STATE OF NEW JERSEY VS. LEE AVILES, JR. (13-12-1603, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-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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