NOT FOR PUBLICATION WITHOUT THE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-4669-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN VEGA, a/k/a JOHN
GOMEZ, and HECTOR
VARGAS,
Defendant-Appellant.
__________________________
Submitted December 5, 2019 – Decided February 4, 2020
Before Judges Nugent and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment Nos. 15-12-1287,
16-09-0717 and 17-06-0335.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the briefs).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Laura C. Sunyak, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant John Vega appeals his April 10, 2018 judgments of conviction.
He alleges the trial court erred by denying his request for an evidentiary hearing
on his claim that the search warrants were based on materially false information
and did not establish probable cause. He also alleges the finding that he violated
probation should be dismissed because it was based on unreliable hearsay. We
affirm the judgments of conviction.
I.
Defendant pleaded guilty in 2016 to fourth-degree certain persons not to
have weapons, N.J.S.A. 2C:39-7(a), under indictment 15-12-1287, and fourth-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), under indictment
16-09-0717. He was sentenced to two years of non-custodial probation.
Within six months, defendant was indicted on eleven new charges—
including possession of controlled dangerous substances, unlawful possession
of firearms and certain persons not to possess weapons. He pleaded not guilty
to these charges brought under indictment number 17-06-0335.
The State charged defendant with violation of probation (VOP) for his
alleged failure to comply with the conditions of probation imposed when he was
previously sentenced. At the VOP hearing, his first probation officer testified
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that defendant did not complete the intake process. When she started to "review
the standard conditions of probation" with him, he let her know he wanted to go
to trial. She sent him back to the courtroom "to speak to whoever he needed to
speak to," but he never returned. She left a phone message and she sent
computer notices to him to report on two separate dates, but "he did not do that."
No one was home when she attempted a home visit, and she left a notice advising
him of another date to report. There was no reply. The case was reassigned to
another probation officer. That officer testified from her review of probation's
record system that defendant was non-compliant.
The court found defendant was aware of the terms and conditions of his
probation because it advised him about them "at both his plea hearing and . . .
sentencing hearing." It found the initial probation officer's testimony "to be
quite credible." Based on her "testimony alone" the court concluded defendant
"violated the terms and conditions of his probationary sentence."
Defendant filed a motion for a Franks1 hearing, claiming the affidavits
that supported the two search warrants and arrest warrant for indictment 17-06-
0335 were legally insufficient. He alleged the confidential informant (CI)
1
Franks v. Delaware, 438 U.S. 154 (1978).
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3
misidentified defendant because the height and weight in the affidavits was
different from defendant's actual physical size. 2 Although the police had a
photograph of defendant, it was not shown to the CI.
The detective's affidavit in support of the search warrants stated that a CI
identified defendant as a source of heroin and cocaine in Trenton. Defendant
made sales from a specific address in the city. The detective used the CI to make
two controlled purchases of narcotics at that premises and described the
procedures that were followed. The affidavit gave a physical description of
defendant, identifying him as five feet ten inches tall and weighing between 160
and 180 pounds although defendant is six feet tall and weighs 220 pounds. A
search of the premises yielded heroin and marijuana, drug paraphernalia and two
handguns. Defendant was not present. Utility bills showed another address for
defendant. A second search warrant was issued for that address. The detective
smelled marijuana emanating from the residence when he arrived. Defendant
was arrested. The police seized drugs and a sawed-off shotgun. This provided
the basis for the charges in indictment 17-06-0335.
2
In his reply brief on appeal, defendant added the argument that the CI did not
use defendant's first name, only his surname. Defendant made the same
argument before the trial court.
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4
The court denied defendant's request for a Franks hearing. It found
defendant had not shown the affidavit was "procured by way of a willfully false
statement or one made in reckless disregard for the truth." The variation in
height and weight was not "a flagrant deviation from . . . [d]efendant's proper
height and weight" because "[p]eople estimate height and weight differently."
The court found defendant's arguments against probable cause were
"conclusory" and not supported by any affidavits or certifications. The detective
observed defendant open the door and initiate the drug exchange. This also
supported a finding of probable cause. Because the utility bills for the second
residence were in defendant's name, there was probable cause he was at that
address. When the officers went there, their "plain smell and plain view
observations" supported the finding of probable cause for issuance of the
warrant.
In February 2018, defendant pleaded guilty under indictment 17-06-0335
to third-degree possession of a prohibited weapon, a sawed-off shotgun,
N.J.S.A. 2C:39-3(b). He was sentenced on that charge to a three-and-one-half
year term of imprisonment with the same length of parole ineligibility. He also
was sentenced to terms of eighteen months on each of the VOPs. Although the
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VOP terms were consecutive to each other, they were consecutive to his
conviction under indictment 17-06-0335.
On appeal, defendant raises these issues for our consideration:
POINT I
THE DEFENDANT'S RIGHT TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES AS
GUARANTEED BY THE FOURTH AMENDMENT
TO THE UNITED STATES CONSTITUTION AND
ART. I, PAR. 7 OF THE NEW JERSEY
CONSTITUTION WAS VIOLATED.
A. The Defendant is Entitled to a Franks
Hearing Because the Affidavits in Support
of the Search Warrants Contained
Materially False Information the Officer
Knew or Should Have Known was False.
B. The Affidavits Do Not Establish
Probable Cause.
POINT II
THE VIOLATION OF PROBATION SHOULD BE
DISMISSED BECAUSE THE STATE'S PROFFER OF
UNRELIABLE HEARSAY EVIDENCE WAS
INSUFFICIENT PROOF OF A VIOLATION.
II.
Defendant alleges the trial court erred by not granting his request for an
evidentiary hearing under Franks because he claims there was a material
misstatement of fact about his height and weight in the affidavits supporting the
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search warrants. He alleges—without a supporting affidavit or certification—
the police either knew the CI was mistaken or recklessly disregarded this as
evidenced by the fact the police did not show defendant's photograph to the CI.
The decision whether to grant an evidentiary hearing in a suppression
motion is reviewed for abuse of discretion. State v. Broom-Smith, 406 N.J.
Super. 228, 239 (App. Div. 2009). A Franks hearing "is aimed at [search]
warrants obtained through intentional wrongdoing by law enforcement agents
and requires a substantial preliminary showing[.]" Id. at 240. A hearing is
required only where a 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. The 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." State v. Howery, 80 N.J. 563, 567 (1979)
(quoting Franks, 438 U.S. at 171). A misstatement is material if, when excised,
the warrant affidavit "no longer contains facts sufficient to establish probable
cause" in its absence. Howery, 80 N.J. at 568 (citing Franks, 438 U.S. at 171).
If there still would be probable cause without this misinformation, however, the
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warrant is valid and an evidentiary hearing is not needed. See State v. Sheehan,
217 N.J. Super. 20, 25 (App. Div. 1987).
We agree with the trial court that defendant did not satisfy this standard.
There was no showing the affidavit by the detective contained deliberate
falsehoods or statements made in reckless disregard of the truth. There was
some underestimation in defendant's height and weight, but there was other
information identifying defendant, such as his prior criminal record, ethnicity,
date of birth, driver's license and name. Surveillance units saw defendant open
the door to the CI and initiate the drug transaction. There is no information that
the photograph of defendant would have established his height and weight. The
facts did not rise to the proofs required for a Franks hearing.
Defendant argues there was no independent corroboration of the CI's
reliability. Without this, he claims the warrants lacked probable cause.
"A search that is executed pursuant to a warrant is 'presumptively valid,'
and a defendant challenging the issuance of that warrant has the burden of proof
to establish a lack of probable cause 'or that the search was otherwise
unreasonable.'" State v. Boone, 232 N.J. 417, 427 (2017) (quoting State v.
Watts, 223 N.J. 503, 513-14 (2015)). "Probable cause exists where the facts and
circumstances within . . . [the officers'] knowledge and of which they had
A-4669-17T4
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reasonably trustworthy information [are] sufficient . . . to warrant a [person] of
reasonable caution in the belief that an offense has been or is being committed."
State v. Marshall, 199 N.J. 602, 610 (2009) (alteration in original) (quoting State
v. O'Neal, 190 N.J. 601, 612 (2007)).
"An informant's 'veracity' and 'basis of knowledge' are two highly relevant
factors under the totality of the circumstances" in evaluating the reliability of a
confidential informant. State v. Zutic, 155 N.J. 103, 110 (1998) (quoting State
v. Smith, 155 N.J. 83, 93 (1998)). "The veracity factor may be satisfied by
demonstrating that the informant has proven reliable in the past, such as
providing dependable information in previous police investigations." State v.
Keyes, 184 N.J. 541, 555 (2005) (quoting State v. Sullivan, 169 N.J. 204, 213
(2001)). The knowledge factor may be satisfied if the informant provides
sufficient details in the tip. Id. at 555-56 (citing Smith, 155 N.J. at 94). Other
corroboration could include a controlled drug buy performed based on the tip.
State v. Jones, 179 N.J. 377, 390 (2004).
We are satisfied the court did not err in denying defendant's motion to
suppress. The affidavit detailed the detective's training and experience. It
satisfied the veracity factor because it included that the informant had previously
provided reliable information leading to arrests and the seizure of controlled
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dangerous substances and firearms. The knowledge factor was satisfied by the
details of the tip. In addition, the detective observed defendant open the door to
initiate the two controlled buys made by the informant. Evidence at one location
led to the second warrant where defendant was located.
Defendant argues the court erred in finding a violation of probation
because it was based on hearsay testimony rather than personal knowledge
testimony. This argument is not supported by the record.
Our Supreme Court recently addressed the use of hearsay testimony at
probation violation hearings. In State v. Mosley, 232 N.J. 169, 187 (2018), the
Court held that "hearsay generally is admissible in VOP hearings. The devil is
in the detail of avoiding trenching on the due process confrontation rights of a
defendant." The Court delineated the factors trial courts are to use in
determining whether the proofs are sufficiently reliable. Mosley was decided
shortly after the hearings at issue here. Id. at 169. However, even prior to that,
it was clear that hearsay could be used if it was reliable. See State v. Reyes, 207
N.J. Super. 126, 139 (App. Div. 1986) (superseded on other grounds by statute).
The record does not support defendant's argument that the court's decision
was based on unreliable hearsay. The court found credible the testimony of
defendant's initial probation officer. She testified based on first-hand
A-4669-17T4
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knowledge of defendant's failure to comply with the conditions of his probation.
The court made its findings based on that probation officer's testimony "alone."
Defendant's alleged constitutional violation is a red herring. Neither Reyes nor
Mosley are implicated here.
Affirmed.
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