STATE OF NEW JERSEY v. AARON G. WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

AARON G. WILLIAMS,

Defendant-Appellant/

Cross-Respondent.1

_______________________________

December 7, 2015

 

Submitted February 23, 2015 Decided

Before Judges Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-02-0287.

Law Offices of Jonathan F. Marshall, attorneys for appellant/cross-respondent (Keith G. Oliver and Jeff Thakker, on the briefs).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent/cross-appellant (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Aaron G. Williams appeals the denial of suppression of guns and ammunition seized during a search executed pursuant to a warrant. The State cross-appeals the imposition of a probationary sentence. We affirm.

I.

The following facts were elicited at the suppression hearing.

At approximately 12:30 a.m. on August 2, 2012, Fort Lee Police Officers Mark Radoian and Christina Blue were in a marked police cruiser conducting a "hotel/motel check" of the hotels on Route 4 in Fort Lee, including the Holiday Inn. Upon entering its parking lot, Radoian observed two vehicles parked in the fire lane in front of the doorway of the Holiday Inn under the porte-cochere.2 A Chevrolet Impala was parked to the officers' left, and another vehicle to their right.

Officer Radoian was unable to drive in between the two vehicles, so he began backing up. While reversing, Radoian observed a male exit the hotel, enter the driver's side of the Impala, and drive a short distance into a parking spot. Radoian pulled his cruiser directly behind the Impala. Its driver was Gary Workman, and defendant was in the front passenger seat.

As Officer Radoian was speaking with Workman, he "observed some blunt shavings . . . on [defendant's] lap." Radoian testified that a blunt was "a type of cigar, which is commonly used to smoke marijuana." Radoian also saw blunt cigars on the Impala's center console, and Christmas tree air fresheners hanging from its rear view mirror. Radoian also detected a strong odor of burnt marijuana.

Officer Radoian observed that Workman's hands were fumbling and that he seemed nervous. Workman told Radoian that they were coming from an uncle's house at a specific address in New York, but defendant refused to give a specific address or specific family member they had been visiting. Officer Blue issued summonses to Workman for parking in a fire lane, obstruction of the windshield, and failure to produce a vehicle registration. Officer Radoian asked for consent to search the vehicle and both Workman and defendant refused. The vehicle was impounded to await the approval of a search warrant. Detective Edward Young obtained a search warrant. The search found three handguns, at least one of which was loaded, two handgun magazines, and numerous bullets in bags in the trunk of the Impala.

The indictment charged defendant and Workman with three counts of second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1); and fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f). They filed a motion to suppress the evidence seized in the warranted search. At the suppression hearing, Officer Radoian and Detective Young testified for the State. Alan Bucsak, the General Manager of the Holiday Inn, testified on behalf of defendant. Judge Patrick J. Roma denied the motion to suppress.

Thereafter, defendant pled guilty to three counts of unlawful possession of a handgun without a permit.3 Pursuant to a plea agreement, the count involving the hollow-nose bullets was dismissed, and the prosecutor recommended a sentence of three years with one year of parole ineligibility.

Rejecting the recommended sentence in the plea agreement, Judge Liliana S. DeAvila-Silebi sentenced defendant to five years of probation. The State cross-appeals the April 15, 2014 judgment of conviction, and raises the following point

THE SENTENCING COURT IMPROPERLY SENTENCED DEFENDANT TO PROBATION.

 
 

 
 

Defendant appeals, and raises these points

I. THE INITIAL STOP OF THE IMPALA AROSE OUT OF MISTAKES OF LAW VIS- -VIS THE MUNICIPAL FIRE LANE ORDINANCE; SINCE THE INTIAL WARRANTLESS STOP OF THE VEHICLE WAS NOT OBJECTIVELY REASONABLE, ALL EVIDENCE ARISING OUT OF THAT STOP WAS THE FRUIT OF THE POISONOUS TREE. (Sub-Point "B" not raised below)

A. REGARDING WARRANTLESS SEARCHES.

B. MUNICIPAL FIRE LANE ORDINANCES ARE NOT TITLE 39-BASED TRAFFIC LAWS, AND VIOLATIONS ARE NOT CRIMINAL OR QUASI-CRIMINAL POLICE MATTERS BUT INSTEAD ARE CIVIL MATTERS SUBJECT TO FIRE BUREAU REGULATION; SINCE THE POLICE DID NOT HAVE PROBABLE CAUSE TO BELIEVE THAT A MOTOR VEHICLE STATUTE OR A QUASI-CRIMINAL ORDINANCE WAS BEING VIOLATED, THE WARRANTLESS MOTOR VEHICLE STOP WAS UNCONSTITUTIONAL REGARDLESS OF WHETHER THE IMPALA HAD BEEN IN A MUNICIPAL FIRE LANE. (Sub-Point not raised below)

C. EVEN IF THE POLICE COULD STOP A MOTOR VEHICLE TO ENFORCE A MUNICIPAL FIRE LANE ORDINANCE VIOLATION, THE AREA UNDER THE HOLIDAY INN'S PORTE COCHERE WAS NOT A "DESIGNATED" FIRE LANE UNDER THE PLAIN LANGUAGE OF THE ORDINANCE; THE STOP OF THE IMPALA AFTER IT HAD LEFT THE PORTE COCHERE WAS AN OBJECTIVELY UNREASONABLE MISTAKE OF LAW.

II. THE INITIAL SEARCH WARRANT WAS TAINTED BY AN APPLICATION FILLED WITH MISINFORMATION AND SUPPORTED BY "EVIDENCE" WHICH WAS ITSELF OBTAINED UNCONSTITUTIONALLY.

III. THE POLICE EXCEEDED THE SCOPE OF THEIR AUTHORITY UNDER THE WARRANT; JUDGE ROMA FOUND THAT THE POLICE DID NOT EVEN START SEARCHING THE IMPALA UNTIL AFTER THE TIME SET FORTH IN THE WARRANT, AND THEY SEIZED "EVIDENCE" WITHOUT AN OBJECTIVELY REASONABLE BASIS TO BELIEVE POSSESSION OF THE "EVIDENCE" WAS ILLEGAL.

A. THE POLICE GROSSLY VIOLATED THE TIME CONSTRAINTS ON WHICH THE WARRANT WAS TO BE SERVED; THE "FRUIT" OF THE INVALIDLY EXECUTED SEARCH WARRANT SHOULD BE SUPPRESSED.

B. THE POLICE DID NOT HAVE GROUNDS TO SEIZE THE "CONTRABAND."

IV. THE ORIGINAL WARRANT WAS VOIDED, AND THE SECOND WARRANT APPLICATION WAS VOID INASMUCH AS THE POLICE HAD NO PROBABLE CAUSE TO BELIEVE DRUGS WERE IN THE CAR AND THE SO-CALLED NEUTRAL MAGISTRATE WAS ASSISTING THE POLICE IN SUBMITTING A FALSE APPLICATION TO SEARCH FOR DRUGS WHEN THE POLICE AND THE MAGISTRATE KNEW OTHERWISE.

II.

Defendant challenges the suppression court's ruling that the officers could stop the Impala based on their reasonable belief there was a traffic infraction when the Impala was parked in a fire lane.

We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." Ibid. (internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original; internal quotation marks omitted). "Thus, appellate courts should reverse only when the trial court's determination is so clearly mistaken that the interests of justice demand intervention and correction." State v. Gamble, 218 N.J. 412, 425 (2014) (internal quotation marks omitted).

A.

Defendant argues that the stop of the Impala was impermissible because the vehicle was not parked in a fire lane. At the suppression hearing, both the State and defendant agreed that the controlling ordinance was the 1978 Fort Lee Ordinance No. 78-32. The 1978 ordinance provides that

(a) Whenever it is deemed necessary for the public safety, the Chief of the Bureau of Fire Prevention or the Chief Fire (Combustible) Inspector of the Borough of Fort Lee may require by written order the owner or owners of any . . . hotel or motel . . . to designate a fire zone in the driveways of the premises leading to and from parking areas, loading areas, public streets or rights of way leading to the above types of buildings or structures. Each such fire zone, also to be known as "Fire Lanes," shall be no less than 12 feet nor more than 24 feet in width and shall be striped and lettered in yellow on a paved surface. Such striping and lettering shall remain legible at all times. Metal fire zone signs, the lettering of same to be legible at all times with design and quality of same in accordance with applicable state law, shall be provided, erected and maintained by said owner or owners and placed at the discretion of the Chief of the Bureau of Fire Prevention or the Chief Fire (Combustible) Inspector.

(b) The marking of "Fire Lanes" on private property, devoted to public use, and the design, quality and lettering of the metal signs to be situated thereon, shall be approved by the Chief of the Bureau of Fire Prevention and the Chief of Police.

(c) No person shall, at anytime [sic], park a vehicle or in any other manner obstruct any driveway or other area that has been designated a fire zone as hereinabove provided.

(d) Notwithstanding the penalties hereinafter provided for violation of this ordinance, the Borough of Fort Lee shall be entitled to pursue any other remedy available at law or equity to enforce the provisions hereof. Any vehicle in violation of this ordinance shall be deemed a nuisance and menace to public health, safety and welfare, and any member of the Bureau of Fire Prevention or the Police Department of the Borough of Fort Lee may provide for the removal of such vehicle.

. . . .

(f) The Bureau of Fire Prevention and the Police Department of the Borough of Fort Lee shall have concurrent jurisdiction to enforce the provisions of this ordinance.

[Borough of Fort Lee Ordinance No. 78-32 (eff. Oct. 19, 1978) [hereinafter "1 978 Ord. No. 78-32"] (emphasis added).]4

The record indicates that the front driveway of the Holiday Inn has long been designated as a fire lane. Documents from 1990 show that the Day's Inn (later renamed the Holiday Inn) had "fire lanes designated on [its] property," and a "list of designated fire lanes" reported that the Day's Inn had fire lanes at its "front & side driveway." The January 1997 list of "Fort Lee Fire Prevention Bureau Authorized Fire Lanes" showed the Day's Inn continued to have fire lanes at its "front & side driveway." Finally, the February 2002 list of "Fort Lee Fire Prevention Bureau Authorized Fire Lanes" showed the Holiday Inn continued to have fire lanes located at the "front/side" of the premises.

Defendant argues that the 1978 ordinance distinguishes between fire lanes that are "designated" or "required" under subsection (a), and those that are merely "approved" under subsection (b) or "authorized" under the 1997 and 2002 lists. Defendant then argues that there was no basis for Radoian's stop of Workman's vehicle if it was parked in an "authorized" or "approved" fire lane. This interpretation of the ordinance is untenable.

"[S]tatutory interpretation involves examination of legal issues," therefore, we apply "a de novo standard of review." State in Interest of K.O., 217 N.J. 83, 91 (2014). We look "to the plain language of the statute in question," and "give words their ordinary meaning absent any direction from the Legislature to the contrary." In re Young, 202 N.J. 50, 63 (2010). "'If the plain language leads to a clear and unambiguous result, then [the] interpretive process is over.'" Ibid. (citation omitted; alteration in original). However, "[w]here the plain meaning does not point to a 'clear and unambiguous result,' the court then considers extrinsic evidence from which it may glean the Legislature's intent." Ibid. (citation omitted).

Reading the ordinance in its entirety leads us to the clear and unambiguous result that there is only one class of fire lanes. Subsection (a) of the 1978 ordinance provides the mechanism through which fire officials may "require" hotels and motels to "designate" fire lanes when "deemed necessary for the public safety." 1 978 Ord. No. 78-32(a). Subsection (c) provides that no person may park in such a "designated" fire lane. 1 978 Ord. No. 78-32(c). Finally, subsection (f) vests concurrent enforcement authority in Fort Lee's respective police and fire departments to enforce that prohibition. 1 978 Ord. No. 78-32(f). By contrast, subsection (b) merely states that the "markings" of those fire lanes shall be "approved." 1 978 Ord. No. 78-32(b). Thus, the plain language of the ordinance does not create differing classes of "designated" or "approved" fire lanes. Moreover, we have no reason to question that the 1997 and 2002 lists of "Fort Lee Fire Prevention Authorized Fire Lanes" list the "designated" fire lanes, just as the 1990 list did.

B.

On appeal, defendant argues for the first time that the 1978 ordinance is not a criminal or quasi-criminal offense that a police officer can enforce. Since defendant did not raise this issue at the suppression hearing, he has "'the burden of proving that the error was clear and obvious and that it affected his substantial rights.'" State v. Koskovich, 168 N.J. 448, 529 (2001) (citation omitted). Defendant has not made that showing.

Defendant cites N.J.S.A. 40A:14-53, which provides that "[t]he governing body of any municipality, by ordinance, may authorize the officials in charge of the paid or part-paid fire department and force to establish fire areas to regulate traffic and parking therein and provide penalties for violations." Defendant argues the statute only allows the Fort Lee Fire Department to enforce parking in fire lanes.

First, defendant misreads N.J.S.A. 40A:14-53. It permits municipalities to authorize fire department officials to establish fire zones and provide penalties. It does not prevent municipalities from authorizing police officials to enforce those fire zones and penalties.

Second, defendant misconstrues the municipality's authority to adopt ordinances. In State v. Dorman, 124 N.J. Super. 160, 161 (App. Div. 1973), a defendant found guilty of parking in a fire zone argued that the municipality lacked the power to pass a fire lane ordinance, without approval of the State. We found that the defendant's argument ignored "the clear mandate of N.J.S.A. 40A:14-53 . . . and N.J.S.A. 40:48-2.46, which grant to municipalities the authority to regulate traffic in parking yards and, in particular, to regulate traffic in fire areas. Under these provisions, municipal control is exclusive, and impliedly no approval from the State is necessary." Ibid.

Dorman referenced N.J.S.A. 40:48-2.46, which gives broad power to municipalities concerning the regulation of parking lots. N.J.S.A. 40:48-2.46 provides that

In addition to the powers conferred to a municipality under section 39:4-197 of the Revised Statutes concerning the adoption of ordinances for the regulation of entrances to and exits from parking yards, the governing body of every municipality may make, amend, repeal and enforce ordinances to regulate vehicular and pedestrian traffic and the parking of vehicles in parking yards and parking places, which are open to the public or to which the public is invited, whether maintained or operated separately or in conjunction with any business or enterprise. The municipality may: . . . d. take such other action as may reasonably be required to preserve and safeguard public health, safety, morals, and welfare.

Thus, N.J.S.A. 40:48-2.46 provided additional authority to the Borough of Fort Lee to adopt the 1978 ordinance to protect the public health, safety, morals, and welfare. Indeed, the 1978 ordinance explicitly provided that fire lanes may be designated when "deemed necessary for the public safety" and that violations of the ordinance are deemed a "nuisance and menace to public health, safety and welfare." 1 978 Ord. No. 78-32(a), (d).5

These statutes are broad enough to allow a municipality to adopt an ordinance authorizing its police department to enforce its fire lane ordinance. Here, the 1978 ordinance explicitly provided that "[t]he Bureau of Fire Prevention and the Police Department of the Borough of Fort Lee shall have concurrent jurisdiction to enforce the provisions of this ordinance." 1 978 Ord. No. 78-32(c). Thus, Officer Radoian had authority to enforce the 1978 ordinance.

Defendant nonetheless contends that the police cannot enforce the ordinance because violations of the ordinance are "civil" in nature. He notes that Title 39 regarding motor vehicle offenses does not apply to fire zones. Dorman, supra, 124 N.J. Super. at 161. Nonetheless, parking in fire zones, like "all parking and other traffic offenses," is handled by issuance of a traffic ticket, a plea of guilty or not guilty, and trial and sentencing in the Municipal Court. See, e.g., R. 7:2-1(f)(1), 7:2-4(d), 7:12-3.6 "Courts have characterized traffic offenses as quasi-criminal 'to satisfy the requirements of fundamental fairness and essential justice to the accused.'" State v. Widmaier, 157 N.J. 475, 494 (1999) (quoting Vickey v. Nessler, 230 N.J. Super. 141, 149 (1989)).

Thus, defendant has not shown that enforcement of the 1978 ordinance by the police was clear or obvious error.

C.

Defendant also argues that the area under the porte-cochere lacked markings required by the 1978 ordinance. As set forth above, the 1978 ordinance requires metal fire lane signs, and striping and lettering on the paved surface, to denote the area as a fire lane in which parking is prohibited. Here, the suppression court credited the testimony of Officer Radoian and Detective Young. "'Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.'" State v. Kuropchak, 221 N.J. 368, 382 (2015) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)).

Officer Radoian and Detective Young testified that the area under the porte-cochere was a commonly-known fire lane, and that the curbs were painted yellow to indicate the area was a fire lane. They testified that the pavement approximately forty-to-fifty feet ahead of the Impala was painted with the words "No Parking, Fire Lane," and that the dash-cam footage corroborated their testimony. They testified the same words were painted on the pavement immediately behind the Impala. Radoian conceded that the area surrounding the porte-cochere was missing the required metal signs indicating a fire lane, but he said that such signs may have been removed during construction on the hotel's fa ade. Young stated that additional markings on the pavement under the porte-cochere may have been removed during the course of the construction when the hotel "put pavers down." Nonetheless, Young testified that the porte-cochere is "zoned clearly no parking fire lane," and Radoian testified that parking was prohibited under the porte-cochere, and that he had written over 100 tickets for parking in that particular fire lane.7

Defendant proffered pictures taken approximately one year after the stop that depicted the porte-cochere and the surrounding area. All of the pictures showed that the curbs were painted yellow to denote a fire lane, and that approximately fifty feet ahead of the porte-cochere the pavement was painted with "No Parking, Fire Lane."

One picture proffered by defendant depicted a sign on the right side of the porte-cochere that stated "pick-up and drop-off only, no parking." Another sign on the left of the porte-cochere, stated "15 minute parking for guest registration on [sic] guest loading and unloading only." Bucsak testified that at the time of the stop he was "on vacation, so . . . [he didn't] know if" the "15 minute parking" sign was present because there was construction occurring at the hotel.8 Nonetheless, Bucsak testified that the pictures, taken one year later, accurately depicted how the porte-cochere looked on the night of the stop.

However, Radoian testified that he had conducted numerous "hotel/motel" checks of the Holiday Inn and did not believe the 15-minute parking sign was there at the time of the stop. The dash-cam footage from Radoian's police cruiser did not show either the "15-minute parking" sign or the "pick-up and drop-off only" sign.

The suppression court found that Bucsak's testimony did not "negate the testimony of Officer Radoian. His inability to recall if the 15 minute parking sign was present at the time, and if the area was zoned as a fire lane, cannot allow this Court to conclude that Officer Radoian's information was incorrect."

Thus, at the time of the stop, the fire lane passing under the porte-cochere was marked with some but apparently not all of the striping, lettering, and signs required by the 1978 ordinance. However, the absence of some markings does not negate Officer Radoian's reasonable and articulable suspicion that the Impala was parked in a fire lane. "'It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" Locurto, supra, 157 N.J. at 470 (citation omitted). "To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred." Ibid.

As set forth above, the 2002 list of Fort Lee Fire Prevention Bureau Authorized Fire Lanes showed that there was a fire lane on the front driveway of the Holiday Inn, as confirmed by the fire lane markings on the front driveway near the porte-cochere. Moreover, the suppression court credited Officer Radoian's testimony that the area was a commonly-known fire lane, that he had ticketed numerous drivers for fire lane violations there, and that he reasonably believed the area was a fire lane. Defendant has not shown the suppression court's findings were "'so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Robinson, 200 N.J. 1, 15 (2009) (citation omitted).

Moreover, subsection (c) of the 1978 ordinance, in prohibiting parking in "any driveway or other area designated as a fire zone," does not expressly make the full marking of the fire lane a prerequisite for a violation. Even assuming that the absence of some required markings would be a defense or otherwise preclude conviction at trial of the violation, that does not negate that Officer Radoian had reasonable suspicion to believe the Impala was parked in a fire lane. Whether the municipal court ultimately would find a violation is not determinative of whether Radoian was constitutionally permitted to stop the vehicle. Locurto, supra, 157 N.J. at 470.

Defendant cites State v. Puzio, 379 N.J. Super. 378, 383 (App. Div. 2005), which states "where an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop." In Puzio, an officer conducted a motor vehicle stop based on a mistaken interpretation of a traffic statute. Id. at 379. Here, there is no indication that Officer Radoian had a mistaken interpretation of the 1978 ordinance. Rather, the dispute is a factual one whether the fire lane was adequately marked on the date of the stop. Therefore, Puzio does not apply.

III.

Defendant next argues that the application for the search warrant prepared by Detective Young was factually incorrect, and that the suppression court should have conducted an evidentiary "Franks" hearing to determine the validity of the statements in the search warrant application. The suppression court rejected defendant's claims as raising minor technicalities which did not invalidate the warrant. We agree.

"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). To determine whether there was probable cause, we look only at the information within "'the four corners of the supporting affidavit.'" Id. at 26 (citation omitted). "It is well settled that a search executed pursuant to a warrant is presumed to be valid and that a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388 (2003) (citation omitted). "Accordingly, courts 'accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.'" State v. Keyes, 184 N.J. 541, 554 (2005) (citation omitted; alteration in original).

A defendant is not entitled to a "Franks hearing" unless he 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 v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978); accord State v. Howery, 80 N.J. 563, 566-68, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).

"Material omissions in the affidavit may also invalidate the warrant." State v. Marshall, 148 N.J. 89, 193 (1997). "[T]he defendant must make a substantial preliminary showing that the affiant, either deliberately or with reckless disregard for the truth, failed to apprise the issuing judge of material information which, had it been included in the affidavit, would have militated against issuance of the search warrant." State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987).

"The requirement of a substantial preliminary showing" is designed "to prevent the misuses of a veracity hearing for purposes of discovery[.]" Franks, supra, 438 U.S. at 170, 98 S. Ct. at 2684, 57 L. Ed. 2d at 681. The defendant's "'attack must be more than conclusory and must be supported by more than a mere desire to cross examine . . . . [The defendant's] allegations must be accompanied by an offer of proof . . . . Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.'" State v. Broom-Smith, 406 N.J. Super. 228, 240-41 (App. Div. 2009) (quoting Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682), aff'd, 201 N.J. 229 (2010). Thus, defendant's allegations "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." Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682.

A.

Defendant next argues Detective Young made material omissions because he did not include in his search warrant application that the fire lane ordinance was a "civil matter" enforced by the fire department and that the fire lane was not "designated." However, as stated above, defendant's claims are meritless.

Next, defendant insists Detective Young materially misrepresented that the fire lane was "clearly marked." As stated above, the area was marked as a fire lane, but may not have been marked with all of the striping, signs, and painting required by the 1978 ordinance. Nonetheless, defendant has made no showing that Detective Young was making a deliberate or reckless misstatement. Franks refused "to extend the rule of exclusion beyond instances of deliberate misstatements, and those of reckless disregard," and made clear it does not encompass "instances where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination." Franks, supra, 438 U.S. at 170, 98 S. Ct. at 2683, 57 L. Ed. 2d at 681. "[A] Franks hearing is not directed at picking apart minor technical problems with a warrant application; it is aimed at warrants obtained through intentional wrongdoing by law enforcement agents and requires a substantial preliminary showing." Broom-Smith, supra, 406 N.J. Super. at 240.

In any event, even if we set aside all the alleged inaccuracies in the application claimed by defendant, a Franks hearing was not required because "the affidavit's remaining content [would be] []sufficient to establish probable cause." Franks, supra, 438 U.S. at 155, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.

Independent of whether the Impala was parked in a fire lane, Defendant Young's application offered ample probable cause to support the search warrant for drugs. In particular, the application related that Officer Radoian detected the strong odor of burnt marijuana, observed several blunt cigars and blunt cigar shavings, and several "Christmas tree air fresheners" commonly used to mask the odor of marijuana. New Jersey courts have "repeatedly recognized that . . . the smell of burning marijuana establishes probable cause." State v. Myers, __ N.J. Super. __ (App. Div. 2015) (slip op. at 10) (quoting State v. Walker, 213 N.J. 281, 287-88 & n.1 (2013)). Thus, "'the smell of marijuana emanating from the automobile gave the officer probable cause to believe that it contained contraband.'" Ibid. (citation omitted).

"[A]n appellate court's role is not to determine anew whether there was probable cause for the issuance of the warrant, but rather, whether there is evidence to support the finding made by the warrant-issuing judge." Chippero, supra, 201 N.J. at 20-21. "Doubt as to the validity of the warrant 'should ordinarily be resolved by sustaining the search.'" Keyes, supra, 184 N.J. at 554 (citation omitted). Taken in totality, there was ample probable cause for the municipal court judge to determine that "'contraband or evidence of a crime'" would have been found in the vehicle. Chippero, supra, 201 N.J. at 28 (citation omitted).

B.

Defendant argues that Detective Young should have disclosed to the municipal court judge that Officer Radoian failed to give defendant and Workman their Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). However, "roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute 'custodial interrogation' that must be preceded by Miranda warnings." State v. Hickman, 335 N.J. Super. 623, 630 (App. Div. 2000) (quoting Berkemer v. McCarty, 468 U.S. 420, 435-42, 104 S. Ct. 3138, 3147-52, 82 L. Ed. 2d 317, 331-36 (1984)). Moreover, Detective Young merely related in his application that defendant and Workman gave "inconsistent statements," which was not essential to the application's showing of probable cause.

C.

Defendant argues that the search warrant was overbroad in that there was no probable cause that there was evidence of drug distribution in the Impala. Here, there was "a reasonable probability" that there was such evidence in the Impala based on Radoian's observations of the cigar shavings, multiple cigars, air fresheners, and the strong odor of burnt marijuana. In any event, such evidence was not seized. Defendant does not contest that the offiers had probable cause to search for evidence of drug possession.

"A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search." United States v. Ross, 456 U.S. 798, 820, 102 S. Ct. 2157, 2171, 72 L. Ed. 2d 572, 591 (1982). Thus, the officers were entitled to search the entire vehicle, including the trunk and the bags in the trunk, for such evidence, during which search they properly found the guns and ammunition defendant seeks to suppress.

D.

Defendant complains that some or all of the search warrant's execution occurred after the time period provided. Here, the search warrant issued at 12:52 p.m. on August 2 provided that police had between 1:00 p.m. and 3:00 p.m. to search the Impala. Detective Young testified that "as soon as the warrant" was signed by the municipal court judge he began the search of Workman's vehicle "immediately." Whether the search began during the prescribed two-hour window or at 3:15 p.m., as defendant argues, amounts to nothing more than a "technical error" that does not require the exclusion of incriminating evidence. State v. Bickham, 285 N.J. Super. 365, 368 (App. Div. 1995) (refusing to suppress where warrant was executed thirty-nine minutes too early), certif. denied, 143 N.J. 516 (1996).

Defendant also complains that a "clerical error" contained in Detective Young's first search warrant application resulted in "stale probable cause." Detective Young testified that after the search warrant was signed and executed, he noticed that a "clerical error" had been made in filling out the license plate number of the Impala. Young informed the municipal court judge who signed the warrant. The judge said the clerical error did not "change the facts of the search warrant," and advised Young to "fill out a supplemental report." Young completed a "supplemental report" and the municipal court judge voided the first warrant and signed a second warrant correcting the clerical error. Young testified that both search warrant applications were exactly the same "with the exception of" the clerical error.

We agree that the municipal court judge properly found that the clerical error was a technicality and the subsequently signed search warrant application was the appropriate correction. In State v. Bisaccia, 58 N.J. 586, 592 (1971), our Supreme Court found that an error recording the street number in a search warrant did not "taint the justice of the search." "It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended" to be searched. Ibid. (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925)). Here, there was no question the Impala in the impound lot was the one intended to be searched by Detective Young and other officers.

E.

Defendant also contends that because the search warrant was only for drugs that the officers could not seize the guns and ammunition without any reason to believe they "were in fact illegal." To the contrary, the police were justified in seizing the guns and ammunition under the "plain view doctrine." "When a search is conducted pursuant to a warrant issued in accordance with the probable-cause requirement of the Fourth Amendment, the officers executing the warrant may seize not only the [contraband] identified in the warrant but any other contraband [or other articles of incriminating character] observed in plain view." State v. Harris, 211 N.J. 566, 601-02 (2012); see Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 2037, 29 L. Ed. 2d 564, 582, reh'g denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971).

For the plain view doctrine to apply, three elements must be satisfied

"First, the police officer must be lawfully in the viewing area. Second, the officer has to discover the evidence 'inadvertently,' meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be 'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." Under the third requirement, "in order to seize evidence in plain view a police officer must have probable cause to associate the [item] with criminal activity."

[State v. Mann, 203 N.J. 328, 341 (2010) (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).]

Here, the police were lawfully in the viewing area because the search warrant allowed them to search the trunk. The police had no prior awareness of the existence of the guns and ammunition in the trunk. In addition, there was probable cause to believe that the guns were evidence of a crime or contraband because there was no indication that defendant or Workman had a New Jersey permit to carry the handguns as required by N.J.S.A. 2C:39-2(b).9 Moreover, possession of hollow-nose bullets in New Jersey is prohibited. N.J.S.A. 2C:39-3(f)(1); see also State v. Waters, 439 N.J. Super. 215, 230 n.5 (App. Div. 2015). Therefore, "the seizure of the loaded gun[s] from the [trunk] was proper under the 'plain view' doctrine." State v. Mai, 202 N.J. 12, 25 (2010).

Defendant notes that there are exceptions to the permit requirement, but the hypothetical applicability of an exception does not deprive the officers of probable cause. See Locurto, supra, 157 N.J. at 470. In any event, there was no indication that the firearms were being transported between defendant's home, his residence, or place where the firearms were purchased, without unnecessary deviations. N.J.S.A. 2C:39-6(e), (g). Nor was there any indication that defendant was traveling between states in which he could lawfully possess the firearm as required by 18 U.S.C.A. 926 A. 10

In addition, "New Jersey denotes 'firearms which are unlawfully possessed, carried, acquired or used' as 'prima facie contraband,' N.J.S.A. 2C:64-1(a)(1), but treats them as 'per se' contraband." In re Two Seized Firearms, 127 N.J. 84, 89-90, cert. denied, 506 U.S. 823, 113 S. Ct. 75, 121 L. Ed. 2d 40 (1992). Thus, the seizure of the handguns and ammunition was proper and Judge Roma properly denied suppression.

IV.

The State cross-appeals defendant's five-year probationary sentence. Defendant's conviction of N.J.S.A. 2C:39-5(b) would normally carry a three-year mandatory minimum sentence under N.J.S.A. 2C:43-6(c). However, in the plea colloquy, the parties agreed that the State would "recommend" a sentence of three years in prison with only one year of parole ineligibility under N.J.S.A. 2C:43-6.2. At the plea hearing, Judge DeAvila-Silebi asked if defendant understood that "he will be incarcerated for at least one year period of time," and defendant responded "[y]es."

At sentencing, the State reiterated its "recommendation" and "ask[ed] that [the court] go along with that negotiated plea agreement." After considering the mitigating and aggravating factors, the sentencing court imposed five years of probation.

N.J.S.A. 2C:43-6.2 provides that

[o]n a motion by the prosecutor made to the assignment judge that the imposition of a mandatory minimum term of imprisonment under [N.J.S.A. 2C:43-6(c)] for a defendant who has not previously been convicted of an offense under that subsection . . . does not serve the interests of justice, the assignment judge shall place the defendant on probation pursuant to [N.J.S.A. 2C:43-2(b)(2)] or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole.[11]

In State v. Nance, 442 N.J. Super. 268 (App. Div. 2015) (slip op. at 8), we recently held that N.J.S.A. 2C:43-6.2 "vests discretion with the sentencing judge to impose either a one-year minimum term of parole ineligibility or probation conditioned on a custodial term upon the motion for a waiver or after a prosecutor approved referral." Ibid. This "escape valve statute does not expressly or implicitly limit the sentencing judge's ability to sentence a defendant to a lesser sentence provided for under the plea agreement." Id. at 9. "Therefore, to the extent the State argues the sentencing judge was specifically bound by the plea agreement's terms, we disagree." Id. at 8. Accordingly, we reject defendant's argument.12

Affirmed.

1 Although the State filed its notice of appeal first, our clerk's office designated defendant as the appellant and the State as the cross-appellant for purposes of the briefing schedule. See State v. A.L., 440 N.J. Super. 400, 412 (App. Div. 2015).

2 "Porte-cochere" refers to the "awning" or porch roof extending from the entrance to the hotel over the front driveway.

3 Workman pled guilty to counts one, two, and three. He has not appealed.

4 On appeal, the State provided a version of Fort Lee's Fire Prevention Code, as amended on October 3, 2014. The language of subsections (a) through (f) of the 1978 ordinance is largely replicated in the 2014 ordinance. Because the 2014 version was not in force at the time of the stop, we will refer only to the 1978 ordinance.

5 We further note that under the "police power statute," "[a]ny municipality may make, amend, repeal and enforce such other ordinances . . . as it may deem necessary and proper for . . . the preservation of the public health, safety, and welfare of the municipality[.]" N.J.S.A. 40:48-2.

6 The State cites section 216-21 of the 2014 Fort Lee Municipal Code, which provides that violators of, among other things, the fire lane ordinance, "shall, upon conviction of each and every such violation" be "punished" by a fine "or by imprisonment not exceeding 90 days, or both."

7 Bucsak testified that he never got complaints from hotel patrons for receiving tickets for parking in the fire lane under the porte-cochere.

8 Bucsak also testified that he had purchased the signs and informed the fire department of his intention to install them and that he received approval. However, Bucsak could not recall the fire department official's name, nor could he produce documentation indicating approval for the signs.

9 During the plea colloquy, defendant admitted to possessing the handguns in New Jersey without the proper permits.

10 Defendant asserts that he and Workman were from Ohio, and that the firearms and hollow-nose bullets are legal there. However, defendant provided no proof that he was permitted to carry the guns and ammunition in Ohio. See Waters, supra, 439 N.J. Super. at 229. In any event, defendant has not asserted that he or Workman could legally possess the firearms or hollow-nose bullets in New York, where they were allegedly traveling. See id. at 231 (citing N.Y. Penal Law 265.01(1) (Consol. 2014)).

11 N.J.S.A. 2C:43-2(b)(2) states that a defendant may be sentenced to probation, and if convicted of a crime, "may" be sentenced to imprisonment "not exceeding 364 days."

12 There is no indication that the plea agreement here was a "'contract plea.'" Nance, supra, 442 N.J. Super. at 9.