STATE OF NEW JERSEY v. ALVI M. GHAZNAVI

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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1034-19T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ALVI M. GHAZNAVI,

     Defendant-Appellant,
________________________

                    Argued September 21, 2020 – Decided November 24, 2020

                    Before Judges Rothstadt, Mayer, and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 19-02-0196.

                    Kevin G. Roe argued the cause for appellant.

                    Mark Musella, Bergen County Prosecutor, argued the
                    cause for respondent (Edward F. Ray, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM

          Defendant, Alvi H. Ghaznavi, appeals from his conviction after pleading

guilty to first-degree maintenance of a controlled dangerous substance (CDS)
production facility. He challenges the denial of his motion to suppress evidence

without a hearing and the denial of his motion for a Franks hearing.1 He also

challenges the twelve-year state prison sentence imposed in accordance with his

negotiated plea agreement. After reviewing the record in light of the applicable

principles of law, we reject defendant's contentions and affirm the conviction

and sentence.

                                     I.

        In September 2018, defendant was arrested at his home after accepting a

"controlled delivery" of a package containing CDS. His home was searched

pursuant to an anticipatory search warrant that became effective upon

acceptance of the package. The search revealed a substantial quantity of CDS

and materials used to manufacture and distribute CDS. In February 2019,

defendant was charged by indictment with (1) first-degree maintaining a CDS

production facility,  N.J.S.A. 2C:35-4; (2) second-degree manufacturing or

possession of CDS with intent to distribute,  N.J.S.A. 2C:35-5(a)(1) and 2C:35-

5(b)(10)(b); (3) fourth-degree possession of CDS,  N.J.S.A. 2C:35-10(a)(3); (4)

fourth-degree distribution of drug paraphernalia,  N.J.S.A. 2C:36-3; (5) second-

degree financial facilitation of criminal activity (money laundering), N.J.S.A.


1
    Franks v. Delaware,  483 U.S. 154 (1978).
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                                          2
2C:21-25(a); and (6) second-degree endangering the welfare of a child,  N.J.S.A.

2C:24-4(a).

       Defendant moved to suppress the evidence seized in the search of his

home, contending that the anticipatory search warrant was the fruit of an

unlawful search of another package that had been conducted months earlier by

the United States Postal Service (USPS). After hearing oral argument, the trial

court denied defendant's motion to suppress without an evidentiary hearing,

ruling that defendant did not have standing to challenge the package search that

had been conducted by the USPS. The trial court also denied defendant's request

for a Franks hearing to challenge the affidavit in support of the anticipatory

search warrant.

       In June 2019, defendant pled guilty to maintaining a CDS production

facility.   In exchange for defendant's guilty plea, the prosecutor agreed to

dismiss the remaining five counts of the indictment. The prosecutor also agreed

to recommend a twelve-year prison sentence with a three-year period of parole

ineligibility. The plea agreement allowed defendant to argue for a shorter term

of imprisonment. In October 2019, defendant was sentenced in accordance with

the plea agreement to twelve years in prison with a three-year term of parole

ineligibility.


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                                       3
      Defendant raises the following issues for our consideration:

      I.     DEFENDANT     HAD AUTOMATIC   STANDING   TO
             CHALLENGE THE WARRANTLESS SEARCH OF THE MAY
             2018 PACKAGE.

      II.    DEFENDANT WAS ENTITLED TO A FRANKS HEARING
             BASED UPON THE PURPOSEFUL AND/OR RECKLESS
             OMISSIONS IN DETECTIVE PAOLOZZI'S WARRANT
             AFFIDAVIT.

      III.   THE ATTENUATION DOCTRINE DID NOT APPLY IN THIS
             CASE.

      IV.    THE CUSTODIAL TERM IMPOSED ON DEFENDANT WAS
             EXCESSIVE.
                                     II.

      We first address defendant's contention that the anticipatory search

warrant was the poisoned fruit of the warrantless package search conducted by

USPS. The trial court ruled that defendant did not have standing to challenge

that warrantless search. The court further ruled that even if defendant had

standing, the subsequent search of his home pursuant to the anticipatory warrant

was too attenuated from the primary illegality of the USPS package search to

invoke the exclusionary rule. We agree with the trial court on both grounds for

denying defendant's suppression motion.

      The USPS had been investigating suspicions that postal employees in

northern New Jersey were targeting parcels that might contain narcotics and re-

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                                           4
routing those packages to addresses within their control. In May 2018, the USPS

opened a thirty-seven pound parcel (May package) that was in transit from Los

Angeles to New Jersey. The USPS discovered eight and one-half pounds of

marijuana concealed in a stereo speaker.     It is not clear on the limited record

before us why the USPS opened this package without first obtaining a warrant. 2

      The May package was mailed from Los Angeles to an address in

Bergenfield but was "over labeled" to be delivered to an address in Harrison.

The package was not initially addressed to defendant or his residence in

Paramus. Nor was it re-routed to him or his residence.

      Defendant claims he was tracking the May package. The prosecutor

contends that the record does not support defendant's assertion. We are mindful

that the State bears the burden of showing that a defendant does not have

standing. See State v. Randolph,  228 N.J. 566, 582 (2017) (noting "the State

bears the burden of showing that defendant has no proprietary, possessory, or



2
 The State maintains the package had been damaged in transit and that the USPS
opened it for that reason. For purposes of resolving the search and seizure issues
defendant raises on appeal, we assume that the warrantless search leading to the
discovery of the marijuana in the stereo speaker was unlawful. We note that if
defendant had standing to challenge the warrantless inspection of the May
package, the State would be free at the ensuing suppression hearing to argue that
the USPS did not violate the Fourth Amendment when it opened the package
and discovered the marijuana.
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                                        5
participatory interest in either the place searched or the property seized") (citing

State v. Brown,  216 N.J. 508, 528 (2014)). We also acknowledge that by virtue

of the trial court's standing ruling, defendant did not have an opportunity to

present evidence at a plenary suppression hearing. We therefore assume, for

purposes of this appeal, that defendant was tracking the May package on the

USPS website although the parcel was not addressed to him or his residence.

      Postal inspectors determined that an individual who was tracking the May

package was tracking several other parcels sent from Los Angeles to New Jersey

that weighed between twenty and fifty pounds. Postal inspectors also identified

several New Jersey addresses to which similar packages were sent, including

defendant's residence in Paramus.        They determined that from March to

September 2018, fifteen parcels sent from California weighing between sixteen

and forty-two pounds were delivered to defendant's address.

      In August 2018, a postal inspector advised a detective in the Bergen

County Prosecutor's Office (BCPO) Narcotics Task Force that the USPS had

opened the May package and found a substantial quantity of marijuana inside.

On September 19, 2018, the USPS intercepted a twenty-one-pound parcel




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                                         6
addressed to defendant's wife at their shared Paramus residence. 3 The package

was examined by a narcotics detection canine, which alerted to the presence of

CDS.

       The BCPO Task Force arranged a controlled delivery of the parcel to

defendant's residence and obtained an anticipatory search warrant of the home. 4

The application for the anticipatory warrant included information that was

provided to the BCPO Task Force by postal inspectors and the positive alert by

the drug detection canine. The warrant directed that it be executed only upon

successful delivery of the parcel. Defendant accepted delivery, whereupon he

was arrested and a search of the residence was conducted pursuant to the

warrant.




3
  Defendant's wife was charged as a co-defendant and joined in defendant's
motion to suppress. She is not a party to this appeal.
4
  See State v. Ulrich,  265 N.J. Super. 569, 574–76 (App. Div. 1993) (explaining
procedures for seeking and executing an anticipatory search warrant, which does
not take effect unless a specifically described event occurs).
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                                       7
                                       A.
                                    Standing
      The New Jersey Supreme Court has long since parted company with

federal standing precedents, relying on independent state constitutional grounds

to confer standing in situations where defendants charged in federal court would

be foreclosed from challenging a search or seizure. State v. Alston,  88 N.J. 211,

218–30 (1981). While our standing rule is unquestionably broad, there

nonetheless are limits on when a defendant can bring a motion to suppress

evidence as a fruit of unlawful police conduct. See State v. Bruns,  172 N.J. 40,

59 (2002) (noting "[a]though we recognize that in most cases in which the police

seize evidence implicating a defendant in a crime that defendant will be able to

establish an interest in the property seized or place searched, our broad standing

rule necessarily has limits").

      Under our State Constitution, "a criminal defendant has standing to move

to suppress evidence from a claimed unreasonable search or seizure 'if he has a

proprietary, possessory, or participatory interest in either the place searched or

the property seized.'" State v. Johnson,  193 N.J. 528, 541 (2008) (quoting

Alston,  88 N.J. at 228). It is clear here that defendant did not have a possessory

or proprietary interest in the May package. Because he is not charged with

constructive possession of the marijuana found in the May package, he does not

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                                        8
have "automatic" standing to challenge the warrantless search of that parcel by

the USPS. See Randolph,  228 N.J. at 585 (2017) (reaffirming that unless

property was abandoned, defendant was a trespasser, or has been evicted from

premises, a defendant has automatic standing to challenge a search if charged

with illegal possession of anything seized during the search).              Rather,

defendant's standing argument hinges on whether he has a "participatory"

interest in the May package.

      In State v. Mollica,  114 N.J. 329 (1989), the Court explained what

constitutes a participatory interest in a place or item for purposes of establishing

standing to file a motion to suppress. Co-defendants Mollica and Ferrone were

charged with gambling offenses after state police discovered bookmaking

paraphernalia in their separate hotel rooms. The probable cause for the warrants

to search their rooms was based in part on an analysis of hotel telephone records

of calls to and from Ferrone's hotel room. Law enforcement obtained the

telephone connection records from the hotel without a warrant. The trial court

ruled that the telephone billing records were obtained unlawfully. Mollica

argued the search warrant for his hotel room was thus the poisoned fruit of the

unlawfully obtained telephone records. Mollica,  114 N.J. at 335-36.




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                                         9
      The State argued that Mollica did not have standing to object to the seizure

of telephone records pertaining to calls placed from Ferrone's room.              In

rejecting the State's argument, the Court emphasized that a participatory interest

"stresses the relationship of the evidence to the underlying criminal activity and

defendant's own criminal role in the generation and use of such evidence." Id.

at 339. As the Court explained, our State Constitution confers standing on a

person who "had some culpable role, whether as a principal, conspirator, or

accomplice, in a criminal activity that itself generated the evidence." Id. at 339–

40.

      The State charged Mollica with participating in illegal bookmaking

activities that included the use of the telephone in Ferrone's hotel room. Those

illegal activities were thus connected to the telephone records in question. The

telephone in Ferrone's hotel room, in other words, was used in furtherance of an

unlawful gambling enterprise of which Mollica was a charged participant. Id.

at 339-40. The Court concluded, "[t]here is thus sufficient connection between

the telephone toll records and the underlying criminal gambling for which this

defendant is charged, and a sufficient relationship between the defendant and

the gambling enterprise, to establish a participatory interest on the part of

defendant in this evidence." Ibid.


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                                       10
      As the Supreme Court noted in Bruns, the Mollica Court "emphasized the

relationship between the evidence seized and the underlying criminal activity

with which the defendant was charged, as well as the extent to which a co -

defendant played a role in generating and using that evidence." Bruns,  172 N.J.

at 40. In the case before us, defendant is not alleged to have played a culpable

role in generating or using the May package. Defendant did not send that

package. It was not initially addressed to him or his residence. Nor was it re-

routed to defendant or his residence.

      We deem it especially significant that defendant is not charged with

conspiring with or aiding and abetting the person who sent the May package, the

person to whom it was addressed, or the person who re-routed it.           Those

individuals are not co-defendants.      Thus, defendant, unlike Mollica, is not

charged with being a participant in an enterprise that generated the evidence that

was unlawfully seized.

      We acknowledge that tracking a package suggests some interest in its

delivery status. But we deem it to be more important that defendant is not being

held criminally responsible for the May package.          Nor is he being held

criminally responsible for the interstate drug trafficking operation that mailed

the package from California, or any criminal enterprise that re -routed the


                                                                          A-1034-19T1
                                        11
package while in transit. In these circumstances, we are not prepared to hold

that tracking a package automatically establishes a sufficient nexus to confer

standing.

      We find further support for this conclusion in the Supreme Court's

decision in Bruns. In that case, police stopped a vehicle for speeding and

arrested the driver, Edwards, when they discovered she had an outstanding

warrant for failure to appear in court. The police unlawfully conducted a

warrantless search of her vehicle, revealing a knife and a toy gun. Bruns was

not a passenger in the vehicle and was not in the vicinity when it was stopped

and searched. The knife and toy gun later were linked to an armed robbery that

occurred a week before the traffic stop. Bruns and a passenger in Edwards's car

at the time it was stopped, Evans, were both implicated in the robbery. Bruns,

 172 N.J. at 57.

      Bruns argued he had standing to suppress the fruits of the unlawful car

search, "point[ing] to the relationship between the weapons seized from

Edwards' car and the crime with which he was charged." Ibid. In rejecting that

argument, the Court explained:

            Accepting that generalized connection, however, we
            are unpersuaded that the connection is adequate to
            confer standing based on a participatory interest. That
            evidence implicates a defendant in a crime is not, in and

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                                      12
            of itself, sufficient to confer standing. There also must
            be at a minimum some contemporary connection
            between the defendant and the place searched or the
            items seized.

            [Id. at 57–58.]

      The Court emphasized that the robbery occurred seven days before the

items were found, concluding the circumstances thus were attenuated. Id. at 58.

The Court reasoned that where "substantial time passes between the crime and

the seizure of evidence, and a proprietary connection between defendant and the

evidence no longer exists, the defendant's basis for being aggrieved by the search

will have diminished." Id. at 59. See also State v. Curry,  109 N.J. 1, 10 (1987)

(noting the nexus between the property seized and individual defendants may

become so attenuated as to eliminate standing). 5 The Court added:

            In addition to the temporal aspects of a specific search
            or seizure, a showing that the search was not directed
            at the defendant or at someone who is connected to the
            crime for which he has been charged also will diminish
            a defendant's interest in the property searched or seized.

            [ 172 N.J. at 58.]



5
  We note the concept of attenuation as applied in the context of standing is
analytically distinct from the "attenuation doctrine" that we discuss in section
II(B), infra. The attenuation doctrine is an exception to the "fruit of the
poisonous tree" principle that generally defines the scope of the exclusionary
rule.
                                                                          A-1034-19T1
                                       13
      In the case before us, the relationship between defendant and the May

package is significantly more attenuated than the nexus between Bruns and the

evidence found in the unlawful car search. Here, there was never a "proprietary

connection between defendant and the evidence" that defendant seeks to

suppress. Ibid. In Bruns, the robbery occurred seven days before the motor

vehicle stop and ensuing search. The May package was opened four months

before the BCPO applied for an anticipatory warrant to search defendant's

residence. In Bruns, the State intended to use the illegally seized knife and toy

gun as evidence at the robbery trial alleging that the defendants acted in concert.

Nothing in the record before us suggests the marijuana found in the stereo

speaker would have been introduced against defendant if he elected to go to trial.

We emphasize again that unlike Mollica and Bruns, Ghaznavi was not charged

with being part of a criminal enterprise that generated the evidence at issue .

      Defendant, moreover, has not shown any "contemporary connection" with

the May package, as was shown in Bruns.  172 N.J. at 58. Similarly, the search

of the May package was not "directed at []defendant or at someone who is

connected to the crime for which he has been charged." Id. at 59. Considering

all of these circumstances, we conclude that defendant's interest in the May

package, premised solely upon his alleged tracking on the USPS website, is at


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                                       14
most a "generalized connection."       Bruns,  172 N.J. at 57.       As such, it is

insufficient in and of itself to confer standing based on a participatory interest.

      Finally, with respect to standing, we have considered whether the

prosecutor unwittingly acknowledged a nexus between defendant and the May

package by including information about it in the affidavit supporting the

anticipatory search warrant. Arguably, by including information about the May

package in the supporting affidavit, the prosecutor essentially took the position

that the marijuana concealed in the stereo speaker is relevant to whether there

was probable cause to search defendant's home, thereby linking the May package

to defendant's suspected criminal activities. 6

      Our standing jurisprudence has taken a different path from that taken by

the United States Supreme Court in part because we do not permit a prosecutor

to take conflicting positions with respect to a defendant's privacy interests in

seized property. See Johnson,  193 N.J. at 543. In Johnson, the Supreme Court



6
  From our reading of the search warrant application, we conclude that the
information about the May package was provided as general background to
explain the USPS's investigation of numerous suspicious packages, rather than
as proof that defendant or his house was directly linked to the May package. As
we explain in section II(B), infra, the information in the search warrant
application relating to the May package was not needed to establish probable
cause to search defendant's home, given the positive drug detection canine alert
to the parcel that defendant accepted in the course of the controlled delivery.
                                                                            A-1034-19T1
                                        15
noted that New Jersey has eschewed the United States Supreme Court's rejection

of the "automatic standing" rule, in part because

            the State should not be placed in the position of taking
            seemingly conflicting positions, on the one hand
            prosecuting a defendant for possessing an item in
            violation of the law while on the other arguing that the
            defendant did not, for standing purposes, possess a
            privacy interest in the property seized.

            [Ibid. (citing Alston,  88 N.J. at 223).]

      We do not believe, however, that including information about the May

package in the search warrant application is tantamount to charging defendant

with criminal possession of that package for purposes of conferring standing.

The concern regarding conflicting prosecutorial positions, first expressed by our

Supreme Court in Alston and reiterated more recently in Johnson, explains why

New Jersey retained the "automatic standing" rule abandoned by the United

States Supreme Court in Rakas v. Illinois,  439 U.S. 128 (1978), United States v.

Salvucci,  448 U.S. 83 (1980), and Rawlings v. Kentucky,  448 U.S. 98 (1980).

However, in this instance it is plainly apparent that the automatic standing rule

does not apply because defendant is not charged with unlawful possession of the

marijuana found in the May package.

      As the Supreme Court made clear in Bruns, "[t]hat evidence implicates a

defendant in a crime is not, in and of itself, sufficient to confer standing." 172

                                                                          A-1034-19T1
                                        16 N.J. at 58. Applying that principle, even were we to assume that the information

about the May package implicated defendant in criminal activity, we do not

believe that including that information in the search warrant application would

be sufficient to confer standing based on a participatory interest. Accordingly,

we conclude the State carried its burden of establishing that defendant did not

have standing to challenge the warrantless search conducted by the USPS.

Randolph,  228 N.J. at 582.

                                      B.
                             Attenuation of Taint

      The trial court ruled that even if defendant had standing to challenge the

warrantless search of the May package, the taint of that search on the

anticipatory warrant application is too attenuated to suppress the incriminating

evidence found in defendant's residence. We agree.

      The familiar general rule is that evidence gathered as a result of unlawful

police conduct must be suppressed from the State's case-in-chief as a "fruit of

the poisonous tree." Wong Sun v. United States,  371 U.S. 471, 487–88 (1963).

However, the United States Supreme Court has long rejected a "per se" or "but

for" test for determining whether evidence is a poisoned fruit that must be

suppressed. In Brown v. Illinois, the Court explained:



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                                       17
            [w]e need not hold that all evidence is 'fruit of the
            poisonous tree' simply because it would not have come
            to light but for the illegal actions of the police. Rather,
            the more apt question in such a case is 'whether,
            granting establishment of the primary illegality, the
            evidence to which instant objection is made has been
            come at by exploitation of that illegality or instead by
            means sufficiently distinguishable to be purged of the
            primary taint.'

            [ 422 U.S. 590, 599 (1975).]

The Court in Brown thus devised the attenuation doctrine as an exception to the

general rule of suppression.

      The New Jersey Supreme Court has embraced this limitation on the reach

of the exclusionary remedy. See State v. Alessi,  240 N.J 501, 524 (2020); State

v. Williams,  192 N.J. 1, 15 (2007). In determining whether the attenuation

doctrine applies, we examine three factors: "(1) the temporal proximity between

the illegal conduct and the challenged evidence; (2) the presence of intervening

circumstances; and (3) the flagrancy and purpose of the police misconduct."

Williams,  192 N.J. at 15 (quoting State v. Johnson,  118 N.J. 639, 653 (1990)).

      We believe all three attenuation factors militate against applying the

exclusionary rule to the evidence found in defendant's home. With respect to

temporal proximity, the issuance of the anticipatory search warrant and ensuing




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                                       18
search of defendant's residence occurred four months after the USPS opened the

May package. We view that time period to be substantial.

      During that protracted interval, there were numerous intervening events.

Fifteen suspicious packages weighing between sixteen and forty-two pounds

were shipped from Los Angeles to defendant's residence. Furthermore, a trained

narcotics detection canine alerted to the package that was the subject of the

controlled delivery. The dog's positive alert is an especially significant

intervening circumstance because it independently established probable cause

to believe the package addressed to defendant's wife at their shared residen ce

contained CDS. See Florida v. Royer,  460 U.S. 491, 506 (1983) (noting that

had police used a trained dog to sniff the defendant's luggage, "a positive result

would have resulted in his justifiable arrest on probable cause.").

      Finally, we do not view the conduct by the USPS in searching the May

package to be flagrant. As we have noted, the State maintains the package was

opened because it was damaged in transit. Although we assume for purposes of

this appeal that the warrantless inspection was unlawful, we do not conclusively

determine this issue one way or another. See Part II, n. 2, supra. It thus is

conceivable that the USPS did not violate the Fourth Amendment at all, much

less in a flagrant fashion. We deem it important that the USPS did not repeat


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                                       19
the presumably unlawful conduct with respect to the numerous other parcels that

fit the drug distribution profile.    Fifteen such packages were addressed to

defendant's residence. None of them were opened without a warrant. We

therefore view the warrantless search of the May package to be an isolated

transgression and deem that conduct to be "more casual than calculating" for

purposes of the attenuation doctrine. State v. Worlock,  117 N.J. 596, 624

(1990).

                                      III.

      We next address defendant's contention he was entitled to a Franks

hearing to contest statements in the affidavit in support of the anticipatory search

warrant. The United States Supreme Court has held:

            [W]here 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, the Fourth Amendment
            requires that a hearing be held at the defendant's
            request.

            [Franks,  438 U.S.  at 155.]

      Our Supreme Court embraced the Franks standard in State v. Howery,  80 N.J. 563 (1979). The Court in Howery emphasized a "defendant cannot rely on

unintentional falsification in a warrant affidavit. He must allege 'deliberate

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                                        20
falsehood or reckless disregard for the truth[.]'"  80 N.J at 567 (quoting Franks,

 438 U.S. at 171). A defendant's request for a Franks hearing, moreover, must

be supported by proof to reliably establish an intentional falsehood or material

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

Franks,  438 U.S. at 171).

      In this instance, defendant claims he is entitled to a Franks hearing

because the affidavit in support of the warrant application failed to mention that

the May package had been opened without a warrant.            That allegation is

insufficient. The search warrant application process is not the appropri ate forum

for a judge to determine whether a prior search was unconstitutional.

Furthermore, the search warrant affiant relied on information that was provided

to the BCPO Task Force by the USPS. The record indicates the search warrant

affiant did not know why or under what circumstances the May package was

opened. The postal inspector's report upon which the affiant relied noted only

that the parcel "was opened" and "contained a large stereo speaker which held

8.5 pounds of marijuana."

      Furthermore, the affiant's failure to mention that the May package had

been opened without a warrant was not a "material omission" needed to require

a Franks hearing. Stelzner,  227 N.J. Super. at 235. As the United States


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                                       21
Supreme Court explained in Franks, "if, when material that is the subject of the

alleged falsity or reckless disregard is set to one side, there remains sufficient

content in the warrant affidavit to support a finding of probable cause, no

hearing is required."  438 U.S. at 171–72. As we noted in our discussion of the

attenuation doctrine, if information about the May package were to be excised

entirely from the warrant application, the remaining information in the affidavit

would still provide ample probable cause to support issuing an anticipatory

search warrant.    Notably, the positive drug detection canine alert to the

controlled delivery package provided probable cause to search the house in the

event defendant accepted delivery. See Ulrich,  265 N.J. Super. at 575 (noting

that "[t]he fact that the contraband is physically in the custody of the authorities

who can control the time and method of its delivery ordinarily provides . . . the

requisite strong probability that the contraband will be on the premises to be

searched when the warrant is to be executed.").       In these circumstances, we

conclude the trial court properly denied defendant's request for a Franks hearing.

                                        IV.

      Finally, we address defendant's contention that his sentence was

excessive.   Sentencing determinations are entitled to deference.          State v.

Fuentes,  217 N.J. 57, 70 (2014).


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                                        22
               The appellate court must affirm the sentence unless (1)
               the sentencing guidelines were violated; (2) the
               aggravating and mitigating factors found by the
               sentencing court were not based upon competent and
               credible evidence in the record; or (3) "the application
               of the guidelines to the facts of [the] case makes the
               sentence clearly unreasonable so as to shock the
               judicial conscience."

               [Ibid. (alteration in original) (quoting State v. Roth, 95
               N.J. 334, 364–65 (1984)).]

Furthermore, "[a] sentence imposed pursuant to a plea agreement is presumed

to be reasonable because a defendant '[waived] . . . his right to a trial in return

for the reduction or dismissal of certain charges, recommendations as sentence

and the like.'" Id. at 70–71 (alteration in original) (quoting State v. Davis,  175 N.J. Super. 130, 140 (App. Div. 1980)).

         In this instance, the State agreed to dismiss five charges in exchange for

defendant's guilty plea, including endangering the welfare of a child. The State

also agreed to recommend a twelve-year sentence with a three-year period of

parole ineligibility. The prosecutor's recommendation was near the bottom of

the ordinary sentencing range for a first-degree crime, which is ten to twenty

years.      N.J.S.A. 2C:43-6(a)(1).     The plea agreement, moreover, expressly

allowed defendant to argue for an even lower sentence.



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                                          23
      The State's plea offer was very favorable to defendant, especially

considering his previous conviction for a drug distribution offense. By virtue

of that prior conviction, defendant would automatically have been subject to an

extended term of imprisonment pursuant to  N.J.S.A. 2C:43-6(f), exposing him

to a prison term ranging from twenty years to life imprisonment.  N.J.S.A.

2C:43-7(a)(2).

      The sentencing court considered but ultimately rejected defense counsel's

request to sentence defendant at the bottom of the first-degree sentencing range.

In doing so, the court carefully considered the applicable aggravating and

mitigating factors.   Specifically, the court found aggravating factor three,

 N.J.S.A. 2C:44-1(a)(3) (the risk defendant would commit another offense),

aggravating factor six,  N.J.S.A. 2C:44-1(a)(6) (the extent of the defendant's

criminal history), and aggravating factor nine,  N.J.S.A. 2C:44-1(a)(9) (the need

for deterring the defendant and others from violating the law). The court also

found mitigating factor eleven,  N.J.S.A. 2C:44-1(b)(11) (imprisonment would

entail excessive hardship to defendant or his dependents) because defendant had

a newborn child. The court found the aggravating factors outweighed the

mitigating factor.




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      After carefully reviewing the record in light of the deferential standard of

appellate review, we conclude that the imposition of a twelve-year prison term

with a three-year period of parole ineligibility was neither unreasonable nor

shocking to the judicial conscience. Fuentes,  217 N.J. at 70.

      To the extent we have not addressed them, any remaining arguments

raised by defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

      Affirmed.




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