STATE OF NEW JERSEY VS. ANTHONY M. FERNANDEZ

A jury convicted defendant Anthony M. Fernandez of second

degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2,

2C:35-5(a)(1), and 2C:35-5(b)(1) (count one); first-degree

possession with intent to distribute cocaine, N.J.S.A. 2C:35

5(a)(1) and 2C:35-5(b)(1) (count three); third-degree possession

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

2C:35-5(b)(11) (count four); and second-degree child

endangering, N.J.S.A. 2C:24-4(a) (count seven).1 At sentencing,

the trial judge merged counts one and three, and imposed a

fifteen-year custodial term subject to five years parole

ineligibility. The other sentences were to be served concurrent

to count three: three years imprisonment on count four and

seven years on count seven. Appropriate fines and penalties

were also imposed. Defendant appeals, and we affirm.

At the suppression hearing conducted before trial, New

Jersey State Police Detective Sergeant First Class Cesar Huaman,

who worked with the United States Drug Enforcement Agency (DEA)

and functioned as the administrator of the High Intensity Drug

Trafficking Area Task Force, testified. Huaman said in early

September 2011 he received information from two confidential

informants, CW1 and CW2, who had provided substantial leads to

the DEA on four prior federal cases. This was, however, the

first State investigation involving CW1 and CW2. Huaman

assigned the case to Detective Christopher Wright, then a member

of the Drug Trafficking Unit of the New Jersey State Police.

CW1 told Wright that an individual named "Chiquito," who

worked at a barber shop in Woodbridge, was able to sell "bulk

quantities of cocaine." CW1 described Chiquito as a Hispanic

male of average build and CW1 also gave the officer Chiquito's

phone number. After confirming that the description matched

defendant, the State Police conducted surveillance at

defendant's place of employment and home.

While in Huaman and Wright's presence, CW1 called defendant

to arrange a drug buy. CW1's brief conversation was in Spanish,

understood only by Huaman. At the officers' instruction, CW1

later placed a second call to defendant, and told him he had a

buyer interested in purchasing two kilograms of cocaine at a

cost of $32,000 or $35,000 per kilogram. The transaction was

scheduled for September 22, 2011.

That day, police initially kept both defendant's home and

workplace under surveillance, as they were unsure of where the

sale would occur. CW1, in the officers' presence, called

defendant and confirmed the sale. During that call, defendant

directed CW1 to his home.

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Prior to entering defendant's house, both CW1 and CW2 were

searched for money and contraband, fitted with wires, and

introduced to the putative buyer, an undercover officer. A

signal that the informants would use to indicate the delivery of

the drugs was agreed upon.

CW1 and CW2 entered the house while the undercover officer

waited in a car out front. The informants were inside for

approximately an hour. Because the wires did not work, CW1 and

CW2 communicated with the officers via text messages and phone

calls, explaining that the transaction was delayed because

defendant's first supplier was not able to deliver the drugs,

and he had to find another person to bring the cocaine to the

house. While police waited, a taxicab dropped off a woman and

small child later identified as defendant's girlfriend and two

year-old son.

Eventually, the informants communicated that "a third party

came with a [duffle] bag that contained the drugs." The

officers did not see the person enter the house.

Approximately fifteen minutes later, defendant and CW1

walked outside to verify that the buyer actually had the cash

necessary for the purchase. As prearranged, CW1 took off his

baseball cap and ran his fingers through his hair to signal that

he had actually seen the cocaine.

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The team, consisting of nineteen police officers and two

canine officers, arrested CW1 and defendant outside the house.

The undercover officer "fled" the scene. CW1 and defendant told

the officers that there were two other men in the house —— the

third-party supplier and CW2 —— in addition to defendant's

girlfriend and his son. Once outside of defendant's hearing,

CW1 confirmed that a man had brought a duffle bag containing the

drugs into the residence.

The officers decided to "clear" and "secure" the premises

before obtaining a search warrant because of their concern that

others remained in the home along with the drugs. Before entry,

officers positioned in the back of the house saw a man, later

identified as Toby,2 attempt to escape through the side entrance

of the house. He was immediately arrested. The officers

removed CW2, defendant's girlfriend, and his son from the

residence.

At 9:07 p.m., having secured the premises, Wright and a

deputy attorney general applied for a telephonic warrant to a

Superior Court judge. They sought authorization to search "any

enclosure located within" defendant's home that "may reasonably

contain" drugs or drug paraphernalia. Wright, under oath,

2 Toby entered a guilty plea to first-degree drug distribution after the trial court's denial of the motion to suppress. We address his appeal by separate opinion.

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testified that he had probable cause to search the premises

because he had arranged through a confidential informant to

purchase a bulk quantity of cocaine from defendant. Wright said

he saw the informant enter the residence, and that the informant

confirmed he saw the cocaine on the premises. The informant

then accompanied defendant outside to speak with the prospective

buyer, the undercover officer. Wright stated that the informant

was someone he had worked with in the past.

The State Police recorded the application for a search

warrant, essentially the deputy attorney general's questioning

of Wright. The application was granted. The record does not

indicate if the judge kept notes of the proceedings, or later

compared his notes with the transcript. See R. 3:5-3(b).

While executing the warrant, the officers located a gray

and white duffle bag, as described by the informants, behind the

door of the master bedroom. It contained approximately one

kilogram of cocaine. Within the living room and kitchen,

officers located a digital scale in addition to several small

bags of marijuana and cocaine, and packaging material. Police

found a bag containing approximately fourteen ounces of

marijuana in a toy chest in defendant's son's bedroom.

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After the search, defendant was brought back inside the

home and administered his Miranda3 warnings, which he stated he

understood. He then waived his right to remain silent and took

"full responsibility" for the drugs in the house, including the

cocaine. When asked about his girlfriend, defendant said

"[e]verything in the house is mine. Nothing is anybody

else['s], it's all mine."

When questioned, Toby said only that he was in the house to

visit defendant, whom he described as "a Spanish guy." He

denied knowing about any bag, and referred all questions about

it to defendant.

After the search, defendant was taken to the State Police

barracks for a formal, video recorded interview. As the

interview began, he was reread his Miranda rights. When asked

to explain what had happened, he said only that there was "coke"

and "weed" at his house. When asked how the cocaine got into

his house, he said "it was theirs." He then asked, "I can't

talk to a lawyer?" and said, "I would like to talk to a lawyer."

An officer explained that defendant's girlfriend could be

charged, at which point defendant said words to the effect that

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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he had already taken responsibility. After that, he again asked

to speak with an attorney, and the interview stopped.

During the trial, defendant testified that he began using

marijuana after painful surgery, and later sold the drug to

friends. He said that he bragged to CW1 about his ability to

get him marijuana but never intended to follow through with any

sale. Defendant claimed to have been surprised and fearful when

CW1 showed up at his home in New Jersey because their prior

contacts had all taken place in New York. He had not thought

that CW1 would come back to his house to buy drugs, and when CW1

subsequently called to arrange for a purchase, he declined.

Defendant said CW1 and CW2 made him feel scared and

uncomfortable. On cross-examination, he said that he contacted

Toby to obtain cocaine only because he was afraid if he did not,

his family would be killed.

We describe the prosecutor's comments during summation in

detail in the section addressing defendant's claims of

prosecutorial misconduct.

On appeal, defendant raises the following points:

POINT I THE PHYSICAL EVIDENCE DISCOVERED IN FERNANDEZ'S HOUSE, AS WELL AS THE STATEMENTS HE MADE AFTER HIS ARREST, SHOULD HAVE BEEN SUPPRESSED BECAUSE THEY WERE OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT AND THE NEW JERSEY STATE CONSTITUTION. (raised below)

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POINT II FERNANDEZ'S CUSTODIAL STATEMENT THAT THE DRUGS RECOVERED FROM HIS HOUSE BELONGED TO HIM SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS MADE IN RESPONSE TO A COERCIVE THREAT AGAINST HIS FAMILY. (not raised below)

POINT III REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR IMPROPERLY COMMENTED ON FERNANDEZ'S SILENCE DURING POLICE INTERROGATION. (raised below)

POINT IV THE TRIAL COURT'S INSTRUCTIONS WERE INADEQUATE BECAUSE THEY FAILED TO DEFINE AN ESSENTIAL ELEMENT OF THE CHARGED OFFENSES. (not raised below)

POINT V DEFENDANT'S 15-YEAR SENTENCE WAS IMPOSED AFTER THE TRIAL COURT FAILED TO PROPERLY CONSIDER AN APPLICABLE MITIGATING FACTOR, AND IT WAS UNDULY HARSH IN LIGHT OF FERNANDEZ'S COMPLETELY UNBLEMISHED CRIMINAL HISTORY.

In his pro se brief, defendant adds the following:

POINT ONE NEW EVIDENCE WAS ADMITTED AT TRIAL FROM DETECTIVE WRIGHT AND SGT HUAMAN TESTIMONIES. DEFENDANT SEEKS FOR REVERSAL OF THE SUPPRESSION MOTION DUE TO A VIOLATION UNDER, NEW JERSEY WIRETAPPING AND ELECTRONIC SURVEILLANCE CONTROL ACT, N.J.S.A. 2A:156A-1 AND TO DISMISS THE INDICTMENT DUE TO THE STATE INVADING THE GRAND JURY FUNCTION.

POINT TWO THE EVIDENCE SEIZED PURSUANT TO THE SEARCH WARRANT ISSUED BY JUDGE [DALEY] MUST BE SUPPRESSED DUE TO THE STATE[']S FAILURE TO COMPORT WITH ESTABLISHED PROCEDURAL REQUIREMENTS IN THE APPLICATION PROCESS, WHICH DENIED THE DEFENDANT DUE PROCESS OF LAW AND NEEDS REVERSAL[.]

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POINT THREE THE WARRANTLESS ENTRY AND SEIZURE OF THE PREMISES KNOWN AS [. . .] WOODBRIDGE TWP. NEW JERSEY BY TASK FORCE MEMBERS WAS UNWARRANTED UNDER THE CIRCUMSTANCES; AND, EVEN PERMITTING A FINDING OF PROBABLE CAUSE BY THIS COURT, ANY EXIGENT CIRCUMSTANCES FLOWING FROM THE SEIZURE OF THE RESIDENCE WERE POLICE CREATED AND WARRANTS SUPPRESSION OF EVIDENCE SEIZED.

POINT FOUR THE SEARCH WARRANT [WAS] ISSUED IN THE ABSENCE OF PROBABLE CAUSE AND REQUIRES SUPPRESSION OF ANY EVIDENCE SEIZED IN CONNECTION THERETO, U.S.C.A. CONST. AMEND 4, N.J. CONST., ART. 1, PAR. 7[.] THIS WAS ESTABLISHED IN THE DETECTIVE['S] TESTIMONY AT TRIAL.

We address defendant's points of error in order.

I.

"[S]earch warrants must be based on sufficient specific

information to enable a prudent, neutral judicial officer to

make an independent determination that there is probable cause

to believe that a search would yield evidence of past or present

criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005).

When issuing a search warrant, a court must consider the

totality of the circumstances to determine whether probable

cause exists. State v. Novembrino, 105 N.J. 95, 122 (1987)

(adopting the totality of the circumstances test set forth in

Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76

L. Ed. 2d 527, 548 (1983)).

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If the information included in the application is based on

an informant's tip, a court must consider the "'veracity and

basis of knowledge' of the informant," as well as the ability of

law enforcement to corroborate the tip. Keyes, supra, 184 N.J.

at 555-56 (quoting State v. Jones, 179 N.J. 377, 389 (2004)).

In deciding if probable cause existed, a reviewing court must

consider only the "four corners" of the affidavit and any sworn

testimony presented before the issuing judge. State v. Wilson,

178 N.J. 7, 14 (2003). A defendant bears the burden to show the

absence of probable cause. Keyes, supra, 184 N.J. at 554.

With these standards in mind, we turn to defendant's claims

of error. Clearly Wright's statement to the judge that he had

prior experience with the confidential informants was not

correct. In his counseled and uncounseled briefs, defendant for

that reason challenges the validity of the warrant. The agency

that had prior experience with these informants was the DEA, not

the State Police. But this error is not significant in the

context of this operation.

The confidential informants in this case did far more than

just convey a tip. The information they supplied formed the

basis for an arranged buy. Not only did they call defendant at

least twice while in the officers' presence, they went to his

home. Once there, the informants eventually signaled that the

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drugs had been delivered. They were present when the police

made their arrests and entered the home, and knew they would be

present when it occurred.

Arrangements for the purchase of cocaine were initiated

based solely on the confidential informants' tip. But

everything that occurred thereafter happened in the officers'

presence, or while they were surveilling defendant's home. It

defies common sense to suggest that the confidential informants'

actual presence and participation was not itself a significant

assurance of their veracity.

Indisputably, officers must demonstrate probable cause

prior to the issuance of a search warrant. U.S. Const. amend.

IV; N.J. Const. art. I, ¶ 7. "Probable cause exists where the

facts and circumstances within . . . [the officers'] knowledge

and of which they had reasonably trustworthy information [are]

sufficient in themselves to warrant a [person] of reasonable

caution in the belief that an offense has been or is being

committed." State v. Moore, 181 N.J. 40, 46 (2004) (alterations

in original) (quoting Schneider v. Simonini, 163 N.J. 336, 361

(2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed.

2d 959 (2001)).

Ample probable cause was clearly established through other

than an informant's tip standing alone. Wright stood on the

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street, testifying in front of defendant's home, where a duffle

bag filled with drugs had just been delivered and he had seen

defendant behave like a seller of drugs. The actual

circumstances established probable cause regardless of the

misstatement.

II.

The burden is on the State to prove, beyond a reasonable

doubt, in this as in every other case, that the confession was a

product of the defendant's own will, rather than any police

coercion. State v. Patton, 362 N.J. Super. 16, 42 (App. Div.),

certif. denied, 178 N.J. 35 (2003). To determine the

voluntariness of a confession, a court examines "the totality of

the circumstances, including both the characteristics of the

defendant and the nature of the interrogation." State v.

Knight, 183 N.J. 449, 462 (2005) (quoting State v. Galloway, 133

N.J. 631, 654 (1993)). Defendant now contends that his

custodial statement was coerced.

"[T]he use of psychological coercion including trickery and

deceit by police has received judicial sanction." Patton,

supra, 362 N.J. Super. at 29. The United States Supreme Court

has held that confessions are voluntary where police lied about

evidence against the defendant and where police were dishonest

in stating that a defendant had been implicated by a co

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defendant. Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L.

Ed. 2d 684 (1969); Miller v. Fenton, 474 U.S. 104, 106 S. Ct.

445, 88 L. Ed. 2d 405 (1985). But psychological techniques may

be just as coercive as the use of force. Chambers v. Florida,

309 U.S. 227, 238-39, 60 S. Ct. 472, 478, 84 L. Ed. 716, 722-23

(1940).

We review defendant's claim for plain error, as the issue

was not previously raised. R. 2:10-2. ("Any error or omission

shall be disregarded by the appellate court unless it is of such

a nature as to have been clearly capable of producing an unjust

result, but the appellate court may, in the interest of justice,

notice plain error not brought to the attention of the trial or

appellate court.")

At trial, defendant testified that while at the scene he

told police that "[e]verything is mine" because he felt "it's

all kind of my fault, I have to take responsibility." He had

the impression that the police "were going to lock [his

girlfriend] up and take [his] son away." But it was not until

defendant's later station house interview that Wright said to

him "[y]ou and your girlfriend will both be charged, okay? So

if you're not saying anything then that's what's going to

happen. You understand?" In other words, defendant's

confession was made before anyone said anything to him about his

A-3090-12T2 15

girlfriend being taken into custody. Even on the stand, he did

not dispute possession, only claiming that he felt intimidated

and coerced, entrapped, by the confidential informants.

Moreover, when Wright told defendant that his girlfriend

could be charged with drug possession as well, it was not a

misstatement of the law. She was in the house with the drugs

after they arrived. She lived with defendant in a house where a

quarter of a pound of marijuana was hidden in her son's toy box.

In any event, Wright's "threat," proper or not, resulted in no

further admissions. Defendant's argument ignores his freely

made confession at the scene. No "threats" of any sort had been

made at that point, whether lawful or not, regarding his

girlfriend. Defendant's defense theory at trial was entrapment,

not denial of possession. Defendant's videotaped statement,

made after his initial on-the-scene confession, was not coerced.

The State has met the burden of proving that the inculpatory

statement was freely given.

Lastly, defendant's alleged motivation to shield his

girlfriend did not automatically render his statement

involuntary. "The mere fact that promises are made to a

defendant does not render the statement involuntary." State v.

Roach, 146 N.J. 208, 227 (1996). That principle applies when

the police promise favorable treatment of a relative or close

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friend. "That defendant's statement was given not to shed his

inner burden, but rather in an attempt to minimize his exposure

and protect his relatives from prosecution does not make it per

se involuntary." State v. Boyle, 198 N.J. Super. 64, 72 (App.

Div. 1984), superseded by statute on other grounds as recognized

in State v. Malik-Ismail, 292 N.J. Super. 590, 595 (App. Div.

1996). Ultimately, whether the statement is voluntary "depends

on the circumstances of a particular case." Roach, supra, 164

N.J. at 227. This is in accord with the majority view of other

jurisdictions that whether a promise to release a relative from

custody renders a confession involuntary must be assessed based

on the totality of circumstances. Caroll J. Miller, Annotation,

Voluntariness Of Confession As Affected By Police Statements

That Suspect's Relatives Will Benefit By The Confession, 51

A.L.R. 4th 495, §2 (2008).

III.

Defendant also contends that the prosecutor improperly

commented upon his silence. She cross-examined him regarding

his entrapment defense, asking him for the reason he did not

communicate to the authorities his fear of CW1 and CW2 at the

first opportunity. The State responds that the questioning

properly focused on inconsistencies between defendant's

statements to police and his trial testimony.

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"It is well-settled under federal and state law that a

prosecutor may not use a defendant's post-arrest silence against

him." State v. Taffaro, 195 N.J. 442, 456 (2008) (citations

omitted). "Our state law privilege does not allow a prosecutor

to use at trial a defendant's silence when that silence arises

'at or near' the time of arrest, during official interrogation,

or while in police custody." State v. Muhammad, 182 N.J. 551,

569 (2005). Our courts have reversed for prosecutorial comment

on post-arrest silence when the prosecutor uses the defendant's

silence as substantive evidence of guilt. Id. at 573.

It is equally clear, however, that "[a] defendant's right

to remain silent is not violated when the State cross-examines a

defendant on the differences between a post-Miranda statement

and testimony at trial." State v. Tucker, 190 N.J. 183, 189

(2007) (citing Anderson v. Charles, 447 U.S. 404, 408, 100 S.

Ct. 2180, 2182, 65 L. Ed. 2d 222, 226 (1980)). When a defendant

"voluntarily speaks after receiving Miranda warnings" he or she

has not been induced to remain silent. Ibid. Although "two

inconsistent descriptions of events may be said to involve

'silence' insofar as it omits facts included in the other

version," the Anderson court did not adopt such a "formalistic

understanding of 'silence.'" Anderson, supra, 447 U.S. at 409,

100 S. Ct. at 2182, 65 L. Ed. 2d at 227.

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The prosecutor's initial phrasing of questions regarding

the subject was immediately objected to by defense counsel, and

the objections were sustained by the court. The cross

examination continued:

Prosecutor: Prior to you asking about a lawyer, you were asked by the State Police, "How did that cocaine get in your residence?" Do you remember that?

Defendant: Yes.

Prosecutor: And you said, "It was there." Correct?

Defendant: Yes

Prosecutor: And you testified before that that wasn't true?

Defendant: Correct.

Prosecutor: That was a lie to the State Police.

Thereafter, in the next question you were asked, "Was it there all day?" Do you remember that?

Defendant: Yes

Prosecutor: At that point you could have told the State Police, "No, it wasn't there all day. I was forced to bring this cocaine to my house because of these two individuals I was afraid of." Correct?

Defendant: Yes

The prosecutor's questioning focused on inconsistencies between

defendant's statements to police and his testimony at trial.

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Hence, the examination came squarely within the Tucker paradigm

and was therefore not error. See Tucker, supra, 190 N.J. at

190.

IV.

Defendant contends for the first time on appeal that the

judge's instruction defining possession with intent to

distribute was erroneous. Pursuant to Rule 1:7-2, a party may

not assert a jury charge was flawed unless the objections are

raised prior to the jury's consideration of its verdict. Thus

we review the claim for plain error. State v. Wakefield, 190

N.J. 397, 472-73 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct.

1074, 169 L. Ed. 2d 817 (2008).

"In the context of a jury charge, plain error requires

demonstration of '[l]egal impropriety in the charge

prejudicially affecting the substantial rights of the defendant

sufficiently grievous to justify notice by the reviewing court

and to convince the court that of itself the error possessed a

clear capacity to bring about an unjust result.'" State v.

Burns, 192 N.J. 312, 341 (2007) (alteration in original)

(quoting State v. Jordan, 147 N.J. 409, 422 (1997)); R. 2:10-2.

In order to convict defendant on the indictment, the State

must establish the following elements to prove possession with

intent to distribute: (1) a controlled dangerous substance; (2)

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in defendant's possession; (3) which he intended to distribute;

and (4) while acting knowingly or purposely with respect to his

or her possession. N.J.S.A. 2C:35-5(a). The judge's

instruction failed to define "distribution."

The court conducted on-the-record charge conferences before

instructing the jury. After instructing the jury, the judge

elicited comment from the attorneys and made minor corrections

to the verdict sheet on points unrelated to his omission of any

definition for "distribution." At the end of that colloquy, he

asked the attorneys, "Are you satisfied?" and according to the

transcript, neither replied. Nonetheless, the jury was sent out

to begin deliberations —— indicating that at a minimum, counsel

silently acquiesced to the charges as the judge gave them.

The judge mistakenly omitted the definition of the term

"distribute," i.e., the "transfer, actual, constructive or

attempted, from one person to another of a controlled dangerous

substance[.]" Model Jury Charge (Criminal), "Possession of a

Controlled Dangerous Substance With Intent to Distribute."4

Viewing the instruction as a whole, however, the omission

was not error. The term in ordinary usage does not vary from

the definition found in the charge. There is no reason to

4 The current version of the model jury charge was revised on June 8, 2015. However, for our analysis, we cite to the version in effect at the time of trial and which was read to the jury.

A-3090-12T2 21

believe that the jury would have misunderstood the import of the

instruction or the meaning of the term. The failure to define

it did not have the "clear capacity to bring about an unjust

result." See Burns, supra, 192 N.J. at 341.

V.

The final point in defendant's counseled brief is his

contention that the court's sentence was excessive. We review

sentencing decisions, however, not to substitute our own

judgment, but to assess whether the aggravating and mitigating

factors found by the trial court are supported by the record.

State v. Bieniek, 200 N.J. 601, 607-09 (2010). The result will

be upheld if a trial court's findings of aggravating and

mitigating factors are supported by the record, the overall

sentence complies with the Code, and the individual sentence

does not shock our conscience. Ibid.

In this case, the trial judge found aggravating factors

three, N.J.S.A. 2C:44-1(a)(3), and nine, N.J.S.A. 2C:44-1(a)(9).

The judge found a slight risk that defendant would reoffend

because of defendant's minimal contacts with the system, an

ordinance violation and a driving while intoxicated, N.J.S.A.

39:4-50, while also finding a basis for mitigating factor seven,

N.J.S.A. 2C:44-1(b)(7), because defendant had no prior criminal

history. The judge stressed that he accorded aggravating factor

A-3090-12T2 22

nine, deterrence, great weight because of the harm done to

society as a result of drug usage. See N.J.S.A. 2C:44-1(a)(9).

The judge also found mitigating factor eleven, N.J.S.A. 2C:44

1(b)(11), because defendant's imprisonment would be a hardship

for his child. In balancing the factors, the judge sentenced

defendant to the mid-point of the range for the most serious

offense and imposed concurrent terms for the possession of

marijuana and child endangerment.

Defendant's attorney argued that the confidential

informants pressured defendant, and that therefore mitigating

factors three and four should be applied. N.J.S.A. 2C:44

1(b)(3) and (4). Although the judge did not explicitly reject

the argument, neither did he find the factors. The judge did

not conclude the record suggested those factors. We agree.

We therefore affirm the sentence. The aggravating and

mitigating factors were supported by the record, and therefore

were not an abuse of discretion. The sentence complies with the

Code and does shock our conscience.

VI.

In his uncounseled brief, defendant first contends that the

motion to suppress should have been granted because the State

violated New Jersey's Wiretapping and Electronic Surveillance

Control Act, N.J.S.A. 2A:156A-1 to -37, in arranging for the

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confidential informant to record their conversation. This

argument lacks sufficient merit to warrant further discussion in

a written opinion. R. 2:11-3(e)(2).

VII.

Defendant also contends that the evidence should have been

suppressed because the deputy attorney general and not the judge

recorded Wright's sworn testimony, and because Wright did not

specify the exigency justifying a telephonic search warrant.

"A Superior Court judge may issue a search warrant upon

sworn oral testimony of an applicant who is not physically

present. . . . If a recording is made, the judge shall direct

that the testimony be transcribed as soon as practicable." R.

3:5-3(b). The "transcribed record shall be certified by the

judge." Ibid. The court rule states that a "judge shall

contemporaneously record such sworn oral testimony by means of a

tape-recording device or stenographic machine if such are

available; otherwise, adequate longhand notes summarizing what

is said shall be made by the judge." Ibid. In the absence of

bad faith, where noncompliance with the warrant rules is

insubstantial, it is tolerated. State v. Valencia, 93 N.J. 126,

134 (1983); R. 3:5-7(g).

Here, the State Police prepared the transcription, not the

judge. However, there is no evidence of bad faith.

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"A warrant may issue if the judge is satisfied that exigent

circumstances exist sufficient to excuse the failure to obtain a

written warrant, and that sufficient grounds for granting the

application have been shown." R. 3:5-3(b). Although Wright did

not articulate the exigency, it was self-evident. This was an

arranged buy of a significant quantity of drugs with two

suspects in custody. It was nighttime, the officers had every

reason to believe the drugs were in the home, and the house was

occupied by people other than defendant. This point does not

require any further discussion in a written opinion.

Finally, defendant argues that the officers entered his

home unlawfully because any exigency was police-created. But no

evidence was seized during that initial entry. The contraband

was seized after a valid search warrant was issued. Therefore

no further discussion of this point is warranted in a written

opinion. Affirmed.