NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5305-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUARY BRITO, a/k/a HOWARD V. AYLLON, JUARY L. BRITO, JUARY M. BRITO, EDDIE LIME, and EDDIE M. LIME
Defendant-Appellant. _____________________________________
Submitted June 7, 2018 – Decided July 17, 2018
Before Judges Simonelli and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-10-1032.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Ann M. Luvera, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
After a Law Division judge denied defendant Juary Brito's
motion to suppress evidence obtained through a Communications Data
Warrant (CDW), he pled guilty to three criminal offenses, charged
in separate indictments, including first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a).1 That charge arose from
defendant fatally shooting his victim during a robbery on March
20, 2011. The judge sentenced defendant pursuant to his plea
agreement to twenty-two years on the aggravated manslaughter
charge, a concurrent eighteen months on a fourth-degree offense,
1 In October 2011, a Union County Grand Jury returned Indictment No. 11-10-1032, charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five). Count one was later amended to aggravated manslaughter, and defendant conditionally pled guilty to that charge preserving his right to challenge the denial of his suppression motion.
In February 2013, another Union County Grand Jury returned Indictment No. 13-02-0189, charging defendant with one count of fourth-degree throwing bodily fluid at a law enforcement officer, N.J.S.A. 2C:12-13. And, under Indictment No. 13-02-1901, charged defendant with second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1) (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and fourth-degree tampering with evidence, N.J.S.A. 2C:28- 6(1) (count four).
2 A-5305-15T1 and a concurrent seven years on a second-degree charge, even though
the judge had earlier agreed to limit his exposure to five years
on that charge.
On appeal, defendant challenges the judge's decision on the
suppression motion without a Franks2 hearing and his sentences.
For the reasons that follow, we affirm his convictions, finding
no error in the denial of a Franks hearing, and reject defendant's
challenge to his sentences, except for the second-degree
aggravated assault, which we remand for resentencing.
The facts derived from the suppression motion's record are
summarized as follows. On March 20, 2011, Elizabeth police
officers responded to a call from a motel at approximately 1:30
a.m. Following the sound of a woman calling for help, the officers
entered a room where they found a man, later identified as Julio
Duarte, lying on the floor, displaying a gunshot wound in his
abdomen.3 Also located in the room were three individuals the
2 Franks v. Delaware, 438 U.S. 154 (1978). "The primary purpose of the hearing [is] to determine whether the police made material misrepresentations and/or omissions in seeking . . . warrants from a Superior Court judge and, if so, whether the evidence gathered from those defective warrants needed to be suppressed." State v. Smith, 212 N.J. 365, 413 (2012). 3 Duarte was later taken to a hospital where he was pronounced dead as a result of shots to his abdomen and chest.
3 A-5305-15T1 police identified as Cassandra Perez, N.D., and a man called
"Francisco."
As part of their ensuing investigation, police obtained sworn
statements from the three individuals. Their statements confirmed
that before police arrived, a black male, who was in the room with
them, ordered Duarte and Francisco onto the ground and robbed them
at gunpoint. Duarte, however, refused to comply and physically
struggled with the perpetrator. During the struggle, the man shot
Duarte twice. After Duarte fell, the gunman took Duarte's and
Francisco's money, wallets, and cell phones, as well as Perez's
cellphone, but failed in his attempt to take N.D.'s cellphone.
Afterward, the shooter ran away.
According to N.D., she recognized the shooter and knew he was
from the Ironbound section of Newark, but she did not know his
name. She only knew him as "Doodle." N.D. explained that the man
had a tattoo on his arm bearing the word "doodle" and that one of
the o's was in the shape of a Playboy bunny. N.D. also had a cell
number for Doodle, which she gave to the police. The officers
attempted to secure information about the subscriber to the phone
number, but the service provider had no individual subscriber
information.
In order to locate the shooter, the officers conducted a
"ping" of Francisco's phone. The phone was shown to be active in
4 A-5305-15T1 Newark, in the Ironbound. However, at approximately 2:30 a.m.,
the phone was no longer detectable, as it had been turned off.
The officers were later able to locate a taxi driver who
stated that he picked up an individual from the Ironbound section
of Newark and dropped the passenger off at the motel where Duarte
was shot. According to the driver, after he dropped off the man,
he could not locate his own GPS device and believed the passenger
had taken it from him. The driver gave a description of the
passenger that matched the one given by the witnesses in the motel
room.
The officers arranged for N.D. to call Doodle on the number
she had and they recorded call. When he did not answer, N.D. left
messages and shortly thereafter Doodle returned her call. N.D.
told Doodle that Duarte died from his wounds and she inquired as
to Doodle's location. Doodle did not respond and instead ended
the call. He called back later, but refused to give N.D. any
information and made it clear he did not want to discuss the matter
over the phone.
Based on N.D.'s success in contacting Doodle, Detective Kevin
Grimmer, of the Union County Prosecutor's Office (UCPO), believed
that locating the cell phone Doodle called from would assist the
police in locating and identifying Duarte's killer. The detective
applied for an emergent CDW for a pen register device or trap and
5 A-5305-15T1 trace device with caller identification for the cell phone
associated with the number. During the call with the judge, the
detective testified to the events leading up to their search for
defendant, and stated that during N.D.'s call with Doodle, he
threatened to kill her if she spoke to police. The judge
considered the detective's sworn testimony over the phone and
granted the telephonic application.
Based on the results of information obtained through the CDW,
detectives were able to narrow Doodle's location to a four or
five-square block area in Newark. Detectives from the UCPO took
N.D. to the area to give her an opportunity to identify Doodle.
When she saw him, N.D. pointed him out to the detectives. The
police secured and detained the individual who was later identified
as defendant.
Detectives then applied telephonically for an investigative
detention order and a search warrant to detain defendant and obtain
buccal swabs, fingerprints and similar identifying exemplars from
him to compare to evidence found at the scene. A different judge
considered and granted the application. After obtaining the
identifying information and matching it to the evidence from the
scene, defendant was arrested and charged with killing Duarte and
other related crimes.
6 A-5305-15T1 Defendant filed a motion to suppress the "GPS" identification
information secured by the police that led to them locating him
and the resulting evidence they obtained from him. In support of
his motion, defendant argued that police failed to establish any
exigency to warrant an emergent telephonic application and that
the facts presented to the court were false. According to
defendant, had the State been required to make a non-emergent
application, the court would have had an opportunity to make
credibility findings about the information provided by N.D., which
according to defendant was fabricated, as proven by her status as
a prostitute and being under the influence of crack cocaine when
she provided the information. Defendant contended that the judge
should have conducted a Franks hearing to determine whether the
information provided by N.D. to the police was false.
After considering counsel's and defendant's written and oral
arguments,4 the first judge, who had issued the CDW, denied the
motion, setting forth his reasons in a January 5, 2015 written
4 On May 2, 2014, the parties initially appeared before the judge to argue defendant's motion. At that time, counsel argued that defendant's privacy rights had been violated and that a warrant was required to have N.D.'s call with defendant intercepted. After considering counsel's argument, the judge denied defendant's motion. Defendant, however, was dissatisfied with his counsel's argument, so the judge allowed him to submit a pro se brief, and later argue pro se and through counsel on November 12, 2014. The judge denied defendant's motion again on January 5, 2015.
7 A-5305-15T1 statement of reasons. In his decision, he cited to Franks and
explained that its holding required "that a defendant, in order
to obtain an evidentiary hearing as to allegations of false
statements contained in the affidavit, must point out with
specificity and supporting reasons the portion of the warrant
affidavit claimed to be false[,]" and concluded that defendant had
not met his burden. The judge found that even assuming N.D. was
a prostitute and under the influence, neither status compelled a
finding that the information she provided was false. The judge
concluded by stating:
Defendant does not provide any supporting reasons as to why [N.D.'s] statement was a fabrication; he points to no discrepancies in her statement, nor does he provide any evidence that would contradict her. Finally, even if an in-person application had been made in this case, the application would have been with Detective Grimmer as the affiant. Ms. [N.D.] would not have been a witness during this application. As such, [d]efendant has neither presented sufficient reasons entitling him to an evidentiary hearing, nor has he made any argument that supports his claim that there should be a preference for [an] in-person application.
The judge continued by citing to State v. Pena-Flores, 198
N.J. 6 (2009), analyzing and then rejecting defendant's
contentions that there had to be a showing of exigency under the
circumstances for the warrant to have been issued telephonically.
He concluded, in any event, that an exigency existed as the
8 A-5305-15T1 application was made on a Sunday when court was not in session.
Finally, the judge similarly rejected defendant's contention that
Grimmer "fabricated receiving authorization for the consensual
interception of" N.D.'s conversation with defendant, finding that
there is no requirement for a warrant for consensual interceptions.
On February 29, 2016, defendant pled guilty to one count of
aggravated manslaughter as charged in Indictment No. 11-10-1032,
as amended. Pursuant to the plea agreement, the State agreed to
recommend a sentence not to exceed twenty-seven and one-half years,
subject to a No Early Release Act's (NERA), N.J.S.A. 2C:43-7.2,
eighty-five percent parole disqualifier. As set forth in the
agreement, the judge stated he would limit defendant's sentence
to no more than twenty-two and one-half years, with the same parole
disqualifier, or defendant could withdraw his plea.
Defendant also pled guilty to second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1), under Indictment No. 13-02-1901,
subject to a similar arrangement. Here, the State agreed to
recommend a sentence of seven and one-half years, with a NERA
parole disqualifier, concurrent to the sentence imposed under
Indictment No. 11-10-1032. The judge agreed that he would limit
defendant's exposure to a concurrent term of no more than five
years, subject to the same parole disqualifier.
9 A-5305-15T1 Defendant also pled guilty to fourth-degree throwing bodily
fluid at a law enforcement officer, N.J.S.A. 2C:12-13, under
Indictment No. 13-02-0189. The State recommended eighteen months
in prison, concurrent to defendant's other sentences. There was
no supplemental agreement with the judge.
At defendant's sentencing on April 22, 2016, the judge
sentenced defendant under Indictment No. 11-10-1032 (aggravated
manslaughter) to twenty-two years, subject to a NERA period of
parole ineligibility, a concurrent eighteen months under
Indictment No. 13-02-0189, but then sentenced defendant to a
concurrent seven years, subject to a NERA period of parole
ineligibility, under Indictment No. 13-02-1901, instead of the
five years stated in the plea agreement.
The judge entered judgments of convictions, which were later
amended to correct defendant's date of birth. This appeal
followed.
On appeal, defendant argues the following:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING MR. BRITO A HEARING PURSUANT TO FRANKS v. DELAWARE. (PARTIALLY RAISED BELOW).
10 A-5305-15T1 POINT II
THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE COURT FAILED TO ADEQUATELY EXPLAIN THE SENTENCE IMPOSED.
In a pro se supplemental brief, defendant also contends the
following:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT A HEARING PURSUANT TO FRANKS v. DELAWARE.
We begin our review by addressing defendant's argument that
he was entitled to a Franks hearing before the judge determined
whether to issue the CDW being challenged. He contends that the
detective's statement to the judge that Doodle threatened to kill
N.D., which did not appear in the transcript of the call, and N.D.
being a prostitute and under the influence of drugs, warranted the
trial judge ordering a Franks hearing. We disagree.
We review the court's decision regarding the need for an
evidentiary hearing for an abuse of discretion. See United States
v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006); cf. State v.
Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009) (reviewing
for abuse of discretion the judge's ruling denying discovery for
purposes of a Franks hearing), aff'd, 201 N.J. 229 (2010). We
11 A-5305-15T1 conclude from our review that the judge correctly determined a
Franks hearing was not required.
As our Supreme Court has held:
Our jurisprudence does not countenance the securing of a warrant through duplicitous means. For that reason, a warrant is invalid (1) if a police officer makes "material misstatements in a search warrant affidavit" with knowledge of the falsity of those statements or with reckless disregard for the truth and (2) if excision of the untruthful statements would leave the affidavit without probable cause for the issuance of the warrant. Smith, 212 N.J. at 420-21 (citations omitted).
Under Franks, a defendant is entitled to an evidentiary
hearing to contest the veracity of a warrant affidavit, "where 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[.]" 438 U.S. at 155-56; accord
State v. Howery, 80 N.J. 563, 566-68 (1979). The requirement for
a hearing also "appl[ies] where the allegations are that the
affidavit, though facially accurate, omits material facts." State
v. Stelzner, 257 N.J. Super. 219, 235 (App. Div. 1992).
In making a "substantial preliminary showing[,]" a defendant
"must allege 'deliberate falsehood or reckless disregard for the
12 A-5305-15T1 truth,' pointing out with specificity the portions of the warrant
that are claimed to be untrue." Howery, 80 N.J. at 567. These
allegations should be supported by affidavits or other reliable
statements; "[a]llegations of negligence or innocent mistake are
insufficient." Broom-Smith, 406 N.J. Super. at 241 (quoting
Franks, 438 U.S. at 171). Finally, a defendant must show that
absent these misstatements, the search warrant lacks "sufficient
[facts] to establish probable cause." Howery, 80 N.J. at 568.
The "substantial preliminary showing" requirement is designed
"to prevent the misuse of a veracity hearing for purposes of
discovery or obstruction." Franks, 438 U.S. at 170. Therefore,
a defendant's veracity challenge should not be focused on "picking
apart minor technical problems with a warrant application;"
rather, it should address "warrants obtained through intentional
wrongdoing by law enforcement agents[.]" Broom-Smith, 406 N.J.
Super. at 240.
Applying these guiding principles, we find defendant's
contentions about his entitlement to a Franks hearing to be without
sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
expressed by the judge in his cogent written decision denying
defendant's motion to suppress.
13 A-5305-15T1 Addressing his sentence, defendant argues that the judge
failed to "articulate [his] basis for imposing the present
sentence." At sentencing, the judge considered defendant's
criminal history and the crimes to which he pled guilty, and
concluded that he was "clearly convinced" that aggravating factors
three, the defendant was likely to reoffend, N.J.S.A. 2C:44-
1(a)(3), six, the extent of defendant's criminal history and the
seriousness of the offenses to which he was pleading guilty,
N.J.S.A. 2C:44-1(a)(6), and nine, the need to deter defendant and
others from violating the law, N.J.S.A. 2C:44-1(a)(9), all
applied.
The judge weighed the aggravating factors against mitigating
factors and specifically addressed mitigating factor four, that
there were substantial grounds tending to excuse or justify
defendant's conduct though failing to establish a defense,
N.J.S.A. 2C:44-1(b)(4). The judge addressed that factor in the
context of the argument being advanced that defendant suffered
from a "mental health condition", and found the factor to apply,
but concluded that the lone mitigating factor was outweighed by
the aggravating factors he found.
We review a judge's sentencing decision under an abuse of
discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
Applying that standard, we conclude that defendant's arguments
14 A-5305-15T1 about his sentences for aggravated manslaughter and fourth degree
assault are without merit as we discern no clear abuse of the
judge's discretion. See State v. Roth, 95 N.J. 334, 363 (1984).
Defendant has failed to establish that (1) the sentencing
guidelines were violated; (2) the aggravating and mitigating
factors found were not based upon competent and credible evidence
in the record; or (3) "the application of the guidelines to the
facts . . . makes the sentence clearly unreasonable so as to shock
the judicial conscience." Fuentes, 217 N.J. at 70 (quoting Roth,
95 N.J. at 364-65); see also State v. O'Donnell, 117 N.J. 210,
215-16 (1989).
We part company with the judge however with regard to
defendant's sentence for second-degree aggravated assault. As
both parties agree, the judge failed to either sentence defendant
to five years or allow him an opportunity to withdraw his plea,
as stipulated to in defendant's plea agreement. For that reason,
we are constrained to vacate his conviction as to the one charge
and remand the matter for resentencing to impose a five-year term,
or provide defendant with an opportunity to withdraw his plea as
to that charge.
Affirmed in part; vacated and remanded in part. We do not
retain jurisdiction.
15 A-5305-15T1