NOT FOR PUBLICATION WITHOUT THE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-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
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
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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.
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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.
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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
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.
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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.
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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 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.
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