STATE OF NEW JERSEY VS. EMAN HASSENBEY (15-03-0237 AND 15-06-0448, UNION 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NOT FOR PUBLICATION WITHOUT THE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-1442-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMAN HASSENBEY, a/k/a
EMOND HASSENBAY, AMAN A. HASSENBEY,
and EMAN A. HASSENBEY,

Defendant-Appellant.

Submitted March 7, 2018 – Decided June 29, 2018

Before Judges Alvarez and Geiger.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment Nos.
15-03-0237 and 15-06-0448.

Joseph E. Krakora, Public Defender, attorney
for appellant (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the
brief).

Gurbir S. Grewal, Attorney General, attorney
for respondent (Arielle E. Katz and Steven A.
Yomtov, Deputy Attorneys General, of counsel
and on the brief).

PER CURIAM
 After a judge denied his motion to suppress evidence seized

during a warrantless search (Indictment No. 15-03-0237), and his

pretrial motions, including an application for a Franks1 hearing,

on a second set of charges (Indictment No. 15-06-0448), defendant

Eman Hassenbey entered into a plea agreement with the State. In

exchange for his guilty pleas to one count of the first indictment,

third-degree possession of a controlled dangerous substance (CDS)

with intent to distribute, N.J.S.A. 2C:35-10(a)(1), and second-

degree CDS possession with intent to distribute more than half an

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

second indictment, defendant was sentenced to concurrent terms of

imprisonment on November 2, 2016. On the earlier indictment, the

judge imposed five years imprisonment, subject to two and one-half

years of parole ineligibility. On the later indictment, he

received twelve years state prison, subject to six years of parole

ineligibility. He now appeals the denial of his motion and his

sentence, and we affirm.

Plainfield Police Sergeant Jerry Plum testified during the

suppression hearing that at approximately 1:30 a.m. he was on

patrol with a partner. A confidential informant had told him a

few minutes earlier that a man named Eman was delivering narcotics

1
Franks v. Delaware, 438 U.S. 154 (1978).

2 A-1442-16T4
"stashed in his crotch area" to that location. The informant also

said defendant was driving a gold-colored Infiniti and was seated

in his car in the back of the lot. The informant saw defendant

pull into the parking lot, although Plum did not explain how the

informant learned that defendant stored the drugs in his crotch

area.

The confidential informant had been useful in many prior

narcotics investigations and was currently working with other

detectives. Plum had previously arrested defendant on drugs and

weapons charges and was familiar with the car he drove.

When Plum and his partner drove through the lot, they saw

defendant's vehicle towards the back. Plum stopped the patrol car

at an angle in front of defendant's automobile about five feet

away from his front bumper, so that defendant could not drive

away. Once Plum approached, he could see defendant's face,

illuminated by his cell phone. The car engine was running, and

defendant was in the driver's seat.

Once defendant made eye contact with Plum, his phone went

down, he sat up, and he made an outward gesture with his right

hand. Although concerned that the movement might mean defendant

had a weapon, Plum continued to approach the vehicle, and he

engaged defendant in idle chitchat.

3 A-1442-16T4
 Plum knew defendant did not have his driver's license. As

Plum spoke to defendant, who had rolled down his window, the

officers illuminated the interior with their flashlights.

Defendant admitted driving his car although he was unlicensed.

The officers saw a scanner in the middle console of the car, which

Plum testified were often used by drug dealers in order to monitor

police activity. He also saw six or seven small rubber bands

commonly used to package heroin on the floor of the vehicle.

When Plum's partner flashed his light at defendant's crotch

area, Plum saw the pants zipper was open. When Plum asked

defendant about that, defendant "completely changed [his]

demeanor, became short of breath, he was like what, he was

relatively speechless." Plum told him to "zip up [his] pants,"

and defendant took about thirty seconds because he was shaking and

"convulsing."

Plum asked defendant to exit the vehicle so he could pat him

down. Defendant was not free to leave as he "would have

investigated further." In his opinion, defendant may have

"technically" been under arrest because he was not free to leave.

Plum believed the tip was corroborated by the rubber bands on the

floor, the police scanner, defendant's movements and demeanor, and

defendant's dubious claim to have just been waiting for a friend

in the back of an empty parking lot. The officer opined that

4 A-1442-16T4
defendant's nervous responses were "out of character." Plum added

that defendant became so nervous when the open zipper was drawn

to his attention that he literally could not close it.

As Plum conducted a pat-down, he felt a bulge below

defendant's belt buckle and asked him about it. Defendant gestured

that he did not know. Suspecting the bulge contained narcotics,

as predicted by the informant, Plum pulled up defendant's shirt

and ran his thumb around the inside of defendant's waistband.

Defendant had a sock, attached to his underwear, hooked on his

waistband.

Stating the obvious, that socks are not typically sewn to

underwear, Plum pulled out a large quantity of narcotics. He

removed the drugs, but not the sock. Defendant was immediately

cuffed, and a large quantity of cash was found in his front pocket.

The radio scanner was tuned to the police channel. The officers

also retrieved the rubber bands, two cell phones, and a package

of AA batteries for the scanner.

In a written opinion, the judge ruled that the officers

reasonably relied on the confidential informant's tip and the

details provided, which indicated personal observations. The

officers approached defendant at night in a high-crime, high-

narcotics area. The informant used defendant's first name and

accurately described his car.

5 A-1442-16T4
 Additionally, Plum knew defendant had been previously

convicted for drug offenses, and he was involved with guns and

drugs. Once the officers looked into the vehicle and saw the

rubber bands and scanner, as well as defendant's open pants zipper

and his nervous reaction to the inquiry about it, the officer had

a sufficient basis to perform a pat-down. During the pat-down,

the officer felt the bulge exactly where the confidential informant

said it would be located. Thus, the judge denied the motion to

suppress.

As to the second indictment, Union County Detective Filipe

Afonso received information that defendant was "actively involved

in the distribution of [CDS], specifically, cocaine, within the

City of Plainfield, which he store[d] in his residence[] . . . and

from [his car]." That information was known to the authorities

not only from a confidential informant's tip but from two

controlled buys performed by the confidential informant. The

substance purchased through the controlled buys tested positive

for cocaine. Afonso's affidavit submitted in support of a search

warrant set forth defendant's prior criminal history, information

about his address and car, the tip, and the controlled buys. On

the strength of that affidavit, a no-knock search warrant issued

authorizing a search of defendant's car and home.

6 A-1442-16T4
 On December 16, 2014, the police stopped defendant's car and

drove him to his apartment. On defendant's person, police found

$173, numerous bags of suspected cocaine and heroin in a sock

attached to his underwear, and two cell phones. The officers

seized a scanner from defendant's car and rubber bands, sandwich

bags, wire cutters, and $15,677 in cash from his apartment.

On December 11, 2015, defendant moved for a dismissal of the

second indictment and a venue change. He also moved for disclosure

of the identity of the confidential informant and information

about the confidential informant and the controlled buys. In

support of his motion for a Franks hearing, defendant alleged that

the information regarding the controlled buy was not credible

because the drug testing was too brief, thus raising doubt as to

whether testing had occurred.

The court found sufficient probable cause for the issuance

of the warrant, and denied all of defendant's related motions.

The confidential informant had provided information leading to

twelve arrests and the seizure of drugs, money, and motor vehicles.

The informant's controlled buys from defendant were verified by

the officers' observation when the purchases were made. The

officers were also present when the informant called defendant to

arrange the meetings. Officers saw defendant drive to the agreed-

7 A-1442-16T4
upon location in his car. Therefore, the certification supporting

the application of a search warranted sufficed.

The court found aggravating factors three, six, and nine,

N.J.S.A. 2C:44-1(a)(3), (6), and (9), when sentencing defendant.

The judge commented defendant's prior record was "very extensive,"

consisting of eight indictable and three disorderly persons

offense convictions, including a second-degree CDS offense,

certain persons offense, and a school zone CDS offense. Thus, the

judge was "clearly convinced" that the aggravating factors

"substantially outweigh" the non-existent mitigating factors.

On appeal, defendant raises the following points:

POINT I
EVIDENCE SEIZED AS THE RESULT OF THE OFFICERS'
UNCONSTITUTIONAL INITIAL STOP AND SUBSEQUENT
ARREST OF HASSENBEY MUST BE SUPPRESSED AS TO
INDICTMENT NO. 15-03-237.

POINT II
THE OFFICERS' STRIP SEARCH OF HASSENBEY IN A
PUBLIC PARKING, WAS ILLEGAL AND UNREASONABLE,
AND THEREFORE, THE EVIDENCE SEIZED MUST BE
SUPPRESSED AS TO INDICTMENT NO. 14-03-237 (NOT
RAISED BELOW).

POINT III
AS TO INDICTMENT NO. 15-06-0448, THE MOTION
JUDGE ERRED IN DENYING HASSENBEY'S REQUEST FOR
A FRANKS HEARING, BASED ON AN ALLEGATION THE
BUYS WERE FABRICATED AFTER DENYING HIS MOTION
FOR DISCOVERY RELATED TO THOSE SUPPOSED
CONTROLLED BUYS.

8 A-1442-16T4
 POINT IV
THE JUDGE'S SENTENCING UTTERLY FAILED TO
COMPLY WITH THE REQUIREMENTS OF STATE V. CASE,
220 N.J. 49 (2013), RESULTING IN A MANIFESTLY
EXCESSIVE SENTENCE THAT MUST BE REVERSED.

I.

When reviewing motions to suppress, we "must uphold the

factual findings underlying the trial court's decision so long as

those findings are supported by sufficient credible evidence in

the record." State v. Rockford, 213 N.J. 424, 440 (2013) (citing

State v. Robinson, 200 N.J. 1, 15 (2009)). This is particularly

true when the findings of the trial court are "substantially

influenced by his [or her] opportunity to hear and see the

witnesses and to have the 'feel' of the case," even if we might

have reached a different conclusion. State v. Elders, 192 N.J.

224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161

(1964)). "A trial court's findings should be disturbed only if

they are so clearly mistaken 'that the interests of justice demand

intervention and correction.'" Ibid. (quoting Johnson, 42 N.J.

at 162).

We address defendant's first and second points together. He

begins by contending that the investigatory stop was illegal

because it was based on a confidential informant's unsubstantiated

tip. He argues that Plum's visual confirmation of the information

he received was so superficial as to be meaningless. Building on

9 A-1442-16T4
that premise, defendant argues that the investigatory stop was

illegal.

The Fourth Amendment of the United States Constitution and

article one, paragraph seven of the New Jersey Constitution

guarantee the right of people to be secure against unreasonable

searches and seizures, by requiring warrants issued upon probable

cause. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Warrantless

searches "are presumptively unreasonable and invalid unless

justified by a recognized exception to the warrant requirement."

State v. Bolte, 115 N.J. 579, 585 (1989) (citations omitted).

One such exception is an investigatory stop. See State v.

Patino, 83 N.J. 1, 7 (1980) ("The warrant requirement . . . may

be dispensed with in only a few narrowly circumscribed exceptions.

The prima facie invalidity of any warrantless search is overcome

only if that search falls within one of the specific exceptions

created by the United States Supreme Court."); see also Terry v.

Ohio, 392 U.S. 1, 27 (1968); United States v. Hensley, 469 U.S.

221, 226 (1985) (finding that police officers may stop a motor

vehicle and detain its occupants temporarily while they

investigate a criminal offense). To subject a person to an

investigatory stop and detention, however, the police must have

reasonable, articulable suspicion of conduct that violates the

law.

10 A-1442-16T4
 In New Jersey, a police officer may conduct an investigatory

stop if, based on the totality of the circumstances, there is

reasonable suspicion to believe an individual has just engaged in,

or about to engage in, criminal activity. State v. Maryland, 167

N.J. 471, 487 (2001) (citing Terry, 392 U.S. at 21). Our Supreme

Court defines "reasonable suspicion" as "a particularized and

objective basis for suspecting the person stopped of criminal

activity." State v. Stovall, 170 N.J. 346, 356 (2002) (quoting

Ornelas v. United States, 517 U.S. 690, 696 (1996)). Under the

totality of the circumstances analysis, weight is given to the

officer's experience and knowledge, and the "rational inferences

that could be drawn from the facts objectively and reasonably

viewed in light of the officer's expertise." State v. Todd, 355

N.J. Super. 132, 137-38 (App. Div. 2002) (quoting State v. Arthur,

149 N.J. 1, 10-11 (1997)).

The Supreme Court has articulated specific guidelines for

cases involving police informants. State v. Sullivan, 169 N.J.

204, 212 (2001). Such information may constitute a basis for a

finding of even probable cause to search, so long as substantial

grounds exist crediting the information. State v. Smith, 155 N.J.

83, 92 (1998). Whether probable cause is established "is determined

by a standard that calls for consideration and analysis of all

relevant circumstances." Ibid.; see also Illinois v. Gates, 462

11 A-1442-16T4
U.S. 213, 238 (1983) (finding that the reliability of an

informant's tip must be analyzed under the totality of

circumstances); State v. Novembrino, 105 N.J. 95, 122 (1987)

(adopting the totality of circumstances analysis from Gates).

"Two factors generally considered [as] highly relevant, if

not essential," in the totality of circumstances analysis are the

informant's "veracity" and the informant's "basis of knowledge."

Smith, 155 N.J. at 93 (quoting Gates, 462 U.S. at 238). "A

deficiency in one of those factors 'may be compensated for, in

determining the overall reliability of a tip, by a strong showing

as to the other, or by some other indicia of reliability.'" State

v. Zutic, 155 N.J. 103, 110-11 (1998) (citations omitted).

Additionally, our courts have stressed that a factor, "though

insufficient if considered in isolation, may in combination

reinforce or augment another and become sufficient to demonstrate

probable cause." Id. at 113 (citing Gates, 462 U.S. at 233).

Regarding an informant's veracity, past instances of

reliability are "probative of veracity, although [their] weight

in the ultimate determination of probable cause may vary with the

circumstances of each case." Smith, 155 N.J. at 94. An

informant's veracity may be shown by demonstrating that the

informant proved to be reliable in previous police investigations.

Novembrino, 105 N.J. at 123. However, since the totality of the

12 A-1442-16T4
circumstances must be examined, "past instances of reliability do

not conclusively establish an informant's reliability." Smith,

155 N.J. at 94.

In the absence of a disclosure that relates expressly the

manner in which the informant acquired knowledge, "the nature and

details revealed in the tip may imply that the informant's

knowledge of the alleged criminal activity is derived from a

trustworthy source." Ibid. (citing Novembrino, 105 N.J. at 113).

"By providing sufficient detail in the tip or recounting

information that could not otherwise be attributed to circulating

rumors or be easily gleaned by a casual observer, an informant can

implicitly disclose a reliable basis of knowledge as the foundation

of the information related to the police." Id. at 95.

Independent police "corroboration is necessary to ratify the

informant's veracity and validate the truthfulness of the tip, and

is considered an essential part of the determination of probable

cause." State v. Jones, 179 N.J. 377, 390 (2004) (citation

omitted). The degree of corroboration the police must present to

the court depends on a qualitative analysis of "the unique facts

and circumstances presented in each case." Ibid. Whether the

police corroboration suffices to justify the police intrusion

"turns ultimately on the totality of the circumstances." State

13 A-1442-16T4
v. Rodriguez, 172 N.J. 117, 128 (2002) (citing Alabama v. White,

496 U.S. 325, 330 (1990)).

Defendant contends Plum's description of the informant's

history with the police was "vague and conclusory," thus

establishing the informant's lack of veracity. Even if the

informant's history is sufficient, defendant argues, the

informant's basis of knowledge was unknown. Since, according to

defendant, the officers did not corroborate predicted or hard-to-

know information before the search, the drugs should be suppressed.

This argument lacks merit.

Where an informant has previously proven reliable, that

satisfies the first factor. See Novembrino, 105 N.J. at 123. This

informant's history consists of numerous occasions where the

informant's information proved useful not only to Plum, but to

other detectives in Plainfield. Thus, Plum's testimony readily

satisfied the veracity prong.

Furthermore, the informant furnished information that could

only have been obtained from personal observations. The informant

advised that a man named "Eman" was dealing drugs out of his gold

or tan Infiniti that was backed into a spot in the rear of a

deserted parking lot for that purpose. The informant expressly

indicated he had seen defendant conducting an illegal drug sale,

thus also demonstrating the basis of knowledge.

14 A-1442-16T4
 The informant's tip in this case, in contrast to the cases

defendant cites, contained details including defendant's name and

specific location. Plum knew defendant and his drug history.

Defendant's exaggerated reaction when Plum mentioned his open

pants zipper itself validates the information given by the

informant. The credible evidence in the record supports the trial

judge's conclusion that the information was sufficiently

corroborated, and therefore reliable. See Rockford, 213 N.J. at

440.

Defendant also contends that Plum lacked probable cause to

arrest or search his person. The argument hinges, however, on the

conclusion that the totality of the circumstances did not give

Plum a basis for an investigatory stop. Not only did Plum have a

basis for an investigatory stop, once defendant engaged in furtive

movements and reacted in a highly suspicious fashion when asked

about his open zipper, Plum was entitled to pat defendant down for

his own safety.

An officer's protective frisk for weapons is lawful where,

"a reasonably prudent [person] in the circumstances would be

warranted in the belief that his [or her] safety or that of others

was in danger." State v. Lund, 119 N.J. 35, 39 (1990) (quoting

Terry, 392 U.S. at 27).

As the Law Division judge said:

15 A-1442-16T4
 As he approached the car, Sergeant Plum
observed the defendant using his cellphone and
moving something in the car with his right
hand. Sergeant Plum believed the defendant did
not have a driver's license. This was
confirmed by the defendant. The Infinit[i]'s
engine was running when the officers
approached. In the car, Sergeant Plum saw a
police radio scanner, commonly used by drug
dealers, and drug packaging material.
Sergeant Plum observed the defendant's zipper
being down. When he asked the defendant about
it, the defendant became extremely nervous and
evasive. Based on the facts present[ed], there
was sufficient basis for Sergeant Plum to ask
the defendant to exit the car for his safety,
and to perform a pat[-]down for weapons. In
defendant's pants in the crotch area, Sergeant
Plum felt a sock in the exact area the
[informant] said the defendant was concealing
CDS. Based on the [informant's] information,
the officer's corroboration of the
[informant's] information, and the officer's
knowledge and observations, there was probable
cause for the defendant's arrest and search
incident to arrest.

In other words, once Plum corroborated the tip, there was a basis

for an investigatory stop and pat-down. As the circumstances

evolved, Plum had probable cause to search. The trial court's

ruling denying defendant's motion to suppress evidence should be

affirmed.

For the first time on appeal, defendant argues that the

officer dragging his thumb along the inside of defendant's pants

was the equivalent of a strip search. This argument also lacks

merit.

16 A-1442-16T4
 A strip search is "the removal or rearrangement of clothing

for the purpose of visual inspection of the person's undergarments,

buttocks, anus, genitals or breasts." N.J.S.A. 2A:161A-3(a). The

strip search statute, N.J.S.A. 2A:161A-1, was adopted "to provide

greater protection than is afforded by the Fourth Amendment [of

the Federal Constitution]." State v. Hayes, 327 N.J. Super. 373,

381 (App. Div. 2000). Conducting a strip search in violation of

this statute renders the search unreasonable and requires

suppression of any evidence discovered. U.S. Const. amends. IV,

XIV; N.J. Const. art. I, ¶ 7; see State v. Harris, 384 N.J. Super.

29, 49 (App. Div. 2006); Hayes, 327 N.J. Super. at 373; Harris,

384 N.J. Super. at 49.

Plum's search of defendant's upper pants area did not require

removal or significant rearrangement of his clothing. He pulled

up defendant's shirt and ran his thumb around the inside of

defendant's waistband. Once he felt the drugs hidden in the sock

hanging from the waistband, and removed the narcotics, he went no

further. Although he did lift defendant's shirt, Plum's conduct

was not for the purpose of visual inspection of defendant's

undergarments or private parts.

Furthermore, Plum's seizure of the contents of the sock was

proper pursuant to the "plain feel doctrine." Minnesota v.

Dickerson, 508 U.S. 366 (1993); State v. Evans, 449 N.J. Super.

17 A-1442-16T4
66, 82 (App. Div. 2017) (citations omitted). According to the

doctrine, "police officers may seize nonthreatening contraband

detected during a protective patdown search" as long as the search

remained within its bounds. Dickerson, 508 U.S. at 373. The

Court said:

If a police officer lawfully pats down a
suspect's outer clothing and feels an object
whose contour or mass makes its identity
immediately apparent, there has been no
invasion of the suspect's privacy beyond that
already authorized by the officer's search for
weapons; if the object is contraband, its
warrantless seizure would be justified by the
same practical considerations that inhere in
the plain-view context.

[Id. at 375-76.]

As the Dickerson Court noted, the plain-view and plain-feel

doctrines both require probable cause if the object of a

warrantless seizure is contraband. Id. at 376.

Under the plain-feel doctrine, Plum had sufficient probable

cause to immediately seize the drugs from defendant at the scene

of incident. See State v. Toth, 321 N.J. Super. 609, 612-14 (App.

Div. 1999) (finding that an officer's observation of a large bulge

and feeling of suspected CDS in defendant's groin area during the

course of a protective frisk gave rise to probable cause to seize

the CDS). It was immediately apparent to Plum that the peculiar

18 A-1442-16T4
waistband/sock arrangement concealed contraband, but Plum's

conduct did not equate to a strip search.

II.

We accord substantial deference to a trial court's decision

to issue a search warrant. State v. Keyes, 184 N.J. 541 (2005).

A search warrant is presumed valid, and defendant bears the burden

to prove "there was no probable cause supporting the issuance of

the warrant or that the search was otherwise unreasonable." State

v. Valencia, 93 N.J. 126, 133 (1983) (citation omitted). "Doubt

as to the validity of the warrant should ordinarily be resolved

by sustaining the search." Keyes, 184 N.J. at 554 (citation

omitted).

Defendant suspects that the controlled buys were fabricated

and the affidavit in support of the issuance of the search warrant

therefore contained willful falsehoods, and argues he should have

been granted a Franks hearing for that reason. He supports the

argument by reasoning that if officers are not compelled to better

document controlled buys, they could simply engage in fictional

buys at will.

The primary purpose of a Franks hearing is to "determine

whether the police made material misrepresentations and/or

omissions in seeking [a search warrant] and, if so, whether the

evidence gathered from [a] defective warrant[] [must] be

19 A-1442-16T4
suppressed." State v. Smith, 212 N.J. 365, 413-14 (2012). The

Fourth Amendment requires the court to hold a hearing at the

defendant's request when a criminal 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, 438 U.S. at 155-56. These requirements also

apply where the allegations are that the affidavit, though facially

accurate, omits material facts. State v. Stelzner, 257 N.J. Super.

219, 235 (App. Div. 1992).

A defendant cannot rely on unintentional falsification, but

"must allege 'deliberate falsehood or reckless disregard for the

truth.'" State v. Howery, 80 N.J. 563, 567 (1979) (quoting Franks,

438 U.S. at 171). "These allegations should be supported by an

offer of proof including reliable statements by witnesses, and

they must be proved by a preponderance of the evidence." Id. at

568-69 (citing Franks, 438 U.S. at 171). Finally, the

misstatements claimed to be false must be material to the extent

that when they were excised from the affidavit, that document no

longer contained facts sufficient to establish probable cause.

Ibid. (citing Franks, 438 U.S. at 171).

20 A-1442-16T4
 The sole factor defendant can point to in support of his

contention that the affidavit contained a material

misrepresentation is that the turnaround time between the buy and

the testing of the drugs was too brief. That is not enough of a

showing to justify discovery that would be nothing more than a

fishing expedition. See State v. Broom-Smith, 406 N.J. Super.

228, 239 (App. Div. 2009) (A defendant's broad discovery rights

under Rule 3:13-3 does not entitle him to a launch a fishing

expedition).

Defendant has failed to make the necessary substantial

preliminary showing that Afonso's statements were intentionally

false. See Howery, 80 N.J. at 567-69. Nothing but speculation

fuel's defendant's claim that Afonso's affidavit contains material

misrepresentation or a reckless disregard for the truth. Unfounded

suspicion is not the equivalent of a substantial preliminary

showing. See id. at 567.

On its face, Afonso's affidavit clearly supports probable

cause for a search warrant. See Broom-Smith, 406 N.J. Super. at

240. We observed in that case:

For purposes of the warrant application, it
was sufficient that [the Investigator] had
listened in to the phone conversation in which
defendant told the informant to come over to
his house, that the informant reported to her
right after the controlled buy that defendant
sold him a substance purported to be cocaine,

21 A-1442-16T4
 and that the investigators field-tested the
purchased substance immediately. . . .
Whether more extensive later testing
conclusively proved the substance to be [CDS]
. . . [is] irrelevant to the validity of the
warrant.

[Ibid.]

The court's refusal to turn over lab reports and money

requsition forms, attendant to a Franks hearing, was not error.

III.

We overturn a trial court's sentencing decision only where

it constitutes a "patent and gross abuse of discretion." State

v. Roth, 95 N.J. 334, 364 (1984) (quoting State v. Bender, 80 N.J.

84, 93 (1979)). A patent and gross abuse of discretion occurs

when the decision either "(a) was not premised upon a consideration

of all relevant factors, (b) was based upon a consideration of

irrelevant or inappropriate factors, or (c) amounted to a clear

error in judgment." Ibid. (citation omitted). A sentence

justifies reversal only where it "shocks the judicial conscience."

Ibid.

Defendant also argues that because the court could have

imposed a lower sentence, it was an abuse of discretion to impose

the negotiated term. The plea agreement defendant entered into

called for ten years imprisonment, subject to fifty-seven months

of parole ineligibility under Indictment No. 15-06-0448, to run

22 A-1442-16T4
consecutive to the sentence under Indictment No. 15-03-0237, of

five years with two-and-a-half years of parole ineligibility. The

judge reduced the aggregate sentence from the agreed-upon fifteen

years to twelve years. Defendant was sentenced, albeit to a

discretionary extended term, on Indictment No. 15-06-0448 in the

first-degree range to the lowest state prison term possible. The

twelve-year sentence he received does not shock our conscience.

See Roth, 95 N.J. at 364.

Affirmed.

23 A-1442-16T4