STATE OF NEW JERSEY v. CARLOS A. ESCOBAR

NOT FOR PUBLICATION WITHOUT THE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-0727-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CARLOS A. ESCOBAR, a/k/a
CARLOS ALBEIRO ESCOBAR
SANABRIA,

     Defendant-Appellant.
_____________________________

                   Submitted February 4, 2019 – Decided February 11, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Morris County, Indictment No. 16-02-0148.

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

                   Fredric M. Knapp, Morris County Prosecutor, attorney
                   for respondent (Paula C. Jordao, Assistant Prosecutor,
                   on the briefs).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

      This is a direct appeal pursuant to Rule 3:5-7 of a trial court's denial of a

suppression motion following the entry of a guilty plea. We affirm.

      Appellant Carlos A. Escobar was one of numerous individuals identified

as suspects during an investigation into the drug distribution network of a man

named J.S.1     Narcotics investigators gathered evidence by court-approved

wiretaps and through the use of an undercover investigator. The undercover

investigator made numerous purchases of cocaine from J.S. The investigation

revealed that J.S. and other individuals, including Escobar, were involved in the

narcotics distribution activities.

      The wiretaps intercepted numerous drug-related conversations between

Escobar and J.S., in which Escobar placed orders for cocaine. Surveillance also

revealed several meetings between Escobar and J.S.          Also, the intercepted

wiretap conversations included certain "code words," which the undercover

officer himself used successfully in making the purchases from J.S.

      The police applied for a search warrant to search an apartment where

Escobar was believed to reside with his girlfriend.



1
  We use initials for J.S. in light of the possible continued confidentiality of
materials in the Confidential Appendix.
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      Judge Stuart Minkowitz granted the search warrant. The police executed

the warrant at the premises. They found no cocaine but found four pounds of

marijuana in a suitcase, and $1,850 in cash. Escobar was arrested outside of the

residence, and a search of his person turned up another $1,080 in cash.

      The State charged Escobar in a six-count indictment with five narcotics-

related offenses, including second-degree conspiracy to possess cocaine with

intent to distribute it, and second-degree endangering the welfare of a child.

      Escobar moved to suppress the fruits of the search. His motion was denied

by Judge Stephen J. Taylor in a comprehensive written decision issued on May

8, 2017. Judge Taylor concluded that the search warrant affidavit satisfied the

elements of probable cause. He found that the State had made enough of a

showing to discern probable cause to believe that Escobar had been involved in

drug activity and there was reason to believe those drugs would be found at his

usual place of residence.

      After the suppression motion was denied, Escobar's trial counsel

negotiated a plea agreement with the State, in which Escobar pled guilty to third-

degree possession of marijuana with intent to distribute it,  N.J.S.A. 2C:35-

5(a)(1), -5(b)(11). The State applied for and was granted its request for the




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                                        3
imposition of an extended-term sentence under  N.J.S.A. 2C:43-6(f), in light of

Escobar's prior criminal record.

        The court imposed a five-year prison sentence with a three-year parole

disqualifier. The remaining counts of the indictment were dismissed. Escobar

than moved for admission to the Drug Court program, which was denied. 2

        On appeal, defendant makes the following arguments in his brief:

                THE EVIDENCE SEIZED PURSUANT TO THE
                WARRANT MUST BE SUPPRESSED BECAUSE
                THE WARRANT APPLICATION LACKED THE
                REQUISITE SHOWING OF PROBABLE CAUSE.
                U.S. CONST., AMENDS. IV, IX; N.J. CONST. (1947),
                ART. 1, PAR. 7

                A. The Warrant Application Failed To Allege Facts
                Sufficient To Support the Crimes Alleged.

                B. The Warrant Application Failed to Demonstrate
                Probable Cause That the Defendant Was Engaged in
                Criminal Activity.

        In addition, defendant makes the following arguments in a supplemental

pro se brief:

                POINT I

                TRIAL COURT ERRED WHEN IT FAILED TO
                SUPPRESS THE SEARCH WARRANT THAT
                FAILED TO ESTABLISH PROBABLE CAUSE


2
    The Drug Court denial is not an issue raised on appeal.
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                                         4
              THAT DRUGS WOULD BE FOUND THERE OR
              THAT APPELLANT LIVED THEREIN.

              POINT II

              TRIAL COURT FAILED TO ENTERTAIN THE
              APPELLANT'S MITIGATING FACTORS AND/OR
              APPLY THE APPROPRIATE SENTENCING
              PURSUANT TO SAID MITIGATING FACTORS
              WHICH PREJUDICED THE APPELLATE AND
              CONSTITUTED AN EXCESSIVE HARDSHIP
              SENTENCE APPELLANTS SENTENCE MUST BE
              REMANDED FOR RESENTENCING.

      Having duly considered these arguments, we affirm the suppression ruling

substantially based on the well-reasoned analysis of Judge Taylor in his lengthy

written opinion. The record demonstrates that the State's warrant application

was based on adequate facts indicating Escobar's involvement in criminal

activity. Defendant failed to surmount his "burden of proof to establish a lack

of probable cause 'or that the search was otherwise unreasonable.'" State v.

Boone,  232 N.J. 417, 427 (2017). The supporting affidavit indicated more than

a single agreement to buy or sell drugs and instead supported a drug conspiracy

utilizing code words. As such, the warrant application did not violate the

"simple agreement" tenets of State v. Roldan,  314 N.J. Super. 173, 182 (App.

Div. 1998).




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                                       5
      We also reject Escobar's pro se argument contesting his sentence. The

record adequately supported the finding of aggravating factor three (the risk of

re-offense),  N.J.S.A. 2C:44-1(a)(3), as well as two other aggravating factors.

Given Escobar's multiple prior offenses, including two drug offenses, the

sentence imposed consistent with his plea agreement does not shock the judicial

conscience. State v. Bieniek,  200 N.J. 601, 607-08 (2010).

      All other arguments, to the extent we have not already addressed them,

lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

      Affirmed.




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