RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0496-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
G.N.W.,
Defendant-Appellant.
_________________________
Argued October 29, 2019 – Decided January 28, 2020
Before Judges Messano, Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 14-07-
1248.
Cody Tyler Mason, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Cody Tyler Mason, of
counsel and on the brief).
Mary Rebecca Juliano, Assistant Prosecutor, argued the
cause for respondent (Christopher J. Gramiccioni,
Monmouth County Prosecutor, attorney; Mary Rebecca
Juliano, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
This case involves the sexual predation of children while in the sanctuary
of their own bedrooms, highlighting the dangers children face today when they
use the internet and internet-connected gaming devices. Defendant, G.N.W.,
appeals from his trial convictions for first-degree aggravated sexual assault and
related charges of manufacturing and distributing child pornography. Defendant
insisted upon representing himself at trial, took the witness stand, and freely
admitted that he used the video chat and photo messaging features of his Xbox
videogame console to encourage boys between the ages of ten and fifteen to
send him sexually explicit videos. Defendant also admitted, among other things,
that he sent the children videos of himself masturbating. The State's trial proofs,
which included electronic evidence seized from defendant's home and the live
testimony of four 1 underage victims, established that defendant induced the
children to perform and video record sexual acts, including anal penetration.
Defendant has been steadfast in his contentions that pedophiles are a
persecuted minority and that the New Jersey Code of Criminal Justice
1
A fifth child chose not to testify, and the trial court dismissed charges
involving that child at the close of the State's case.
A-0496-17T1
2
wrongfully makes this conduct a crime. These tenets are the foundation of his
defense strategy. He also argued that his conduct was not unlawful because the
children consented to every request he made. The jury rejected this defense and
convicted defendant of twenty-one crimes involving the four underage victims.
He was sentenced to an aggregate term of forty-six years of imprisonment during
which he must serve thirty-eight years before becoming eligible for parole.
On appeal defendant raises a number of contentions challenging both his
trial convictions and sentence. After reviewing the record in light of the
applicable legal standards, we reject all but one of defendant’s arguments on
appeal. Specifically, we cannot determine whether the seven-year delay
between defendant’s arrest in 2009 and his trial in 2016 violated his
constitutional right to a speedy trial.
It appears that much of the delay was attributed to (1) the high volume of
defense motions; (2) the nature of an investigation involving forensic analysis
of digital evidence used to identify out-of-state victims; and (3) additional
charges being lodged as a result of new information provided by child witnesses
who had been reluctant initially to reveal certain sexual acts. However, as the
State acknowledges, the trial court did not make specific findings with respect
to the four factors set forth in Barker v. Wingo. 407 U.S. 514 (1972). It
A-0496-17T1
3
therefore is necessary to remand the case to the Law Division to undertake the
fact-sensitive analysis required by Barker.
I.
This case, which four different Law Division judges presided over, has a
long and tortuous procedural history. We summarize the most significant events
to provide context for defendant's speedy trial claim.
In October 2009, defendant was arrested the day after the Monmouth
County Prosecutor's Office executed a search warrant and seized electronic
devices and storage media from defendant's home. The ensuing forensic
examination revealed the Xbox usernames of children with whom defendant
communicated and shared pornographic photographs and videos.
On January 7, 2011, a Monmouth County grand jury charged defendant in
a nineteen-count indictment.
On February 6, 2012, defendant filed motions to dismiss the indictment
and to suppress evidence seized pursuant to the search warrant. He also moved
for a bill of particulars and requested a Michaels2 taint hearing. On January 9,
2
State v. Michaels, 136 N.J. 299 (1994). The court at a Michaels hearing
determines whether police used improper interview techniques with alleged
child-sex-abuse victims, and whether those techniques "so infected the ability
of the children to recall the alleged abusive events that their pretrial statements
A-0496-17T1
4
2013, defendant's attorney withdrew the motion for a bill of particulars, and the
first judge assigned to the case denied defendant’s motion to dismiss the
indictment. The judge denied the Michaels motion without an evidentiary
hearing on October 29, 2013, and the motion to suppress was denied on
December 13, 2013.
On February 3, 2014, defendant appeared at a plea cutoff hearing pursuant
to R. 3:9-3(g). At the hearing he acknowledged the maximum sentence that
could be imposed for each count of the nineteen-count indictment. A trial date
was scheduled for May 6, 2014.
At some point in the course of the preparation for trial, the State became
aware that defendant encouraged two of the victims to penetrate themselves
anally, conduct constituting first-degree crimes that the grand jury had not
charged in the initial indictment. Defendant did not agree to allow the State to
proceed with these additional charges by accusation. Accordingly, the State
scheduled a grand jury hearing for June 20, 2014.
On July 16, 2014, a Monmouth County grand jury returned a superseding
indictment charging defendant with twenty-seven counts. The superseding
and in-court testimony based on that recollection are unreliable and should not
be admitted into evidence." Id. at 315–16. We note that defendant does not
appeal from the denial of his Michaels motion.
A-0496-17T1
5
indictment charged five counts of third-degree child endangerment, N.J.S.A.
2C:24-4(a) (counts one, nine, sixteen, twenty-one, and twenty-two); four counts
of second-degree manufacturing child pornography, N.J.S.A. 2C:24-4(b)(4)
(counts two, ten, seventeen, and twenty-three); four counts of second-degree
causing a child to engage in child pornography, N.J.S.A. 2C:24-4(b)(3) (counts
three, eleven, eighteen, and twenty-four); four counts of third-degree
distribution of obscene material to a person under eighteen, N.J.S.A. 2C:34-
3(b)(1) and (2) (counts four, twelve, nineteen, and twenty-five); three counts of
second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts five, thirteen, and
twenty); two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-
3(b) (counts six and fourteen); two counts of first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a) (counts seven and fifteen); two counts of second-
degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (counts eight and twenty-six); and
one count of fourth-degree possession of child pornography, N.J.S.A. 2C:24-
4(b)(5)(b) (count twenty-seven).
On August 18, 2014, defendant filed a motion to dismiss the superseding
indictment. A second judge heard and denied that motion on October 10, 2014.
Two weeks later, a third judge assigned to the case was preparing to decide
another motion to suppress when the judge received a pro se submission from
A-0496-17T1
6
defendant seeking to represent himself at trial. This submission led to the
postponement of the re-scheduled trial date of January 5, 2015. Defendant later
entered a formal request to proceed pro se and underwent a competency
evaluation on February 24, 2015. The third judge found defendant to be
competent on September 24, 2015. On October 20, 2015, the court found that
defendant knowingly and voluntarily waived his right to counsel, whereupon the
court granted defendant's application to represent himself.
The case was reassigned to a fourth judge, who on March 9, 2016, denied
defendant's motions to dismiss the superseding indictment for vagueness and
violations of the First Amendment; to dismiss for a violation of speedy trial; to
suppress evidence; and to recuse both the third and fourth judges who had heard
aspects of the case.
On March 10, 2016, the trial court held a new plea cutoff hearing for the
superseding indictment at which time defendant was apprised that if convicted
on all counts, he faced a maximum sentence of 239.5 years imprisonment with
a 59.5-year period of parole ineligibility. A trial date was set for October 12,
2016. In the interim, defendant filed motions on June 20, August 5, September
8, and September 27, 2016.
A-0496-17T1
7
Trial commenced on October 20, 2016. At the close of the State's case,
defendant moved to dismiss several counts, in part because one of the child
witnesses did not testify. The trial judge granted that motion and entered
judgments of acquittal on those counts.
On November 18, 2016, the jury convicted defendant of the remaining
twenty-one counts. Defendant moved for a mistrial, which the trial court denied
on April 28, 2017.
The sentencing hearing was held on April 28, 2017. After appropriate
mergers, the court imposed an aggregate forty-six-year sentence with a thirty-
eight-year term of parole ineligibility pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. The court also imposed multiple terms of Parole
Supervision for Life (PSL), Megan's Law restrictions, and fees, penalties, and
assessments totaling $33,080.
II.
We next summarize the facts elicited at trial. Law enforcement authorities
were alerted that defendant had posted a YouTube video in which he professed
to be attracted to young boys and advocated for pedophilia. Defendant, who
was nineteen years old at the time, admitted to detectives during a noncust odial
interview that he found ten-year old boys "just so hot." Defendant discussed his
A-0496-17T1
8
Xbox video game console and its attached camera and microphone, which he
used to communicate with "many people, including children" under his
username, TEENTECH.
Five months later, S.S. went into the bedroom of her twelve-year-old son,
Z.M., and saw that the user profile for TEENTECH was displayed on the
computer screen with a personalized caption that read, "[I]'m 20 years old and I
like little boys." S.S. sent a message to TEENTECH telling him to stop
communicating with her son. Defendant responded by sending a message to
Z.M., stating, "I don't care what your mom says."
When S.S. learned of defendant’s defiant response, she filed a report with
the National Center for Missing and Exploited Children (NCMEC), and this
information was, in turn, provided to the Monmouth County Prosecutor's Office
detective who had previously interviewed defendant about his YouTube video.
The following month, S.S. discovered that Z.M. was texting with defendant.
NCMEC placed S.S. in contact with the Monmouth County Prosecutors Office
detective. She provided the detective with Z.M.'s cell phone and consented to a
forensic search of the phone.
That examination revealed inappropriate text messages between defendant
and Z.M. The Monmouth County Prosecutors Office obtained a warrant to
A-0496-17T1
9
search defendant's home, which was executed on October 21, 2009. Police
seized numerous electronic devices and media. A preliminary search of one of
defendant's hard drives revealed what appeared to be child pornography.
Defendant was arrested the next day.
A more intensive forensic examination of the seized devices/media,
conducted pursuant to a separate warrant, yielded thousands of images of ch ild
pornography. The examination of defendant's Xbox also revealed the usernames
of the four victims who testified in this prosecution, along with corresponding
videos, photographs, and messages. Further investigation provided the actual
identities and locations of these victims.
The four child victims were: J.S., who was between twelve and thirteen
years old during the period of communication with defendant; C.G., who was
between ten and eleven years old during the period of communication with
defendant; A.J., who was fifteen years old during the period of communication
with defendant; and Z.M., who was between eleven and twelve years old during
the period of communication with defendant.
The State at trial presented video that defendant had recorded of himself
as he was viewing messages and images provided by the victims. This recording
showed that defendant highlighted messages from their accounts in his inbox,
A-0496-17T1
10
opened the messages, viewed illicit webcam photographs/videos of the children,
verbally commented in a lewd manner on the pictures, and sent appreciative
messages back to the children, instructing them to keep quiet.
The State also presented video evidence seized from defendant’s hard
drive that recorded some of defendant’s live chats with the children. During one
of these chats, defendant pleaded with J.S. to disrobe, urging the child, "please,
strip for me. Let me just watch. Come on get out. Get out of those blankets."
Defendant threatened J.S. that if he did not do as he asked, defendant would
"turn off [his] console right now."
The four victims testified at trial and each provided a similar account of
their relationship with defendant. J.S. testified that the recorded video chat in
which defendant urged J.S. to disrobe and threatened to disable his Xbox console
was "a common occurrence" and "something that was very, very regular over
the course of the two years." J.S. testified that defendant was “very flirtatious
and very forward" when they first met electronically and "almost immediately"
started trying to get J.S. to disrobe. During one of their video conversations,
defendant convinced J.S. to penetrate his rectum with his finger, and at a later
time, convinced defendant to penetrate his rectum with a marker.
A-0496-17T1
11
C.G. testified that during their video chats, defendant was "naked most of
the time. He would have no shirt on. No pants on. . . . [And] he would touch
himself." At defendant's urging, C.G. sent defendant photographs depicting
C.G. naked and touching himself sexually.
A.J. testified that defendant told him he "was hot" and asked the child to
touch his own penis and "make it hard and stuff like that." At defendant's urging,
A.J. sent defendant photographs depicting A.J. holding his penis and penetrating
his anus.3 Defendant also sent child pornography to A.J. through a photo sharing
application on the Xbox.
Z.M. testified that defendant would urge him to take and send photographs
of Z.M. masturbating using both his hand and the Xbox controller that vibrated.
Also, at defendant's urging, Z.M. tried "sticking a finger in [his] anus."
III.
Defendant raises the following contentions on appeal:
POINT I
REVERSAL IS REQUIRED BECAUSE THE TRIAL
COURT DID NOT ENSURE DEFENDANT'S
3
According to the law, "sexual penetration" means "vaginal intercourse,
cunnilingus, fellatio or anal intercourse between persons or insertion of the
hand, finger or object into the anus or vagina either by the actor or upon the
actor's instruction. The depth of insertion shall not be relevant as to the question
of commission of the crime." N.J.S.A. 2C:14-1.
A-0496-17T1
12
WAIVER OF COUNSEL WAS KNOWING AND
INTELLIGENT, AND, IF THE WAIVER WAS
VALID, BECAUSE IT INTERFERED WITH
DEFENDANT'S RIGHT TO REPRESENT HIMSELF
BY PREVENTING HIM FROM ARGUING
MOTIONS AND TESTIFYING OTHER THAN BY
BEING QUESTIONED BY STANDBY COUNSEL.
A. THE WAIVER OF COUNSEL WAS
NOT VALID BECAUSE THE COURT
DID NOT FIRST ENSURE THAT
DEFENDANT UNDERSTOOD THE
PENAL CONSEQUENCES, THE
NATURE OF THE OFFENSES, THE
AVAILABLE DEFENSES, AND THE
RISKS OF PROCEEDING PRO SE.
B. THE TRIAL COURT VIOLATED
DEFENDANT'S RIGHT TO SELF-
REPRESENTATION WHEN IT DENIED
A MOTION TO SUPPRESS EVIDENCE
BEFORE GRANTING HIS MOTION TO
PROCEED PRO SE[] AND ORDERED
THAT HIS TESTIMONY BE ELICITED
THROUGH QUESTIONING BY
STANDBY COUNSEL.
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN NOT SEVERING THE COUNTS
RELATING TO THE DIFFERENT CHILDREN, IN
NOT TELLING THE JURY TO DISREGARD
EVIDENCE OF DISMISSED CHARGES, AND IN
ALLOWING THE STATE TO IMPROPERLY
BOLSTER ITS CASE.
A-0496-17T1
13
A. THE TRIAL COURT COMMITTED
PLAIN ERROR BY NOT SEVERING
THE COUNTS CONCERNING
UNRELATED CHILDREN AND
EVENTS.
B. THE TRIAL COURT COMMITTED
PLAIN ERROR IN NOT CHARGING
THE JURY TO DISREGARD THE
OTHER-CRIME EVIDENCE
REGARDING THE DISMISSED
COUNTS.
C. REVERSAL IS REQUIRED BECAUSE
THE STATE BOLSTERED ITS CASE
AND DISPARAGED DEFENDANT'S
CREDIBILITY WITH INADMISSIBLE
TESTIMONY.
D. THE ERRORS AT TRIAL
INDIVIDUALLY AND
CUMULATIVELY REQUIRE
REVERSAL OF DEFENDANT'S
CONVICTIONS.
POINT III
DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS
VIOLATED BY THE NEARLY SEVEN-YEAR
DELAY BETWEEN HIS ARREST AND TRIAL
SUCH THAT A REMAND FOR DISMISSAL OF THE
INDICTMENT IS REQUIRED.
POINT IV
RESENTENCING IS REQUIRED BECAUSE THE
COURT ERRED IN FINDING AGGRAVATING
FACTOR TWO AND NOT ADDRESSING
A-0496-17T1
14
MITIGATING FACTOR FOUR, DID NOT MAKE
APPROPRIATE FINDINGS IN IMPOSING FINES,
AND IMPOSED ILLEGAL CONDITIONS ON
CERTAIN COUNTS.
A. THE TRIAL COURT ERRED IN
FINDING AGGRAVATING FACTOR
TWO BASED ON DOUBLE-COUNTING
AND WITHOUT CONSIDERING THE
NATURE OF THE OFFENSES[] AND IN
NOT ADDRESSING OR FINDING
MITIGATING FACTOR FOUR DESPITE
AMPLE EVIDENCE OF DEFENDANT'S
CHILDHOOD TRAUMA AND MENTAL
HEALTH ISSUES.
B. THE TRIAL COURT ERRED IN
IMPOSING $16,500 IN FEES UNDER
N.J.S.A. 2C:14-10 WITHOUT
ADDRESSING THE FACTS OF THE
CASE AND ISSUES AFFECTING
DEFENDANT'S ABILITY TO PAY.
C. THE TRIAL COURT ERRED IN
IMPOSING PAROLE SUPERVISION
FOR LIFE ON COUNTS TWO, TEN,
SEVENTEEN, AND TWENTY-THREE,
AND MEGAN'S LAW ON COUNT
TWENTY-SEVEN.
Defendant also raises several contentions in a pro se brief: 4
POINT I
4
The brief does not follow a traditional format and these are the closest
approximations of point headings.
A-0496-17T1
15
INEFFECTIVE ASSISTANCE OF COUNSEL FOR
NO RECORD OF COUNSEL FILING MOTION FOR
DISMISSAL OF INDICTMENT FOR DENIAL OF
SPEEDY TRIAL BASED ON ANY POTENTIAL
ISSUES TO BE TESTED BY COURT IN THE TIME
PERIOD OF REPRESENTING DEFENDANT AFTER
ONE YEAR AND UP TO SIX YEARS AFTER
DEFENDANTS ARREST AND CONTINUES
CONFINEMENT.
POINT II
ERROR DENYING MOTION AND/OR COURT
FAILURE TO FILE MOTION DE NOVO FOR
DISMISSAL OF INDICTMENT FOR DENIAL OF
SPEEDY TRIAL RESULTING IN IRREVERSIBLE
ASSUMED PREJUDICE AFTER AT LEAST ONE OF
THE FALLOWING [SIC]: ABOUT SIX AND A HALF
YEARS SINCE ACCUSATION OF CASE OR
INCARCERATION PROSPECTIVELY SEVEN
YEARS, FOURTEEN AND A HALF MONTHS TO
INDICT, THE REAPPOINTMENT OF COUNSEL
FROM PRIVATE TO PUBLIC AFTER A YEAR IN
TO CASE, HAVING TO HAVE NEW COUNSEL
REQUEST DELAY NEARLY TWO YEARS IN TO
CASE TO REVIEW RECORD, PROSECUTION
TAKING MONTHS TO FILE RESPONSE BRIEF,
PROSECUTION AFTER 4.5 YEARS POSSESSING
EVIDENCE OR LOCATION OF EVIDENCE
WANTED TO ADD.
POINT III
ERROR TRIAL COURT INTERUPTING [SIC] PRO
SE DEFENDANTS ORAL ARGUMENT DURING
MOTION FOR DISMISSAL OF INDICTMENT ON
GROUNDS OF DENIAL OF SPEEDY TRIAL
PROVENTING [SIC] DEFENDANT FROM RAISING
A-0496-17T1
16
REPRESENIONS [SIC] OF EVENTS WHICH:
CONSTRUCTIVELY CONSTITUTE, OR ITSELF
CONSTITUTE: CITING PREJUDICE, OR CITE
OPPOSING PARTIES DELAYS.
POINT IV
ERROR TRIAL COURT DENYING MOTION FOR
DISMISSAL OF INDICTMENT ON GROUNDS
SUGGESTING THE COURT DELAYED TRIAL
RATHER THEN [SIC] STATE-PROSECUTION OR
"THE COURT WAS UNDERSTAFFED". [SIC]
HOWEVER, DISCOUNTING ANY COURT DELAY
STATE-PROSECUTION HAD EITHER OR BOTH
DELAYED CASE OR COMMITED [SIC] ACTIONS
CONTRIBUTING TO THE DEFENSE DELAY OF A
YEAR WITHOUTH [SIC] STATE PROACTIVELY
NEGATING POSSIBLE PREJUDICES OR
DEFENDANT HAD SUFFERED PREJUDICE.
POINT V
ERROR TRIAL COURT DENYING MOTION FOR
DISMISSAL OF INDICTMENT ON GROUNDS OF
COURT SUGGESTING COURT DELAYED TRIAL
COURT, RATHER THEN [SIC] STATE-
PROSECUTION; OR "THE COURT WAS
UNDERSTAFFED", [SIC] HOWEVER, THE
COURTS JUSTIFICATION WAS BASED ON
AXIOM OF FALSEHOOD OR WAS ITSELF A
FALSEHOOD. PERSUINT [SIC] TO U.S. CONST.
AMEND. 6 SPEEDY TRIAL CLAUSE.
POINT VI
ERROR DISTRICT TRIAL COURT EITHER NOT
FILING INDEPENDENT MOTION DE NOVO, OR
DENYING DEFENSE MOTION: FOR DISMISSAL
A-0496-17T1
17
OF INDICTMENT ARGUING DENIAL OF SPEEDY
TRIAL, BASED ON OTHER SOURCE'S
CONRABUTION [SIC] TO DELAY; DESPITE AT
LEAST ONE OF THE FALLOWING [SIC] STATE-
PROSECUTION DELAY OF AT LEAST ONE YEAR,
AFTER STATE-PROSECTION [SIC] HAD
CONTRIBUED [SIC] TO AT LEAST YEAR OF
DELAY, OR SHERE [SIC] EXTENT OF DELAY.
POINT VII
ERROR DENYING MOTION AND/OR COURT
FAILURE TO FILE MOTION DE NOVO FOR
DISMISSAL OF INDICTMENT FOR DENIAL OF
SPEEDY TRIAL RESULTING IN IRREVERSIBLE
ASSUMED PREJUDICE IN AT LEAST ONE OF THE
FALLOWING [SIC] CIRCUMSTANCES: CHILD
SEX CASE WHERE CASE OR OTHER THIRD
PARTY JUDGEMENT [SIC], INVESTIGATION OR
INQUIRY INSINUATED TO HAVE CAUSED
SEVERE EMOTIONAL INJURY TO CHILDREN
IRRESPECTIVE DEFENDANTS CASE; EVIDENCE
EXISTED.
IV.
We first address defendant’s contention that his right to a speedy trial was
violated due to the seven years that elapsed between his arrest and trial. By any
objective measure, this is a substantial period of time, one that requires careful
scrutiny.
In State v. Cahill, the New Jersey Supreme Court reaffirmed "that the
four-factor balancing analysis of [Barker] remains the governing standard to
A-0496-17T1
18
evaluate claims of a denial of the federal and state constitutional right to a
speedy trial." 213 N.J. 253, 258 (2013). Those four factors are: "length of the
delay, reason for the delay, assertion of the right by a defendant, and prejudice
to the defendant." Id. at 264 (citing Barker, 407 U.S. at 530). "None of the
Barker factors is determinative, and the absence of one or some of the factors is
not conclusive of the ultimate determination of whether the right has been
violated." Id. at 267 (citing Barker, 407 U.S. at 533). "[T]he factors are
interrelated, and each must be considered in light of the relevant circumstances
of each particular case." State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div.
2009) (citing Barker, 407 U.S. at 533).
When delay exceeds one year, the court presumptively should analyze all
of the Barker factors. Cahill, 213 N.J. at 265–66. We have previously
cautioned, however, against deciding "how long is too long . . . 'by sole reference
to the lapse of a specified amount of time.'" State v. Detrick, 192 N.J. Super.
424, 426 (App. Div. 1983) (quoting State v. Smith, 131 N.J. Super. 354, 360
(App. Div. 1974)). Legitimate delays, "however great," will not violate the
defendant's right to a speedy trial if it does not specifically prejudice defendant's
defense. Doggett v. United States, 505 US. 647, 656 (1992).
A-0496-17T1
19
It bears emphasis that longer delays may "be tolerated for serious offenses
or complex prosecutions." Cahill, 213 N.J. at 266. Intuitively, defense-caused
delay does not support a speedy trial violation and such delays are subtracted
from the total calculus. United States v. Claxton, 766 F.3d 280, 294 (3d Cir.
2014) (citing United States v. Battis, 589 F.3d 673, 680 (3d Cir. 2009)); see also
State v. Long, 119 N.J. 439, 470 (1990) (holding that "[a]ny delay that defendant
caused or requested would not weigh in favor of finding a speedy trial violation"
(quoting State v. Gallegan, 117 N.J. 345, 355 (1989))). Of course, purposeful
delay tactics weigh heavily against the State. Barker, 407 U.S. at 531.
"The only remedy" for a violation of a defendant's right to a speedy trial
"is dismissal of the charge." Cahill, 213 N.J. at 276. On appeal, "we reverse
only if the court's determination is clearly erroneous." Tsetsekas, 411 N.J.
Super. at 10 (citing State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)).
In this instance, the reasons for the seven-year period between arrest and
are clearly attributable to both sides. In part because speedy trial issues were
raised at different times, we do not have the benefit of a comprehensive Law
Division opinion that divides the overall delay into discrete periods and then
A-0496-17T1
20
explains and evaluates the reasons for delay in each of these time periods. 5
Importantly, and as the State candidly acknowledges in its appellate brief, the
trial court did not make specific findings as to the Barker factors.
There are many circumstances to consider, including but not limited to (1)
the seriousness of the crimes; (2) the complexity and logistical challenges of an
investigation that required forensic analysis of digital evidence used to identify
and locate out-of-state child witnesses; (3) new information provided by two
child victims who had been reluctant initially to reveal that they had been urged
to engage in anal penetration; (4) the number of judges assigned to preside over
various events; (5) numerous pretrial motions defendant filed at all stages of the
case;6 and (6) defendant's unorthodox defense strategy, which may be relevant
in determining whether that defense was prejudiced by delay.
5
Compare State v. May, 362 N.J. Super. 572, 596 (App. Div. 2003), where a
single trial judge applied the Barker factors, divided the time into discrete
periods of delay, and attributed each period to the State, defendant, or court
system.
6
Under the third Barker factor—the extent to which a defendant asserts his or
her speedy trial right—a defendant's filing of multiple "indisputably frivolous"
motions weighs against a finding of a violation. United States v. Loud Hawk,
474 U.S. 302, 314 (1986). As noted, defendant moved to proceed pro se because
he wanted to file more motions and did so at a prolific rate after he was accorded
the right of self-representation. We are not in the best position to determine
which if any of the denied motions were frivolous, and we leave that
A-0496-17T1
21
It is impracticable for us to review this record and exercise original
jurisdiction pursuant to R. 2:10-5 to decide the ultimate question whether
defendant's right to a speedy trial was violated. See Tomaino v. Burman, 364
N.J. Super. 234–35 (App. Div. 2003) (opining that appellate courts should
exercise original jurisdiction "only with great frugality"). Moreover, it is
conceivable, if not likely, that the current record is not adequate to permit a
fulsome review of the Barker factors. The circumstances explaining certain
periods of delay, for example, may be outside the current record, in which event
further factfinding may be necessary. Exercise of original jurisdiction is
discouraged if factfinding is involved. State v. Micelli, 215 N.J. 284, 293 (2013)
(quoting State v. Santos, 210 N.J. 129, 142 (2012)).
We therefore believe review of the Barker factors is best delegated to the
trial court in the first instance. A trial court is better suited than we are to
undertake "the difficult task of balancing all the relevant factors relating to the
respective interests of the State and the defendant[]," and to provide "subjective
reactions to the particular circumstances [to] arrive[] at a just conclusion."
Merlino, 153 N.J. Super. at 17.
determination to the sound judgment of the trial court on remand. We also note
that defendant was informed on multiple occasions that filing voluminous
motions would lead to further trial delays.
A-0496-17T1
22
Accordingly, we remand the matter to the Law Division to (1) catalog and
compartmentalize all of the discrete periods of delay, (2) determine and evaluate
the specific reasons for delay, and, (3) as to delay attributed to the State,
determine whether the delay was the product of the case's complexity or other
legitimate justification, or else was the product of purposeful delay tactics or
mere inaction. The Law Division should apply the Barker factors in light of
those findings.
As noted, this analytical process "necessarily involves subjective reaction
to the balancing of circumstances." State v. Szima, 70 N.J. 196, 201 (1976).
We leave it to the sound discretion of the trial court regarding the conduct of
those proceedings, including whether testimony is necessary. Should the court
conclude defendant's speedy trial rights were violated, it shall vacate defendant's
judgment of conviction and dismiss the superseding indictment.
V.
Defendant claims that he did not knowingly and intelligently waive his
right to trial counsel. Contrary to defendant’s assertions on appeal, the record
clearly shows that he was apprised of the risks of proceeding pro se and that he
knowingly and voluntarily, indeed gladly, accepted the challenges of self-
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23
representation, in large part because he wanted to advocate for himself publicly
and make a statement in support of pedophilia.
Defendants have both the right to counsel and the right to represent
themselves. State v. Dubois, 189 N.J. 454, 465 (2007). To exercise the right to
proceed pro se, defendants must knowingly and voluntarily waive their right to
counsel. State v. Reddish, 181 N.J. 553, 587 (2004). Before allowing a
defendant to proceed pro se, a court must conduct an on-the-record inquiry of
the defendant. See In re DiLeo, 216 N.J. 449, 479 (2014) (concluding it was
improper for the trial court judge to deem the right to counsel waived wit hout a
"searching inquiry" by the court). The defendant is to "be made aware of the
dangers and disadvantages of self-representation, so that the record will
establish that 'he knows what he is doing and his choice is made with eyes
open.'" Faretta v. California, 422 U.S. 806, 835 (1975) (quoting Adams v.
United States ex. rel. McCann, 317 U.S. 269, 279 (1942)).
The New Jersey Supreme Court specifically requires that defendants
wishing to proceed pro se be made aware of:
(1) the nature of the charges, statutory defenses, and
possible range of punishment; (2) the technical
problems associated with self-representation and the
risks if the defense is unsuccessful; (3) the necessity
that defendant comply with the rules of criminal
procedure and the rules of evidence; (4) the fact that the
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24
lack of knowledge of the law may impair defendant's
ability to defend himself or herself; (5) the impact that
the dual role of counsel and defendant may have; (6)
the reality that it would be unwise not to accept the
assistance of counsel; (7) the need for an open-ended
discussion so that the defendant may express an
understanding in his or her own words; (8) the fact that,
if defendant proceeds pro se, he or she will be unable
to assert an ineffective assistance of counsel claim; and
(9) the ramifications that self-representation will have
on the right to remain silent and the privilege against
self-incrimination.
[Dubois, 189 N.J. at 468–69.]
In this instance, the court first responded to defendant's request to proceed
pro se by ordering a competency examination by a forensic psychologist. The
psychologist examined defendant and determined that he fully grasped his legal
situation. Accordingly, the court found defendant competent to stand trial.
The court also determined that defendant understood the crimes he was
charged with, the elements of those offenses, and the sentence that could be
imposed were he to be convicted. The judge also ensured that defendant knew
what he was giving up and what self-representation entailed. Although the judge
expressed skepticism concerning defendant's proposed defenses, defendant was
steadfast in his assertion that he could present the "best defense" for himself
because he was "well acquainted with the law . . . and . . . kn[e]w the particulars
of the case better than anyone."
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25
On October 20, 2015, defendant was again apprised of the risks of
proceeding pro se, to which he replied that he was "better equipped than many
people" to handle his defense because he was "devoted to do this case. [He was]
. . . well aware of all the circumstances and everything surrounding the case
even beyond what's in discovery." The judge then engaged in a thorough and
probing colloquy during which defendant expressed that he fully understood the
difficulties with proceeding pro se. Although the judge continued to question
the wisdom of defendant’s election, he found that defendant's request was "clear
and unequivocal in spite of the pitfalls . . . [and] difficulties . . . he has indicated
he is aware of." The judge thereupon found defendant's waiver to be made
knowingly and voluntarily.
After reviewing the trial court's thorough and probing colloquies with
defendant in the course of two hearings, we conclude that defendant was
properly advised by the court in accordance with Faretta and Reddish, and the
trial court did not abuse its discretion in finding that defendant knowingly and
voluntarily waived his right to be represented by counsel at trial. See Dubois,
189 N.J. at 475 (applying abuse-of-discretion standard of review to trial court
finding of knowing and intelligent waiver of right to counsel).
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26
VI.
Defendant next contends that despite having granted defendant’s request
to represent himself at trial, the trial court did not respect defendant’s
constitutional right of self-representation and instead impeded defendant from
pursuing his chosen trial strategy or allowed standby counsel to do so.
Specifically, defendant asserts that the trial court (1) refused to permit defendant
to control the litigation of a motion to suppress evidence seized pursuant to a
search warrant and (2) required defendant to answer questions posed by standby
counsel rather than permit defendant to testify in narrative fashion, thereby
allowing standby counsel to screen out questions that defendant wanted posed
to him on the witness stand.
We begin our analysis of these contentions by acknowledging the
principles of constitutional law that we must adhere to and safeguard. Once a
defendant has waived the right to counsel and has been granted the right of self -
representation, he or she must be afforded the ability "to control the organization
and content of his [or her] own defense, to make motions, to argue points of law,
. . . to question witnesses, and to address the court and the jury at appropriate
points in the trial." Dubois, 189 N.J. at 466 (quoting McKaskle v. Wiggins, 465
U.S. 168, 174 (1984)). It does not matter that the trial court is justifiably
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27
skeptical of the defendant’s trial strategy and earnestly wants to protect a
defendant from the adverse consequences of ill-conceived pro se arguments. As
our Supreme Court noted in State v. King, "[t]he trial court was concerned
understandably about defendant's ability to present a sound defense. Such
concern, no matter how well-intentioned, cannot override defendant's exercise
of his right to decide to represent himself." 210 N.J. 2, 21 (2012).
In determining whether a defendant's right to conduct his own defense has
been respected, "the primary focus must be on whether the defendant had a fair
chance to present his case in his own way." McKaskle, 465 U.S. at 177.
Although the appointment of standby counsel is permitted, the defendant must
maintain "actual control over the case he chooses to present to the jury." Id. at
178. Standby counsel’s participation must not "destroy the jury’s perception
that the defendant is representing himself." Ibid. Furthermore, and of particular
importance in the circumstances of the case before us, the trial court must not
allow standby counsel to “substantially interfere[ ] with the defendant’s trial
strategy.” Reddish, 181 N.J. at 597 (citing McKaskle, 465 U.S. at 178). When
such interference occurs, the constitutional right of self-representation is
violated and reversal and a new trial is required. See State v. Gallagher, 274
N.J. Super. 285, 289 (App. Div. 1994).
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28
A.
Defendant contends the trial court erred by not respecting his right to
control the litigation of a defense motion to suppress evidence obtained from a
search warrant. The validity of the warrant and the ensuing search, which is not
challenged in this appeal, was instead litigated by appointed counsel. We reject
defendant's contention because the suppression motion was argued and decided
before defendant was granted authority to proceed pro se. We see no
constitutional error in the judge's decision to deny defendant's request to re -
litigate a motion that had already been decided.
As noted, a pro se litigant has the right to make motions and argue points
of law. Dubois, 189 N.J. at 466 (citing McKaskle, 465 U.S. at 174). That right
does not automatically entitle a pro se defendant to re-litigate motions that were
decided before the defendant waived the right to appointed counsel and was
formally accorded the right of self-representation. Nor was the trial court
obliged to delay ruling on the suppression motion until after deciding whether
to grant defendant's request to proceed pro se. The sequence of deciding pending
motions is a matter vested in the discretion of the trial court. See R. 3:9-1(d)
(authorizing the trial court to set dates for hearing pretrial motions and
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29
explaining "the court may in its discretion . . . schedule any necessary pretrial
hearings").
At bottom, the record in this case makes clear that the Law Division in
this case showed great respect, and commendable patience, with regard to
defendant's right to litigate motions once he formally attained pro se status.
B.
Defendant next contends he was deprived of his right of self-
representation when the trial court required that defendant's testimony be
elicited through questions posed by standby counsel rather than in a narrative
format or by having defendant question himself. Although defendant refers to
cases where trial courts happened to allow the defendant to testify by narrative,
defendant cites to no New Jersey case that holds, or even suggests, that a pro se
defendant is entitled as of right to present testimony through a narrative format. 7
We hold that as part of a trial court's general authority to control the
proceedings, including the "mode . . . of interrogating witnesses," N.J.R.E.
611(a), the court has broad discretion in deciding whether to allow a pro se
7
See State v. Rubenstein, 104 N.J.L. 291, 294 (Sup. Ct. 1928), where it was
held that the court did not err in requiring the direct examination of the plaintiff
by question and answer, not narrative form, because it is "a matter within the
discretion and control of the trial court."
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30
defendant to testify in a narrative fashion or to require instead that defendant's
testimony be elicited through questions posed by standby counsel. See United
States v. Beckton, 740 F.3d 303, 306 (4th Cir. 2014) (explaining that trial
management decisions such as "whether [a pro se defendant's] testimony shall
be in the form of a free narrative or responses to specific questions" are
discretionary (quoting Fed. R. Evid. 611 advisory committee's note)).
Although the trial court acted within its discretion in precluding defendant
from testifying in a free narrative, the decision to require a pro se defendant to
testify by answering questions posed by standby counsel is subject to an
important caveat: it is for a self-represented defendant, not standby counsel, to
decide ultimately what testimonial evidence the defense presents to the jury.
Defendant contends in this regard that standby counsel did not ask questions that
defendant wanted to have posed to him on the witness stand, thereby impeding
his right of self-representation.
In addressing this argument, we first note that it is not the role of standby
counsel or a trial judge to prevent a pro se defendant from pursuing a reckless
or foolhardy trial strategy. See King, 210 N.J. at 21. ("[N]o matter how well-
intentioned, [a trial court] cannot override [a] defendant's exercise of his [or her]
right to decide to represent himself [or herself]."). Defendant was explicitly
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31
warned that by accepting the right of self-representation, he was waiving the
right to claim ineffective assistance of counsel. See Faretta, 422 U.S. at 834
n.46 ("[A] defendant who elects to represent himself [or herself] cannot
thereafter complain that the quality of his [or her] own defense amounted to a
denial of 'effective assistance of counsel.'"). "[E]ven in cases where the accused
is harming himself by insisting on conducting his own defense, respect for
individual autonomy requires that he be allowed to go to jail under his own
banner if he so desires and if he makes the choice '"with eyes open.'" United
States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965).
While standby counsel may caution a pro se client of the perils of his or
her intended course of action and offer advice on a sounder approach, counsel
must not interfere with a pro se defendant’s chosen trial strategy, however ill -
conceived or self-defeating. Reddish, 181 N.J. at 597–98. As a general
proposition, therefore, a pro se defendant should be permitted to give testimony
that standby counsel and the court know from their experience might lessen the
chances for acquittal. It plainly appears that is exactly what happened in this
case.
Before defendant testified on his own behalf, the trial court explored
whether defendant and standby counsel had an opportunity to review the
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32
questions that would be posed during defendant’s direct examination. During
this colloquy, standby counsel explained to the court:
Okay. Well, Judge, this morning I received
a couple of pieces of information. One is
questions, I think there's 215 of them here.
Okay. And another one has another 40 or
50 of them, I guess. And I had spoken to
the client about the fact that where the case
is at this point in time, what type of
information the jury’s already seen, and the
focus of the questions mainly on the four
individuals who testified, whereas some of
these other questions are more far reaching
and into various other, if you will,
collateral areas, and I had basically
indicated to him that I have a series of
questions, a limited number of questions.
The questions are designed to allow him to
give his version to the jury, because I think
that’s what the jury wants to hear. They
heard the State’s version. Now it’s [their]
opportunity to hear his version, and
obviously he would have to have latitude
and we try to ask general questions to allow
that to happen.
[Emphasis added.]
Later in the colloquy, the trial court explained, “[s]o I think what [standby
counsel] is saying is that not necessarily every question he would ask, because
he’s trying his best, also, to focus you towards . . . the objective of being found
not guilty, but he’s going to ask a number of those questions.”
A-0496-17T1
33
The court then asked defendant whether that made sense, to which
defendant replied “[o]kay.”
The record thus shows that while standby counsel did not pose every
specific question that defendant may have drafted, he did pose general questions
designed to afford defendant the latitude to present his own version. We believe
it is especially important that defendant on appeal does not point to a single
testimonial fact that he wanted to present to the jury but was precluded from
doing so by the question-and-answer format as it was actually employed in this
case. In other words, defendant does not specify any admissible evidence8 in
support of his trial strategy that he was not able to place before the jury during
his trial testimony.
In sum, defendant has not shown how the question-and-answer format as
actually applied in this case substantially interfered, if at all, with the
presentation of his trial strategy. We add that defendant does not claim on
appeal that the trial court or standby counsel impeded him from presenting his
8
While a self-represented defendant has the right to decide what evidence the
defense presents, he or she has no right, of course, to introduce inadmissible
testimony. See Dubois, 189 N.J. at 468 (requiring a court to advise a defendant
that is seeking to proceed pro se of the necessity that he or she comply with the
rules of evidence). The right of self-representation, in other words, in no way
restricts a trial court’s authority and discretion in making evidentiary rulings or
otherwise managing the trial proceedings.
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34
arguments in his summation to the jury. We therefore conclude that defendant
was afforded, through the combination of his testimony and arguments, "a fair
chance to present his case in his own way." McKaskle, 465 U.S. at 177.
VII.
Defendant claims for the first time on appeal that the trial court should
have sua sponte severed the counts involving each child victim. Defendant
argues that by aggregating the offenses involving all four child victims into a
single trial, the State improperly suggested that defendant had a propensity for
child predation.
Defendant is hard pressed to complain that the joinder of charges
inappropriately suggested his predisposition for pedophilia given that his trial
strategy emphasized that he was sexually attracted to young boys and had the
right to perform acts prohibited by law and charged in the superseding
indictment. It was defendant, in other words, who placed his sexual
predisposition squarely before the jury.
We add that even in the absence of such an unusual defense strategy,
joinder of similar charges may be permitted in sex abuse and child pornography
cases involving multiple victims. See State v. Davis, 390 N.J. Super. 573, 599
(App. Div. 2007) (concluding that failing to sever the case was not "clearly
A-0496-17T1
35
capable of producing an unjust result" (quoting R. 2:10-2)); State v. Krivacska,
341 N.J. Super. 1, 37 (App. Div. 2001) ("Our procedural rules provide that two
or more indictments or accusations may be tried together if, among other things,
the offenses charged 'are of the same or similar character.'" (quoting R. 3:7-6)).
Defendant next contends, again for the first time on appeal, that the judge
should have instructed the jurors to disregard the evidence relating to charges
that were dismissed at the end of the State's case. Defendant claims that by not
doing so, defendant was unfairly convicted on the basis of additional propensity
evidence. We disagree.
The grand jury indicted defendant on charges relating to a fifth child
victim, A.P. This child chose not to testify. As a result, after the prosecution
rested, the trial court dismissed the counts pertaining to A.P. We agree with
defendant that the trial court should have instructed the jury to disregard any
evidence that had been presented concerning this child. In this instance,
however, the trial court's failure to instruct the jury to disregard that evidence
does not rise to the level of plain error as it was not clearly capable of producing
an unjust result. R. 2:10-2. As noted, defendant chose to place his sexual
predisposition with respect to young boys before the jury as the foundation of
his defense strategy. Furthermore, the State's evidence of guilt with respect to
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36
the criminal acts involving the four children who did testify was essentially
uncontroverted and unquestionably overwhelming.
Defendant next asserts that Detective Andrea Tozzi, who defendant called
as a witness, improperly testified from her personal experience. She testified it
was not unusual that a child would not immediately disclose sexual penetration
to her during an interview. Defendant argues that such testimony was
tantamount to expert testimony about "Child Sexual Assault Accommodation
Syndrome" (CSAAS) in large degree now prohibited by the new rule announced
in State v. J.L.G., 234 N.J. 265, 272 (2018), which we held applied retroactively
in State v. G.E.P., 458 N.J. Super. 436, 448 (App. Div.), certif. granted, 239 N.J.
598 (2019).
The circumstances of Detective Tozzi's comment are significantly
different from the circumstances in J.L.G. The Supreme Court ruled that expert
testimony about CSAAS is not reliable except as to delayed disclosure. J.L.G.,
234 N.J. at 272. Here, the comment defendant contends was improper related
to delayed disclosure. Furthermore, Detective Tozzi was at no time presented
as an expert witness. Her brief comment related to her personal experience
interviewing young sexual abuse victims and their reluctance to disclose sexual
acts such as masturbation and anal self-penetration. Furthermore, the detective's
A-0496-17T1
37
comment was elicited in response to defendant's suggestion that she had
attempted to improperly influence the children by asking them questions about
sexual penetration. In these circumstances, we conclude that no improper
bolstering of the State's case occurred. See State v. B.M., 397 N.J. Super. 367,
380–81 (App. Div. 2008) (explaining the "opening the door" doctrine, which
allows responsive evidence that would otherwise be inadmissible).
Even if Detective Tozzi's answer were deemed to be inadmissible, her
brief, isolated remark was not clearly capable of producing an unjust result, Rule
2:10-2, considering the overwhelming strength of the State's case with respect
to defendant's role in inducing the child victims to video record themselves in
the act of masturbation and anal penetration.
Defendant further claims that the State improperly attacked his credibility
by eliciting that defendant promised the children he would not save the videos
or pictures so as to persuade the children to send them. We conclude that the
trial court did not abuse its discretion in ruling this testimony was admissible to
show the influence defendant exercised over the children. See State v. Scott,
229 N.J. 469, 479 (2017) (stating evidential rulings are only disturbed on appeal
if there was a “clear error in judgment . . . so wide of the mark that a manifest
denial of justice resulted”) (quoting State v. Perry, 225 N.J. 222, 223 (2016))).
A-0496-17T1
38
Finally, with respect to defendant's trial-related contentions, we agree—
and the State on appeal does not dispute—that it was inappropriate for the
prosecutor in summation to remark, "[s]o much for the defendant's argument
that he was always truthful." This isolated, off-hand comment in no way
affected the outcome of the trial. R. 2:10-2; see also State v. Wakefield, 190
N.J. 397, 467 (2007) (holding that reviewing courts should not reverse unless
the prosecutor's conduct was "so egregious that it deprived the defendant of a
fair trial" (quoting State v. Pennington, 119 N.J. 547, 565 (1990))).
In sum, any evidentiary, prosecutor comment, or jury-instruction errors
that may have occurred are minimal and, even when viewed cumulatively,
provide no reason to reverse defendant's convictions in light of the
overwhelming evidence presented by the State and by the defendant through his
admissions. We therefore do not hesitate to conclude that none of the alleged
trial errors, singly or collectively, "cast[] doubt on the propriety of the jury
verdict." State v. Jenewicz, 193 N.J. 440, 474 (2008).
We similarly reject defendant's contentions regarding the sentence that
was imposed. The trial court did not engage in impermissible double-counting,
as defendant claims, when it found aggravating factor two, which focuses on the
gravity and seriousness of the offense. N.J.S.A. 2C:44-1(a)(2). Although
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39
"[e]lements of a crime, including those that establish its grade, may not be used
as aggravating factors for sentencing of that particular crime," State v. Lawless,
214 N.J. 594, 608 (2013), a court "does not engage in double-counting when it
considers facts showing defendant did more than the minimum the State is
required to prove to establish the elements of an offense." State v. A.T.C., 454
N.J. Super. 235, 254–55 (App. Div. 2018) (citing State v. Fuentes, 217 N.J. 57,
75 (2014)). Here, the judge properly found aggravating factor two based on a
"pragmatic assessment of the totality of the harm inflicted by the offender on
the victim." State v. Kromphold, 162 N.J. 345, 358 (2000).
The child victims in this case presented compelling evidence of the harm
defendant inflicted by befriending them, confusing them, and ultimately
inducing them to engage in perverse sexual acts. This form of emotional a nd
psychological harm is not an element of the offenses for which defendant was
convicted, and, therefore, the sentencing court's careful attention to this type of
harm does not constitute double-counting. A.T.C., 454 N.J. Super. at 254–55.
Rather, this harm properly supports a finding of aggravating factor two. State
v. Logan, 262 N.J. Super. 128, 132 (App. Div. 1993) (upholding a finding of
psychological damage to support aggravating factor two).
A-0496-17T1
40
Defendant's second sentencing contention, that the judge failed to find
mitigating factor four, 9 is also without merit. Although "mitigating factors that
are suggested in the record, or are called to the court's attention, ordinarily
should be considered," in this instance, defendant failed to establish any
legitimate basis upon which to conclude that there were substantial grounds to
excuse or justify his conduct. State v. Blackmon, 202 N.J. 283, 297 (2010)
(citing State v. Dalziel, 182 N.J. 494, 504-05 (2010)). Defendant asserts that he
suffers from a mental disease or defect and trauma from a troubled youth. See
State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002) (recognizing prior
abuse and mental illness are "highly relevant" when determining if mitigating
factors apply). But he has offered no evidence of any such mental impairment
and no such impairment was revealed in his competency evaluation or in his
numerous motions before the court. Furthermore, the record shows defendant
never offered evidence that he was traumatized by a troubled childhood.
Next, defendant claims that the court improperly imposed a combined Sex
Crime Victim Treatment Fee of $16,500 pursuant to N.J.S.A. 2C:14-10. In
calculating an appropriate amount, the sentencing court must consider not only
9
See N.J.S.A. 2C:44-1(b)(4) ("There were substantial grounds tending to
excuse or justify the defendant's conduct, though failing to establish a
defense.").
A-0496-17T1
41
the nature and circumstances of the offenses committed but also the defendant's
ability to pay. State v. Bolvito, 217 N.J. 221, 234 (2014). In doing so, the court
"should look beyond the defendant's current assets and anticipated income
during the period of incarceration." Ibid.
In this instance, the sentencing judge considered facts about defendant,
such as his work history, that led the judge to conclude that defendant could pay
this amount at some point following his release. Any such analysis necessarily
involves speculation as to a defendant's earning potential in the distant future.
We also recognize, as defendant aptly notes, that convicted sex offenders may
face special difficulties in finding gainful employment upon their release from
prison.
Given the inherent imprecision in predicting a defendant's future income,
we do not believe the sentencing court abused its discretion when it found that
defendant will be able to pay $16,500. We decline to substitute our own
prediction of defendant's future earnings in place of the sentencing court's
estimation. Nor do we believe the sentencing court abused its discretion with
respect to its findings pursuant to Bolvito regarding the nature and
circumstances of the offenses defendant committed. See Fuentes, 217 N.J. at 70
A-0496-17T1
42
(holding that appellate courts apply the abuse of discretion standard when
reviewing a judge's sentencing decision).
Finally, while defendant is without question subject to parole supervision
for life pursuant to N.J.S.A. 2C:43-6.4, and to the requirements of Megan's Law
pursuant to N.J.S.A. 2C:7-2, we agree with defendant that the trial court erred
in imposing parole supervision for life on defendant's conviction for count two.
However, the judgment of conviction (JOC) does not reflect that this sanction
was imposed on that particular count, so there is no need to correct the JOC.
VIII.
To the extent we have not already addressed them, any other arguments
raised by defendant in this appeal, whether in the brief submitted by counsel or
defendant's pro se brief, see supra note 4, do not have sufficient merit to
warrant discussion in this written opinion. R. 2:11-3(e)(2).
IX.
For the foregoing reasons, we remand the case to the Law Division to
assess defendant's speedy trial claim in accordance with the instructions set forth
in Section IV of this opinion. In all other respects, we reject defendant's
contentions and affirm his convictions and sentence. We do not retain
jurisdiction.
A-0496-17T1
43
Affirmed in part and remanded for proceedings consistent with this
opinion.
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44