                        NOT FOR PUBLICATION WITHOUT THE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-5201-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MICHAEL C. BATTISTA,

     Defendant-Respondent.
____________________________

              Argued June 6, 2017 – Decided July 14, 2017

              Before Judges Yannotti and Gilson.

              On appeal from the Superior Court of New
              Jersey, Law Division, Ocean County, Indictment
              No. 14-08-2155.

              Peter M.       O'Mara     argued     the    cause    for
              appellant.

              Shiraz Imran Deen, Assistant Prosecutor,
              argued the cause for respondent (Joseph D.
              Coronato, Ocean County Prosecutor, attorney;
              Mr. Deen, of counsel and on the brief).

PER CURIAM

        Following the denial of his motion to suppress his arrest

warrant, defendant Michael C. Battista pled guilty to second-

degree possession of psilocin with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and -5(b)(4). In accordance with the plea agreement,

defendant was sentenced in the third-degree range to three years

in prison, but that sentence was stayed pending this appeal.

Defendant now appeals the February 10, 2015 order denying his

motion to suppress the arrest warrant.                 We affirm.

                                           I.

     The material facts are established in the record, which

includes the arrest warrant and the affidavit filed in support of

the application for the arrest warrant.

     In     2013,   the     Ocean     County      Prosecutor's      Office/Special

Operations    Group    (SOG)    was    conducting       an   investigation      of   a

suspected drug distribution network.                The SOG believed that the

network centered around co-defendant Jeremy Zahn and was operated

out of an automobile repair shop.               As part of that investigation,

the SOG obtained a wiretap order and a data communication warrant.

     On   February     28,    2013,    a    detective     intercepted    two     text

messages between Zahn and defendant.               The text messages read:

            [Zahn:] Kk       I have the hash for ya and maybe
            one or two       well have to see I haven't been
            able to get      that cheap out door for u yet but
            ill talk to      u tom

            [Defendant:] Cool thanks for tryin.

     That    same    day,    the    SOG    set    up    surveillance    of    Zahn's

automobile    repair      shop.       The       detective    who    conducted     the


                                           2                                 A-5201-14T3
surveillance observed a man, later identified as defendant, drive

up to the automobile shop, park, and meet with Zahn in the parking

lot. Defendant and Zahn then went inside the shop.         Shortly

thereafter, defendant left the shop and drove home.

     Based on the information obtained in the investigation, a

detective assigned to the SOG submitted an affidavit requesting

an arrest warrant for defendant.     The affidavit asserted that

defendant had conspired with Jeremy Zahn and others to possess

marijuana in an amount of five pounds or more with the intent to

distribute, which is a crime of the second-degree. N.J.S.A. 2C:35-

5(b)(10)(b).

     To support that assertion, the detective detailed that there

was an ongoing investigation of Jeremy Zahn, defendant, and others.

The detective explained that he had intercepted the texts between

Zahn and defendant on February 28, 2013.    The detective went on

to explain that based on his training and experience, along with

knowledge of the investigation, he believed that Jeremy Zahn was

a large-scale marijuana dealer, selling in one to ten pound

increments.    He stated that Zahn and defendant would use words

like "one" or "two" to refer to pound quantities of marijuana.     In

addition to the February 28, 2013 texts, the detective referred

to other intercepted communications and stated his belief that the

one or two pounds of marijuana that defendant conspired to buy

                                3                           A-5201-14T3
from Zahn was an amount defendant would possess with the intent

to distribute.       The detective also certified that he had probable

cause to believe that, during the course of the conspiracy, Jeremy

Zahn, defendant, and others, had conspired to distribute marijuana

in a quantity of five pounds or more.

     A   Superior     Court    judge    reviewed    the    affidavit      and   then

authorized an arrest warrant for defendant on the charge of

conspiring    with    Zahn    and     others   to   possess      with    intent    to

distribute a quantity of marijuana in an amount of five pounds or

more, in violation of N.J.S.A. 2C:35-5(b)(10)(b).                       On April 3,

2013, members of the SOG executed the arrest warrant.                             When

defendant    was    arrested    at     his   residence,    the    officers      also

discovered and seized a substantial quantity of marijuana, LSD,

MDMA, hashish, and psilocin.

     Defendant was initially charged with seven third-degree and

fourth-degree      drug     offenses.        Thereafter,    he    was     indicted,

together with a group of co-defendants.               The indictment charged

defendant    with    eight     drug    offenses,    including      second-degree

possession of psilocin with intent to distribute.

     Following       his    indictment,      defendant    filed    a     motion    to

suppress his arrest warrant arguing that the warrant included

false statements.          The trial court heard oral argument on that

motion and denied it without an evidentiary hearing.                      The court

                                         4                                  A-5201-14T3
ruled that defendant had failed to meet the burden of proving that

the arrest warrant was not supported by probable cause.   The court

also found that defendant had failed to show that any statement

made by the detective who filed the affidavit in support of the

arrest warrant was false.

                                II.

     Defendant appeals and makes two arguments:

          POINT I – THE ARREST WARRANT WAS INVALID
          BECAUSE IT WAS BASED ON FALSE STATEMENTS THAT
          WERE RELIED UPON FOR THE ISSUANCE OF THE
          WARRANT.

          POINT II – THE AFFIDAVIT DID NOT [ESTABLISH
          PROBABLE CAUSE FOR A CHARGE OF SECOND-DEGREE
          CONSPIRACY TO POSSESS MARIJUANA WITH THE
          INTENT TO DISTRIBUTE].

     We give deference to the factual findings of a trial court

when supported by sufficient credible evidence in the record.

State v. Gonzales, 227 N.J. 77, 101 (2016).   Ordinarily, "factual

findings are entitled to deference because the motion judge, unlike

an appellate court, has the 'opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing

court cannot enjoy.'"    Ibid. (quoting State v. Johnson, 42 N.J.

146, 161 (1964)).      Here, the trial court did not conduct an

evidentiary hearing.    Instead, the court reviewed the affidavit

and arrest warrant and considered the arguments of the parties.

We have also reviewed the affidavit and arrest warrant.          Our

                                 5                          A-5201-14T3
review, however, is not de novo because "a standard of deference

to a trial court's factfindings, even factfindings based solely

on   video   or   documentary   evidence   [equally   available   to   the

appellate court], best advances the interests of justice in a

judicial system that assigns different roles to trial courts and

appellate courts."      State v. S.S., ___ N.J. ___, ___ (June 21,

2017) (slip op. at 25).

      Having evaluated the record using our standard of review, we

agree with the trial court.       That is, there was no showing that

the affidavit contained false statements.      Moreover, the affidavit

established probable cause for the issuance of an arrest warrant

based on a second-degree charge of conspiracy to distribute five

or more pounds of marijuana.

      "An arrest warrant is issued by a magistrate upon a showing

that probable cause exists to believe that the subject of the

warrant has committed an offense."          State v. Miller, 342 N.J.

Super. 474, 488 (App. Div. 2001) (quoting Steagald v. United

States, 451 U.S. 204, 212-13, 101 S. Ct. 1642, 1648, 68 L. Ed. 2d

38, 46 (1981)).     Probable cause means "a suspicion of guilt that

is well grounded; a reasonable basis for a belief that a crime has

been or is being committed."       State v. Goldberg, 214 N.J. Super.

401, 406 (App. Div. 1986) (quoting State v. Kasabucki, 52 N.J.

110, 116 (1968)), certif. denied, 107 N.J. 118 (1987).

                                    6                             A-5201-14T3
      Once issued, a warrant is presumed valid and a defendant

challenging the validity of a warrant has the burden to prove that

there was no probable cause supporting the issuance of the warrant.

State v. Jones, 179 N.J. 377, 388 (2004).             "Accordingly, courts

'accord substantial deference to the discretionary determination

resulting in the issuance of [a] warrant.'"            State v. Keyes, 184

N.J. 541, 554 (2005) (quoting Jones, supra, 179 N.J. at 388).

      Deference to a judge's issuance of a warrant, however, is

"not boundless."       United States v. Leon, 468 U.S. 897, 914, 104

S. Ct. 3405, 3416, 82 L. Ed. 2d 677, 693 (1984).                  The warrant

cannot    be   based   on   an   affidavit   that   does   not   "provide   the

magistrate with a substantial basis for determining the existence

of probable cause."         Illinois v. Gates, 462 U.S. 213, 239, 103 S.

Ct. 2317, 2332, 76 L. Ed. 2d 527, 549 (1983).              Further, "probable

cause is not established by a conclusory affidavit that does not

provide a magistrate with sufficient facts to make an independent

determination as to whether the warrant should issue."               State v.

Novembrino, 105 N.J. 95, 109 (1987).

      When a defendant challenges the veracity of an affidavit

supporting the issuance of a warrant, the defendant is entitled

to   an   evidentiary       hearing   upon   a   "'substantial    preliminary

showing' of falsity in the warrant."             State v. Howery, 80 N.J.

563, 567 (1979) (quoting Franks v. Delaware, 438 U.S. 154, 170,

                                        7                             A-5201-14T3
98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 681 (1978)).                        Defendant

cannot    rely   on   unintentional         falsification,        but   "must    allege

'deliberate falsehood or reckless disregard for the truth[.]'"

Ibid. (quoting Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684,

57 L. Ed. 2d at 682). Further, the affidavit must fail to establish

probable cause in the absence of the allegedly false statements.

Id. at 568.

       Here, defendant argues that the affidavit supporting the

arrest warrant contained false material statements.                        Moreover,

defendant contends that the intercepted communications on February

28, 2013, indicated the purchase of only one or two pounds of

marijuana, not five or more pounds as the affiant alleged.

       The affidavit accurately reported the amount of one or two

pounds.    The affidavit also went on to state, however, that there

was an ongoing investigation and that the detective had intercepted

other communications providing probable cause to believe that

there was a broader conspiracy with other sales.                        Consequently,

read in totality, the affidavit supported probable cause to believe

that   defendant      was   part   of   a       conspiracy   in    an   ongoing     drug

distribution network.        Specifically, it provided the judge with a

substantial basis to conclude that there was probable cause to

believe defendant participated in a conspiracy to distribute five

or more pounds of marijuana.

                                            8                                   A-5201-14T3
    Since defendant failed to make any showing of false statements

contained in the affidavit, defendant was not entitled to an

evidentiary hearing.   Further, the information contained in the

affidavit provided probable cause for the issuance of the arrest

warrant.

    Affirmed.




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