                        NOT FOR PUBLICATION WITHOUT THE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-0748-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

HAROLD MILLER, a/k/a WAKEEM
MILLER and WAKEEM DIGGS,

        Defendant-Appellant.


              Submitted May 16, 2018 – Decided June 14, 2018

              Before Judges Alvarez and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment
              Nos. 14-10-1166 and 15-01-0070.

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

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Patrick F. Galdieri,
              II, Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM
          Defendant Harold Miller appeals from his convictions and

sentences, following the Law Division's denial of his motions to

compel discovery, for a Franks1 hearing, and to suppress evidence.

Having considered the parties' arguments in light of the record

and applicable legal standards, we affirm the denial of the motions

and the convictions but remand for resentencing.

                                       I.

          We discern the following facts from the record.             Members of

the Anti-Crime Unit of the New Brunswick Police Department received

multiple complaints from a concerned citizen regarding narcotics

activity.       According to the citizen, individuals known to him or

her as Bryan Arline and Harold Miller were selling heroin and

cocaine from their second floor apartment (the Apartment) located

in    a    two-story     residential   building     in    New   Brunswick      (the

Building).         The    citizen   further      stated    Arline    and    Miller

transported the drugs to and from the Apartment in a green Acura

and a green Cadillac.

          Based on this information, on May 5, 2014, Detective Joshua

Alexander      conducted    surveillance    of    the    Building.     Alexander

observed Arline pull up to the front of the Building in a green

Acura.       Another individual, later identified as Michal Alegre,



1
     Franks v. Delaware, 438 U.S. 154 (1978).

                                        2                                  A-0748-16T2
arrived separately in a black Honda.             Alegre entered the Building

and remained inside for less than five minutes before exiting and

quickly driving away.

     Alexander then observed Dwayne Lambert exit the Building,

look inside the trunk of Arline's Acura, go back inside the

Building,    and    leave    about    twenty     minutes    later.         Shortly

thereafter, Alegre returned to the Building in the same Honda and

went inside.       After remaining inside for less than five minutes,

Alegre went outside and spoke to Lambert.             Alegre and Lambert went

back inside the Building.            Two minutes later, Alegre left the

Building and drove away.

     Sometime       thereafter,      Alexander      spoke   with     a     reliable

confidential informant (CI).          The CI confirmed narcotics sales by

individuals known to him or her as Bryan and Harold from the

Apartment.      The CI confirmed Bryan and Harold frequently drove a

green   Acura    and   a   green   Cadillac    to   transport      drugs    to   the

Apartment.      The CI advised he or she personally observed Bryan and

Harold selling heroin and cocaine inside the Apartment.

     Three controlled buys were made by the CI at the Apartment.

Two involved Lambert and the other involved Arline.                   On May 14,

2014, Alexander applied for and obtained a search warrant for the

Apartment and the persons of Lambert and Arline but not Miller.



                                        3                                   A-0748-16T2
     The following day, prior to executing the search warrant,

Alexander and Sergeant John Quick observed Alegre arrive in her

black Honda.     Alegre went inside the Building where she remained

for less than ten minutes before exiting with Arline.                   Alegre

entered her vehicle and Arline leaned into the vehicle for a brief

conversation.     When Alegre drove off, Quick advised Detectives

Robert Bogdanski and Rosario Maimone to stop Alegre because she

was driving with a suspended license and registration.

     Bogdanski and Maimone followed Alegre to a gas station.

Maimone told Alegre he stopped her for driving with a suspended

license and registration.        Alegre began to cry and said she had

to use the bathroom.      Maimone told her she could use the bathroom

as soon as they were done.         Alegre then stated, "Ok, ok, ok, I

have a little bit of heroin on me and a set."                She turned over

seven bags of heroin marked "Brick Mansion," a hypodermic needle,

and a shoe lace from her jacket pocket.              At police headquarters,

Alegre gave a videotaped statement, during which she stated she

bought   seven   bags   of   heroin     that   day   from   "Jamal,"   and   had

previously   bought     heroin   from    "Dowop."      Alegre   identified     a

photograph of Miller as the man she knew as "Jamal," the man she

had purchased heroin from that day.            Quick knew "Jamal" was Miller

and "Dowop" was Lambert from prior investigations.



                                        4                              A-0748-16T2
       While still outside the Building, Alexander observed Arline

exit    with   an   unidentified    female      wearing      scrubs.   Alexander

followed them to Robert Wood Johnson Hospital.                   The female went

inside and Arline left on a bicycle towards Plum Street.                     Quick

decided to stop Arline.          When Quick and Detective Karlo Sarmiento

exited their van and announced "Police," Arline fled on his bike.

The officers chased Arline to the Building.                   Arline entered the

Building but was unable to open the door to the Apartment.                        He

then reached into his pockets and threw thirty-eight decks of

heroin and thirty dollars into a nearby crate, which were recovered

by Quick.

       After knocking and announcing, Sarmiento gained access to the

Apartment with a ram and entered it with Detective Walcott.

Walcott    apprehended    Lambert       in   the    dining    room.    Sarmiento

proceeded to the bathroom where he found Miller hiding in the

bathtub. Sarmiento apprehended Miller, brought him to the kitchen,

ordered him to the ground, and handcuffed him.

       Sarmiento then conducted a protective search of Miller during

which he felt a bulge created by objects inside Miller's front

right pants pocket.       The search revealed a bag of cocaine in his

left front pants pocket and two bags of heroin in his right front

pants    pocket     containing    100   decks      of   heroin   labeled    "Brick

Mansion."      Meanwhile, Quick apprehended Arline and brought him

                                         5                                 A-0748-16T2
into the Apartment.       By the time Alexander entered the Apartment,

all three suspects were handcuffed and sitting on the kitchen

floor.     Alexander observed Miller attempt to discard five decks

of heroin labeled "Brick Mansion" that he had removed from the

back pocket of his pants.          Alexander then found an additional

forty decks of heroin and $225 in the same back pocket.            The police

also recovered a red plastic bag used to hold currency from

Miller's bedroom and $1686.75 from Miller's bedroom closet.

     A canine unit alerted positive for narcotics during a sweep

of the Apartment and the green Cadillac.           Miller gave consent to

search    the   Cadillac,    but   the   detectives    did   not   find    any

contraband.

     During the search of the remainder of the Apartment, the

detectives recovered four bags of cocaine, a plate and razor with

cocaine residue, two digital scales, two boxes of baking soda, and

a bag containing sandwich bags from the kitchen.             They recovered

another bag of cocaine from the landing near the front door and a

bag containing Buprenorphine Hydrochloride pills and empty heroin

decks    from   another   bedroom.       They   also   recovered   narcotics

paraphernalia, empty heroin decks, and a cell phone from Lambert's

bedroom.

     On October 22, 2014, a grand jury returned Indictment No. 14-

10-1166, charging Miller, Arline, and Lambert with: third-degree

                                     6                                A-0748-16T2
conspiracy to possess heroin and cocaine with the intent to

distribute, N.J.S.A. 2C:35-5 and 2C:5-2 (count one); third-degree

possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); third-

degree possession of cocaine with intent to distribute, N.J.S.A.

2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3)                (count three); third-

degree possession of cocaine with intent to distribute in a school

zone,    N.J.S.A.    2C:35-5(a)   and   N.J.S.A.       2C:35-7    (count    four);

third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count

five);    third-degree       possession     of     heroin   with     intent       to

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

(count six); third-degree possession of heroin with intent to

distribute in a school zone, N.J.S.A. 2C:35-5(a) and N.J.S.A.

2C:35-7 (count seven).2

     This same indictment also charged Miller alone with: third-

degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.

2C:35-5(b)(3)       (count   nine);   and   third-degree     distribution         of

heroin in a school zone, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7

(count ten).

     Additionally, on January 21, 2015, a grand jury returned

Indictment No. 15-01-0070, charging Miller with: second-degree



2
   Arline and Lambert were co-defendants on Indictment No. 14-10-
1166, but are not parties to this appeal.


                                        7                                  A-0748-16T2
conspiracy to commit robbery, N.J.S.A. 2C:15-1(a)(1) and N.J.S.A.

2C:5-2 (count one); second-degree robbery, N.J.S.A. 2C:15-1(a)(1)

(count two); and third-degree hindering apprehension, N.J.S.A.

2C:29-3(b)(1) (count three).3

     In May 2015, Miller moved to compel discovery in connection

with the controlled dangerous substance (CDS) offenses, seeking

disclosure of: (1) all documents relating to the three controlled

buys described in the search warrant affidavit; (2) the identity

of the concerned citizen; (3) all information relating to any

credibility findings of the police officers involved, including

any materials relating to disciplinary proceedings and findings

against members of the narcotics team; and (4) any recorded

testimony during the search warrant application.

     The State represented none of the information relating to the

controlled buys would be presented by the State in its case-in-

chief.   The State also indicated the police still actively used

the surveillance location and disclosure would result in the loss

of the location for future surveillance.

     The trial court heard oral argument on July 15, 2015, and

denied Miller's motion in an August 25, 2015 order, which included




3
   The robbery occurred on July 30, 2014, when defendant forcibly
grabbed and attempted to take property from the victim.

                                8                          A-0748-16T2
a comprehensive statement of reasons.               Miller does not appeal from

that order.

      The judge noted there were no controlled buys involving Miller

and he was not charged with any offenses occurring prior to the

execution of the search warrant.              At trial, Miller could cross-

examine the officers who conducted the surveillance regarding

their    distance,       elevation,    line     of    sight,     and   any       visual

obstructions.       He concluded Miller did not make a substantial

showing of a need for disclosure of the surveillance location in

order to be able to conduct his defense.

      The judge found Rule 3:13-3(e) protected the identity of the

concerned      citizen    and   safeguarding     the    citizen    from      physical

threats and harm warranted withholding his or her identity.                          He

noted    the    defense    "simply    asserts    that      the   identity     of   the

concerned citizen is necessary to challenge the search by arguing

the warrant was obtained through false information."

      As to disclosure of the personnel files, the judge rejected

Miller's       argument    that    disclosure        was    necessary       to     test

credibility, finding defendant "failed to demonstrate how any of

the     officers'    personnel       files    are     relevant,     material,        or

exculpatory."        The judge concluded Miller had not shown any

"logical connection between the officers' personnel files and any

fact in issue."       The judge also noted a recent in camera review

                                         9                                    A-0748-16T2
of Quick's personnel file in an unrelated case revealed nothing

relevant or material with regard to his credibility.                  He held "the

mere possibility" that the "personnel files might include helpful

information, unsupported by the facts, is insufficient to justify

an in camera review let alone disclosure" of the files.

     On January 8, 2016, Miller moved to: (1) suppress the evidence

seized from him during a warrantless search; (2) for a Franks

hearing to determine the validity of the search warrant; and (3)

for leave to use information relating to the controlled buys

conducted by Alexander at trial to show the sales were made by co-

defendants and not Miller.

     A different judge heard oral argument on April 29, 2016, and

denied the motion in its entirety in a comprehensive written

opinion.    As to the motion to suppress, the judge noted the search

warrant    is    presumed   valid     and   Miller   had   not   overcome      that

presumption.         The judge noted a valid warrant to search for

contraband gives limited authority to the police to detain the

occupants       of   the   premises    while   the    search     is    conducted.

Accordingly, she found defendant's initial detention during the

execution of the search warrant to be lawful.

     As to the results of the protective search conducted by

Sarmiento, the judge reasoned:



                                       10                                  A-0748-16T2
         Considering the totality of the circumstances,
         the [c]ourt finds that it was reasonable for
         Detective Sarmiento to do a protective search
         of Mr. Miller's person to ensure that he was
         not armed, and there was no risk to officer
         safety while they searched the apartment
         pursuant to a search warrant. As such one bag
         of cocaine and 100 decks of heroin found on
         Mr. Miller as a result of a valid protective
         search will not be suppressed.

    With regard to the additional items seized from Miller, the

judge stated:

              Additionally, a more thorough search of
         Mr. Miller was conducted later in the kitchen
         when   the  officers   observed   Mr.   Miller
         attempting to discard five decks of heroin
         from his back pocket.    Because the officers
         had previously discovered cocaine and heroin
         on Mr. Miller's person, he was subject to
         arrest at that point in time.       Thus, the
         subsequent search of Mr. Miller's person is
         lawful as a search incident to arrest. The
         additional evidence found on Mr. Miller's
         person, 45 decks of heroin and $225.00 in
         cash, will also not be suppressed.

              However, even assuming the protective
         search and the later search incident to arrest
         was invalid, under the doctrine of inevitable
         discovery, the evidence found on Mr. Miller's
         person would have been discovered lawfully as
         a search incident to a lawful arrest as the
         search of the residence, including Mr.
         Miller's     bedroom,      revealed     drugs,
         paraphernalia, cash, and packing material.

                . . . .

         The [c]ourt is satisfied that probable cause
         existed to arrest Mr. Miller as a result of
         the evidence recovered after the search of
         [the Apartment] was completed as contraband

                              11                          A-0748-16T2
          was discovered in the common areas of Mr.
          Miller's residence, as well as in his bedroom.

               Once a valid arrest has been effectuated,
          a defendant's seizure automatically justifies
          a warrantless search of the defendant. State
          v. Goodwin, 173 N.J. 583, 598 (2002).
          Therefore, the police would have discovered
          the evidence on Mr. Miller's person wholly
          independent from any prior unlawful search of
          his person.

     The judge also found Miller did not meet the threshold for a

Franks hearing as he had "not made a substantial preliminary

showing that the affiant, either deliberately or with reckless

disregard for the truth, procured the warrant."

     The judge held non-disclosure in the affidavit of the quantity

of narcotics purchased, the purchase price, and any field testing

to be insufficient to warrant a Franks hearing because that

information   "is   not   necessarily   probative   of   a   deliberate

falsehood or reckless disregard for the truth necessary to meet

the burden required for a Franks hearing."

     The judge noted it was undisputed Miller did not participate

in any of the controlled buys and was not charged with any offenses

arising out of the controlled buys.      Moreover, the officers were

not present during the controlled buys.         The judge found no

"connection between the discovery sought and the ability to satisfy

the Franks standard."     The judge also concluded that even if she

excised all of the information in the search warrant affidavit

                                 12                             A-0748-16T2
regarding the controlled buys, the remaining portions of the

affidavit still established probable cause.

     As to the need to question Alexander during a Franks hearing,

the judge stated Miller "failed to meet [his] burden by either

attacking the warrant or suggesting material facts which are

disputed."      The judge characterized the request as a "fishing

expedition which is completely contrary to the purpose served by

a Franks hearing."

     Following the denial of his motions, Miller entered into a

plea agreement, pleading guilty to third-degree possession of

heroin with intent to distribute and second-degree robbery in

exchange for a recommended sentence of an extended seven-year

prison   term    subject   to   a   forty-two-month   period   of    parole

ineligibility pursuant to N.J.S.A. 2C:43-6(f) on the CDS count, a

concurrent five-year prison term subject to an eighty-five percent

period of parole ineligibility pursuant to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery count, and dismissal

of the remaining charges.

     At sentencing, Miller argued for a four-year NERA term on the

robbery count, claiming the court should find mitigating factors

two (defendant did not contemplate his conduct would cause serious

harm), four (there were substantial grounds tending to excuse or

justify defendant's conduct), six (defendant will compensate the

                                     13                             A-0748-16T2
victim    for     his   conduct    or    will     participate    in    a    program      of

community service), eight (defendant's conduct was the result of

circumstances unlikely to recur), and eleven (imprisonment would

entail    excessive      hardship       to     defendant    or   his       dependents).

N.J.S.A. 2C:44-1(b)(2), (4), (6), (8), and (11).

       The judge found aggravating factors three (risk defendant

will     commit    another       offense),        five   (substantial          likelihood

defendant is involved in organized criminal activity), six (extent

of defendant's prior criminal record and seriousness of offenses

of which he has been convicted), nine (need for deterrence), and

eleven    (imposition       of    a     fine      without   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

judge found no mitigating factors.

       The judge sentenced Miller in accordance with the terms of

the negotiated plea agreement, noting Miller had an extensive

prior record of fourteen criminal convictions, including multiple

drug offenses,4 four municipal court convictions, and thirteen

adjudications of juvenile delinquency.




4
   Miller does not contest he had been previously convicted of
distribution of CDS and possession of CDS with intent to
distribute, rendering him subject to a mandatory extended term
pursuant to N.J.S.A. 2C:43-6(f)

                                             14                                   A-0748-16T2
     With respect to the CDS count, the judge indicated the

mandatory extended term with parole ineligibility was imposed

pursuant to N.J.S.A. 2C:43-6(f).       The judge found aggravating

factor five applied because "there is a likelihood that the

defendant is involved in organized crime, because there is no

evidence that he has manufactured the drugs that were found in his

possession."    While the judge stated "the aggravating factors do

substantially outweigh the mitigating factors," the judgment of

conviction     states   the   aggravating   factors   "outweigh"   the

mitigating factors.

     The judge incorporated the same aggravating and mitigating

factors on the robbery count that she applied on the CDS count.

Accordingly, the judgment of conviction listed aggravating factors

three, five, six, nine, and eleven, no mitigating factors, and

stated the aggravating factors "outweigh" the mitigating factors.

However, an amended judgment of conviction deleted aggravating

factor five, stating "it was not found at time of sentencing."5

This appeal followed.

     On appeal, defendant raises the following points:



5
    "A trial court's oral opinion normally controls over an
inconsistent judgment of conviction." State v. Vasquez, 374 N.J.
Super. 252, 270 (App. Div. 2005) (citing State v. Warmbrun, 277
N.J. Super. 51, 58 n.2 (App. Div. 1994)); accord State v. Pohlabel,
40 N.J. Super. 416, 423 (App. Div. 1956).

                                  15                          A-0748-16T2
           POINT I

           THE MOTION COURT COMMITTED REVERSIBLE ERROR
           WHEN DENYING THE DEFENSE'S REQUEST FOR AN
           EVIDENTIARY HEARING WITH RESPECT TO THE
           WARRANTLESS SEARCH OF MR. MILLER'S PERSON,
           NOTWITHSTANDING MATERIAL FACTS IN DISPUTE.

           POINT II

           THE MOTION COURT ERRED IN DENYING THE
           DEFENSE'S REQUEST FOR A HEARING PURSUANT TO
           FRANKS V. DELAWARE.

           POINT III

           THIS COURT SHOULD REMAND THE MATTER FOR
           RESENTENCING BECAUSE THE SENTENCING COURT
           ERRONEOUSLY FOUND AGGRAVATING FACTORS FIVE AND
           ELEVEN.

                 A.      The   Court  Improperly   Found
                 Aggravating Factor Five Based on the
                 Absence   of  Proof  that   Mr.  Miller
                 Manufactured the Third-Degree Weight of
                 CDS.

                 B.      The  Court   Erroneously   Found
                 Aggravating Factor Eleven Because It Was
                 Not Weighing the Imposition of a Non-
                 Custodial Sentence.

                                   II.

      We affirm the denial of the motion to compel discovery, motion

to   suppress   evidence,   and   application   for   a   Franks   hearing

substantially for the reasons expressed by the trial court in its

comprehensive and well-reasoned written decisions.            We add the

following comments.



                                   16                              A-0748-16T2
      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   Alexander's   affidavit   and    the   supplemental   investigation

reports prepared by Alexander, Quick, Maimone, and Sarmiento.              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 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

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).

      We first address Miller's argument that the trial court erred

by denying his application 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).

                                     17                            A-0748-16T2
     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 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)).

     A Franks hearing is required when a defendant "makes a

substantial preliminary showing that a false statement knowingly

and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and if the

allegedly false statement is necessary to the finding of probable

cause."    Franks, 438 U.S. at 155-56; see also State v. Howery, 80

N.J. 563, 583 n.4 (1979) (stating a Franks hearing "is required

only if the defendant can make a substantial preliminary showing

of perjury").



                                      18                                   A-0748-16T2
       In order to make a substantial preliminary showing, defendant

must "allege 'deliberate falsehood or reckless disregard for the

truth,' and those allegations must be supported by an offer of

proof." Howery, 80 N.J. at 583 n.4.         "[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.        Finally, 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.

       Here, there was no need for a Franks hearing because Miller

failed to make a substantial showing of falsity or material

omission in the warrant affidavit.        He did not point to specific

portions of the affidavit that are claimed to be untrue.               See

Howery, 80 N.J. at 567.           He has not demonstrated deliberate

falsehood    or   reckless    disregard   for    the   truth.   Moreover,

Alexander's affidavit provides explicit detail concerning the

alleged drug activity at the Apartment, which he corroborated

through surveillance.        Miller proffered no facts undermining the

factual assertions in the affidavit.            On this record, a Franks

hearing was not required.         See Broom-Smith, 406 N.J. Super. at

240.



                                    19                            A-0748-16T2
       We next address Miller's argument that the trial court erred

by    denying    his   request   for     an    evidentiary   hearing    on   the

suppression motion.        We review a trial judge's ruling denying an

evidentiary hearing for abuse of discretion.             Id. at 239.

       Testimony must be taken during a suppression motion a hearing

if material facts are in dispute.             R. 3:5-7(c).   When a defendant

moves to suppress evidence seized during a warrantless search, the

State must file "a brief, including a statement of the facts as

it alleges them to be" and the defendant must then file "a brief

and counter statement of facts."              R. 3:5-7(b).

       "It is only when the defendant's counter statement places

material facts in dispute that an evidentiary hearing is required."

State v. Green, 346 N.J. Super. 87, 90 (App. Div. 2001) (citing

State v. Hewins, 166 N.J. Super. 210, 213-15 (Law Div. 1979),

aff'd, 178 N.J. Super. 360 (App. Div. 1981)).                   In Green, we

emphasized "[t]he mere allegation of a warrantless search, with

the attendant burden of proof on the State to justify same, does

not   place     material   issues   in      dispute,   nor   does   defendant's

assertion that he denies the truth of the State's allegations."

Id. at 91 (citing Hewins, 166 N.J. Super. at 214).             "In the absence

of factual allegations to support the claim that the search and

seizure were illegal, a hearing [is] not required . . . ."                State

v. Kadonsky, 288 N.J. Super. 41, 46 (App. Div. 1996).

                                       20                               A-0748-16T2
     A     defendant's   counterstatement   of     facts   must   present

"something more than the naked conclusion that the warrantless

search was illegal, in order to obtain an evidentiary hearing

pursuant to [Rule] 3:5-7(c)."       Hewins, 166 N.J. Super at 215.

            The rule also seeks to avoid the time-
            consuming taking of testimony solely for the
            purpose    of   affording  defense   counsel
            additional discovery, and an opportunity to
            examine the State's witnesses in advance of
            trial.   The motion to suppress is available
            to defendant in order to resolve questions
            concerning the validity of a search and/or
            seizure; it is not just another discovery
            device.

            [Id.   at 214.]

     Here, Miller disputes he possessed the drugs police allege

he had on his person or discarded and claimed a hearing was

necessary to determine the timeline of when the drugs were found.

The denial that he physically possessed or discarded the drugs

that were seized does not constitute a material fact in dispute

with regard to whether the search of his person was illegal.           Just

as an unconstitutional search is not rendered valid because it

produces     contraband,      a   valid   search    is     not    rendered

unconstitutional because it did not result in the seizure of

contraband.

     While physical possession of the drugs is germane to whether

Miller is guilty of possession of CDS, an issue that he could have


                                   21                              A-0748-16T2
fully explored at trial, it is not determinative of whether the

police had a sufficient basis to conduct a valid protective search

or search incident to arrest.            The validity of the search of

defendant's pockets turns on the facts leading up to the search,

not on whether the search results in the recovery of contraband.

Hence, defendant did not establish a disputed material fact with

regard to the propriety of the protective search.6

     The    trial   court   also   applied   the   inevitable   discovery

doctrine.    The doctrine is an exception to the exclusionary rule

that permits evidence to be admitted in a criminal case, even

though it was obtained unlawfully, when the government can show

that discovery of the evidence by lawful means was inevitable.

State v. Holland, 176 N.J. 344, 361-62 (2003). The doctrine is

based on the recognition that:

            the exclusionary rule [is] not served by
            excluding   evidence   that,  but  for   the
            misconduct, the police inevitably would have
            discovered. If the evidence would have been
            obtained lawfully and properly without the
            misconduct, exclusion of the evidence would
            put the prosecution in a worse position than
            if no illegality had transpired.

            [State v. Sugar, 100 N.J. 214, 237 (1985).]




6
   We note the Miller's brief states: "Mr. Miller's person was
searched, and CDS and cash were recovered from his pants pocket
during the execution of the search warrant."

                                    22                            A-0748-16T2
    In order to invoke the inevitable discovery doctrine, the

State must prove by clear and convincing evidence that:

           (1) proper, normal and specific investigatory
           procedures would have been pursued in order
           to complete the investigation of the case; (2)
           under   all  of   the   surrounding   relevant
           circumstances the pursuit of those procedures
           would   have  inevitably   resulted   in   the
           discovery of the evidence; and (3) the
           discovery of the evidence through the use of
           such procedures would have occurred wholly
           independently of the discovery of such
           evidence by unlawful means.

           [Id. at 238 (citing Wayne R. LaFave, Search
           and Seizure § 11.4 at 624 (1978)).]

    Guided by these principles, we conclude the judge properly

applied the inevitable discovery doctrine's three-prong test and

found the State met its burden.            See ibid.; State v. Maltese, 222

N.J. 525, 552 (2015).

    Miller was not a guest; he resided in the Apartment.                          The

recovery of cocaine, a plate and a razor with cocaine residue,

digital scales, and packaging materials from common areas of the

Apartment,     in    conjunction        with   the    facts      revealed   by    the

investigation       preceding    the    execution     of   the    search    warrant,

provided     probable    cause     to     arrest     Miller.        Therefore,      an

independent, valid basis existed to conduct a search incident to

arrest before the protective search was conducted.                    See State v.

O'Neal, 190 N.J. 601, 614-15 (2007); State in re R.M., 408 N.J.


                                         23                                  A-0748-16T2
Super. 304, 311 (App. Div. 2009).       To be sure, there was abundant

probable cause to arrest Miller based on the results of the search

of the Apartment even if the protective search did not reveal

heroin and cocaine in his pockets.        A search incident to arrest

would have followed.    Thus, even assuming the protective search

was invalid, the heroin and cocaine seized from Miller's pockets

would be admissible under the inevitable discovery doctrine since

it would have been discovered by a lawful search incident to

arrest.    See Maltese, 222 N.J. at 551-52.

     We discern no abuse of discretion by the trial court in

denying defendant's motion to suppress without an evidentiary

hearing.    The judge's factual findings and legal conclusions are

amply supported by the record.

                                 III.

     Finally, we address Miller's argument that he should be

resentenced because the trial court erred by applying aggravating

factors five and eleven. The State concedes the trial court should

not have applied these factors.

     Aggravating and mitigating factors are used to determine the

length of imprisonment within the applicable statutory range for

the offense in question.    See State v. Case, 220 N.J. 49, 64-65

(2014); State v. Fuentes, 217 N.J. 57, 72-73 (2014).      An appellate

court may remand for resentencing where the trial court "considers

                                 24                            A-0748-16T2
an   aggravating   factor   that   is    inappropriate   to    a     particular

defendant or to the offense at issue."           Fuentes, 217 N.J. at 70

(citing State v. Pineda, 119 N.J. 621, 628 (1990)).

      After   considering    the   presentence     investigation        report,

Miller's extensive prior history, and the offenses to which he

pled guilty, the judge found aggravating factors three, five, six,

nine, and eleven.      She found no mitigating factors, and that the

aggravating    factors   substantially     outweighed    the    non-existent

mitigating factors.      On appeal, defendant does not argue the trial

court erred by not finding any mitigating factors.

      A person convicted of possession of CDS with intent to

distribute, who has previously been convicted of distributing or

possessing CDS with intent to distribute, shall be sentenced to

an extended term.        N.J.S.A. 2C:43-6(f).        The judge sentenced

defendant to a seven-year term, subject to a thirty-six-month

period   of   parole   ineligibility,     in   accordance     with    the   plea

agreement.    The sentencing range for the extended term was five

to ten years, N.J.S.A. 2C:43-7(a)(4), subject to a minimum period

of parole ineligibility "fixed at, or between, one-third and one-

half of the sentence imposed by the court or three years, whichever

is greater," N.J.S.A. 2C:43-6(f).

      Because the court determines the length of the extended term

and the period of parole ineligibility based on its assessment of

                                    25                                  A-0748-16T2
the aggravating and mitigating factors, eliminating aggravating

factors   five   and   eleven    from     consideration         could   potentially

reduce the length of the prison term and the period of parole

ineligibility.     Consequently, we are constrained to vacate the

sentence on count six of Indictment No. 14-10-1166, and remand for

resentencing consistent with this opinion.

     Similarly, the consideration of aggravating factors five and

eleven potentially affected the imposition of a five-year NERA

term on the robbery count, rather than the four-year NERA term

sought by defendant.      Accordingly, we likewise remand count two

of Indictment No. 15-01-0070 for resentencing.

                                        IV.

     In summary, we affirm the denial of the motion to suppress

without   an   evidentiary      hearing       or   a   Franks    hearing   and   the

convictions on both counts.         We vacate the sentences and remand

for resentencing on both counts.              We express no opinion as to the

appropriate sentences on either count.7


7
  Sentencing Miller to a four-year NERA term on the robbery count
can only occur if he is sentenced one degree lower as a third-
degree offense based on a finding by the trial court that it is
"clearly convinced that the mitigating factors substantially
outweigh the aggravating factors and where the interest of justice
demands."   N.J.S.A. 2C:44-1(f)(2).    "The reasons justifying a
downgrade must be 'compelling,' and something in addition to and
separate from, the mitigating factors that substantially outweigh
the aggravating factors." State v. Megargel, 143 N.J. 484, 505
(1996).

                                        26                                  A-0748-16T2
    Affirmed in part and vacated and remanded in part.   We do not

retain jurisdiction.




                              27                           A-0748-16T2
