                        NOT FOR PUBLICATION WITHOUT THE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-1265-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RAYMOND WADE,

        Defendant-Appellant.

_________________________________

              Submitted January 9, 2017 – Decided            February 22, 2017

              Before Judges Nugent and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment Nos.
              14-11-2652 and 15-06-1364.

              Triarsi, Betancourt, Wukovits & Dugan, LLC,
              attorneys for appellant (Howard P. Lesnik, on
              the brief).

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Barbara
              A.   Rosenkrans,  Special  Deputy   Attorney
              General/Acting   Assistant  Prosecutor,   of
              counsel and on the brief).

PER CURIAM

        Defendant     Raymond    Wade    is   serving    a   seven-year     prison

sentence for unlawfully possessing a handgun.                  Police found the
gun and other contraband while searching a hotel room after

obtaining    a     warrant    authorizing       the     search.       Defendant

unsuccessfully moved to suppress the gun and other contraband, and

pled guilty to the weapons offense.             In an attempt to have his

conviction overturned, he argues these points on this appeal:

            POINT I

            THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
            DENIED THE DEFENDANT'S MOTION TO SUPPRESS.

            POINT II

            NO CONSENT WAS OBTAINED FROM THE DEFENDANT AND
            THE ENSUING . . . SEARCH IS VOID.

            POINT III

            THE CONSENT WAS NOT VOLUNTARY AND IS VOID.

            POINT IV

            THE SEARCH WARRANT IS INVALID AND THEREFORE,
            THE SEARCH IS ILLEGAL AND UNCONSTITUTIONAL.

We conclude the warrant is valid, so we affirm.

     On November 3, 2014, an Essex County Grand Jury returned an

indictment       charging    defendant     with       second-degree    unlawful

possession    of    a   weapon,     N.J.S.A.    2C:39-5(b),       fourth-degree

possession   of     hollow   nose    bullets,     N.J.S.A.   2C:39-3(f),     and

fourth-degree       possession      with   intent       to   distribute     drug

paraphernalia, N.J.S.A. 2C:36-3.           On the same day, the grand jury

returned a second indictment charging defendant with second-degree


                                       2                                A-1265-15T3
certain persons not to have weapons, N.J.S.A. 2C:39-7(a).            On June

16, 2015, the grand jury returned a superseding indictment charging

defendant with first-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(a).1

       Defendant moved to suppress the handgun, evidence, and drug

paraphernalia.         The trial court denied the motion.          Defendant

later pled guilty to the amended charge of second-degree certain

persons not to have weapons, N.J.S.A. 2C:39-7(a).             In exchange,

the State agreed to dismiss the first three-count indictment, not

seek   an   extended-term      sentence,    and   recommend   a   seven-year

custodial term with forty-two months of parole ineligibility.             The

trial court sentenced defendant according to these terms and

ordered     him   to    pay   appropriate   penalties   and   assessments.

Defendant appealed.

       The trial court did not hold an evidentiary hearing on

defendant's suppression motion but instead decided the motion

after considering the parties' briefs and oral arguments.                 The

parties based the facts in their briefs on the indictments, a

police incident report, a municipal court document, and the search

warrant documents.       These documents establish the following facts.




1
     The parties apparently neither explained nor questioned the
indictment charging N.J.S.A. 2C:39-7(a) as a first-degree offense.

                                      3                              A-1265-15T3
      On the morning of June 18, 2014, Newark Detective Richard

Weber applied to the court for a warrant to search defendant's

residence.            In his affidavit, he detailed his training and

attested to the following facts.              The previous day, June 17, 2014,

Narcotics       and    Gang   Division    Detectives    met   with    a   reliable

confidential informant (CI).             In the past, the CI had given the

police information that led to numerous arrests and convictions.

        During the June 17 meeting, the CI told detectives a black

male, identified as defendant, was selling marijuana from a four-

door silver Buick Century bearing a New Jersey registration.                    The

CI said Wade was approximately six feet tall, weighed more than

200 pounds, and resided at a hotel in Newark (the hotel).                   The CI

identified the hotel by name.            According to the CI, defendant used

a   room   at    the    hotel   to   package    and   store   large   amounts     of

marijuana.        The CI also said defendant was known to carry a

firearm, and if he did not possess the firearm while selling

marijuana on South 20th Street, the firearm might be in his hotel

room.

      To confirm what the CI had told them, detectives drove by the

hotel and observed a vehicle that matched the CI's description.

The detectives checked the registration and confirmed the vehicle

was a four-door 2001 silver Buick owned by defendant.



                                          4                                A-1265-15T3
       Later, the detectives set up surveillance of the hotel, but

the Buick was no longer there.                Some of the detectives drove to

South 20th Street between Springfield Avenue and 19th Avenue. Upon

their arrival, "several suspicious males . . . quickly dispersed

due to [the detectives'] presence."                 At approximately 2:00 p.m.,

Detective Weber spotted the unoccupied silver Buick                 parked on the

east side of South 20th Street.

       Detective Weber and Sergeant Nunez set up surveillance at a

location where they had a clear view of both sides of South 20th

Street from Springfield Avenue to 19th Avenue.                  They also had a

clear view of the silver Buick.                The other detectives left the

area    and   positioned    themselves          for   immediate     response,     if

required.

       Almost immediately thereafter, heavy vehicle traffic began

accumulating on 20th Street — a distance from the parked Buick —

and several suspicious males engaged in conversations and made

suspicious transactions.          Moments later, the officers saw a black

male wearing a v-neck t-shirt, blue jeans, and white sneakers,

with   a   white   hand   towel    over       his   head,   later   identified    as

defendant, at the location where they had observed the suspicious

transactions.       The    officers    observed        defendant    make   several

transactions with various vehicles. In each instance, the vehicles

would stop and pull over near defendant's location.                  He retrieved

                                          5                                A-1265-15T3
unknown objects from a grass and dirt area elevated by a retaining

wall.     He would then return to the pulled over vehicles and

exchange the unknown items for what appeared to be currency.

     According to Detective Weber's affidavit, "[a]fter conducting

several similar transactions, [defendant] apparently needed to

replenish       his    'stash'     (street          terminology       for    a    temporary

concealed       location     to    store       narcotics        for    the    purpose          of

distributing and/or selling C.D.S.)."                      The officers observed him

walk to the silver Buick and enter the driver's door.                             Defendant

tampered with the glove compartment, and after a brief moment,

exited    the    Buick    holding       multiple       items    in    both    hands.           As

defendant got closer to the location of the previous transactions,

the detectives recognized the items as bags of suspected marijuana.

     Defendant         walked     to     the       location     where       the    previous

transactions had occurred and placed the bags under a piece of

concrete in the elevated grass and dirt area.                            The detectives

watched    defendant       as     he   made        several    more    transactions           and

retrieved       additional      items    from       the    Buick.       Based      on     these

observations,         detectives       ordered       the     backup   units       to     arrest

defendant.       A search incident to his arrest uncovered a remote

key, a room key with a brass tag number of "332," and hotel

receipts reflecting his name, room number 332, and a Visa credit

card.

                                               6                                        A-1265-15T3
      While backup units were arresting defendant, Sergeant Nunez

retrieved from beneath the piece of concrete in the elevated grass

and   dirt   area    eleven    blue-tinted        Ziploc   bags    of    suspected

marijuana.

      Detective     Weber   stated     in   his    affidavit      that   defendant

acknowledged his Miranda2 rights, "which were read to him."                    When

asked where he lived, defendant said he "stayed with a girl at

[the hotel] in room [#]322."         After being informed his Buick would

be "towed for forfeiture process," defendant granted the officers

permission to retrieve the registration and insurance card for the

purpose of a tow.      Upon retrieving these documents, the officers

found twenty-two Ziploc bags of suspected marijuana in the glove

compartment,      consistent    with    the       eleven   bags    of    suspected

marijuana recovered from beneath the concrete on 20th Street.

      Police transported defendant to be processed and had the

Buick   towed   to    headquarters      pending      forfeiture     proceedings.

Detectives Weber and J. Cosgrove drove to the hotel, where they

spoke to the manager.       The manager confirmed defendant rented room

332 and had been staying at the hotel since April 2014.                  Defendant

was scheduled to stay through June 20, 2014.               The manager produced

documentation, told the detectives there was only one key for the


2
   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

                                        7                                  A-1265-15T3
room, and said he was unaware of anyone else residing in the room

with defendant.

     Detective Weber provided detailed information about the hotel

as well as other information concerning matters not relevant to

the issues presented on appeal.

     The   incident    report   contained   essentially   the    same

information as the affidavit submitted with the request for the

search warrant.   Defendant does not appear to dispute the facts

in the affidavit, though he challenges the validity of the "search"

of his car's glove compartment based on the facts set forth in the

warrant and incident report.3

     Before the trial court, defendant asserted the detectives did

not read him his Miranda rights and he did not consent to the

search of his car.    He also argued he was never presented with any

Miranda or consent forms.    Moreover, even if police had presented

such forms, defendant alleged he was already in custody, rendering

his consent coerced and invalid.       Based on those assertions,

defendant argued the affidavit submitted in support of the warrant

"sets forth facts gleaned during the unconstitutional and illegal


3
     Defendant does not appear to dispute the facts found by the
court. In fact, with the exception of the identity of the man
with whom defendant was conversing when the detectives first
spotted him, the statement of facts in defendant's appellate brief
are based on the trial court's findings of fact and the affidavit.


                                  8                          A-1265-15T3
search of [his] vehicle.        Therefore, as the facts and evidence set

forth in the affidavit . . . were illegally obtained, the search

warrant accordingly is invalid."

     Judge Alfonse J. Cifelli rejected defendant's arguments.                   In

an oral decision delivered June 8, 2015, the judge determined

defendant failed to demonstrate the search authorized by the

warrant was unlawful.     After carefully reviewing the facts and the

law, Judge Cifelli explained that for allegedly false statements

in an affidavit supporting a warrant to be material, the affidavit

must no longer contain facts sufficient to establish probable

cause when the allegedly false statements are excised.                     Judge

Cifelli     concluded   that,     contrary      to     defendant's    arguments,

probable cause for the issuance of the search warrant was clearly

not provided from the interrogation of the defendant and/or from

the search of defendant's automobile, but rather from the other

information set forth in the affidavit.

     We affirm, substantially for the reasons given by Judge

Cifelli in his opinion.         We add only the following.           A defendant

who seeks to overcome the presumption of validity accorded an

affidavit    supporting   a     search       warrant    must   demonstrate    the

affidavit contains materially false information:

            There is, of course, a presumption of validity
            with respect to the affidavit supporting the
            search warrant.    To mandate an evidentiary

                                         9                               A-1265-15T3
            hearing, the challenger's attack must be more
            than conclusory and must be supported by more
            than a mere desire to cross examine. There
            must be allegations of deliberate falsehood
            or of reckless disregard for the truth, and
            those allegations must be accompanied by an
            offer of proof.       They should point out
            specifically the portion of the warrant
            affidavit that is claimed to be false; and
            they should be accompanied by a statement of
            supporting reasons.    Affidavits or sworn or
            otherwise reliable statements of witnesses
            should   be   furnished,   or   their   absence
            satisfactorily explained.      Allegations of
            negligence     or   innocent     mistake    are
            insufficient . . . .        Finally, if these
            requirements are met, and if, when material
            that is the subject of the alleged falsity or
            reckless disregard is set to one side, there
            remains sufficient content in the warrant
            affidavit to support a finding of probable
            cause, no hearing is required. On the other
            hand,    if    the   remaining    content    is
            insufficient, the defendant is entitled, under
            the Fourth and Fourteenth Amendments, to his
            hearing.    Whether he will prevail at that
            hearing is, of course, another issue.

            [Franks v. Delaware, 438 U.S. 154, 171-72, 98
            S. Ct. 2674, 2684-85, 57 L. Ed. 2d 667, 682
            (1978) (footnote omitted).]

A defendant must make this showing by a preponderance of the

evidence.   State v. Howery, 80 N.J. 563, 567-68, cert. denied, 444

U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).

     Here, as Judge Cifelli explained, even if the detectives'

questioning of defendant and search of his car's glove compartment

are excised, the remaining content of Detective Weber's affidavit

amply established probable cause for the issuance of the warrant.

                                 10                           A-1265-15T3
Because the material facts are largely undisputed, the judge did

not abuse his discretion in denying defendant's motion to suppress

without an evidentiary hearing.           State v. Frank, 280 N.J. Super.

25, 43 (App. Div. 1995).            Defendant's   arguments are without

sufficient   merit   to   warrant    further    discussion   in   a   written

opinion.   R. 2:11-3(e)(2).

     Affirmed.




                                     11                               A-1265-15T3
