STATE OF NEW JERSEY v. JOHN J. JIMENEZ

NOT FOR PUBLICATION WITHOUT THE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-4964-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN J. JIMENEZ,

     Defendant-Appellant.
______________________________

                    Submitted January 23, 2019 – Decided February 1, 2019

                    Before Judges Fisher and Hoffman.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 16-09-
                    1488.

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

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (James C. Brady,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant pleaded guilty to second-degree conspiracy to unlawfully

possess a handgun,  N.J.S.A. 2C:5-2(a)(1);  N.J.S.A. 2C:39-5(b)(1), and was

sentenced as a third-degree offender to a five-year probationary term. He now

appeals the denial of his suppression motion, arguing he was erroneously

deprived of an evidentiary hearing as required by Franks v. Delaware,  438 U.S. 154 (1978).

      The search that was the subject of defendant's suppression motion was

authorized by a warrant. Defendant contends he was entitled to challenge the

veracity of the warrant affidavit at a Franks hearing because the affidavit only

disclosed information about drug activities and failed to disclose that police also

conducted surveillance because of a police officer's loss of a service weapon a

few days earlier.   Franks held that to obtain a hearing for the purpose of

challenging the veracity of a warrant affidavit, a defendant must overcome the

presumption of validity, id. at 171, not by referencing "minor technical

problems," see State v. Broom-Smith,  406 N.J. Super. 228, 240 (App. Div.

2009), but by "mak[ing] 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," Franks,  438 U.S.  at 155-56.

Defendant's argument is not that something in the affidavit is false to the degree


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described in Franks but that the affidavit left out other information he believes

relevant.

      That is, defendant did not argue to the trial court that the facts recounted

in the issuing affidavit – standing alone – were subject to challenge, only that

the affiant omitted facts about the lost-weapon investigation. He claimed, in

essence, a right to challenge the affiant's credibility through the elucidation of

those things the affiant left out of the affidavit. We agree this argument was

insubstantial and that defendant failed to adequately explain or support his

contention that facts about the lost-weapon investigation would undermine those

facts included in the warrant affidavit.

      We find no merit in defendant's argument and affirm substantially for the

reasons contained in Judge Michael A. Toto's thoughtful and comprehensive

written decision.

      Affirmed.




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