STATE OF NEW JERSEY v. JUAN A. REYES

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4096-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JUAN A. REYES,

          Defendant-Appellant.


                   Submitted September 30, 2021 – Decided November 17, 2021

                   Before Judges Alvarez and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No. 18-06-0965.

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

                   Cary Shill, Acting Atlantic County Prosecutor, attorney
                   for respondent (Debra B. Albuquerque, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant Juan A. Reyes entered a guilty plea to second-degree unlawful

possession of cocaine in a quantity of half an ounce or more with intent to

distribute,  N.J.S.A. 2C:35-5(b)(2); third-degree possession with intent to

distribute methamphetamine,  N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(9); and

second-degree distribution of cocaine in a quantity of half an ounce or more,

 N.J.S.A. 2C:35-5(b)(2). The plea was entered after the Law Division judge

denied defendant's motion to suppress evidence seized while executing a search

warrant. On March 6, 2020, the judge sentenced defendant to the negotiated

concurrent terms of imprisonment: 1 eight years subject to five years of parole

ineligibility on the drug possession, eight years on the drug distribution, and five

years on the third-degree crime. We affirm the judge's denial of the suppression

motion, but vacate the sentence and remand for a new proceeding because parole

ineligibility was an unauthorized disposition. See  N.J.S.A. 2C:43-2.

      The affidavit supporting the search warrant application recited that the

affiant, an Atlantic County Prosecutor's Office detective, arranged two separate

controlled buys from defendant, on January 21, 2018, and "during the week of

March 18, 2018." On both occasions, standard protocol was followed—the


1
  Defendant was also sentenced to a concurrent term on a violation of probation
sentence; that offense is not relevant as defendant has not appealed that aspect
of the judgment.
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confidential informant was searched beforehand to ensure he had no contraband

or cash on his person, he was given cash for the purchase, and a meeting place

was fixed for him to deliver the drugs to police after the sale.       The first

transaction occurred at a predetermined location arranged by defendant; the

second occurred at his home. The detective described the substances as looking

like crack cocaine, and the packaging as that typically used for the drug, but he

did not conduct any field testing.

      The affidavit recited defendant's extensive prior criminal history, as well

as a detailed description of the detective's prior training and experience. The

detective did not detail law enforcement's prior involvement with the

confidential informant.

      The warrant was executed days later on March 27, 2020. Officers seized

both cocaine and methamphetamines from defendant's home.

      At sentencing, the judge found aggravating factors three, six, and nine,

and no mitigating factors.  N.J.S.A. 2C:44-1(a)(3), (6), (9);  N.J.S.A. 2C:44-1(b).

The judge failed to explain why defendant's parole ineligibility exceeded one-

half of his base term at either the plea or sentencing hearings.

      Now on appeal, defendant raises the following issues for our

consideration:


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            POINT I

            THE CONTRABAND FOUND IN THE HOUSE
            SHOULD BE SUPPRESSED BECAUSE THE
            WARRANT DID NOT ESTABLISH PROBABLE
            CAUSE TO BELIEVE THE HOUSE WOULD
            CONTAIN DRUGS FOR TWO REASONS: 1) TOO
            MUCH TIME HAD PASSED BETWEEN THE
            CONTROLLED BUY AND THE EXECUTION OF
            THE WARRANT; AND 2) THE POLICE FAILED TO
            CONDUCT ANY TESTING OF THE ALLEGED
            DRUGS TO DETERMINE THAT THEY WERE, IN
            FACT, DRUGS.

            POINT II

            THE MATTER MUST BE REMANDED FOR
            RESENTENCING BECAUSE THERE WAS NO
            LAWFUL BASIS FOR THE IMPOSITION OF A
            FIVE-YEAR PERIOD OF PAROLE INELIGIBILITY.

                                       I.

      Defendant challenges the warrant on two grounds: first, the purported

"untimeliness" of its execution; and second, the failure to test the substances

purchased during the controlled buys. These arguments lack merit.

      When reviewing a motion to suppress evidence, we uphold the trial court's

factual findings, provided they are "supported by sufficient credible evidence in

the record." State v. Boone,  232 N.J. 417, 426 (2017) (citing State v. Scriven,

 226 N.J. 20, 40 (2016)). We overturn the decision only when the interests of



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justice demand.     Ibid. (citing State v. Elders,  192 N.J. 224, 244 (2007)).

Conclusions of law are always subject to de novo review. Ibid.

        The lynchpin for a valid search warrant is a supporting affidavit reciting

adequate probable cause to conclude a crime has been committed or is being

committed at the place to be searched. Ibid. Warrant-backed searches are

presumptively valid. Id. at 427. The defendant bears the burden of establishing

lack of probable cause or the unreasonableness of the search. Ibid.

        We "accord substantial deference to the discretionary determination

resulting in the issuance of the [search] warrant." Ibid. (citing State v. Jones,

 179 N.J. 377, 388 (2004)). In this case, the totality of the circumstances clearly

warranted the issuing judge's finding of probable cause. See ibid.

        The brief delay between the second controlled buy and the issuance of the

warrant is inconsequential because the two transactions were arranged. Given

the officer's considerable experience, defendant's lengthy criminal history, and

the arranged nature of the buys, probable cause did not evanesce after just a few

days.

        The failure to chemically analyze the drugs was also of no moment

because the highly experienced detective provided a detailed description of the

substances.     Certainly, defendant may have sold imitation CDS—itself


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                                         5
contraband—but that is pure speculation.        The officer established ample

probable cause.

                                       II.

      Defendant contends his sentence violates  N.J.S.A. 2C:43-6(b) because

parole ineligibility is lawful only when aggravating factors substantially

outweigh mitigating factors, not when aggravating factors merely preponderate,

as the sentencing judge found. Additionally, defendant contends that  N.J.S.A.

2C:43-6(b) prohibits imposing a parole ineligibility term exceeding one-half of

the overall sentence.

      We agree with both points. Where aggravating factors only preponderate,

and do not substantially outweigh mitigating factors, a longer term within the

statutory range may be imposed, but not a period of parole ineligibility. See

 N.J.S.A. 2C:43-6(b); State v. Case,  220 N.J. 49, 65-66 (2014).

      An illegal sentence is one not authorized by our Code of Criminal Justice.2

See State v. R.K.,  463 N.J. Super. 386, 494 (App. Div. 2020). Such a sentence


2
   The State's brief posits that defendant's prior history regarding weapons
possession may have justified a Graves Act,  N.J.S.A. 2C:43-7(c), sentence
requiring a five-year term of parole ineligibility. No mention is made anywhere
in the record available to us, from the plea allocution, plea form itself, or the
sentencing hearing, of anything related to Graves Act sentencing. Furthermore,
none of the offenses to which defendant entered a guilty plea involved weapons
possession.
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may be corrected at any time. Ibid. We are unaware of any statutory provision

that would have allowed the term of parole ineligibility to exceed half of the

base term; no such provision was discussed on the record. See  N.J.S.A. 2C:43-

6(b). Certainly, a plea agreement between the State and defendant cannot render

an illegal sentence legal. Thus, we vacate the sentence and remand for the judge

to impose a lawful term of parole ineligibility.

      Affirmed in part; reversed in part and remanded.




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