                        NOT FOR PUBLICATION WITHOUT THE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-5305-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JUARY BRITO, a/k/a HOWARD V. AYLLON,
JUARY L. BRITO, JUARY M. BRITO,
EDDIE LIME, and EDDIE M. LIME

     Defendant-Appellant.
_____________________________________

              Submitted June 7, 2018 – Decided July 17, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              11-10-1032.

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

              Ann M. Luvera, Acting Union County Prosecutor,
              attorney for respondent (Meredith L. Balo,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.
PER CURIAM

     After a Law Division judge denied defendant Juary Brito's

motion to suppress evidence obtained through a Communications Data

Warrant (CDW), he pled guilty to three criminal offenses, charged

in   separate     indictments,     including        first-degree      aggravated

manslaughter,     N.J.S.A.     2C:11-4(a).1         That   charge    arose   from

defendant fatally shooting his victim during a robbery on March

20, 2011.     The judge sentenced defendant pursuant to his plea

agreement    to   twenty-two    years   on    the   aggravated      manslaughter

charge, a concurrent eighteen months on a fourth-degree offense,


1
   In October 2011, a Union County Grand Jury returned Indictment
No. 11-10-1032, charging defendant with first-degree murder,
N.J.S.A. 2C:11-3(a)(1) and/or (2) (count one); first-degree
robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3) (count three); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); and
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count five). Count one was later amended to
aggravated manslaughter, and defendant conditionally pled guilty
to that charge preserving his right to challenge the denial of his
suppression motion.

In February 2013, another Union County Grand Jury returned
Indictment No. 13-02-0189, charging defendant with one count of
fourth-degree throwing bodily fluid at a law enforcement officer,
N.J.S.A. 2C:12-13. And, under Indictment No. 13-02-1901, charged
defendant with second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) (count one); fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d) (count two); third-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count
three); and fourth-degree tampering with evidence, N.J.S.A. 2C:28-
6(1) (count four).



                                        2                                A-5305-15T1
and a concurrent seven years on a second-degree charge, even though

the judge had earlier agreed to limit his exposure to five years

on that charge.

     On appeal, defendant challenges the judge's decision on the

suppression motion without a Franks2 hearing and his sentences.

For the reasons that follow, we affirm his convictions, finding

no error in the denial of a Franks hearing, and reject defendant's

challenge   to    his   sentences,       except   for   the   second-degree

aggravated assault, which we remand for resentencing.

     The facts derived from the suppression motion's record are

summarized as follows.       On March 20, 2011, Elizabeth police

officers responded to a call from a motel at approximately 1:30

a.m. Following the sound of a woman calling for help, the officers

entered a room where they found a man, later identified as Julio

Duarte, lying on the floor, displaying a gunshot wound in his

abdomen.3   Also located in the room were three individuals the




2
   Franks v. Delaware, 438 U.S. 154 (1978). "The primary purpose
of the hearing [is] to determine whether the police made material
misrepresentations and/or omissions in seeking . . . warrants from
a Superior Court judge and, if so, whether the evidence gathered
from those defective warrants needed to be suppressed." State v.
Smith, 212 N.J. 365, 413 (2012).
3
   Duarte was later taken to a hospital where he was pronounced
dead as a result of shots to his abdomen and chest.

                                     3                              A-5305-15T1
police identified as Cassandra Perez, N.D., and a man called

"Francisco."

     As part of their ensuing investigation, police obtained sworn

statements from the three individuals.   Their statements confirmed

that before police arrived, a black male, who was in the room with

them, ordered Duarte and Francisco onto the ground and robbed them

at gunpoint.    Duarte, however, refused to comply and physically

struggled with the perpetrator.    During the struggle, the man shot

Duarte twice.    After Duarte fell, the gunman took Duarte's and

Francisco's money, wallets, and cell phones, as well as Perez's

cellphone, but failed in his attempt to take N.D.'s cellphone.

Afterward, the shooter ran away.

     According to N.D., she recognized the shooter and knew he was

from the Ironbound section of Newark, but she did not know his

name.   She only knew him as "Doodle."   N.D. explained that the man

had a tattoo on his arm bearing the word "doodle" and that one of

the o's was in the shape of a Playboy bunny.    N.D. also had a cell

number for Doodle, which she gave to the police.       The officers

attempted to secure information about the subscriber to the phone

number, but the service provider had no individual subscriber

information.

     In order to locate the shooter, the officers conducted a

"ping" of Francisco's phone.   The phone was shown to be active in

                                  4                          A-5305-15T1
Newark, in the Ironbound.    However, at approximately 2:30 a.m.,

the phone was no longer detectable, as it had been turned off.

     The officers were later able to locate a taxi driver who

stated that he picked up an individual from the Ironbound section

of Newark and dropped the passenger off at the motel where Duarte

was shot.   According to the driver, after he dropped off the man,

he could not locate his own GPS device and believed the passenger

had taken it from him.      The driver gave a description of the

passenger that matched the one given by the witnesses in the motel

room.

     The officers arranged for N.D. to call Doodle on the number

she had and they recorded call.   When he did not answer, N.D. left

messages and shortly thereafter Doodle returned her call.       N.D.

told Doodle that Duarte died from his wounds and she inquired as

to Doodle's location.    Doodle did not respond and instead ended

the call.    He called back later, but refused to give N.D. any

information and made it clear he did not want to discuss the matter

over the phone.

     Based on N.D.'s success in contacting Doodle, Detective Kevin

Grimmer, of the Union County Prosecutor's Office (UCPO), believed

that locating the cell phone Doodle called from would assist the

police in locating and identifying Duarte's killer.   The detective

applied for an emergent CDW for a pen register device or trap and

                                  5                         A-5305-15T1
trace   device    with   caller     identification      for    the   cell     phone

associated with the number.         During the call with the judge, the

detective testified to the events leading up to their search for

defendant, and stated that during N.D.'s call with Doodle, he

threatened   to   kill   her   if    she   spoke   to   police.       The     judge

considered the detective's sworn testimony over the phone and

granted the telephonic application.

     Based on the results of information obtained through the CDW,

detectives were able to narrow Doodle's location to a four or

five-square block area in Newark.           Detectives from the UCPO took

N.D. to the area to give her an opportunity to identify Doodle.

When she saw him, N.D. pointed him out to the detectives.                        The

police secured and detained the individual who was later identified

as defendant.

     Detectives then applied telephonically for an investigative

detention order and a search warrant to detain defendant and obtain

buccal swabs, fingerprints and similar identifying exemplars from

him to compare to evidence found at the scene.                A different judge

considered and granted the application.                 After obtaining the

identifying information and matching it to the evidence from the

scene, defendant was arrested and charged with killing Duarte and

other related crimes.



                                       6                                    A-5305-15T1
      Defendant filed a motion to suppress the "GPS" identification

information secured by the police that led to them locating him

and the resulting evidence they obtained from him.           In support of

his motion, defendant argued that police failed to establish any

exigency to warrant an emergent telephonic application and that

the   facts   presented   to   the   court   were   false.   According    to

defendant, had the State been required to make a non-emergent

application, the court would have had an opportunity to make

credibility findings about the information provided by N.D., which

according to defendant was fabricated, as proven by her status as

a prostitute and being under the influence of crack cocaine when

she provided the information.        Defendant contended that the judge

should have conducted a Franks hearing to determine whether the

information provided by N.D. to the police was false.

      After considering counsel's and defendant's written and oral

arguments,4 the first judge, who had issued the CDW, denied the

motion, setting forth his reasons in a January 5, 2015 written



4
  On May 2, 2014, the parties initially appeared before the judge
to argue defendant's motion. At that time, counsel argued that
defendant's privacy rights had been violated and that a warrant
was required to have N.D.'s call with defendant intercepted. After
considering counsel's argument, the judge denied defendant's
motion. Defendant, however, was dissatisfied with his counsel's
argument, so the judge allowed him to submit a pro se brief, and
later argue pro se and through counsel on November 12, 2014. The
judge denied defendant's motion again on January 5, 2015.

                                      7                            A-5305-15T1
statement of reasons.       In his decision, he cited to Franks and

explained that its holding required "that a defendant, in order

to obtain an evidentiary hearing as to allegations of false

statements    contained    in   the   affidavit,   must   point   out   with

specificity and supporting reasons the portion of the warrant

affidavit claimed to be false[,]" and concluded that defendant had

not met his burden.       The judge found that even assuming N.D. was

a prostitute and under the influence, neither status compelled a

finding that the information she provided was false.              The judge

concluded by stating:

            Defendant does not provide any supporting
            reasons as to why [N.D.'s] statement was a
            fabrication; he points to no discrepancies in
            her statement, nor does he provide any
            evidence that would contradict her. Finally,
            even if an in-person application had been made
            in this case, the application would have been
            with Detective Grimmer as the affiant.     Ms.
            [N.D.] would not have been a witness during
            this application.    As such, [d]efendant has
            neither    presented     sufficient    reasons
            entitling him to an evidentiary hearing, nor
            has he made any argument that supports his
            claim that there should be a preference for
            [an] in-person application.

       The judge continued by citing to State v. Pena-Flores, 198

N.J.    6   (2009),   analyzing       and   then   rejecting   defendant's

contentions that there had to be a showing of exigency under the

circumstances for the warrant to have been issued telephonically.

He concluded, in any event, that an exigency existed as the

                                       8                            A-5305-15T1
application was made on a Sunday when court was not in session.

Finally, the judge similarly rejected defendant's contention that

Grimmer "fabricated receiving authorization for the consensual

interception of" N.D.'s conversation with defendant, finding that

there is no requirement for a warrant for consensual interceptions.

     On February 29, 2016, defendant pled guilty to one count of

aggravated manslaughter as charged in Indictment No. 11-10-1032,

as amended.   Pursuant to the plea agreement, the State agreed to

recommend a sentence not to exceed twenty-seven and one-half years,

subject to a No Early Release Act's (NERA), N.J.S.A. 2C:43-7.2,

eighty-five percent parole disqualifier.          As set forth in the

agreement, the judge stated he would limit defendant's sentence

to no more than twenty-two and one-half years, with the same parole

disqualifier, or defendant could withdraw his plea.

     Defendant   also   pled   guilty   to    second-degree   aggravated

assault, N.J.S.A. 2C:12-1(b)(1), under Indictment No. 13-02-1901,

subject to a similar arrangement.            Here, the State agreed to

recommend a sentence of seven and one-half years, with a NERA

parole disqualifier, concurrent to the sentence imposed under

Indictment No. 11-10-1032.     The judge agreed that he would limit

defendant's exposure to a concurrent term of no more than five

years, subject to the same parole disqualifier.



                                   9                             A-5305-15T1
    Defendant also pled guilty to fourth-degree throwing bodily

fluid at a law enforcement officer, N.J.S.A. 2C:12-13, under

Indictment No. 13-02-0189.           The State recommended eighteen months

in prison, concurrent to defendant's other sentences.                     There was

no supplemental agreement with the judge.

    At    defendant's    sentencing          on   April    22,    2016,   the    judge

sentenced defendant under Indictment No. 11-10-1032 (aggravated

manslaughter) to twenty-two years, subject to a NERA period of

parole    ineligibility,        a     concurrent         eighteen    months      under

Indictment No. 13-02-0189, but then sentenced defendant to a

concurrent     seven   years,       subject    to    a   NERA    period   of    parole

ineligibility, under Indictment No. 13-02-1901, instead of the

five years stated in the plea agreement.

    The judge entered judgments of convictions, which were later

amended   to   correct   defendant's          date   of    birth.     This      appeal

followed.

    On appeal, defendant argues the following:

                  POINT I

                  THE     TRIAL   COURT    COMMITTED
                  REVERSIBLE ERROR IN DENYING MR.
                  BRITO A HEARING PURSUANT TO FRANKS
                  v. DELAWARE.    (PARTIALLY RAISED
                  BELOW).




                                        10                                     A-5305-15T1
               POINT II

               THE MATTER SHOULD BE REMANDED FOR
               RESENTENCING   BECAUSE THE  COURT
               FAILED TO ADEQUATELY EXPLAIN THE
               SENTENCE IMPOSED.

     In a pro se supplemental brief, defendant also contends the

following:

               POINT I

               THE    TRIAL     COURT    COMMITTED
               REVERSIBLE    ERROR    IN   DENYING
               DEFENDANT A HEARING PURSUANT TO
               FRANKS v. DELAWARE.

     We begin our review by addressing defendant's argument that

he was entitled to a Franks hearing before the judge determined

whether to issue the CDW being challenged.   He contends that the

detective's statement to the judge that Doodle threatened to kill

N.D., which did not appear in the transcript of the call, and N.D.

being a prostitute and under the influence of drugs, warranted the

trial judge ordering a Franks hearing.   We disagree.

     We review the court's decision regarding the need for an

evidentiary hearing for an abuse of discretion.   See United States

v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006); cf. State v.

Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009) (reviewing

for abuse of discretion the judge's ruling denying discovery for

purposes of a Franks hearing), aff'd, 201 N.J. 229 (2010).         We



                               11                           A-5305-15T1
conclude from our review that the judge correctly determined a

Franks hearing was not required.

      As our Supreme Court has held:

            Our jurisprudence does not countenance the
            securing of a warrant through duplicitous
            means. For that reason, a warrant is invalid
            (1) if a police officer makes "material
            misstatements in a search warrant affidavit"
            with knowledge of the falsity of those
            statements or with reckless disregard for the
            truth and (2) if excision of the untruthful
            statements would leave the affidavit without
            probable cause for the issuance of the
            warrant. Smith, 212 N.J. at 420-21 (citations
            omitted).

      Under Franks, a defendant is entitled to an evidentiary

hearing to contest the veracity of a warrant affidavit, "where the

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[.]"           438 U.S. at 155-56; accord

State v. Howery, 80 N.J. 563, 566-68 (1979).          The requirement for

a hearing also "appl[ies] where the allegations are that the

affidavit, though facially accurate, omits material facts."             State

v. Stelzner, 257 N.J. Super. 219, 235 (App. Div. 1992).

      In making a "substantial preliminary showing[,]" a defendant

"must allege 'deliberate falsehood or reckless disregard for the


                                      12                              A-5305-15T1
truth,' pointing out with specificity the portions of the warrant

that are claimed to be untrue."           Howery, 80 N.J. at 567.           These

allegations should be supported by affidavits or other reliable

statements; "[a]llegations of negligence or innocent mistake are

insufficient."       Broom-Smith, 406 N.J. Super. at 241 (quoting

Franks, 438 U.S. at 171).        Finally, a defendant must show that

absent these misstatements, the search warrant lacks "sufficient

[facts] to establish probable cause."            Howery, 80 N.J. at 568.

     The "substantial preliminary showing" requirement is designed

"to prevent the misuse of a veracity hearing for purposes of

discovery or obstruction."       Franks, 438 U.S. at 170.             Therefore,

a defendant's veracity challenge should not be focused on "picking

apart   minor   technical    problems     with    a   warrant   application;"

rather, it should address "warrants obtained through intentional

wrongdoing by law enforcement agents[.]"              Broom-Smith, 406 N.J.

Super. at 240.

     Applying    these     guiding   principles,      we   find      defendant's

contentions about his entitlement to a Franks hearing to be without

sufficient   merit    to   warrant   further     discussion     in    a   written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

expressed by the judge in his cogent written decision denying

defendant's motion to suppress.



                                     13                                   A-5305-15T1
     Addressing his sentence, defendant argues that the judge

failed    to    "articulate    [his]    basis     for    imposing     the   present

sentence."        At   sentencing,     the     judge    considered    defendant's

criminal history and the crimes to which he pled guilty, and

concluded that he was "clearly convinced" that aggravating factors

three, the defendant was likely to reoffend, N.J.S.A. 2C:44-

1(a)(3), six, the extent of defendant's criminal history and the

seriousness of the offenses to which he was pleading guilty,

N.J.S.A. 2C:44-1(a)(6), and nine, the need to deter defendant and

others    from    violating    the     law,    N.J.S.A.      2C:44-1(a)(9),       all

applied.

     The judge weighed the aggravating factors against mitigating

factors and specifically addressed mitigating factor four, that

there    were    substantial   grounds        tending   to   excuse    or   justify

defendant's      conduct   though      failing     to   establish     a     defense,

N.J.S.A. 2C:44-1(b)(4).         The judge addressed that factor in the

context of the argument being advanced that defendant suffered

from a "mental health condition", and found the factor to apply,

but concluded that the lone mitigating factor was outweighed by

the aggravating factors he found.

     We review a judge's sentencing decision under an abuse of

discretion standard.        State v. Fuentes, 217 N.J. 57, 70 (2014).

Applying that standard, we conclude that defendant's arguments

                                        14                                   A-5305-15T1
about his sentences for aggravated manslaughter and fourth degree

assault are without merit as we discern no clear abuse of the

judge's discretion.      See State v. Roth, 95 N.J. 334, 363 (1984).

Defendant    has    failed   to     establish       that   (1)   the    sentencing

guidelines   were    violated;      (2)    the   aggravating      and   mitigating

factors found were not based upon competent and credible evidence

in the record; or (3) "the application of the guidelines to the

facts . . . makes the sentence clearly unreasonable so as to shock

the judicial conscience."         Fuentes, 217 N.J. at 70 (quoting Roth,

95 N.J. at 364-65); see also State v. O'Donnell, 117 N.J. 210,

215-16 (1989).

     We   part     company   with    the    judge    however     with   regard    to

defendant's sentence for second-degree aggravated assault.                        As

both parties agree, the judge failed to either sentence defendant

to five years or allow him an opportunity to withdraw his plea,

as stipulated to in defendant's plea agreement.                  For that reason,

we are constrained to vacate his conviction as to the one charge

and remand the matter for resentencing to impose a five-year term,

or provide defendant with an opportunity to withdraw his plea as

to that charge.

     Affirmed in part; vacated and remanded in part.                    We do not

retain jurisdiction.



                                       15                                  A-5305-15T1
