                                 NOT FOR PUBLICATION WITHOUT THE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-0519-17T2

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

GUALBERTO SOTO, a/k/a
GUADALBER SOTO, and
GUALBERTO SOTO, JR.,

     Defendant-Appellant.
___________________________

                    Submitted September 18, 2018 – Decided March 13, 2019

                    Before Judges Ostrer and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment Nos. 16-06-0397
                    and 16-06-0398.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stephen W. Kirsch, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (Michelle J. Ghali,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).
PER CURIAM

       After the trial court denied his motions for discovery and a Franks1

hearing, defendant Gualberto Soto pleaded guilty to third-degree possession of

heroin and cocaine with the intent to distribute in a school zone, N.J.S.A. 2C:35-

7(a), and second-degree certain person not to possess a firearm, N.J.S.A. 2C:39-

7(b)(1). Consistent with the plea agreement, the court sentenced defendant to a

mandatory extended term of five years with a fifty-four month parole

disqualifier on the former offense, and a concurrent five-year term with a five-

year parole disqualifier on the latter.

       On appeal, defendant contends the trial court erred in denying his motion

to compel discovery of laboratory-test results, which were purported to show he

sold cocaine to a confidential informant (CI). A Union County Prosecutor's

Office detective mentioned those results in his affidavit to obtain a warrant to

search defendant's residence. In executing the search, police seized the drugs

and gun that led to defendant's convictions. Defendant also argues the court

erred in its sentence, by double-counting his prior drug offense as a basis both

for an extended term, and for finding an aggravating factor. We affirm the trial

court's discovery order and the conviction, but remand for resentencing.


1
    Franks v. Delaware, 438 U.S. 154 (1978).
                                                                           A-0519-17T2
                                          2
                                          I.

      We discern the following facts from the detective's search warrant

affidavit.   In December 2015, the detective received information from a

previously-untested CI about an unidentified male who was actively involved in

selling cocaine. The detective had extensive narcotics enforcement experience

and was familiar with the ways illicit drugs were packaged and distributed in

drug operations. The CI did not provide a name, but identified the address of

the suspect's residence in Elizabeth, and gave a physical description of a

Hispanic man about thirty years old, five-foot-eight, and 190 pounds. According

to the CI, the suspect stored the cocaine in his residence and sold it at locations

in Union County after receiving a telephone order. The CI agreed to help the

investigation through a controlled buy.

      With police supervision, the CI called the suspect to arrange a drug

purchase. The suspect told the CI to meet at an agreed-upon location for the

sale. Stationed police witnessed the suspect leave the Elizabeth address and

then followed him to the agreed-upon location. Police then witnessed the CI

engage in a hand-to-hand exchange with the suspect.            Thereafter, police

followed the suspect back to his address.




                                                                           A-0519-17T2
                                          3
      The CI met with police and handed them a substance from the transaction,

which police suspected was cocaine. The substance was sent to the laboratory

where it tested positive for cocaine.       Police had the CI under constant

surveillance during the controlled buy. No other contraband or money was

found on the CI before or after the transaction.

      Police conducted two more controlled buys between the CI and the suspect

during the weeks of January 25 and February 1, 2016.           The transactions

proceeded as before. The suspected cocaine from the second controlled buy

tested positive, too. Test results from the third transaction were still pending

when the detective applied for the warrant.

      The search warrant was signed and then executed on February 4, 2016.

At the Elizabeth residence, police found: cocaine and heroin; $4000 in cash; a

handgun and bullets; and various items apparently used in drug transactions .

Defendant was arrested on the scene. He was charged based on the seized drugs

and weapon, but not the drugs from the controlled buys.

      Pre-trial, defendant moved under Rule 3:13-3 to compel the State to

produce the reports of the lab tests. Although defendant did not provide an

affidavit, his counsel contended that his client denied selling drugs to a CI. He




                                                                         A-0519-17T2
                                        4
argued the State would be unable to produce the lab reports, if so ordered.2

Defendant would then challenge the warrant on the basis that the controlled buys

never occurred. The State contended that disclosure of the lab report s would

provide information – such as the date of the sale, the weight of the drugs, and

the packaging used – that would enable defendant to identify the CI. Defense

counsel said he would consent to any restrictions on the disclosure the court

deemed proper.

      The trial court denied the motion to compel discovery. The court observed

that the information could disclose the CI's identity and defendant's motion was

unsupported by an affidavit. Citing State v. Broom-Smith, 406 N.J. Super. 228

(App. Div.), aff'd, 201 N.J. 229 (2009), the court held that defendant needed to

produce competent evidence to support "an order compelling the production of

the laboratory tests upon the controlled purchases."

                                       II.

      Defendant raises the following points for our consideration:


2
   The record does not include a certification from the detective or anyone else
that the man who participated in the controlled buys with the CI was, in fact, the
defendant. The presentence report describes defendant as thirty-nine years old,
five-foot-ten and 170 pounds. However, defendant did not claim that someone
other than he participated in the controlled buys; that would not have
undermined the probable cause to search the seller's base of operations. Rather,
he argued the controlled buys did not occur at all.
                                                                          A-0519-17T2
                                        5
            POINT I

            THE MOTION FOR DISCOVERY OF THE LAB
            REPORTS SHOULD HAVE BEEN GRANTED;
            ACCORDING TO THE JUDGE'S OWN FINDINGS
            IN HIS OPINION, THE DISCLOSURE OF THAT
            INFORMATION WOULD NOT HAVE REVEALED
            ANY        CONFIDENTIAL         INFORMATION.
            MOREOVER, THE PRINCIPAL DECISION RELIED
            UPON BY THE JUDGE, STATE V. BROOM-SMITH,
            406 N.J. SUPER. 228 (APP. DIV. 2009), IS EASILY
            DISTINGUISHABLE FROM THE CASE AT HAND.

            POINT II

            THE SENTENCE IMPOSED IS MANIFESTLY
            EXCESSIVE; THE JUDGE DOUBLE-COUNTED
            THE SAME OFFENSE THAT TRIGGERED AN
            EXTENDED TERM TO SET THE BASE TERM OF
            THAT SAME EXTENDED TERM.

                                      A.

      We review the trial court's discovery ruling under the abuse of discretion

standard. Broom-Smith, 406 N.J. Super. at 239.

      Defendant argues that the lab reports were discoverable under Rule 3:13-

3, which grants a defendant broad discovery into "relevant material."        We

disagree, for the simple reason that defendant was not charged with possessing

or distributing the cocaine from the controlled buys. Therefore, the lab reports

would not be relevant to the triable issues of fact in the case. See State v.

Gilchrist, 381 N.J. Super. 138, 146 (App. Div. 2005) (noting that relevant

                                                                        A-0519-17T2
                                       6
evidence must tend to "'prove or disprove any fact of consequence to the

determination of the action.'") (quoting N.J.R.E. 401).

      We recognize that a court has the inherent authority, in the interests of

justice, to order discovery not mandated by the Rule. See State ex rel. A.B., 219

N.J. 542, 555 (2014). The burden rests on the defendant to establish the need

for the discovery. State v. Kane, 449 N.J. Super. 119, 133 (App. Div. 2017).

Therefore, we shall consider whether, apart from Rule 3:13-3, defendant was

entitled to discover the lab reports, so he could mount a challenge to the search

warrant.

      Under Franks, a defendant may challenge a search warrant upon a

"substantial preliminary showing" that the affiant, as distinct from the

informant, engaged in a "false statement knowingly and intentionally or with

reckless disregard for the truth . . . ." Franks, 438 U.S. at 155.3 A "search

warrant must be voided and the fruits of the search excluded" if "with the

affidavit's false material set to one side, the affidavit's remaining content is

insufficient to establish probable cause." Id. at 156; see also State v. Howery,



3
  Defendant also contended he was entitled to a Franks hearing, even without
the requested discovery. The trial judge denied the request, and defendant does
not appeal that order.


                                                                         A-0519-17T2
                                       7
80 N.J. 563, 568 (1979) (stating that the false statements "must be material to

the extent that when they are excised from the affidavits, that document no

longer contains facts sufficient to establish probable cause"). A reviewing court

can only invalidate a search warrant if there was insufficient evidence to support

the issuing judge's probable cause finding. State v. Chippero, 201 N.J. 14, 20-

21 (2009).

      To obtain a Franks hearing, a defendant must first allege with specificity

the portions of the affidavit that are false. 438 U.S. at 171. As part of the

required "substantial preliminary showing," a defendant must present

"[a]ffidavits or sworn or otherwise reliable statements of witnesses" or

satisfactorily explain their absence. Ibid. The Franks Court required the

substantial preliminary showing "to prevent the misuse of a veracity hearing for

purposes of discovery or obstruction." Id. at 170.

      In Broom-Smith, we applied these principles to a discovery request that

preceded a potential Franks hearing. The trial court denied the discovery request

for, among other things, chain-of-custody documents related to drugs sold in

controlled buys and laboratory-test results. The trial court deemed the request




                                                                          A-0519-17T2
                                        8
"a veiled attempt to learn the identity of the confidential informant." Broom-

Smith, 406 N.J. Super. at 240. 4

      Affirming the trial court's order, we rejected the defendant's contention

that he needed the information "to possibly attack the validity of the warrant at

a Franks hearing." Broom-Smith, 406 N.J. Super. at 240. We concluded that

even if the defendant could establish that the chain of custody or the lab testing

was inadequate, he could not meet the "substantial preliminary showing" that

Franks requires. Ibid. We noted that, for purposes of sustaining the warrant, it

was sufficient that the investigator attested to his involvement in the controlled

buys, defendant sold what was purported to be cocaine, and investigators' field-

tests indicated the substance was cocaine. Ibid.

      Defendant asserts that his case is factually distinguishable from Broom-

Smith because no field tests were conducted here. He also argues that he sought

narrower discovery than the defendant sought in Broom-Smith, noting that the

requested lab reports could have been redacted to shield the CI's identity. He




4
    Shielding the informant's identity, and protecting the informant from
retaliation, encourages the flow of information about crime. See State v.
Sessoms, 413 N.J. Super. 338, 343-44 (App. Div. 2010) (discussing the purpose
behind the State's privilege to keep the identity of an informant hidden); N.J.R.E.
516.
                                                                           A-0519-17T2
                                        9
contends that absent the lab reports, the search warrant would have been

defective.

      We are not persuaded. Even if the reference to the positive lab results

were excised from the search-warrant affidavit, it contained sufficient evidence

to support the necessary probable cause determination. While a controlled buy,

alone, "would not conclusively establish probable cause," it is highly

"persuasive evidence." State v. Jones, 179 N.J. 377, 392 (2004). "[E]ven one

additional circumstance might suffice, in the totality of the circumstances, to

demonstrate probable cause when the police successfully have performed a

controlled drug buy." Ibid. (quotation marks and citation omitted). "The test is

qualitative and not quantitative." Ibid.

      Here, the CI described in detail the manner in which the suspect sold

cocaine.     This procedure was followed during the three controlled buys,

corroborating the CI's initial information. Additionally, police witnessed the

suspect leave the Elizabeth address to meet the CI, and then provide a substance

to the CI in exchange for money before promptly returning to the residence. On

inspection, police suspected the substance was cocaine before sending it for

testing. The search-warrant affiant was a detective with extensive narcotics

experience and understood how CDS were sold and packaged. In sum, even


                                                                        A-0519-17T2
                                       10
absent positive lab results, the affidavit presented reliable information that

established probable cause.5

      If there were no lab reports at all, barring some showing that the drugs or

reports were lost or misplaced, that would obviously tend to undermine the

affiant's statement that he observed three controlled buys. However, defendant

never supported his claims with more than mere conclusory assertions conveyed

solely through counsel. We recognize that a defendant may require discovery

to be able to satisfy the substantial preliminary showing Franks requires.6 On

the other hand, defendants "are not entitled to turn the discovery process into a

fishing expedition." Broom-Smith, 406 N.J. Super. at 239. Nor may they utilize

discovery as an indirect means of unmasking confidential informants. Id. at 240.

      To obtain discovery, for purposes of a Franks hearing, even for an in-

camera review, a defendant must be able to first "cast[ ] a reasonable doubt on



5
  At the very least, police witnessed the suspect provide imitation drugs to the
CI. Assuming that the substance was not cocaine, there would have still been
probable cause for a search warrant because the sale of imitation drugs is a third-
degree crime. N.J.S.A. 2C:35-11.
6
   As one commentator observed, the Franks requirement "becomes an
insurmountable 'Catch-22': a defense attorney cannot develop the facts until he
secures a hearing and he cannot secure a hearing until he develops the facts."
Albert W. Alschuler, "Close Enough for Government Work:" The Exclusionary
Rule After Leon, 1984 Sup. Ct. Rev. 309, 319 (1984).
                                                                           A-0519-17T2
                                       11
the truthfulness of statements made in the affidavit," People v. Luttenberger,

784 P.2d 633, 647 (Cal. 1990) (reviewing pre-Franks-hearing discovery

request); and second, demonstrate that the requested discovery would enable the

defendant to satisfy the Franks preliminary showing.

      Here, defendant did not submit an affidavit, either from himself or other

witnesses, to cast doubt on the statements made by the detective. Particularly

since we presume an executed search warrant to be valid, Jones, 179 N.J. at 388,

the trial court did not abuse its discretion in denying defendant's request for

discovery on the basis of his counsel's unsupported assertions.

                                       B.

      We turn to defendant's sentencing argument.         The court imposed a

mandatory extended term on the drug offense on the basis of defendant's 2001

conviction for distributing CDS in a school zone. N.J.S.A. 2C:43-6(f). The

court later cited this same offense when finding aggravating factor six, N.J.S.A.

2C:44-1(a)(6) ("extent of the defendant's prior criminal record and seriousness

of the offenses of which he has been convicted"). The judge stated , "I find . . .

[a]ggravating [f]actor 6 based upon his prior record, which consists of one prior

indictable conviction." The judge then cited the 2001 school zone conviction.




                                                                          A-0519-17T2
                                       12
Defendant contends the court impermissibly double-counted the prior school

zone offense.

      We agree. In State v. Vasquez, 374 N.J. Super. 252, 266-68 (App. Div.

2005), the defendant, much like defendant here, had only one prior CDS

conviction and municipal court convictions. 7 The State requested an extended

term pursuant to N.J.S.A. 2C:43-6(f). The court granted the request. Then,

relying primarily upon the "very conviction which both allowed and required an

extended term[,]" the court sentenced Vasquez to the maximum available term.

Vasquez, 374 N.J. Super. at 267. We held that a single prior conviction could

not be used to establish both a mandatory extended term under N.J.S.A. 2C:43-

6(f) and an aggravating factor. Id. at 267-68 (citing State v. Dunbar, 108 N.J.

80 (1987)).

      The trial court's sentencing here is indistinguishable from that in Vasquez.

The court double-counted the 2001 conviction.         The court cited no other

convictions to support its finding of aggravating factor six.       Although we

presume sentences that conform to a plea agreement are reasonable, State v.




7
  Defendant had two prior adjudications of delinquency, and one municipal
court conviction.
                                                                          A-0519-17T2
                                      13
Sainz, 107 N.J. 283, 294 (1987), we are constrained to remand for

reconsideration of the sentence in light of Vasquez.

      Affirmed as to conviction. Remanded for resentencing. We do not retain

jurisdiction.




                                                                     A-0519-17T2
                                      14
