STATE OF NEW JERSEY v. VINCENT LABEGA

NOT FOR PUBLICATION WITHOUT THE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-1747-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

VINCENT LABEGA, a/k/a
VINCENT K. LABEGA,

        Defendant-Appellant.


              Submitted January 9, 2018 – Decided January 31, 2018

              Before Judges Carroll and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              13-12-1530.

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

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (David M. Liston,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Following denial of his motion to suppress evidence seized

pursuant to a search warrant, defendant Vincent Labega pled guilty

to third-degree possession with intent to distribute cocaine,


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

sentenced to five years of special Drug Court probation, and the

remaining charges were dismissed pursuant to a plea agreement.

The sole issue on appeal is whether the judge erred in denying

defendant's motion to suppress.        We affirm.

     On September 12, 2013, Judge Alberto Rivas issued a warrant

to search the main floor of a house at XXX West Avenue1 in the

Sewaren section of Woodbridge Township.       The judge simultaneously

issued a second warrant to search the person of Jason Labega who,

according to the warrant, resided at that address.

     The search warrants were supported by the sworn twenty-page

affidavit of Woodbridge Police Department (WPD) Detective Patrick

J. Harris.    In his affidavit, Harris averred that he received

information from two concerned citizens stating they observed an

African-American male operating a red 2005 Honda Accord who was

engaged in drug activity, including hand-to-hand exchanges, in the

Sewaren section of Woodbridge Township.         The concerned citizens




1
   We use a fictitious street address to protect the privacy of
the owners and occupants of the multi-family dwelling.

                                   2                           A-1747-15T3
identified Jason Labega as the individual driving the car who was

involved in the drug activity.

     During the week of September 1, 2013, a confidential informant

(CI) participated in a controlled drug transaction, which Harris

described in his affidavit as follows:

           [The CI] was kept under constant surveillance
           by [Patrolman] Bonilla and I and followed to
           a predetermined location that was arrange[d]
           by Jason Labega. [Detective/Sergeant] Murphy
           observed Jason Labega exit his residence which
           is located at [XXX] West Avenue[,] Sewaren[,]
           and meet with the [CI]. Jason Labega and the
           [CI] exchanged the [WPD] buy money for a
           quantity of crack cocaine. Shortly after the
           exchange, both parties went their separate
           ways.

The evidence was transported to WPD headquarters "where it tested

positive for the presumptive presence of cocaine."

     The CI participated in a second controlled drug transaction

with defendant during the week of September 8, 2013.            On this

occasion, the police observed the CI arrive at the West Avenue

residence, and then exit minutes later with a substance that again

tested positive for cocaine.

     In    his   affidavit,   Harris     detailed   his   training   and

experience, Jason Labega's significant criminal history, and the

portion of the house the police sought permission to search.

Harris    further   represented   that    through   his   training   and

experience he learned it was common for individuals who distribute

                                   3                            A-1747-15T3
controlled    dangerous   substances    to   secrete    the   narcotics     in

various areas of their residence.

      When police went to the West Avenue home to execute the search

warrants,    Harris   immediately   realized    the    individual    he   had

"observed on the surveillances and the controlled purchase[s]" was

not Jason Labega but rather his brother, defendant Vincent Labega,

who resided there.     Consequently, Harris only executed the search

warrant for the home, and not for the person of Jason Labega.             The

home was searched, and a quantity of cocaine was discovered and

seized.      Defendant was arrested and searched incident to his

arrest.

      Defendant moved for a hearing pursuant to Franks v. Delaware,


438 U.S. 154 (1978), to support his motion to invalidate the search

warrant and suppress the evidence seized from his residence.2               He

argued the Harris affidavit contained several false or misleading

statements that were material to Judge Rivas's authorization of

the   warrant.    Specifically,     defendant   contended     that    Harris

falsely represented that Jason Labega, rather than defendant:

resided at XXX West Avenue; owned and operated the 2005 Honda

Accord; and participated in the controlled drug transactions.




2
    Defendant also moved to disclose the identity of the C.I.
Defendant does not challenge the denial of that motion on appeal.

                                    4                                A-1747-15T3
      Judge Rivas granted defendant's request for a Franks hearing

and   conducted    an   evidentiary      hearing   on    October    15,     2014.

Detective Harris was the sole witness to testify. Harris explained

that when he first received the complaint about drug activity in

the Sewaren section of Woodbridge Township he was only "given a

general description of the . . . male, and a vehicle that he was

said to be operating."         Harris conducted surveillance and obtained

a license plate number for the 2005 Honda Accord, which "came back

to a Fern Labega" at an address on Lewis Street in Perth Amboy.

Harris then learned the car was "seen at [XXX] West Avenue in

Sewaren,   not    far   from    where   the   original   drug    activity      was

observed."

      Harris testified he conducted additional surveillance and saw

the car parked at XXX West Avenue on multiple occasions.                   Harris

eventually established a relationship with an informant, whom he

had not previously used in the past.           The CI told Harris the male

was selling crack cocaine "either at the house or the male would

drive that Honda Accord and meet him."

      Harris checked Motor Vehicle Commission (MVC) records and

"found that there was a Jason Labega with the same address" as

Fern Labega on Lewis Street in Perth Amboy.              Harris showed Jason

Labega's MVC photograph to the CI, who identified the person

pictured as the man he was purchasing drugs from.               The CI did not

                                        5                                 A-1747-15T3
know the drug dealer as either Jason or Vincent, but rather by a

different name that was not disclosed to protect the CI's identity.

      Harris testified he conducted additional surveillance during

the CI's two controlled drug purchases from defendant.       Harris

personally observed defendant come out of the West Avenue home and

meet with the CI. On cross-examination, Harris clarified: "Vincent

Labega was observed exiting the house and going directly to the

[CI], meeting with the [CI] and then going their separate ways."

      It was only when Harris executed the search warrants that he

realized defendant was not Jason Labega, and it was defendant and

not Jason who lived in the West Avenue home.    Referring to Jason

Labega's MVC photograph, Harris explained that he and defendant

"look very much alike.    They're only like, two years apart and

[have] very similar features."

      Judge Rivas denied defendant's motion to suppress on March

3, 2015.   His written decision explained:

           Applying the totality of the circumstances
           test set forth in Gates3/Novembrino4, this
           [c]ourt . . . finds that there existed a fair
           probability that contraband and evidence of a
           crime would be found at [XXX] West Ave. The
           information supplied by [Detective] Harris was
           accurate in nearly all aspects, aside from the
           misnaming of the Labega [b]rothers: Vincent
           Labega was seen operating his 2
005 Honda
 3
    Illinois v. Gates, 
462 U.S. 213 (1983).
4
    State v. Novembrino, 
105 N.J. 95 (1987).

                                 6                          A-1747-15T3
           Accord by two citizens that reported the
           activity to the police and the police
           conducted   two   controlled  buys   at   his
           residence, [XXX] West Ave., before submitting
           the affidavit.

           This   [c]ourt   finds  that   the   affidavit
           presented to the [c]ourt was sufficient for
           the issuance of the warrant.      Further, it
           finds that [Detective] Harris was credible
           while giving testimony to the [c]ourt, and
           that the confusion of naming the Labega
           brothers was neither inherently improbable nor
           untrustworthy.

       On appeal, defendant argues:

           THE AFFIDAVIT DID NOT PROVIDE PROBABLE CAUSE
           TO SEARCH THE DEFENDANT'S HOME BECAUSE THE
           VERACITY AND BASIS OF KNOWLEDGE OF THE
           ANONYMOUS INFORMANT UPON WHICH THE AFFIDAVIT
           RELIED WAS NOT ESTABLISHED, AND THERE WAS NO
           NEXUS BETWEEN DEFENDANT'S CONDUCT AND THE
           RESIDENCE. THEREFORE, THE TRIAL COURT ERRED
           IN DENYING THE MOTION TO SUPPRESS.

Specifically, defendant contends Harris's affidavit was fatally

flawed because it was based on information received from a first-

time    informant   that   was   unreliable,   inaccurate,   and   not

corroborated by Harris.     Defendant further asserts that, even if

the affidavit established probable cause to search defendant's

person, there is no basis to infer that defendant was distributing

drugs from the West Avenue residence.          We do not find these

arguments persuasive.

       Our Supreme Court has recently reaffirmed the principles by

which our review is governed:

                                   7                          A-1747-15T3
     An appellate court reviewing a motion to
suppress evidence in a criminal case must
uphold the factual findings underlying the
trial court's decision, provided that those
findings are "supported by sufficient credible
evidence in the record."     State v. Scriven,

226 N.J. 20, 40 (2016).        The suppression
motion judge's findings should be overturned
"only if they are so clearly mistaken 'that
the interests of justice demand intervention
and correction.'" State v. Elders, 
192 N.J. 224, 244 (2007) (quoting State v. Johnson, 
42 N.J. 146, 162 (1964)).     However, we owe no
deference to conclusions of law made by lower
courts in suppression decisions, which we
instead review de novo. State v. Watts, 
223 N.J. 503, 516 (2015).

     . . . .

     The application for a warrant must
satisfy the issuing authority "that there is
probable cause to believe that a crime has
been committed, or is being committed, at a
specific location or that evidence of a crime
is at the place sought to be searched." State
v. Jones, 
179 N.J. 377, 388 (2004) . . .
(quoting State v. Sullivan, 
169 N.J. 204, 210
(2001)). . . .

     A search that is executed pursuant to a
warrant is "presumptively valid," and a
defendant challenging the issuance of that
warrant has the burden of proof to establish
a lack of probable cause "or that the search
was otherwise unreasonable." Watts, 
223 N.J.
at 513-14 (quoting State v. Keyes, 
184 N.J. 541, 554 (2005)).    Reviewing courts "accord
substantial deference to the discretionary
determination resulting in the issuance of the
[search] warrant."    Jones, 
179 N.J. at 388
(quoting Sullivan, 
169 N.J. at 211 (alteration
in original)). Courts consider the "totality
of the circumstances" and should sustain the
validity of a search only if the finding of

                      8                          A-1747-15T3
          probable cause relies on adequate facts.        Id.
          at 388-89.

          [State v. Boone, ___ N.J. ___, ___ (2017)
          (slip op. at 9-11).]

     Where a warrant affidavit relies on a tip provided by an

informant,   we   consider   the   totality   of   the   circumstances,

including the informant's prior demonstrated veracity and whether

the informant had a "basis of knowledge for the information

provided to the police . . . ."        Sullivan, 
169 N.J. at 213.      We

also consider whether the police were able to corroborate the

informant's information.      A previous controlled buy using the

informant is a factor that supports a finding of probable cause.

See Jones, 
179 N.J. at 392 (citing Sullivan, 
169 N.J. at 215-16).

In Keyes, our Supreme Court opined:

          [R]elevant corroborating facts may include a
          controlled drug buy performed on the basis of
          the tip, positive test results of the drugs
          obtained, records confirming the informant's
          description of the target location, the
          suspect's criminal history, and the experience
          of the officer who submitted the supporting
          affidavit.   Although no corroborating fact,
          by itself, conclusively establishes probable
          cause, a successful "controlled buy 'typically
          will be persuasive evidence in establishing
          probable cause.'"    Indeed, when the police
          have performed a successful controlled drug
          buy we have found that "even one additional
          circumstance might suffice, in the totality
          of the circumstances, to demonstrate probable
          cause."



                                   9                            A-1747-15T3
            [
184 N.J.      541,    556-57    (2005)     (citations
            omitted).]

       In this case, we find no basis to second-guess Judge Rivas's

decision to issue the warrant to search the home at XXX West Avenue

or to sustain the validity of that warrant.                    It is true, as

defendant points out, that the CI was assisting the police for the

first time in this case.        Nonetheless, the CI participated in two

controlled buys that took place either at or close to the West

Avenue house.      These transactions were conducted under police

surveillance, and the police observations of defendant's movements

from the house immediately prior to the drug sales not only

corroborated the CI's information and reliability, but also gave

rise to the reasonable inference that defendant was engaged in the

sale of illegal drugs and that there was contraband in the home.

       Contrary to defendant's contention, even if no drug sales

were   observed   inside    or    immediately    outside       of   defendant's

residence, that would not defeat the existence of probable cause.

That   concept    does   not    require     certainty    but    only   "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)

(quoting United States v. Jones, 
994 F.2d 1051, 1056 (3d Cir.

1993)); see also State v. Jones, 
308 N.J. Super. 15, 28 (App. Div.

1998).    For instance, in State v. Myers, 
357 N.J. Super. 32, 39-


                                     10                                 A-1747-15T3
40 (App. Div. 2003), we found that police officers had sufficient

probable cause that drug evidence would be found at the defendant's

residence because on the same day the officers observed drug

transactions at a nearby location, they observed the defendant

leaving his residence and giving a brick of suspected heroin to

one of the dealers at the nearby location, and police found drugs,

a weapon, and ammunition at the nearby location.

     We conclude there was probable cause to issue the search

warrant and sufficient credible evidence in the record to support

the denial of defendant's motion to suppress.

     Affirmed.




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