cause. In Sullivan, supra, the

Court explained, "[t]he fact that police were unable to observe

the informant enter [the apartment] itself does not prevent a

finding of probable cause. Rather, the inability of the police

in that regard is one factor to be considered by the issuing judge

under the totality-of-circumstances test." 169 N.J. at 216. As

such, when considering the totality-of-circumstances, we find that

the warrant-issuing judge had sufficient evidence to find probable

cause. Therefore, the trial court did not err in denying the

motion to suppress on those grounds.

II.

Defendant next claims the trial court erred in denying his

request for a Franks hearing, which was based on his contention

that the warrant affidavit contained material falsehoods and

inaccuracies. Specifically, defendant contends the events

described in the affidavit could not have taken place in twenty-

one minutes; the affidavit falsely reported when surveillance

12 A-1281-15T4
began; and the affidavit failed to disclose the existence of a

second door. We are not persuaded.

Under Franks, supra, a defendant is entitled to an evidentiary

hearing to contest the veracity of a warrant affidavit, "where the

defendant makes a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard

for the truth, was included by the affiant in the warrant

affidavit, and if the allegedly false statement is necessary to

the finding of probable cause[.]" Franks, supra, 438 U.S. at 155-

56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672; accord State v. Howery,

80 N.J. 563, 566-68, cert. denied, 444 U.S. 994, 100 S. Ct. 527,

62 L. Ed. 2d 424 (1979). In making a "substantial preliminary

showing," a defendant "must allege 'deliberate falsehood or

reckless disregard for the truth,' pointing out with specificity

the portions of the warrant that are claimed to be untrue."

Howery, supra, 80 N.J. at 567. These allegations should be

supported by affidavits or other reliable statements;

"[a]llegations of negligence or innocent mistake are

insufficient." State v. Broom-Smith, 406 N.J. Super. 228, 240-41

(App. Div. 2009) (quoting Franks, supra, 438 U.S. at 171, 98 S.

Ct. at 2684, 57 L. Ed. 2d at 682), aff'd, 201 N.J. 229 (2010).

Finally, a defendant must show that absent these misstatements,

13 A-1281-15T4
the search warrant lacks sufficient facts to establish probable

cause. Howery, supra, 80 N.J. at 568.

The "substantial preliminary showing" requirement is designed

"to prevent the misuse of a veracity hearing for purposes of

discovery or obstruction." Franks, supra, 438 U.S. at 170, 98 S.

Ct. at 2684, 57 L. Ed. 2d at 681. Therefore, a defendant's

veracity challenge should not be focused on "picking apart minor

technical problems with a warrant application;" rather, it should

address "warrants obtained through intentional wrongdoing by law

enforcement agents[.]" Broom-Smith, supra, 406 N.J. Super. at

240.

We review the court's decision regarding the need for an

evidentiary hearing for an abuse of discretion. See United States

v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006)5; cf. Broom-

Smith, supra, 406 N.J. Super. at 239 (reviewing for abuse of

discretion the judge's ruling denying discovery for purposes of a

Franks hearing). We discern none here.

5
We recognize that there is an apparent split among federal courts
as to the standard of review. See Arbolaez, supra, 450 F.3d at
1293 n.11 (discussing split). However, an abuse-of-discretion
standard of review is consistent with our deferential standard of
review of a trial court's suppression decision. See State v.
S.S., ___ N.J. ___, ___ (2017) (slip op. at 10-12); State v.
Robinson, 200 N.J. 1, 15 (2009).

14 A-1281-15T4
 Defendant argues that since Giberson did not check into the

room until 12:30 p.m., it was impossible that, before then, Doe

called him and arranged a purchase, the TPRD set up surveillance,

and Doe made the controlled buy. He further argues there was

inadequate time for all these events to occur after 12:30 and

before the search warrant affidavit was approved. However,

defendant's timeline argument is based on an unsworn and

uncertified investigation report, R. 1:6-6, which contained

embedded hearsay statements. See Franks, supra, 438 U.S. at 171,

98 S. Ct. at 2684, 57 L. Ed. 2d at 682 (stating that a defendant's

proofs should be supported by "[a]ffidavits or sworn or otherwise

reliable statements of witnesses"). Although defendant claims in

his brief that he produced hotel records to the trial court, the

record before us includes no such records, or a certification of

a person to authenticate them. Thus, defendant's timeline argument

lacks the support of reliable evidence.

We recognize that the assistant prosecutor conceded before

the trial court that "this did occur within the 20 or 21-minute

. . . period that is alleged." However, the statement only relates

to the time gap between the controlled buy and the assistant

prosecutor's approval of the affidavit. The prosecutor did not

concede that the rooms were unoccupied before 12:30; that Doe

could not have spoken to defendant before 12:30 to arrange the

15 A-1281-15T4
buy; or that surveillance could not have been established at 11:00

a.m., as Chencharik stated in his report.

We shall not disturb the trial court's determination that the

admitted twenty-one-minute time span between the controlled buy

and affidavit approval, was not so implausible on its face as to

constitute a preliminary showing of falsehood. The court accepted

the argument that the affidavit was, in large part, prepared in

advance. Notably, Chencharik apparently signed the affidavit in

the presence of the warrant judge almost an hour after the

prosecutor approved it. In any event, negligent or inaccurate

time-keeping does not entitle a defendant to a hearing. See

Franks, supra, 438 U.S. at 170, 98 S. Ct. at 2683, 57 L. Ed. 2d

at 681 (refusing to extend its holding to "instances where police

have been merely negligent in checking or recording the facts

relevant to a probable-cause determination.").

Furthermore, defendant does not contest that a controlled buy

took place; rather, he contends the allegedly questionable

timeline raised doubt as to "whether the controlled buy ever took

place in the manner described by" Doe. (Emphasis added). However,

the manner of the controlled buy is not material. The fact that

it occurred, in conjunction with other indicia of reliability,

established probable cause. See Howery, supra, 80 N.J. at 568

("the misstatements claimed to be false must be material to the

16 A-1281-15T4
extent that when they are excised from the affidavit, that document

no longer contains facts sufficient to establish probable

cause."). Lastly, Chencharik's failure to mention in his affidavit

that there was a second door to the hotel room is at most an

omission — not a falsehood — and was not material to establishing

probable cause.

In sum, because defendant's arguments failed to satisfy the

"substantial preliminary showing" requirement, a Franks hearing

was not necessary.

III.

Before the trial court, defendant argued that the court should

order the State to disclose Doe's identity, so he could be called

to testify at a Franks hearing. As we affirm the trial court's

denial of such a hearing, disclosure of Doe's identity was

unnecessary. However, defendant presents the newly minted

argument that Doe's identity should have been disclosed because

it was essential to his defense, in particular, to defendant's

ability to challenge Chencharik's credibility. We disagree.

"The State has a 'privilege to refuse to disclose the identity

of a person who has furnished information purporting to disclose

a violation of' the law." State v. Adim, 410 N.J. Super. 410, 433

(App. Div. 2009) (quoting N.J.R.E. 516). Such evidence is

"inadmissible, unless the judge finds that (a) the identity of the

17 A-1281-15T4
person furnishing the information has already been otherwise

disclosed or (b) disclosure of his identity is essential to assure

a fair determination of the issues." N.J.R.E. 516. When

determining whether to disclose an informer's identity, the court

is tasked with balancing the State's interest in protecting the

informant's identity against the defendant's right to prepare a

defense. State v. Milligan, 71 N.J. 373, 384 (1976) (quoting

Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628, 1

L. Ed. 2d 639, 646 (1957)).

However, disclosure will be denied where the informant's

participation was, as here, strictly related to the investigation

that ultimately resulted in the arrest. Id. at 387-88 (stating

disclosure not warranted where informant only "provid[ed]

information or 'tips' to the police or participat[ed] in the

preliminary stage of a criminal investigation"). Notwithstanding

his assistance, Doe was not "an active participant in the crime

for which [the] defendant is prosecuted," which is possession and

possession with intent to distribute. See State v. Foreshaw, 245

N.J. Super. 166, 180-81 (App. Div.), certif. denied, 126 N.J. 327

(1991). In sum, we discern no abuse of discretion in the court's

denial of defendant's disclosure demand. See Adim, supra, 410

N.J. Super. at 436.

18 A-1281-15T4
 IV.

Lastly, we discern no merit in defendant's challenge to the

court's sentencing decision. In accord with the plea agreement,

the court sentenced defendant to a fourteen-year prison term, with

fifty-months of parole ineligibility, after finding that

aggravating factors three (risk of defendant committing another

offense), six (extent of defendant's prior criminal record), and

nine (need for deterrence) substantially outweighed non-existent

mitigating factors. See N.J.S.A. 2C:44-1(a)(3), (6), and (9).

We reject defendant's argument that the court had the

discretion to impose less than the fourteen-year term contemplated

in the plea agreement. Defendant was mandatory extended term

eligible. The State entered into a plea agreement pursuant to

N.J.S.A. 2C:35-12; in particular, the State agreed to recommend a

fifty-month period of parole ineligibility on a recommended

fourteen-year (or 168-month) term. The parole ineligibility

period was less than the one-third minimum sentence otherwise

required by N.J.S.A. 2C:43-6(f). Consequently, once the court

accepted the plea agreement, it was not free to impose "a lesser

term of imprisonment, lesser period of parole ineligibility . . .

than that expressly provided for under the terms of the plea . . .

agreement." N.J.S.A. 2C:35-12; see also State v. Leslie, 269 N.J.

Super. 78, 84 (App. Div. 1993), certif. denied, 136 N.J. 29 (1994).

19 A-1281-15T4
 Furthermore, based on our review of the record, we are

satisfied that the judge's findings regarding the aggravating

factors were based upon competent and credible evidence in the

record, and the sentencing was consistent with the sentencing

guidelines. See State v. Fuentes, 217 N.J. 57, 70 (2014); State

v. Roth, 95 N.J. 334, 364-65 (1984). Specifically, the trial

court's consideration of aggravating factor nine was supported by

defendant's extensive criminal history and prior convictions of

possession of drugs with intent to distribute.

Affirmed.

20 A-1281-15T4