NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4111-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARRY S. CARTER, a/k/a GARRY CARTER, GARY S. CARTER, GARY S. GEE, GARRY SUTTON, GARY G. SUTTON, GARY CARTER, JR., and GARY CARTER,
Defendant-Appellant. __________________________
Submitted May 5, 2026 – Decided June 3, 2026
Before Judges Sumners and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 22-12-3623.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Ethan Kisch, Assistant Deputy Public Defender, of counsel and on the brief). Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a supplemental brief on appellant's behalf.
PER CURIAM
Defendant Garry Carter appeals from his conviction and sentence, which
followed a guilty plea, after the Law Division's denied his motion for a Franks1
hearing. We affirm.
I.
We discern the following facts from the record. The Camden County
Prosecutor's Office ("CCPO") was conducting a narcotics investigation into
defendant and multiple co-conspirators. Pursuant to that investigation, various
search warrants were sought by CCPO Detectives William Heron and Rodney
Banks.
The first application, filed in January 2022, sought "a Communications
Information Order under N.J.S.A. 2A:156A-29(e)" regarding multiple phone
numbers. Specifically, the detectives sought telephone facility identification
information and subscriber, billing, and customer records. To support the
1 Franks v. Delaware, 438 U.S. 154 (1978). A-4111-23 2 application, the detectives certified and swore to the following facts: (1)
Detective Heron was informed by multiple confidential sources that defendant
was leading a narcotics distribution ring wherein multiple people distributed
cocaine for him; (2) one of those sources, "PO#2009," advised that defendant
"control[ed] the narcotics sales within Camden County"—this assertion was
reiterated by a second confidential source, "PO#1937"; and (3) these
confidential sources provided detectives with the phone numbers defendant used
to coordinate with buyers.
Next, on January 24, 2022, the detectives filed a second application for
the use of vehicle tracking devices. In support of the application, the detectives
relied on the same facts as the previous application and additionally certified:
(1) defendant was arrested for possession of a controlled dangerous substance
("CDS") and a prohibited weapon on September 11, 2021, while operating a "red
2011 Kia Sorento"; (2) during the week of November 28, 2021, Detective Heron
"observed [defendant] operating the same red 2011 Kia Sorento"; (3) defendant
was observed on multiple occasions operating Hertz rental vehicles rented by
his co-conspirators; and (4) detectives personally observed defendant use certain
counter-surveillance maneuvers which "limited" the usefulness of "physical and
A-4111-23 3 visual surveillance." Accordingly, the detectives sought to track vehicles
owned, operated, or rented by defendant and his co-conspirators.
On March 7, 2022, the detectives again applied for a search warrant
seeking to search the contents of a United Parcel Service ("UPS") package.
Although this application included many of the same facts asserted previously,
the detectives further certified that: (1) on January 28, 2022, surveillance units
followed defendant to an address in Clementon, where he was seen waiting, for
six hours, to retrieve a package from a UPS driver; (2) detectives sent a subpoena
to UPS regarding shipping information on the package delivered to the
Clementon address; (3) on February 16, 2022, confidential informant
"PO#1625," advised that defendant "had received a package from California
which contained exotic marijuana"; (4) on March 3, 2022, global positioning
systems ("GPS") tracking coordinates showed defendant was at a UPS store,
which was consistent with behavior the detectives had observed on January 26
and 28, 2022; (5) the detectives confirmed that defendant was receiving
packages from an individual in California named "Felicia Lee"; (6) on March 4,
2022, defendant was again at the Clementon address and detectives were
notified by a UPS employee that a package was set to arrive at that address —
thus, the detectives informed UPS that the package likely contained a CDS and
A-4111-23 4 seized the package pending the search warrant application; and (7) a K9 sniff of
the seized package indicated the presence of narcotics. This search warrant was
approved on March 7, 2022, and the package was found to contain "three
kilograms of cocaine."
On September 6, 2022, the detectives sought a fourth search warrant for
the use of "wire, oral, and electronic, and remote video surveillance[.]" This
application outlined controlled buys and surveillance conducted during the
investigation into defendant. Further, it described defendant's frequent usage of
UPS. Additionally, and most relevant to this appeal, the application's version
of the events on March 4, 2022—where the UPS package was seized—vary to
the extent that the prior application: (1) asserted detectives had knowledge of
defendant's whereabouts via GPS tracking whereas this application asserts that
officers observed defendant at the Clementon address; and (2) merely stated
detectives were notified by UPS that a package was set to be delivered but this
application clarified that detectives called UPS to advise them a package may
be delivered, at which point UPS confirmed those suspicions.
Finally, on September 27, 2022, a search warrant application was filed
"for use of a tracking device on a 2007 Nissan Sentra . . . operated by
[defendant]." The application sought to renew the previously granted GPS
A-4111-23 5 tracking warrant which was set to expire that day. Further, this application
outlined that: (1) audio and video monitoring of defendant evidenced suspected
narcotic transactions; (2) defendant was continuing to receive and ship packages
of suspected CDS through UPS; and (3) there continued to be a patt ern of
defendant, and his co-conspirators, utilizing rental vehicles to obtain, transport,
and distribute CDS.
Defendant and five co-defendants were subsequently indicted by a
Camden County grand jury. Defendant was indicted on twenty-two counts:
first-degree leading a narcotics trafficking network, N.J.S.A. 2C:35-3; first-
degree maintaining or operating a CDS production facility, N.J.S.A. 2C:35 -4;
eight counts of third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1); five
counts of first-degree possession of a CDS with intent to distribute, N.J.S.A.
2C:35-5a(1) and N.J.S.A. 2C:35-5b(1); second-degree attempted possession of
a CDS with intent to distribute, N.J.S.A. 2C:5-1, N.J.S.A. 2C:35-5a, and
N.J.S.A. 2C:35-5b(1); two counts of second-degree conspiracy to possess a CDS
with intent to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A.
2C:35-5b(1); second-degree money laundering and financial facilitation,
N.J.S.A. 2C:21-25a "and/or" N.J.S.A. 2C:21-25b; two counts of third degree
possession with the intent to distribute cocaine, N.J.S.A. 2C:35-5(a)(1),
A-4111-23 6 -5(b)(3); and third-degree conspiracy to possess cocaine with the intent to
distribute, N.J.S.A. 2C:5-2, 5(a)(1).
Defendant filed a motion to suppress and requested a Franks hearing. Oral
argument on defendant's motion was heard on March 28, 2024. Ultimately, the
court found that defendant did not make a substantial showing of false
statements as required by Franks and denied defendant's motion to suppress
without an evidentiary hearing. The motion judge noted that "[t]here [had] been
a lot of argument, but not evidence submitted by the defense in support of their
arguments. There[] [were] no certification[s]. No affidavit, either." The judge
also found it "[s]ignificant . . . that defendant [did] not argue that there [was] no
probable cause for the issuance of the search warrant."
Thereafter, defendant accepted a plea agreement to plead guilty to four
counts of first-degree possession of a CDS with intent to distribute and
stipulated that he was extended term eligible. In exchange for defendant's guilty
plea, the State agreed to: (1) dismiss the remaining counts; (2) seek a twenty -
one-year sentence with seven years of parole ineligibility; (3) support concurrent
sentencing on all counts; and (4) recommend a concurrent three-year sentence,
for a third-degree drug charge in a separate indictment. After finding that
A-4111-23 7 defendant had sixteen prior indictable convictions, the court sentenced
defendant in accordance with the plea agreement.
This appeal follows. In his counseled brief, defendant raises the following
argument:
POINT I
REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION FOR A FRANKS HEARING.
Defendant raises the following issues in his self-represented supplemental brief:
REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A FRANKS HEARING[.]
POINT II
THE PROSECUTOR ABANDON[ED] HER ETHICAL AND CONSTITUTIONAL RESPONSIBILITIES. THE "FLAGRANT MISCONDUCT" WAS SO EGREGIOUS THAT IT DENIED THE DEFENDANT THE RIGHT TO A FAIR AND IMPARTIAL JUDICIAL PROCEEDING, BY ENGAGING IN FUNDAMENTALLY UNFAIR TACTICS IN THE PRESENTATION, WHICH THREATENED THE INTEGRITY OF THE PROCESS, AND RESULTING IN THE EXTREME INJUSTICE AND PREJUDICE TO THE DEFENDANT.
A-4111-23 8 In a supplemental brief,2 defendant's counsel argues the following point:
SUPPLEMENTAL POINT I
THE SENTENCE IMPOSED VIOLATES THE ATTORNEY GENERAL DIRECTIVE 2021-4 ELIMINATING MANDATORY MINIMUMS FOR NON-VIOLENT DRUG OFFENSES, AS WELL AS DUE PROCESS AND OUR SENTENCING CODE, REQUIRING A REMAND FOR RESENTENCING.
II.
Although we normally grant deference to the findings of fact made by a
trial judge in connection with a motion to suppress, there was no evidentiary
hearing in this case. State v. Elders, 192 N.J. 224, 243-44 (2007). Instead, the
judge relied on the contents of the detectives' affidavits. A reviewing court "may
only consider whether the motion to suppress was properly decided based on the
evidence presented at that time." State v. Gibson, 318 N.J. Super. 1, 9 (App.
Div. 1999) (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div. 1971),
certif. denied, 59 N.J. 293, 281 (1971)).
"A trial court's interpretation of the law . . . and the consequences that
flow from established facts are not entitled to any special deference." State v.
Gamble, 218 N.J. 412, 425 (2014) (citing State v. Gandhi, 201 N.J. 161, 176
2 On May 4, 2026, we granted defendant's motion to supplement his brief concerning this limited issue and permitted the State time to reply. A-4111-23 9 (2010); Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)). A trial court's legal conclusions are reviewed de novo. Ibid. (citing
Gandhi, 201 N.J. at 176).
We review a trial judge's ruling regarding the need for an evidentiary
hearing for abuse of discretion. State v. Broom-Smith, 406 N.J. Super. 228, 239
(App. Div. 2009). An abuse of discretion occurs when a court's "decision [is]
made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." U.S. v. Scurry, 193 N.J. 492, 504
(2008) (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)).
A reviewing court gives substantial deference to a judge's determination
that probable cause existed to issue a search warrant. State v. Mosner, 407 N.J.
Super. 40, 61 (App. Div. 2009). "A search warrant is presumed to be valid, and
defendant bears the burden of demonstrating that the warrant was issued without
probable cause[.]" Ibid. (quoting State v. Evers, 175 N.J. 355, 381 (2003))
(alteration in original). Probable cause may be based upon information received
from informants, so long as there is "substantial evidence in the record to support
the informant's statements." State v. Keyes, 184 N.J. 541, 555 (2005). "Doubt
as to the validity of the warrant 'should ordinarily be resolved by sustaining the
search.'" Id. at 554 (quoting State v. Jones, 179 N.J. 377, 389 (2004)).
A-4111-23 10 In Franks, the United States Supreme Court held:
[A]s a matter of federal constitutional law that where a defendant makes a substantial preliminary showing of material misstatements in a search warrant affidavit, made knowingly or with reckless disregard for the truth, he must be afforded an opportunity to inquire further into the veracity of the affidavit. If at such inquiry the defendant proves such falsity by a preponderance of the evidence, the warrant is invalid and the evidence seized thereby must be suppressed.
[State v. Howery, 80 N.J. 563, 566 (1979) (citing Franks, 438 U.S. at 155).]
In Howery, the New Jersey Supreme Court adopted Franks and held that
a defendant challenging the veracity of a search warrant must: (1) "make a
'substantial preliminary showing' of falsity in the warrant[,]" id. at 567 (quoting
Franks, 438 U.S. at 681); (2) "allege 'deliberate falsehood or reckless disregard
for the truth" and prove those allegations, by a preponderance of the evidence,
via reliable statements of witnesses, id. at 567-68 (quoting Franks, 438 U.S. at
171); and (3) show that the alleged misstatements are material—i.e., "when they
are excised from the affidavit, that document no longer contains the facts
sufficient to establish probable cause," id. at 568 (citing Franks, 438 U.S. at
171); see also State v. Desir, 245 N.J. 179, 196 (2021) (outlining a defendant's
burden under Franks).
A-4111-23 11 Where a defendant levies a challenge to a search warrant, the court "must
look to the four corners of the affidavit giving rise to its issuance." State v.
Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2006) (citing State v. Novembrino,
105 N.J. 95, 121 (1987)). Importantly, to obtain a Franks hearing, a defendant's
allegations should be supported by affidavits or other reliable statements. See
State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987) (requiring allegations
be supported by "an offer of proof"). Thus, mere "'[a]llegations of negligence
or innocent mistake[s]'" and minor technical problems are insufficient to
necessitate a Franks hearing. Broom-Smith, 406 N.J. Super. at 240-41 (quoting
Franks, 438 U.S. at 171); see also State v. Martinez, 387 N.J. Super. 129, 141
(App. Div. 2006) ("a good faith mistake is insufficient to strike down [a]
warrant." (first citing Franks, 438 U.S. at 171 and then citing State v. Marshall,
148 N.J. 89, 193, cert. denied, 522 U.S. 850 (1997))). Further, "defendant's
burden . . . is high[.]" Desir, 245 N.J. at 198.
Defendant alleges five discrepancies and omissions he believes entitle him
to a Franks hearing whether: (1) on March 4, 2022, defendant's whereabouts
were ascertained by GPS coordinate tracking or by personal observation of
officers; (2) on March 4, 2022, UPS contacted police or if police contacted UPS;
(3) confidential informants, specifically "PO#2009," stated that unnamed
A-4111-23 12 individuals worked for defendant or if they provided specific names; (4)
confidential informants, specifically "PO#1937," told police that defendant was
a narcotics distributor or told police that defendant received packages from
California containing cocaine; and (5) the investigation into defendant began in
January or November, 2021.
Preliminarily, as the trial court noted, defendant has not argued that if the
alleged discrepancies were excised from the warrants that there was no probable
cause for the issuance of the search warrant. Additionally, defendant has not
presented any affidavits or evidence in support of his arguments. With that in
mind, we address each of defendant's five assertions in turn.
First, defendant's argument regarding whether police observed or tracked
him on March 4, 2022, are unpersuasive. Indeed, there are differences in the
facts between two of the warrant applications—the March 7, 2022, application
certifies "GPS coordinates showed [defendant] sitting at" the Clementon
address, whereas the September 6, 2022, application certifies "Sergeant Morgan
observed [defendant] sitting . . . at" the Clementon address. Although these are
differences, they are not in conflict with each other. The record makes clear that
detectives were both tracking defendant via GPS and physically surveilling him.
A-4111-23 13 Moreover, this does not negate probable cause or establish a knowing,
intentional, or reckless disregard for the truth. Whether the facts of March 4,
2022, were pursuant to GPS tracking or physical observation is irrelevant to
probable cause. Instead, what is notable is that: (1) detectives had knowledge
of defendant's whereabouts and knew he was at a location where he previously
received suspected CDS; (2) indeed, there was a package scheduled to be
delivered on March 4, 2022, to defendant's location; (3) that package was
intercepted by detectives and, after being inspected by a K9 officer, was
determined to contain narcotics; and (4) when the application to search the
package was approved, the package was found to contain three kilograms of
cocaine. Accordingly, this is, at most, a minor technical problem that does not
dispel probable cause.
Second, defendant's contention that there is a discrepancy regarding
discussions with the UPS employee is not only belied by the record but is
expressly incorrect. The record reveals the detectives never asserted that UPS
called them. Instead, Detectives certified that a UPS employee "notified" them.
In a later application, it's clarified that "Detective Banks contacted UPS and
advised . . . that police believed a package possibly containing illegal contraband
may be delivered."
A-4111-23 14 Taken together, the record clarifies that police knew defendant was at the
Clementon address. Police further knew that defendant received UPS packages
at that address and detectives contacted UPS to inform them that a package of
narcotics may be delivered. UPS notified the detectives that indeed, a package
was set to be delivered. Not only does no discrepancy exist regarding this issue,
but also defendant makes no evidentiary showing to counter the facts
establishing probable cause.
Third, there are no discrepancies regarding the information received from
confidential informants. Although there are additional facts in subsequent
warrant applications that were not included previously, this is insufficient to
necessitate a Franks hearing.
Defendant highlights that the first warrant application merely states:
"[Defendant] has several males who distribute cocaine for him." Later
applications state: "[Defendant] has several males, including Stevie 'Styx' Neal
and Orlando 'O' Wallace, who distribute crack cocaine for him within Camden
County." Important, is that these applications, though they contained slightly
different information, sought different types of search warrants. The first, where
names of co-conspirators were omitted, sought to track defendant's personal
phone numbers. Accordingly, the names of his co-conspirators were irrelevant
A-4111-23 15 to probable cause. The second application, where names were included, sought
audio and video surveillance of defendant and his co-conspirators. Thus, the
names of the co-conspirators were relevant to probable cause.
Fourth, defendant's assertion regarding confidential informant
"PO#1937's" statements are equally unavailing. Indeed, "PO#1937" did make
two separate assertions; first, that defendant purchases cocaine from "Elijah
Byers", and second, that defendant has a "drug connect" in California that ships
him packages of narcotics. There is no reason to believe that these assertions
cannot both be true. Further, defendant has offered no evidence to undermine
either assertion. Instead, detectives included information about a connection in
California as defendant's usage of UPS became more prevalent. Additionally,
the detectives' investigation confirmed that defendant was both working in
conjunction with Elijah Byers and receiving packages of narcotics through UPS.
Fifth, and finally, the language of the warrant applications entirely
undermines defendant's assertion that the detectives misstated the timeline of
the investigation. In the first application, the detectives certified that Detective
Heron "debriefed" confidential sources between January 2021 and January 2022.
This does not necessarily imply that an investigation into defendant began in
January 2021—conversely, it shows that Detective Heron spoke with
A-4111-23 16 confidential sources during that time and defendant's name was brought up. In
later applications, the Detectives certified that the current investigation into
defendant began in November 2021. Again, defendant has offered no evidence
to undermine the implication that both statements are true. The record shows
that between January 2021 and January 2022 confidential sources—who likely
were disclosing a litany of information not entirely specific to defendant —
informed detectives of defendant's standing in the Camden County narcotics
trade. Thereafter, beginning in November 2021, the CCPO opened a formal
investigation into defendant. This is not a knowing, intentional, or reckless
disregard for the truth.
In defendant's self-represented submission, he alleges that the prosecutor
committed a Brady3 violation. Essentially, defendant asserts that because the
prosecutor had knowledge of the falsities contained in the warrant applications,
that perjury and false swearing occurred when the prosector offered submissions
to the court. Defendant's assertions in this regard are entirely premised on a
Franks violation. Since we have determined there was no violation, this
argument is without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2).
3 Brady v. Maryland, 373 U.S. 83 (1963). A-4111-23 17 III.
Lastly, defendant challenges his sentence. First, he contends the
prosecutor did not follow Attorney General Directive No. 2021-4, Directive
Revising Statewide Guidelines Concerning the Waiver of Mandatory Minimum
Sentences in Non-Violent Drug Cases Pursuant to N.J.S.A. 2C:35-12. (Apr. 19,
2021), in fashioning his plea offer. Second, he asserts he should have been given
a sentence with no parole ineligibility. We disagree.
An appellate court's standard of review of sentences is well-established
and deferential. State v. Cuff, 239 N.J. 321, 347 (2019) (quoting State v.
Fuentes, 217 N.J. 57, 70 (2014)). We will affirm a trial court's sentences unless:
"(1) the sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were not 'based upon competent credible evidence in the
record'; or (3) 'the application of the guidelines to the facts' of the case 'shock[s]
the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration
in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
Defendant's sentence did not violate the directive. The directive does not
mandate a waiver of mandatory minimum sentences or prohibit the State from
seeking an extended term under N.J.S.A. 2C:35-12. Moreover, the directive
A-4111-23 18 does not control a trial judge's discretion to impose a period of parole
ineligibility, pursuant to N.J.S.A. 2C:43-6(b).
Defendant's assertion that he needs to be resentenced because the
discretionary period of parole ineligibility was not reduced by commutation
credits, minimum custody credits, or work credits is also without merit.
Pursuant to N.J.S.A. 30:4-123.51(a), those credits do not reduce a period of
parole ineligibility, whether mandatory or discretionary.
The court found, and defendant does not challenge, that aggravating
factors three ("risk of reoffending"), six ("prior criminal record and the
seriousness of [current] offenses"), and nine ("need for deterring the defendant
and others from violating the law") applied to him. Defendant also does not
challenge that the court found no mitigating factors. The court's finding that the
aggravating factors outweighed the complete absence of any mitigating
factors—on both qualitative and quantitative grounds—was the functional
equivalent to a finding that aggravating factors substantially outweighed the
mitigating factors.
Defendant also argues that he should have received a sentence with no
parole ineligibility. This contention is belied by the record. Defendant had
eighteen prior indictable convictions and was eligible for both a mandatory and
A-4111-23 19 discretionary extended term. In fact, as part of his plea he stipulated that he was
a persistent offender. Defendant was also facing first-degree charges for leading
a narcotics trafficking network and for maintaining or operating a CDS
production facility. His plea agreement and corresponding sentence with a one-
third parole disqualifier complies with N.J.S.A. 2C:43-6(f). The sentence does
not shock our judicial conscience.
Affirmed.
A-4111-23 20