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NOT FOR PUBLICATION WITHOUT THE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-4658-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
S.P.B.,1
Defendant-Appellant.
_________________________
Argued May 13, 2020 – Decided June 1, 2020
Before Judges Fuentes and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 18-06-
0726.
Kevin A. Buchan argued the cause for appellant
(Buchan & Palo LLC, and Law Office of Tara Breslow,
attorneys; Kevin A. Buchan, Stephanie Palo, and Tara
Breslow, of counsel and on the briefs).
Maura K. Tully, Assistant Prosecutor, argued the cause
for respondent (Christopher J. Gramiccioni, Monmouth
1
We use defendant's initials as the record in the matter is sealed in accordance
with R. 1:38-11.
County Prosecutor, attorney; Maura K. Tully, of
counsel and on the brief).
PER CURIAM
Defendant appeals from a May 31, 2019 judgment of conviction, focusing
his arguments on the imposition of a two-and-one-half year period of parole
ineligibility. We affirm.
Defendant was indicted on charges of third-degree endangering the
welfare of a child by possession of child pornography, N.J.S.A. 2C:24-
4(b)(5)(b)(iii) (Count One); and second-degree endangering the welfare of a
child by distribution of child pornography, N.J.S.A. 2C:24-4(b)(5)(a)(iii) (Count
Two). Defendant entered into a negotiated plea on February 15, 2019 , agreeing
to plead guilty to Count Two of the indictment as amended to less than twenty-
five images of child pornography for sentencing purposes. By amending Count
Two, defendant was not subject to a mandatory period of parole ineligibility
under N.J.S.A. 2C:24-4(b)(5)(a). The State agreed to recommend a five-year
sentence with a two-and-one-half year period of parole ineligibility. Defendant
agreed, subject to arguing for a lower sentence.
Prior to sentencing, the judge considered the written reports from
defendant's computer expert as well as the State's computer expert regarding the
images found on defendant's computer. He then sentenced defendant to a five-
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year term of imprisonment with a two-and-one-half-year period of parole
ineligibility. The judge found aggravating factors one and nine applied, N.J.S.A.
2C:44-1(a)(1) and (9), and mitigating factors seven, eight, and nine, N.J.S.A.
2C:44-1(b)(7), (8), and (9) applied. In performing a qualitative analysis of the
aggravating and mitigating factors, the judge explained why the aggravating
factors substantially outweighed the mitigating factors in this case and why he
gave greater weight to aggravating factor one.
On appeal, defendant raises the following arguments:
POINT I.
THE TRIAL COURT ERRONEOUSLY
DETERMINED THAT AGGRAVATING FACTORS
[ONE] AND [NINE] SUBSTANTIALLY
OUTWEIGHED MITIGATING FACTORS [SEVEN],
[EIGHT], AND [NINE].
A. The trial court did not give sufficient justification
for its determination that aggravating factors [one] and
[nine] outweighed mitigating factors [seven], [eight]
and [nine].
B. In its determination of sentence, the trial court gave
excessive weight to aggravating factor [one].
POINT II.
THE TRIAL COURT ERRED IN ITS APPLICATION
OF MITIGATING FACTOR [SIX].
A-4658-18T4
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A sentence should only be disturbed when the trial court failed to follow
sentencing guidelines, when the aggravating and mitigating factors are not
supported by the evidence, or when the facts and law show "such a clear error
of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334,
364 (1984). Accord State v. Case, 220 N.J. 49, 65 (2014). In weighing the
aggravating and mitigating factors, the court must conduct a qualitative, not
quantitative, analysis and provide a "clear explanation" of how it weighed the
factors and applied them to the sentencing range. State v. Fuentes, 217 N.J. 57,
72-73 (2014). "[I]f the trial court fails to identify relevant aggravating and
mitigating factors, or merely enumerates them, or forgoes a qualitative analysis,
or provides little 'insight into the sentencing decision,' then the deferential
standard will not apply." Case, 220 N.J. at 65 (quoting State v. Kruse, 105 N.J.
354, 363 (1987)).
After reviewing the sentencing transcript in light of the applicable
standard of review, we affirm for the reasons set forth on the record by Judge
Joseph W. Oxley on May 31, 2019. Judge Oxley provided a thorough and clear
qualitative analysis of the aggravating and mitigating factors and his findings
are supported by credible evidence in the record. Defendant's arguments are
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4
without merit and warrant no further discussion beyond the following brief
comments. See R. 2:11-3(e)(2).
In addressing sentencing in a child pornography case, our Supreme Court
recently held:
New Jersey courts have held that,"[l]ike any other fact,
age is, of course, for the determination of the
[factfinder]," and "whether the age of a model in a child
pornography prosecution can be determined by a
[factfinder] without the assistance of expert testimony
. . . must be determined on a case by case basis."
The immaturity and extreme youth of the victims in this
case allowed the trial judge to determine that "infants"
and "very young children" were caused to engage in
sexual activities, one of whom had a pacifier in her
mouth. The judge further acknowledged that the
victims in defendant's child pornography "were all
quite young, quite, quite young," and that the "little
girls and boys" depicted were "treat[ed] as if they were
not people, as if they were mere objects."
[State v. Miller, 237 N.J. 15, 31-32 (2019) (alterations
in the original) (internal citations omitted).]
Here, Judge Oxley found:
And it was highlighted by the prosecutor, 10- to 12-
year-old girl "V" being raped, an 18-month-old girl
"babyshivid" being raped and tortured. Those are the
types of images that I do believe goes to the extreme
ends of the range with regards to this, and I do find
aggravating factor number one based on the factors of
this case.
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We are satisfied that Judge Oxley appropriately found aggravating factor
one because the graphic images found on defendant's computer, showing an
infant and a young child being sexually violated, were especially cruel, heinous,
and depraved.
Defendant next argues the judge erred in failing to apply mitigating factor
six, N.J.S.A. 2C:44-1(b)(6). We disagree. This factor states defendant "will
participate in a program of community service." Judge Oxley found mitigation
factor six inapplicable as defendant voluntarily participated in community
service throughout his life. Therefore, the judge concluded defendant performed
and would continue to perform community service without being ordered to do
so by the court.
Having reviewed the record, we are satisfied that the judge's findings as
to the aggravating and mitigating factors were amply supported by the record,
as was his conclusion that the aggravating factors substantially outweighed the
mitigating factors. We discern no basis to disturb the sentence imposed.
Affirmed.
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