STATE OF NEW JERSEY VS. K.D.C. (15-09-1224 AND 16-04-0547, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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 us e in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3080-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

K.D.C.,

Defendant-Appellant.
_________________________

Argued December 10, 2019 – Decided February 21, 2020

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment Nos. 15-09-1224
and 16-04-0547.

Joseph J. Russo, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Tamar Yael Lerer, Assistant
Deputy Public Defender, of counsel and on the briefs).

Erin M. Campbell, Assistant Prosecutor, argued the
cause for respondent (Esther Suarez, Hudson County
Prosecutor, attorney; Erin M. Campbell, on the brief).

PER CURIAM
 After the Law Division denied his motion to suppress evidence obtained

from a search of his cell phone, defendant pleaded guilty to four offenses,

including two counts of first-degree endangering the welfare of a child.

Defendant entered the guilty pleas pursuant to a plea agreement, which reserved

his right to appeal the denial of his suppression motion.

In September 2017, the court sentenced defendant, consistent with his plea

agreement, to an aggregate sentence of twenty-five years with an eighty-five

percent period of parole ineligibility. Along with other fines and assessments,

the court imposed a $5500 Sex Crime Victim Treatment Fund (SCVTF) penalty.

This appeal followed, with defendant challenging the denial of his suppression

motion; alternatively, he asserts claims of sentencing error. We affirm, but

remand for resentencing on the SCVTF penalty.

We derive the following facts from the testimony elicited at the hearing

on defendant's motion to suppress. According to Sgt. Dino Nerney, at

approximately 8:20 a.m. on February 19, 2015, defendant's girlfriend (J.C.)1

arrived at the Jersey City Police Department and reported that, after scrolling

through defendant's cell phone, she discovered disturbing videos and

1
We use initials to protect the privacy of the witnesses and other individuals
involved.
A-3080-17T1
2
photographs of small children, whom she recognized as the nieces of defendant's

roommate (L.G.). Specifically, she recounted watching a video on defendant's

cell phone where defendant pulled the pants down on a child and "fondle[d] her

buttocks"; in another video, she observed "the same child on a bed and

[defendant] touching her vagina." According to Lt. Honey Spirito of the Special

Victims Unit (SVU), J.C. identified defendant in the videos by recognizing his

hand and objects in his bedroom.

Lt. Spirito ordered officers to go to defendant's apartment and "check on

the welfare of the children, secure the apartment for a search warrant, and to

bring the occupants down for an interview." According to Lt. Spirito, the SVU

did not prepare an arrest warrant based on an urgent concern for the safety of

any children who might be found at defendant's apartment. Sgt. Nerney believed

the police had probable cause to prepare an arrest warrant; however, he did not

obtain a warrant due to concerns for the children in the video and also because

defendant had children of his own living in the apartment.

The building where defendant resided consisted of two apartments.

Defendant rented the three-bedroom apartment on the first floor. He lived there

with his two children and shared the lease with L.G. According to Sgt. Nerney,

A-3080-17T1
3
when the police arrived at the apartment, L.G. permitted them inside.2 After

entering the apartment, he told defendant of the allegations of child pornography

on his cell phone3 and asked him and L.G. to drive to the police station for

questioning. They both agreed.

Sgt. Nerney testified that Officer Mark Shaver followed defendant to his

bedroom, after defendant "asked if he can get some clothes." As defendant

entered the bedroom, he started to close the door behind him; at that point,

Officer Shaver stepped into the doorway and stopped defendant from closing the

door. In response, defendant stated, "You need a search warrant. You can't

come in here. And I wanna lawyer."

Sgt. Nerney provided the following explanation for having Officer Shaver

follow defendant to his bedroom:

Well, we didn't check the room [yet]. We don't know
if there's kids inside the room, if there's evidence in
there, if there's a weapon in there, and we just wanted
to make sure that we followed him, you know, to make
sure that nothing could be discarded or destroyed.

....

2
This statement is consistent with the testimony of L.G., who testified he
opened the door to uniformed police officers and permitted the officers inside.
Defendant stood next to L.G and did not object to the entry.
3
According to L.G., the police did not say why they were there or that they did
not have to let them into the apartment.
A-3080-17T1
4
 [When defendant] stopped [Officer Shaver] from
closing the door . . . he was taken into custody at that
time.

Defendant then asked Officer Shaver "if he could go back and get his

jacket out of his [bed]room." Officer Shaver walked defendant back to the

bedroom, where defendant "showed him where the jacket was in the room. He

put the jacket on him in the hallway, zippered up the jacket, and then patted him

down," locating and removing a cell phone "from the jacket pocket, [a] search

incident to arrest."

According to defendant, he opened the door for the police, they came

inside and "told me to go to my room and get dressed" because "I was under

investigation." He testified the police did not ask if they could enter the

apartment and L.G. did not permit them to enter. When defendant went to his

bedroom, he tried to close the door and the officer told him, "You cannot close

the door." Defendant responded by telling the officer he needed a warrant to

come into his bedroom. At that point, the officer placed defendant in handcuffs.

Defendant said the officer told him he "was under investigation, [but] not

under arrest." The officer grabbed his coat and put it on him and allowed him

to slip on his sneakers. The officers then brought defendant to the common area

of the apartment, where they searched him and seized his cell phone. Defendant

A-3080-17T1
5
requested the officers give his cell phone to L.G; instead, they "put it in an

evidence bag."

At approximately 11:00 a.m., Officer Mark Sojak spoke to J.C. and

obtained the passcode for defendant's cell phone. Officer Sojak accessed

defendant's phone using the pattern lock, placed the phone in "airplane mode"

and disabled the pattern lock. In a supplemental report, Officer Sojak explained

that he wanted to "protect data on the phone" and "prevent anyone from remotely

gaining access to the phone to delete any contents of evidentiary value."

At approximately 6:05 p.m., a judge issued a Communications Data

Warrant (CDW) for defendant's cell phone. Officer Sojak executed a search of

defendant's cell phone, viewed videos of two unknown juvenile victims and

located over 1800 images and videos of prepubescent children posing in various

sexual positions.

On September 2, 2015, a Hudson County Grand Jury returned a twenty-

four-count indictment, charging defendant with three counts of first-degree

aggravated sexual assault, three counts of second-degree sexual assault, fourteen

counts of third-degree endangering the welfare of a child, three counts of fourth-

degree child abuse, and one count of obstruction.

A-3080-17T1
6
 On December 4, 2015, defendant filed a motion to suppress the evidence

obtained in his cell phone. At the conclusion of the suppression hearing, the

motion judge delivered an oral opinion setting forth her findings and

conclusions. The judge found the police arrived at defendant's house "with the

intention to investigate[;] first, the information provided [to them, second] to

secure the children, if any. And [third t]o secure the premises of the residence

to make sure no evidence was destroyed." The judge found either defendant or

L.G., or both of them, provided consent to enter because they both conceded in

their testimony that consent occurred.

When addressing the conflicting testimony between Sgt. Nerney and L.G.

concerning whether police informed defendant why they were at his apartment,

the judge found Sgt. Nerney's testimony credible. The judge stated the officers

told defendant of the allegations "and asked if [he] would come down to the

station to give a statement. Told them briefly about child porn and the

defendant's phone. . . . [T]he [c]ourt finds it credible that the [defendant], at

least peripherally, was advised as to why they were there."

The judge found defendant not credible when he stated the officer went

into his bedroom and began to search against his request. Instead, the judge

found:

A-3080-17T1
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 The more reasonable, and probable, and believable
testimony is that the officer did secure the defendant to
make sure that he did not destroy the evidence, which
[the officer] has every right to do. There is nothing in
the case law that suggests that upon receiving consent
to enter an apartment, for the purposes of an
investigation, that the officers don't have the right to
secure the premises that they believe may or may not
contain the evidence relative to the allegations
contained and received by the officers.

....

[A]t the moment that [defendant] attempted to close the
door and refused to step out of the room to allow the
premises to be secured for that purpose, and for the
officers to secure and make sure that the safety was not
an issue, the defendant was obstructing an investigation
and, therefore, was appropriately placed under arrest.

Regarding the obstruction charge, the judge found:

And while the defendant was getting his belongings and
moving to places where the police officers could not
see, and in the room where they believed that the
allegations were contained[,] they, at that moment, had
a right to secure the premises. And even when the
defendant entered the room the officer had a right to
make sure that the defendant did not go in to do
anything to harm the safety of those involved, including
the officers and the children, or to destroy any
evidence, because that is the nature of securing a
premises. When he did so he interfered with an
investigation and . . . performed obstruction, therefore,
he was lawfully able to be arrested at that time.

A-3080-17T1
8
 The judge ruled police lawfully searched defendant and lawfully seized

his cell phone incident to his arrest. The judge found the initial entry into

defendant's phone was "inappropriate at that particular moment" but found no

evidence to support the allegation police searched the phone and found

information prior to receiving the search warrant. The judge concluded the

police executed the CDW lawfully. As a result, she denied defendant's motion

to suppress the evidence contained on defendant's phone.

On October 28, 2016, defendant pleaded guilty to two counts of first-

degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4b(3)

(counts five and seventeen) and one count of third-degree endangering the

welfare of a child, in violation of N.J.S.A. 2C:24-4b (count twenty three).

Defendant also pleaded guilty to one count of second-degree endangering the

welfare of a child, in violation of N.J.S.A. 2C:24-4b(5)(a)(i) (count one),

stemming from a separate indictment in Hudson County.

On September 15, 2017, defendant received the sentence set forth in his

plea agreement. The judge sentenced defendant to an aggregate sentence of

twenty-five years of imprisonment with an eighty-five percent period of parole

ineligibility. Among other fines, the judge ordered defendant pay a $5500

SCVTF penalty.

A-3080-17T1
9
 The judge found aggravating factor three because "[w]hile the defendant

does not have any indictable criminal convictions, he has had numerous contacts

with the judicial system, both in the State of New Jersey and outside of the State

of New Jersey." Additionally, the judge found defendant admitted to engaging

in similar acts related to children for a long period of time and defendant did not

understand why he engaged in those acts. Therefore, she found defendant had a

high probability of committing another offense.

The judge found aggravating factor nine stating "the need to deter this and

others . . . specifically from debauching the morals of children by engaging in

sexual contact with them at such an early age." The judge further found

mitigating factor seven because defendant did not have any prior indictable

convictions but did not find mitigating factor eight because of her findings based

on aggravating factor three. She concluded the aggravating factors outweighed

the mitigating factors.

This appeal followed with defendant presenting the following arguments.

POINT I

THE ENTRIES INTO DEFENDANT'S APARTMENT
AND BEDROOM WERE ILLEGAL, AS WAS
DEFENDANT'S ARREST. THE CELL[ ]PHONE
WAS A FRUIT OF THOSE UNLAWFUL ACTIONS
AND THEREFORE MUST BE SUPPRESSED.

A-3080-17T1
10
 A. The initial entry into the home was illegal because it
was not conducted pursuant to valid consent.

B. The entry into defendant's bedroom was illegal because
defendant told officers he did not consent to their entry
into his personal living space. Further, the arrest of
defendant in his bedroom was illegal.

C. The phone is a fruit of these unlawful police actions and
must be suppressed.

POINT II

DEFENDANT'S SENTENCE IS EXCESSIVE.

I.

Our standard of review on a motion to suppress is limited. State v.

Gamble, 218 N.J. 412, 424 (2014). We defer to the trial court's factual findings

on the motion, unless they were "clearly mistaken" or "so wide of the mark" that

the interests of justice require appellate intervention. State v. Elders, 192 N.J.

224, 245 (2007). "Deference to these factual findings is required because those

findings 'are substantially influenced by [an] opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing court cannot

enjoy.'" Gamble, 218 N.J. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161

(1964)). Our review of the trial court's application of the law to the facts, of

course, is plenary. State v. Hubbard, 222 N.J. 249, 263 (2015).

A-3080-17T1
11
 Defendant argues police entered his apartment illegally because he did not

provide valid consent. Specifically, he argues the police failed to inform him

and L.G. that they could refuse their entry. Defendant's argument concerns the

distinction in case law between "consent to investigate" cases and "consent to

search" cases, with the later set of cases requiring the police to inform

homeowners of their right to refuse consent.

Defendant relies on the well settled principle, announced in State v.

Johnson, 68 N.J. 349, 354 (1975), that an officer attempting to search a residence

by consent must inform occupants that they have a right to refuse the search.

However, when the officer's intent is to investigate rather than search the

premises, the officer does not have to inform occupants of their right to refuse

consent to enter their premises. State v. Padilla, 321 N.J. Super. 96, 108 (App.

Div. 1999) aff'd o.b., 163 N.J. 3 (2000); see State v. Williams, 461 N.J. 80, 95-

103 (2019) (recognizing and affirming the distinction between consent to enter

cases and consent to search cases).

In Padilla, police received an anonymous tip that a person was seen

entering a motel room carrying a handgun. Id. at 102-03. The police went to

the motel and knocked on the door. Id. at 103. When a woman answered, one

of the officers "identified himself and asked if the officers could enter." Ibid.

A-3080-17T1
12
The woman agreed and opened the door. Ibid. The officers entered and "no one

objected." Ibid. One officer observed cash on top of a bag, lifted it and found

ammunition. The officer also saw a handgun, picked it up and realized it was

loaded. Ibid.

We upheld the denial of the defendant's motion to suppress the evidence

found in the motel room. Id. at 107-10. We held that "[a]lthough the unverified

facts as described by the caller to the police were insufficient to support the issue

of a search warrant, the police had the right, if not the obligation, . . . to

investigate the report that a person with a gun was in the motel room." Id. at

107 (emphasis added). Based on the investigation, we found the officers "had

the right to knock on the door and identify themselves for the purpose of

continuing their investigation and making reasonable inquiries." Ibid.

Importantly, in Padilla this court distinguished its holding from Johnson

and reasoned that unlike Johnson "the officers did not seek consent to search.

They merely sought permission to enter to continue their investigation." Id. at

108. We found "nothing unreasonable about [the officers'] request for

permission to enter the room," and rejected the defendants' arguments that the

woman's consent to enter the room was invalid because "the officers did not

advise her of a right to refuse to consent." Ibid.

A-3080-17T1
13
 In State v. Pinero, 369 N.J. Super. 65, 68 (App. Div. 2004), investigators

went to the defendant's apartment with a warrant; however, they did not notify

defendant of the warrant because they were "voluntarily" admitted into the

apartment after the investigators said there had been a problem at work. We

found "the investigators' entry . . . was the same as that of any other social guest

or business visitor, and did not constitute a Fourth Amendment search." Id. at

73. We explained "because all the items were found in areas to which they had

been voluntarily admitted by defendant[,]" the "seizure of these items would

have been valid even if the investigators did not have a lawfully issued search

warrant." Id. at 74.

Here, the judge found the police did not have an obligation to notify

defendant and L.G. of their right to refuse consent for them to enter to continue

their investigation. The judge further found the police received consent to enter

defendant's apartment from either defendant or L.G. Importantly, the judge also

found the police had no intention of searching the apartment, did not in fact

search the apartment, and intended to secure the premises.

Sgt. Nerney testified that due to the allegations of child pornography on

defendant's cell phone, the police intended to go to defendant's home for a

welfare check to ensure the safety of defendant's children. The judge found this

A-3080-17T1
14
testimony credible and found the officers intended to go to defendant's residence

to further investigate the allegations of child pornography. We must defer to the

judge's findings of credibility that are supported by sufficient credible evidence

in the record. Gamble, 218 N.J. at 424-25.

Based on the judge's finding of fact, this case falls within the realm of a

"consent to investigate," and the consent the police obtained created a valid

entry. Like Padilla, based on the information the police received – regarding

the child pornography on defendant's cell phone, the children in the video

potentially being in the apartment building, and defendant having young

children of his own in the apartment – the officers were obligated to investigate.

Further, like Pinero, defendant or L.G. providing police permission to enter

made the police analogous to a social guest.

Additionally, like Padilla, there was an ongoing investigation. The police

received J.C.'s report early in the morning and after conferring with the SVU,

immediately proceeded to defendant's residence. Therefore, the police intended

to investigate the allegations of child pornography, and make sure the children

in the apartment were safe. We therefore find the police made a lawful entry

into defendant's apartment.

A-3080-17T1
15
 Defendant argues the police entry into his bedroom and his subsequent

arrest were illegal. He argues that, even if he committed obstruction, "the police

cannot enter a private living space to conduct an arrest without a warrant,

consent, or exigency, all of which were lacking in this case."

Defendant was originally arrested and charged with fourth-degree

obstruction, pursuant to N.J.S.A. 2C:29-1, because he attempted to close the

door of his bedroom while under investigation of having child pornography on

his cell phone.

"In determining whether there was probable cause to make an arrest, a

court must look to the totality of the circumstances and view those circumstances

from the standpoint of an objectively reasonable police officer." State v. Basil,

202 N.J. 570, 585 (2010) (citations and internal quotations omitted). The

personal observations of law enforcement officers are generally regarded as

highly reliable and sufficient to establish probable cause. See State v. O'Neal,

190 N.J. 601, 613-14 (2007); State v. Moore, 181 N.J. 40, 46-47 (2004).

A person who commits obstruction "purposely obstructs, impairs or

perverts the administration of law or other governmental function or prevents or

attempts to prevent a public servant from lawfully performing an official

function by means of flight, intimidation, force, violence, or physical

A-3080-17T1
16
interference or obstacle, or by means of any independently unlawful act."

N.J.S.A. 2C:29-1(a).

In State v. Crawley, the Court "construe[d] 'lawfully performing an

official function' to mean a police officer acting in objective good faith, under

color of law in the execution of his duties." 187 N.J. 440, 460-61 (2006). The

Court further explained:

A police officer who reasonably relies on information
from headquarters in responding to an emergency or
public safety threat may be said to be acting in good
faith under the statute. However, a police officer who
without any basis arbitrarily detains a person on the
street would not be acting in good faith.

[Id. at 461 n.8]

Here, the judge found defendant not credible and found Officer Shaver

instructed defendant to get out of his room. When defendant failed to comply

and attempted to close the door, he committed obstruction. The judge also

determined the police officers were permitted to secure the area for safety

purposes and to prevent the destruction of evidence. Thus, the judge reasoned

defendant attempting to close his bedroom door when Officer Shaver knew the

acts that were being investigated likely occurred in defendant's bedroom,

resulted in defendant potentially destroying evidence and obstructing Officer

Shaver's investigation.

A-3080-17T1
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 The record supports the judge's conclusion that defendant violated

N.J.S.A. 2C:29-1(a), when he entered his bedroom and attempted to close the

door behind him. Like Crawley, the police officers were engaged in a "lawful

official function" – investigating an allegation of child pornography and

ensuring child safety.

Based on the report J.C. made to the police, they knew the allegations

against defendant pertained to child pornography on his cell phone. Officer

Shaver observed defendant attempt to isolate himself in the bedroom where the

criminal conduct supposedly occurred. Thus, defendant's action constituted a

"physical interference or obstacle" by attempting to close the door and conceal

his actions from Officer Shaver. As a result, Officer Shaver had probable cause

to arrest defendant for obstruction, Basil, 202 N.J. at 585, and acted in good

faith pursuant to his duties, Crawley,187 N.J. at 460-61.

II.

We next address whether the police lawfully seized defendant's cell

phone. "Under the search incident to arrest exception, the legal seizure of the

arrestee automatically justifies the warrantless search of his [or her] person and

the area within his [or her] immediate grasp." State v. Pena-Flores, 198 N.J. 6,

19 (2009) (citing Chimel v. California, 395 U.S. 752, 762-63 (1969)), overruled

A-3080-17T1
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on other grounds by State v. Witt, 223 N.J. 409 (2015). "The purpose of such a

search is (1) to protect the arresting officer from any potential danger and (2) to

prevent the destruction or concealment of evidence." State v. Dangerfield, 171

N.J. 446, 461 (2002).

A search incident to an arrest; however, does not authorize a limitless

search of the surroundings. In New Jersey, after the defendant "has been

arrested, removed and secured elsewhere, the considerations informing the

search incident to arrest exception are absent and the exception is inapplicable."

State v. Eckel, 185 N.J. 523, 541 (2006). Thus, a reviewing court must

"determine, on a case-by-case basis whether [the defendant] was in a position to

compromise police safety or to carry out the destruction of evidence, thus

justifying resort to the search incident to arrest exception." Ibid.; see also State

v. Oyenusi, 387 N.J. Super. 146, 155 (App. Div. 2006), certif. denied, 189 N.J.

426 (2007).

As noted, we conclude Officer Shaver lawfully arrested defendant for

obstruction, pursuant to N.J.S.A. 2C:29-1. Additionally, the judge ruled the

police lawfully searched defendant incident to that arrest. Once Officer Shaver

escorted defendant into the hallway and placed him under arrest, the police

granted defendant's request to retrieve his jacket from his bedroom. After

A-3080-17T1
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placing the jacket on defendant, police then searched him, and found his cell

phone in a jacket pocket. We agree with the judge that the search was justified

to prevent the destruction of evidence and was a lawful search incident to arrest.

Eckel, 185 N.J. at 541.

Defendant argues the evidence obtained from defendant's cell phone

requires suppression because the cell phone "was found in the apartment the

police had no right to be, was retrieved from a jacket in the bedroom the police

had no right to be and found during a search incident to arrest the police had not

right to conduct."

In Riley v. California, 573 U.S. 373, 403 (2014), the Supreme Court held

arresting officers violated the Fourth Amendment when they made a warrantless

search of data stored on an individual's cell phone incident to a lawful arrest.

The defendants conceded the officers could have seized and secured their cell

phones to prevent the destruction of evidence while seeking a warrant. Id. at

388. The Court also addressed the concerns about destruction of evidence and

found:

Remote wiping can be fully prevented by disconnecting
a phone from the network. There are at least two simple
ways to do this: First, law enforcement officers can
turn the phone off or remove its battery. Second, if they
are concerned about encryption or other potential
problems, they can leave a phone powered on and place

A-3080-17T1
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 it in an enclosure that isolates the phone from radio
waves.

[Id. at 390.]

We agree with the judge that the initial entry into the cell phone – placing

the cell phone in airplane mode and then disabling the lock on the cell phone –

was unlawful. However, we also agree with the judge that police obtained no

information from the entry into the cell phone. By placing the cell phone into

airplane mode and disabling the lock, the police did not obtain any "data stored"

on defendant's cell phone, which as explained in Riley, constitutes a Fourth

Amendment violation.

Defendant did not argue the police obtained evidence during the initial

entry into his cell phone. The cell phone itself cannot be suppressed because

police seized it during a lawful search incident to arrest and no data was taken

during the unlawful entry. Police obtained a CDW to search the data and

contents of defendant's cell phone that stored the evidence resulting in

defendant's charges. Defendant does not challenge the CDW or subsequent

search of his cell phone. Therefore, we agree with the judge that the police did

not obtain any data as the result of a fourth amendment violation.

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 III.

We next address whether the judge abused his discretion when sentencing

defendant. Defendant argues he received an excessive sentence, claiming the

trial court erred in finding aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the

risk that defendant would commit another offense) and aggravating factor nine,

N.J.S.A. 2C:44-1(a)(9) (the need for specific and general deterrence). Specific

to aggravating factor nine, defendant claims the judge did not explain why there

was a need for specific deterrence. In the same vein, defendant argues the court

failed to consider his young age (he was twenty-seven years old when he

committed his offenses).

"Appellate courts review sentencing determinations in accordance with a

deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence

must be affirmed, unless:

(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."

[Ibid. (alteration in original) (quoting State v. Roth, 95
N.J. 334, 364-65 (1984)).]

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22
 We "may not substitute our judgment for that of the trial court." State v.

Natale, 184 N.J. 458, 489 (2005) (quoting State v. Evers, 175 N.J. 355, 386

(2003)). Thus, we must affirm the defendant's sentence, even if this court would

have arrived at a different result, as long as the trial court properly identified

and balanced the aggravating and mitigating factors. Ibid.

The judge found aggravating factor three because defendant confirmed at

trial he engaged in similar conduct related to young children for a number of

years and could not explain why. Therefore, the judge reasoned it was likely

defendant would be a repeat offender. She found aggravating factor nine

because the need to deter defendant and society as a whole was significant.

We see no reason to disturb the judge's sentencing on this issue. The judge

clearly considered all applicable mitigating and aggravating factors and

provided adequate reasons for her findings, based on credible evidence in the

record.

Defendant further argues the judge failed to "make the proper findings

before imposing the maximum SCVTF penalty of $5500." We agree.

In State v. Bolvito, 217 N.J. 221, 231 (2014), the Court explained that a

sentencing court may impose a SCVTF penalty in any amount between the

nominal and upper limit prescribed by N.J.S.A. 2C:14-10(a), and that the court

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23
has "substantial discretion with respect to the amount of the SCVTF penalty."

Id. at 231. In making that determination, a sentencing "court should begin by

considering the nature of the offense when determining a defendant's SCVTF

penalty within the statutory range." Id. at 233-34.

When setting an SCVTF penalty, courts "should consider the defendant's

ability to pay the amount assessed." Id. at 234. "If a substantial penalty is

assessed against a defendant who has no realistic prospect of satisfying it, that

penalty is destined to become an unsatisfied judgment . . . ." Ibid. In

determining a defendant's ability to pay, "the sentencing court should look

beyond the defendant's current assets and anticipated income during the period

of incarceration." Ibid. Upon sentencing, the "court should provide a statement

of reasons when it sets a defendant's SCVTF penalty within the statutory

parameters," which "will apprise the parties, the victim, and the public and will

facilitate appellate review." Id. at 235.

In this case, the judge failed to provide any reasons for the amount of the

penalty imposed. Given the $5500 amount, the judge also should have provided

an assessment of defendant's ability to pay the large penalty. We therefore

remand to the sentencing court to reconsider the imposition of the SCVTF

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penalty and provide a statement of reasons, including an assessment of

defendant's ability to pay, explaining the final amount imposed.

Affirmed, but remanded for resentencing limited to the issue of the

SCVTF penalty. We do not retain jurisdiction.

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