                                 NOT FOR PUBLICATION WITHOUT THE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-1083-17T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

BRYAN T. ARLINE, a/k/a
DWAYNE BROWN, and
DWAYNE HUGHES,

     Defendant-Appellant.
_____________________________

                    Submitted October 23, 2018 – Decided November 20, 2018

                    Before Judges Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment Nos. 14-10-
                    1166, 15-06-0752, 15-06-0756, 15-06-0757.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Jay L. Wilensky, Assistant Deputy Public
                    Defender, of counsel and on the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Regina M. Oberholzer, Deputy Attorney
                    General, of counsel and on the brief).
PER CURIAM

       Defendant Bryan Arline appeals from his convictions and sentences

entered pursuant to a plea agreement. He also challenges the denial of his

motion for a Franks1 hearing. We affirm.

                                       I.

       In May 2014, the New Brunswick Police Department received calls from

an anonymous concerned citizen stating cocaine, heroin, and marijuana were

being sold out of the second-floor apartment of a residence located on Plum

Street in New Brunswick. On the morning of May 5, 2014, Detective Joshua

Alexander set up surveillance to verify the information from the caller.

       Thereafter, the Anti-Crime unit was independently contacted by a "past

reliable confidential informant" (the CI) about drugs being sold from the same

apartment. Detective Alexander spoke to the CI who confirmed drugs were

actively being sold from the apartment. The CI claimed to have witnessed

defendant distributing cocaine and heroin in the apartment.        The CI then

conducted a total of three controlled buys at the apartment, one of which

involved defendant.




1
    Franks v. Delaware, 438 U.S. 154 (1978).
                                                                           A-1083-17T1
                                       2
      On May 14, 2014, Detective Alexander obtained a search warrant for the

apartment and defendant's person. The next day, after observing additional

suspicious activity, the officers approached defendant on the street to execute

the warrant. Defendant fled from the officers on a bicycle. The officers saw

defendant throw items, later recovered and found to be thirty-eight decks of

heroin and $30 cash, from his pocket before the officers apprehended him.

      After defendant was apprehended, the apartment was searched.              The

search uncovered $1,685.75 in cash; several bags of cocaine; numerous empty

heroin decks; plus scales and other illicit drug packaging paraphernalia.

      A Middlesex County Grand Jury returned Indictment Number 14-10-

1166, charging defendant with third-degree conspiracy to distribute a controlled

dangerous substance (CDS), N.J.S.A. 2C:35-5 and N.J.S.A. 2C:5-2 (count one);

two counts of third-degree unlawful possession of CDS, N.J.S.A. 2C:35-

10(a)(1) (counts two and five); two counts of third-degree possession with intent

to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts

three and six); two counts of third-degree possession with intent to distribute

CDS on or near school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7

(counts four and seven); and fourth-degree resisting arrest, N.J.S.A. 2C:29-

2(a)(2) (count eight).


                                                                            A-1083-17T1
                                       3
      Between November 20, 2014 and January 20, 2015, while defendant was

out on bail, he broke into five homes in Edison and stole jewelry and cash. He

also caused damage to the door and door frame of a sixth residence while

attempting to gain access to it.

      On February 11, 2015, police went to defendant's girlfriend’s residence to

arrest him on the burglary charges. Defendant jumped out of a second-story

window in an attempt to avoid apprehension. However, his attempt to flee was

unsuccessful and he was found in possession of heroin when apprehended .

      A Middlesex County Grand Jury returned three additional indictments

against defendant. Indictment Numbers 15-06-752 and 15-06-756 are related to

the theft offenses. The charges in Indictment Number 15-06-757 stem from

defendant’s conduct incident to his arrest on February 11, 2015.

      Indictment Number 15-06-752 charged defendant with two counts of

third-degree burglary, N.J.S.A. 2C:18-2(a)(1) (counts one and five); two counts

of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (counts two and

six); third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-

2(a)(1) (count three); and fourth-degree criminal mischief, N.J.S.A. 2C:17-

3(a)(1) (count four).




                                                                        A-1083-17T1
                                       4
      Indictment Number 15-06-756 charged defendant with three counts of

third-degree burglary, N.J.S.A. 2C:18-2(a)(1) (counts one, three, and five) and

three counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a)

(counts two, four, and six).

      Indictment Number 15-06-757 charged defendant with third-degree

attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2(a)(1) (count one);

fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count two); third-degree

unlawful possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count three); and third-

degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and

N.J.S.A. 2C:35-5(b)(3) (count four).

      Defendant moved for discovery relating to the CI. Following the denial

of that motion, defendant moved for a Franks hearing, challenging the veracity

of the search warrant affidavit. The trial court issued an order and written

opinion denying the motion.

      Defendant subsequently entered into a plea agreement encompassing all

four indictments.    Specifically, defendant pled guilty to count seven of

Indictment No. 14-410-1166; counts one, four, and five of Indictment No. 15-

06-752; counts one, three and five of Indictment No. 15-06-756; and counts two

and three of Indictment No. 15-06-757; in exchange for a recommended


                                                                        A-1083-17T1
                                       5
aggregate ten-year prison term subject to a five-year period of parole

ineligibility, with the remaining charges to be dismissed at sentencing.

Defendant reserved the right to appeal the denial of his motion for a Franks

hearing.

      The sentencing judge found aggravating factors three (risk defendant will

commit another offense); five (substantial likelihood defendant is involved in

organized criminal activity); six (extent of the defendant’s prior criminal record

and seriousness of the offenses of which he has been convicted); nine (need for

deterrence); and eleven (imposition of a fine without also imposing a term of

imprisonment would be perceived as part of the cost of doing business).

N.J.S.A. 2C:44-1(a)(3), (5), (6), (9), and (11).

      The trial court also found mitigating factor six (defendant has or will

compensate the victim of his conduct for the damage or injury sustained),

N.J.S.A. 2C:44-1(b)(6), applicable to the burglaries, and afforded it "minimal

weight." The court noted defendant’s "extremely limited and sporadic work

history." The court also noted defendant owed more than $20,000 in child

support arrears. Thus, the court was "doubtful" defendant would ever pay

restitution since child support would be the priority.




                                                                          A-1083-17T1
                                        6
      The court sentenced defendant as follows in accordance with the plea

agreement: on Indictment No. 14-10-1166, a five-year term subject to a thirty-

month period of parole ineligibility and a $1000 fine on count seven; on

Indictment No. 15-06-752, a five-year term on count one, an eighteen-month

term on count four, a five-year term on count five, and a total of $15,500 in

restitution; on Indictment 15-10-756, a five-year term subject to a thirty-month

period of parole ineligibility each on counts one, three and five, and a total of

$4,203.72 restitution; on Indictment 15-10-757, an eighteen-month term on

count two and a three-year term on count three. The remaining charges were

dismissed.

      All of the sentences on the 2015 indictments run concurrent to each other

but consecutive to the sentence on the 2014 indictment. Additionally, the

sentence on the 2014 indictment was imposed concurrent to a prison sentence

defendant was already serving on an unrelated indictment. This yielded an

aggregate ten-year sentence subject to a five-year period of parole ineligibility.

The court also imposed appropriate penalties and assessments. This appeal

followed.

      Defendant raises the following arguments on appeal:

             POINT I: THE MOTION COURT ERRED IN
             DENYING A FRANKS HEARING AS TO THE

                                                                          A-1083-17T1
                                        7
            VALIDITY OF THE WARRANT PURSUANT TO
            WHICH THE DEFENDANT WAS SEARCHED AND
            ARRESTED. U.S. CONST., AMENDS. IV, XIV; N.J.
            CONST. (1947), ART. 1, PARS. 7, 10.

                  A. The Motion Court Erred In Denying An
                  Evidentiary Hearing Pursuant to the Franks
                  Standard.

                  B. This Court Should Adopt The Principles
                  Of State v. Casal, 699 P.2d 1234 (Wash.
                  1985), Which Allow For In-Camera
                  Hearings On A Motion To Disclose The
                  Identity Of The Confidential Informant,
                  And Remand For Reconsideration. (Not
                  Raised Below).

            POINT II: THE TRIAL COURT IMPOSED AN
            EXCESSIVE    SENTENCE,  NECESSITATING
            REDUCTION.

                                      II.

      Certain well-established principles guide our analysis.     Although we

normally grant deference to the findings of fact made by a trial judge in

connection with a motion to suppress, there was no evidentiary hearing in this

case. State v. Elders, 192 N.J. 224, 243-44 (2007). Instead, the judge relied on

the contents of the search warrant affidavit. A reviewing court "may only

consider whether the motion to suppress was properly decided based on the

evidence presented at that time." State v. Gibson, 318 N.J. Super. 1, 9 (App.

Div. 1999) (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div. 1971)).

                                                                        A-1083-17T1
                                       8
      "A trial court's interpretation of the law . . . and the consequences that

flow from established facts are not entitled to any special deference." State v.

Gamble, 218 N.J. 412, 425 (2014) (citing State v. Gandhi, 201 N.J. 161, 176

(2010); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995)). A trial court's legal conclusions are reviewed de novo. Ibid. (citing

Gandhi, 201 N.J. at 176).

      Defendant first challenges the denial of his motion for a Franks hearing.

We review a trial judge's ruling regarding the need for an evidentiary hearing

for abuse of discretion. State v. Broom-Smith, 406 N.J. Super. 228, 239 (App.

Div. 2009). We do not substitute our "own judgment for that of the trial court,

unless the trial court's ruling was so wide of the mark that a manifest denial of

justice resulted." State v. Brown, 170 N.J. 138, 147 (2001) (citations omitted).

      A reviewing court gives substantial deference to a judge's determination

that probable cause existed to issue a search warrant. State v. Mosner, 407 N.J.

Super. 40, 61 (App. Div. 2009). "A search warrant is presumed to be valid, and

defendant bears the burden of demonstrating that the warrant was issued without

probable cause[.]" Id. at 61 (alteration in original) (quoting State v. Evers, 175

N.J. 355, 381 (2003)). Probable cause may be based upon information received

from informants, so long as there is "substantial evidence in the record to support


                                                                           A-1083-17T1
                                        9
the informant's statements." State v. Keyes, 184 N.J. 541, 555 (2005). "Doubt

as to the validity of the warrant 'should ordinarily be resolved by sustaining the

search.'" Id. at 554 (quoting State v. Jones, 179 N.J. 377, 389 (2004)).

      For that reason, a defendant is only entitled to a Franks evidentiary hearing

to challenge the veracity of a warrant affidavit when he "makes a substantial

preliminary showing" of either "material misstatements" or "material omissions"

in a search warrant affidavit. State v. Marshall, 148 N.J. 89, 193 (1997); State

v. Howery, 80 N.J. 563, 566 (1979). A misstatement is material if 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). Similarly, an

omission is material if the issuing judge would likely not have granted the

warrant had he or she been apprised of the omitted information.            State v.

Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987).

      The defendant's "attack must be more than conclusory and must be

supported by more than a mere desire to cross examine." Broom-Smith, 406

N.J. Super. at 240 (quoting Franks, 438 U.S. at 171). Defendant must identify

"with specificity the portions of the warrant that are claimed to be untrue" and

support the allegations with "an offer of proof including reliable statements by




                                                                           A-1083-17T1
                                       10
witnesses, [which] must be proved by a preponderance of the evidence."

Howery, 80 N.J. at 567-68 (citations omitted).

      The limitations imposed by Franks are not insignificant. Id. at 567. The

burden placed on the defendant is onerous because "a Franks hearing is not

directed at picking apart minor technical problems with a warrant application,"

but rather, "it is aimed at warrants obtained through intentional wrongdoing by

law enforcement agents." Broom-Smith, 406 N.J. Super. at 240. A Franks

hearing should not be used as a "fishing expedition" or an attempt to learn the

identity of a confidential informant. Id. at 239.

      Defendant contends the trial court erred in denying a Franks hearing

because the affidavit submitted in support of the warrant was insufficient

because it failed to establish the informant was in possession of CDS after the

purported purchase. During oral argument on the motion, the defense referred

to the warrant affidavit as "a pro forma cut and paste affidavit" and predicated

the entire argument on one sentence that appeared in each of the three paragraphs

describing the three controlled buys. The specific sentence appears in the

context of the affidavit as follows:

            Controlled Purchase #3:
            During the second week in the month of May 2014, the
            third controlled buy of narcotics was made from the
            residence [] Plum Street (apt#2). Prior to the controlled

                                                                         A-1083-17T1
                                       11
            buy, the [CI] was searched out of the area for any
            possible contraband with negative results. [The CI]
            was then given a quantity of money to purchase a
            quantity of heroin from [] Plum Street. The [CI] was
            followed to [] Plum Street by the undersigned in an
            unmarked police surveillance vehicle. The [CI] was
            never out of my view. Once the [CI] arrived at [] Plum
            Street, he/she was met on the front porch of
            [defendant’s] residence . . . . After a brief conversation
            with [defendant], the [CI] and [defendant] went inside
            the residence. The [CI] was inside the residence for a
            short period of time (less than five minutes) before
            exiting the front door of the residence. The [CI]
            immediately left the area and was followed to a pre-
            determined meet location to relinquish the quantity of
            heroin [the CI] purchased to the undersigned. The [CI]
            was once again searched for any possible contraband
            with negative results. The [CI] stated that he/she
            purchased the quantity of heroin from [defendant]
            inside of [] Plum Street (apt #2). The [CI] stated that
            while inside the residence she/he handed the currency
            used for the buy to [defendant] and [defendant] handed
            her/him a quantity of heroin. The heroin that was
            purchased was consistent with the amount of money
            used for the buy. The heroin was later field tested and-
            tested positive for heroin content.

            [Emphasis added.]
Defendant contends the phrase "negative results" indicates there was no buy

made. We are unpersuaded by this argument.

      Defendant's assertion that "the noted language . . . fails to establish [the

CI] was in possession of drugs" can only be reached by deliberately

misconstruing the affidavit. As the trial court noted, the interpretation sought

                                                                          A-1083-17T1
                                       12
by defendant "doesn't make any sense[,]" especially since the next four

sentences in the paragraph unambiguously discuss the heroin the CI bought from

defendant. Instead, as stated by the trial court, the logical interpretation of the

affidavit is "that the [CI] relinquished the quantity of heroin and subsequently

was searched again for further contraband which yielded negative results."2

      We further conclude the sentence in question is not material. Contrary to

defendant's contentions, the remaining contents of the affidavit are not "too

generalized or ordinary" to establish probable cause for the issuance of the

search warrant.

      "Probable cause for the issuance of a search warrant requires a fair

probability that contraband or evidence of a crime will be found in a particular

place." State v. Chippero, 201 N.J. 14, 28 (2009) (citation omitted). "A finding

of probable cause may rest upon evidence not competent at a criminal trial

[including h]earsay . . . so long as there is something coupled with the hearsay

to give it reasonable credit [and] the appearance of trustworthiness." State v.



2
  It appears to be standard procedure for the police to search the informant both
before and after the controlled buy. See e.g., Jones, 179 N.J. at 383-84; State v.
Sullivan, 169 N.J. 204, 208 (2001). The dual search is undertaken to ensure any
contraband surrendered by the informant to the police was, in fact, obtained from
the defendant, and also, that the informant has not surreptitiously held back a
portion of the contraband purchased with tax payer dollars for their own use.
                                                                           A-1083-17T1
                                       13
Kasabucki, 52 N.J. 110, 116-17 (1968) (citations omitted). Information received

from a confidential informant is also "a valid basis for a court to find probable

cause and issue a search warrant [as long as there is other] evidence in the record

to support the informant's statements."      Keyes, 184 N.J. at 555 (citations

omitted).   "[A] controlled buy 'typically will be persuasive evidence in

establishing probable cause.'" Jones, 179 N.J. at 392 (quoting Sullivan, 169 N.J.

at 217).

      Here, the trial court noted:

            The affidavit contain[ed] information that Detective
            Alexander surveilled [] Plum Street and observed [the
            same individual] drive to the residence, remain inside
            for a few minutes, and then drive away on multiple
            occasions. Detective Alexander also stated that within
            the last seven days of surveillance, he observed several
            suspected drug users and buyers approach the
            residence, remain inside for a short period of time, and
            then leave the residence. A concerned citizen and a
            confidential informant also gave detailed tips to the
            Anti-Crime Unit that narcotics transactions were being
            conducted at the residence.
As a result, the trial court found even if "the language in the affidavit regarding

the controlled buys amounted to a deliberate falsehood," defendant's argument

still failed because "the observations made by Detective Alexander and the

information provided by the concerned citizen and the [CI]" would have been

enough to establish probable cause for the issuance of a warrant.

                                                                           A-1083-17T1
                                       14
         It is well settled that "when the adequacy of the facts offered to show

probable cause is challenged after a search made pursuant to a warrant, and their

adequacy appears to be marginal, the doubt should ordinarily be resolved by

sustaining the search." Jones, 179 N.J. at 388-89 (quoting Kasabucki, 52 N.J.

at 116).

         Additionally, defendant's motion was not supported by any evidence of

intentional wrongdoing by the police officer who swore out the warrant

affidavit. Defendant acknowledges an offer of proof was not made to the trial

court.

         Defendant did not make a substantial preliminary showing of either a

material misstatement or material omission in the search warrant affidavit. We

discern no abuse of discretion by the trial court.

                                         III.

         For the first time on appeal, defendant argues this court should follow the

Washington Supreme Court's decision in State v. Casal, 699 P.2d 1234 (Wash.

1985). We decline to do so for several reasons. First, the decision in Casal is




                                                                            A-1083-17T1
                                         15
not binding precedent. 3 Second, Casal is in direct conflict with our Supreme

Court's holding in State v. Milligan, 71 N.J. 373 (1976), which is binding

precedent.4 To the extent defendant’s Casal argument is an assertion that the

denial of his request for an in camera hearing as to the identity of the CI was

error, we disagree.

      The informer's privilege against disclosure of their identity is well-

established and "considered essential to effective enforcement of the criminal

code," particularly narcotics laws. Milligan, 71 N.J. at 381, 381 n.3, 383.

"Without a strong showing of need, courts will generally deny a request for

disclosure." State v. Florez, 134 N.J. 570, 578 (1994). In fact, N.J.R.E. 516

"provides that a witness need not provide the identity of an informant unless the

identity of that person has already been otherwise disclosed or 'disclosure of his

identity is essential to assure a fair determination of the issues.'" Ibid.




3
  Out-of-state decisions are neither binding nor controlling on a New Jersey
court. See, e.g., In re Advisory Op. No. 01-2008, 201 N.J. 254, 268 (2010);
Marx v. Friendly Ice Cream Corp., 380 N.J. Super. 302, 310 (App. Div. 2005).
4
  Decisions of the Supreme Court bind the Appellate Division and all trial
courts. See, e.g., Am. Civil Liberties v. Hendricks, 445 N.J. Super. 452, 477
(App. Div.), certif. granted, 228 N.J. 440 (2016); Scannavino v. Walsh, 445 N.J.
Super. 162, 172 (App. Div. 2016).
                                                                              A-1083-17T1
                                        16
      The purpose of the privilege is twofold: "to protect the safety of the

informant and to encourage the process of informing." State v. Sessoms, 413

N.J. Super. 338, 343 (App. Div. 2010). The privilege is in fact intended "to

protect the public interest in a continuous flow of information to law

enforcement officials."    Grodjesk v. Faghani, 104 N.J. 89, 97 (1986).            In

narcotics cases, protecting the identities of confidential informants is vital

because "informants are an important, indeed indispensable, part of the arsenal

that law-enforcement forces bring to bear against drug crimes." Florez, 134 N.J.

at 582; see also Milligan, 71 N.J. at 381 n.3.

      Even an in camera hearing "will effectively reduce cooperation with the

police and defeat the purposes which underlie the informer's privilege."

Milligan, 71 N.J. at 393 n.12. Thus, when deciding whether to grant a request

for an in camera hearing, the motion court must balance "the public interest in

protecting the flow of information against the individual's right to prepare his

defense[,] . . . taking into consideration the crime charged, the possible defenses,

the possible significance of the informer's testimony, and other relevant factors."

Id. at 384 (quoting Roviaro, 353 U.S. at 62).

      Defendant contends the denial of his motion for discovery as to the [CI]

"was a virtual Catch-22, in which he was unable to advance an alternative theory


                                                                            A-1083-17T1
                                        17
of the alleged events because he was denied the means to learn of the actual

occurrences." We review the denial of an order requesting disclosure of a

confidential informant's identity using an abuse of discretion standard, that is,

"whether the trial court abused its discretion after weighing the competing

considerations of the balancing test." Milligan, 71 N.J. at 384.

      First, we note defendant's failure to provide this court with an adequate

record to review the motion court's decision to deny his motion for an in camera

hearing as to the identity of the CI hinders our review. Johnson v. Schragger,

340 N.J. Super. 84, 87 n.3 (App. Div. 2001). We remind defendant

            Rule 2:6-1(a)(1)(C) requires an appellant to include in
            the appendix "the judgment, order or determination
            appealed from or sought to be reviewed or enforced
            . . . ." Further, our Court Rules require that "if a
            verbatim record was made of the proceedings . . . from
            which the appeal is taken, the appellant shall, no later
            than the time of the filing and service of the notice of
            appeal, serve a request for preparation of an original
            and copy of the transcript . . . ." R. 2:5-3(a). If no
            verbatim record of the proceedings exists, "the
            appellant shall [provide] a statement of the evidence
            and proceedings prepared from the best available
            sources, including the appellant's recollection." R. 2:5-
            3(f).

            [Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004).]

We also note we are not "obliged to attempt review of an issue when the relevant

portions of the record are not included." Cmty Hosp. v. Blume Goldfaden, 381

                                                                         A-1083-17T1
                                      18
N.J. Super. 119, 127 (App. Div. 2005). See also State v. Cordero, 438 N.J.

Super. 472, 489 (App. Div. 2014).

      Defendant has not provided this court with a transcript of the motion court

proceedings or a statement compliant with Rule 2:5-3. Nor has he included the

motion judge's order or statement of reasons in his appendix. In fact, there is

only one reference to the motion court's denial of defendant's motion for

discovery of the CI's identity in defendant's brief and appendix.

      Thus, to the extent we are able to evaluate defendant’s claim, we note its

similarity to Broom-Smith. In Broom-Smith, law enforcement officers received

information from a confidential informant that the defendant was dealing drugs

out of his residence. 406 N.J. Super. at 231-32. As a result, the

            officers arranged for the informant to make a
            'controlled buy' of drugs from defendant. The purchase
            was structured in such a way that the officers could be
            certain that the informant did not possess any drugs
            prior to the purchase from defendant, and they kept the
            informant under constant visual surveillance before,
            during and after the purchase . . . . Once the purchase
            was complete, the informant gave the drugs to the
            investigators, who field-tested them and found them to
            be cocaine.

            [Id. at 231.]

Based on that information, search warrants were applied for, obtained, and

executed, resulting in the seizure of a large quantity of cocaine found in

                                                                         A-1083-17T1
                                      19
defendant's house. The defendant challenged the warrant application and made

multiple discovery requests. Id. at 232-35. All of these requests were denied

because the trial court "concluded th[e] defendant's broad demand for all

documents created by law enforcement prior to the warrant application was a

veiled attempt to learn the identity of the confidential informant." Id. at 240.

      On appeal, the defendant claimed he sought information concerning the

investigation prior to the warrant application in order to verify the information

contained in the search warrant affidavit.       He contended he needed that

information to be able to possibly attack the validity of the warrant at a Franks

hearing. Ibid. The panel affirmed the denial of discovery because "[n]othing in

defendant's appellate brief suggests even a remote possibility that the discovery

he sought would have enabled him to meet the Franks standard." Id. at 241.

      Here too, the police arranged for the CI to make several controlled buys

of CDS from defendant; the controlled buy was structured so that the police

could be certain the CI did not possess any drugs prior to going into defendant's

residence to purchase drugs; the CI was only out of the officers' sight while

inside defendant's residence; and the CI relinquished contraband, which field -

tested positive for heroin, to the police after being followed out of defendant's

residence.


                                                                          A-1083-17T1
                                       20
      Defendant's argument the denial of his discovery motion was a "virtual

Catch-22, in which he was unable to advance an alternative theory of the alleged

events because he was denied the means to learn of the actual occurrences" is

also nearly identical to the argument advanced by the defendant in Broom-Smith

that he needed his discovery request to be granted "to be able to possibly attack

the validity of the warrant at a Franks hearing." Finally, as in Broom-Smith,

there is nothing in defendant's deficient brief and appendix which suggests an in

camera hearing would have enabled him to meet the Franks standard.

      "[F]rivolous demands for information [or] unsubstantiated allegations of

need" will not be enough to justify disclosure of a confidential informant's

identity because "[s]omething more than speculation should be required of a

defendant before the court overrules an informer's privilege of nondisclosure."

Milligan, 71 N.J. at 393. Thus, to the limited extent we are able to review

defendant's argument, we affirm.

                                      IV.

      Defendant asserts the trial court improperly weighed the aggravating and

mitigating factors and his negotiated sentence is excessive. "Appellate co urts

review sentencing determinations in accordance with a deferential standard."

State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence must be affirmed unless


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                                      21
            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [Ibid. (alteration in original) (quoting State v. Roth, 95
            N.J. 334, 364-65 (1984)).]

      The sentence imposed was pursuant to a plea agreement. "While the

sentence imposed must be a lawful one, the court's decision to impose a sentence

in accordance with the plea agreement should be given great respect, since a

'presumption of reasonableness . . . attaches to criminal sentences imposed on

plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div. 1996)

(alteration in original) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)). If

defendant had any objection to the recommended sentence, he should have

raised it during the plea negotiations or before he was sentenced. State v.

Thomas, 392 N.J. Super. 169, 186 (App. Div. 2007). Defendant received the

recommended sentence. As such, he "cannot legitimately complain that the

sentence was unexpected or that he received a sentence other than that for which

he explicitly negotiated." Ibid. (quoting State v. Soto, 385 N.J. Super. 247, 255

(App. Div. 2006)).




                                                                         A-1083-17T1
                                       22
      Defendant contests aggravating factors five and eleven. He also argues

the trial court should have applied mitigating factor eleven (imprisonment would

entail excessive hardship on defendant or his dependents), N.J.S.A. 2C:44-

1(b)(11). He does not dispute the applicability of aggravating factors three, six

or nine, "given the extent of his prior record."

      As to aggravating factor five, the court stated:

            I do find that aggravating factor five applies. There is a
            substantial likelihood [defendant] is involved in
            organized criminal activity, and this is based upon the
            fact that there is no evidence [defendant] was
            manufacturing the drugs that he was caught with, which
            leads to the inference that he was selling product that
            he obtained from another seller.
      Aggravating factor five is appropriate even in the absence of a

demonstration the defendant's criminal behavior was related to his participation

or membership in an organized crime group, such as a gang, when the nature of

the offense itself warrants its application. See State v. Velez, 229 N.J. Super.

305, 316 (App. Div. 1988), aff'd as modified, 119 N.J. 185 (1990) (determining

that a fact-finding hearing was unnecessary after a drug distribution conviction

because defendant was not manufacturing the drugs, and thus he had to be

obtaining them from other sources); see also State v. Varona, 242 N.J. Super.

474, 491-92 (App. Div. 1990) (finding evidence on the record supported


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                                       23
applying aggravating factor five where defendant was convicted of conspiracy

to distribute cocaine). We discern no error in finding aggravating factor five

since defendant does not dispute he was not the manufacturer of the drugs he

pled guilty to possessing with intent to distribute.

      The defendant also asserts the court erred in applying aggravating factor

eleven because under the circumstances of this case, a non-custodial sentence

was not a possibility. The court stated:

            To the extent [defendant] seeks probation, which is
            argued by his counsel in her letter memorandum
            blaming his criminal history, past and present
            convictions on a drug addiction, the [c]ourt does need
            to balance that, but I find that probation is not enough
            in light of [defendant’s criminal] history . . . and the
            fact that he has not been deterred.

      Defendant is correct that aggravating factor eleven is not applicable unless

the sentencing judge is balancing a noncustodial term as against a state prison

sentence. State v. Dalziel, 182 N.J. 494, 503 (2005) (citation omitted). A

sentencing court must impose a custodial prison sentence for a defendant

convicted of possession with intent to distribute a CDS on or near school

property. However, under the circumstances, we find the error harmless because

the aggravating factors three, six, and nine clearly outweigh mitigating factor

six, which only applied to the burglaries and was only given minimal weight.


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                                       24
      Defendant also argues the negotiated term of ten years in state prison with

five years of parole ineligibility is excessive. We disagree. Defendant stipulates

he was extended-term eligible under N.J.S.A. 2C:44-3(a) (persistent offender),

N.J.S.A. 2C:43-6(f) (repeat drug offender), and N.J.S.A. 2C:44-5.1 (commission

of specified crimes while on bail), rendering him subject to a period of parole

ineligibility pursuant to N.J.S.A. 2C:43-7(c). His attorney was able to negotiate

a favorable plea agreement, resulting in the dismissal of numerous charges and

an aggregate sentence far shorter than his exposure. We discern no abuse of

discretion by the trial court. Considering the crimes defendant pled guilty to

together with his prior criminal record, defendant's sentence is not clearly

unreasonable so as to shock the judicial conscience. See Roth, 95 N.J. at 364-

65.

      Affirmed.




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