                                NOT FOR PUBLICATION WITHOUT THE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-5553-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSE A. CORREA,
a/k/a ALBERTO MORALES,
DAVID SANCHEZ,
JOSE PEPE,
JOSE A. CORRERA,
JOSE M. CORREA, and
JOSE MORALES,

     Defendant-Appellant.
_______________________________

                    Submitted December 12, 2018 – Decided December 28, 2018

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 14-12-0187.

                    Lustberg Law Offices, LLC, attorneys for appellant
                    (Adam M. Lustberg, of counsel and on the brief;
                    Edward J. Mullins, III, on the brief).
            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Arielle E. Katz, Deputy Attorney General,
            of counsel and on the brief).

PER CURIAM

      Defendant Jose Correa appeals from a July 21, 2017 judgment of

conviction for first-degree possession of a controlled dangerous substance

(CDS) with intent to distribute. He challenges various pre-trial determinations

relating to the denial of a motion to suppress and a motion to reveal the identity

of a confidential informant (CI). We affirm.

      The following facts are taken from the record.         In February 2014,

Detective Hugo Ribeiro, of the New Jersey State Police, met with a CI regarding

information about narcotic sales occurring in Elizabeth. The CI advised there

was a Hispanic male, approximately 5'6", 220 pounds, and forty years old,

distributing cocaine and heroin under the name of "Jose," or "Hov," from his

apartment. This man was later identified as defendant.

      Ribeiro met with the CI to arrange for a controlled purchase of drugs from

defendant. The CI was searched to confirm he did not possess any drugs and

was then provided with funds to purchase drugs from defendant. Detectives

observed the CI use a telephone to call defendant and ask if he had cocaine for

sale. Defendant responded he had several kilos of heroin and was awaiting an


                                                                          A-5553-16T3
                                        2
additional delivery of cocaine. Defendant told the CI to come to his apartment.

Detectives maintained visual surveillance as the CI traveled to defendant's

residence to make the purchase.

      Defendant was observed exiting the residence to meet with the CI, then

re-entering it. After the purchase, the CI returned to meet with detectives at a

separate location. There, the CI informed detectives defendant had sold him

cocaine in exchange for the funds provided by the detectives.

      The aforementioned information was recited in Ribeiro's affidavit of

application for a search warrant of defendant's residence. The search warrant

was authorized and executed the same day.        When detectives entered the

residence, defendant ran to the rear of the apartment and began flushing

suspected drugs down the toilet. A search of the home yielded the following:

    Storage room: four boxes of glassine envelopes stamped "Frito Lays,"

      plastic wrap, a porcelain plate with white residue, scotch tape,

      toothbrushes, measuring spoons and rubber bands, a blender, plastic zip

      lock bags with white residue, two sifters, four coffee grinders with white

      residue, a digital scale, a vacuum sealer, and one box of ear loop masks.

    Garage: twelve clear plastic bags containing cocaine (approximately 825

      grams), a press, a High Efficiency Particulate Air (HEPA) mask, a


                                                                        A-5553-16T3
                                       3
      blender, four aluminum trays with white powder residue, a black leather

      bag containing various metal components for presses, and two vacuum

      sealers.

    Master bedroom: ten clear plastic bags containing heroin (10.145 oz.), an

      unlabeled prescription bottle containing sixty oxycodone tablets, an

      unlabeled prescription bottle containing ninety-four oxycodone tablets,

      multiple stamps for marking heroin envelopes, a computer tower

      connected to several security cameras on the premises, three security

      cameras, various bank documents, and $14,540.

      Defendant was subsequently arrested and indicted on ten drug-related

offenses. He filed a motion to suppress the evidence from the search and to

compel the State to reveal the identity of the CI. This motion and a subsequent

motion for reconsideration were denied. Separately, defendant filed a motion

seeking a hearing to challenge the probable cause basis for the search warrant,

which was also denied.

      In January 2017, defendant entered a guilty plea to first-degree possession

of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(1). Defendant

was sentenced, in accordance with the plea agreement, to eleven years




                                                                         A-5553-16T3
                                       4
imprisonment, with a five-year period of parole ineligibility.   This appeal

followed.

       Defendant raises the following points on appeal:

             POINT I

             THE TRIAL JUDGE ERRONEOUSLY FOUND
             THAT THE INFORMATION CONTAINED IN
             DETECTIVE RIBEIRO'S WARRANT AFFIDAVIT
             AMOUNTED TO PROBABLE CAUSE; THE
             MOTION TO SUPPRESS SHOULD HAVE BEEN
             GRANTED.

             POINT II

             IN THE ALTERNATIVE, BECAUSE OF A
             MATERIAL OMISSION IN THE APPLICATION
             FOR THE WARRANT, DEFENDANT IS ENTITLED
             TO A HEARING PURSUANT TO [FRANKS V.
             DELAWARE.1]

             POINT III

             THE JUDGE'S REFUSAL TO REVEAL THE
             IDENTITY OF THE C.I. WAS ERRONEOUS AND
             UNFAIRLY LIMITED DEFENDANT'S ABILITY TO
             CHALLENGE THE LEGALITY OF THE SEARCH
             WARRANT.




1
    438 U.S. 154 (1978).
                                                                     A-5553-16T3
                                       5
                                        I.

      Review of a warrant's validity "is guided by the flexible nature of probable

cause and by the deference shown to issuing courts that apply that doctrine."

State v. Sullivan, 169 N.J. 204, 217 (2001). Warrant applications

            should be read sensibly rather than hypercritically and
            should be deemed legally sufficient so long as they
            contain [] factual assertions which would lead a prudent
            [person] to believe that a crime [has] been committed
            and that evidence . . . of the crime [is] at the place
            sought to be searched.

            [Ibid. (alterations in original) (quoting State v. Laws,
            50 N.J. 159, 173 (1967)).]

      A reviewing judge should pay "substantial deference" to the discretionary

determination of the judge who issued the warrant. State v. Hemenway, 454

N.J. Super. 303, 322 (App. Div. 2018). "We are bound to uphold the factual

findings made by the Criminal Part judge in support of his ruling denying

defendant's motion to suppress, provided they are 'supported by sufficient

credible evidence in the record.'" Ibid. (quoting State v. Gamble, 218 N.J. 412,

424 (2014)). "Thus, we can disturb or reject the judge's findings of fact 'only if

they are so clearly mistaken that the interests of justice demand intervention and

correction.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 244 (2007)).




                                                                           A-5553-16T3
                                        6
      Defendant argues Ribeiro's affidavit was entirely dependent upon the

credibility of the CI, whose reliability police failed to substantiate. Thus,

defendant asserts there was no probable cause to issue the warrant. We disagree.

      "The standards for determining probable cause to arrest and probable

cause to search are identical." State v. Moore, 181 N.J. 40, 45 (2004) (citing

State v. Smith, 155 N.J. 83, 92 (1998)). "The application for a warrant must

satisfy the issuing authority 'that there is probable cause to believe that a crime

has been committed, or is being committed, at a specific location or that

evidence of a crime is at the place sought to be searched.'" State v. Boone, 232

N.J. 417, 426 (2017) (emphasis in original) (quoting State v. Jones, 179 N.J.

377, 388 (2004)). "Probable cause exists when, considering 'the totality of the

circumstances,' a person of 'reasonable caution' would be justified in believing

that evidence of a crime exists in a certain location. State v. Smith, 212 N.J.

365, 388 (2012) (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000)).

      "Information related by [a CI] may constitute a basis for probable cause."

Smith, 155 N.J. at 92. "Such information, though hearsay, may provide a

sufficient basis for probable cause, 'so long as a substantial basis for crediting

the hearsay is presented.'" Ibid. (quoting State v. Novembrino, 105 N.J. 95, 111

(1987)).


                                                                           A-5553-16T3
                                        7
      The Supreme Court has adopted a two-prong test to determine the

sufficiency of an informant's tip. "First, the tip must include information that

apprises the magistrate of the basis for the informant's allegations (the 'basis-of-

knowledge' prong); and, second, the affiant must inform the magistrate of the

basis for his reliance on the informant's credibility (the 'veracity' prong)."

Novembrino, 105 N.J. at 111-12 (citing Illinois v. Gates, 462 U.S. 213, 267

(1983)).

      The "basis-of-knowledge" prong requires a fact sensitive analysis and

consideration of the totality of the circumstances, including: controlled drug

purchases, positive test results of narcotics obtained in a controlled purchase,

records corroborating a CI's account of the location of drug activity, the

experience of the officers in drug investigations, and the suspect's criminal

record. See Jones, 179 N.J. at 390-91.

      As to the second prong, a CI's veracity "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) (citing Sullivan, 169 N.J. at 213). "Importantly, '[a] deficiency in

one of those factors may be compensated for, in determining the overall




                                                                            A-5553-16T3
                                         8
reliability of a tip, by a strong showing as to the other, or by some other indicia

of reliability.'" Ibid. (quoting State v. Zutic, 155 N.J. 103, 110–11 (1998)).

      Notably, in Keyes, the Court noted a "controlled [drug] buy is [] central

to our analysis whether the corroborating facts presented in the police affidavit

adequately support the confidential informant's veracity and basis of

knowledge." Id. at 559. "[A]though no one corroborating fact is outcome

determinative, a successful controlled drug buy is generally very persuasive

evidence." Ibid. (citing Sullivan, 169 N.J. at 217). "When coupled with at least

one additional corroborating circumstance, a controlled buy typically suffices to

demonstrate that the police, under the totality of the circumstances, had probable

cause." Ibid. (citing Jones, 179 N.J. at 392).

      In Keyes, the Court noted the following corroborating evidence:

            The substance obtained during the controlled buy field-
            tested positive for cocaine. A criminal history check of
            [defendant] revealed that he had four felony
            convictions, including convictions for manufacturing
            and distributing drugs. The police routinely received
            complaints from area residents about the constant drug
            activity [at his residence]. Moreover, the police
            observed known drug users entering an apartment on
            the west side of the [residence] and exiting shortly
            after. The police have detected lookouts in the housing
            project that alert drug dealers when police approach the
            area. In addition, the affiant has extensive experience
            and education in drug-related activities. Beyond
            peradventure, the facts in this appeal, considered

                                                                           A-5553-16T3
                                        9
            collectively, constitute more corroboration than is
            present in the typical search and seizure case. That
            finding reinforces both the informant's veracity and his
            basis of knowledge and leads us to the conclusion that
            probable cause existed in the totality of these
            circumstances.

            [Ibid. (emphasis added).]

      The facts here are analogous to Keyes. As we noted, following the tip

provided by the CI, detectives maintained constant visual surveillance on

defendant as he was observed exiting his residence to meet with the CI and

provided the CI with cocaine in exchange for the funds provided by police.

These observations were all noted in Ribeiro's affidavit, which also set forth

defendant's criminal history, including prior convictions for distribution of CDS.

Therefore, the controlled drug buy, and defendant's criminal history, satisfied

the basis-of-knowledge prong of the two-part test.

      Furthermore, we reject defendant's claims the CI was unreliable because

police failed to indicate whether they had previously utilized the CI. We also

reject the assertion the CI was unreliable because the substance defendant gave

him had not been field-tested to confirm it was cocaine. "[P]ast instances of

reliability do not conclusively establish an informant's reliability[]" and a

deficiency in any of the factors establishing probable cause may be compensated

by other strong showings of reliability, namely, by evidence of the controlled

                                                                          A-5553-16T3
                                        10
drug buy. Id. at 555 (quoting Smith, 155 N.J. at 94). Here, there was much

more evidence to corroborate the CI's reliability than merely the CI's history and

the identity of the substance purchased from defendant. The CI's description of

defendant, his residence, and the nature of the product sold by defendant were

proven to be truthful. Moreover, detectives overheard the entire transaction in

which defendant offered to sell the CI cocaine and stated he was expecting a

shipment of more cocaine.

      For these reasons, there was probable cause to issue the search warrant.

The motion judge's denial of defendant's motion to suppress the evidence from

the search was not clearly mistaken.

                                       II.

      "When reviewing a claim with respect to an issue of suppression, a

reviewing court must accept the factual findings made by the trial court in

analyzing the question, provided those factual findings are 'supported by

sufficient credible evidence in the record.'" Smith, 212 N.J. at 387 (citing State

v. Handy, 206 N.J. 39, 44 (2011)). "In considering the legal conclusions to be

drawn from those facts, our review is de novo." Ibid.

      Defendant argues he was wrongfully denied a Franks hearing because

there was a material dispute regarding the facts in Ribeiro's affidavit.


                                                                          A-5553-16T3
                                       11
Specifically, defendant points to the affidavit's omission of a statement made by

the CI to detectives, indicating there were "numerous weapons" at defendant's

residence. Defendant argues this omission entitles him to a hearing to determine

why this information was concealed.

      The Supreme Court has held "that New Jersey courts, in entertaining

veracity challenges, need go no further than is required as a matter of Federal

Constitutional law by [Franks][.]" State v. Howery, 80 N.J. 563, 568 (1979)

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

            The core issue presented in the context of a challenge
            to an affidavit, where the challenger alleges the
            affidavit is fatally inaccurate by reason of omission, is
            whether the information omitted from the affidavit is
            material. The test for materiality is whether inclusion
            of the omitted information would defeat a finding of
            probable cause; it is not . . . whether a reviewing
            magistrate would want to know the information.

            [Smith, 212 N.J. at 399 (citations omitted).]

      In Smith, the defendant contested an affidavit containing a statement by a

witness identifying him as the shooter in murder. Ibid. The defendant argued

the affidavit omitted statements previously made by the witness to police, thus,

rendering it invalid. Ibid. The Court concluded the omission did not defeat a

finding of probable cause and stated:



                                                                         A-5553-16T3
                                        12
            The fact that [the witness] may have provided earlier
            statements to [the detective], in addition to the
            information [the detective] included ultimately in his
            affidavit is not, by itself, sufficient to defeat a
            conclusion of probable cause. Rather, [the witness']
            omitted statements must be inserted into the affidavit
            [the detective] prepared and submitted and an
            assessment must be made, whether, in that expanded
            format, the affidavit established probable cause. That
            assessment, moreover, must take into account the
            totality of the circumstances[.]

            [Id. at 399-400.]

      Here, the omission of the CI's statement regarding the weapons in

defendant's home would not defeat probable cause.          Inserting the omitted

statement into Ribeiro's affidavit would not have contradicted defendant's

statement that he possessed cocaine for sale, or the police observation of the

drug transaction.

                                       III.

      Lastly, defendant contends the motion judge's denial of a motion to reveal

the identity of the CI was erroneous and unfairly limited defendant's ability to

challenge the legality of the search warrant. Since the judge's decision regarding

the identity of the CI turns upon an evidential privilege, we review the

determination for an abuse of discretion. State v. Sessoms, 413 N.J. Super. 338,

342 (App. Div. 2010).


                                                                          A-5553-16T3
                                       13
                   The purpose of the [confidential informant]
            privilege is to encourage and secure a flow of vital
            information which can be had only upon a confidential
            basis. Recognizing the obligation of citizens to
            communicate their knowledge of criminal offenses to
            law enforcement officers the privilege encourages the
            citizens to perform this obligation by preserving their
            anonymity.

            State v. Roundtree, 118 N.J. Super. 22, 30 (App. Div.
            1971).2

      Furthermore,

                   [a] witness has a privilege to refuse to disclose
            the identity of a person who has furnished information
            purporting to disclose a violation of a provision of the
            laws of this State or of the United States to a
            representative of the State or the United States or a
            governmental division thereof, charged with the duty of
            enforcing that provision, and evidence thereof is
            inadmissible, unless the judge finds that (a) the identity
            of the 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.]

      Disclosure is also required when "the informer is an active participant in

the crime for which [the] defendant is prosecuted[.]" State v. Foreshaw, 245



2
  In Roundtree, disclosure of the CI was required because "[t]he informer was
an active participant in the transaction and a material witness on the issue of
defendant's guilt." 118 N.J. Super. at 32.
                                                                          A-5553-16T3
                                       14
N.J. Super. 166, 180-81 (App. Div. 1991) (citing State v. Oliver, 50 N.J. 39, 42

(1967)). However, "[i]t is now well established that 'absent a strong showing of

need, courts generally deny disclosure where the informer plays only a marginal

role, such as providing information or "tips" to the police or participating in the

preliminary stage of a criminal investigation.'" State v. McDuffie, 450 N.J.

Super. 554, 567 (App. Div. 2017) (quoting State v. Milligan, 71 N.J. 373, 387

(1976)).

      In State v. Burnett, 42 N.J. 377, 388 (1964), the Supreme Court held the

Fourth Amendment does not require disclosure of an informant's identity for the

sole purpose of challenging "the existence of probable cause" for a search. See

also State v. Brown, 170 N.J. 138, 148 (2001) (upholding a trial court's denial

of a request to disclose the CI's identity, where the CI made controlled buys,

which the State used as the basis for a search warrant application).

      Here, the motion judge concluded:

            [D]efendant provides no legitimate reason for
            disclosing the identity of the CI other than a belief that
            exculpatory information may be revealed from the CI's
            testimony.     With nothing further than that bald
            assertion, there is simply not enough to overcome the
            State's interest in maintaining the anonymity of the CI,
            since there is insufficient proof to establish disclosure
            is essential.



                                                                           A-5553-16T3
                                       15
      We agree.     The CI was not a material witness because police

independently observed the controlled drug buy. Moreover, defendant's arrest

was due to the discovery of CDS and paraphernalia in defendant's residence, not

the transaction between the CI and defendant outside of defendant's residence.

      Affirmed.




                                                                       A-5553-16T3
                                     16
