STATE OF NEW JERSEY VS. CHRISTOPHER D. THIEME (16-01-0114, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3247-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER D. THIEME, a/k/a
CHRISTOPHER DANIEL THIEME,
JOHN D. THIEME and JOHN
DANIEL THIEME,

Defendant-Appellant.
______________________________

Submitted August 4, 2020 – Decided September 11, 2020

Before Judges Rothstadt and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 16-01-0114.

Joseph E. Krakora, Public Defender, attorney for
appellant (Al Glimis, Designated Counsel, on the
brief).

Mark Musella, Bergen County Prosecutor, attorney for
respondent (Jaimee M. Chasmer, Assistant Prosecutor,
of counsel and on the brief).
 Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Christopher D. Thieme appeals from the judgment of

conviction entered after his guilty plea to two counts of fourth-degree cyber-

harassment, N.J.S.A. 2C:33-4.1(a)(2). The judge sentenced defendant in

accordance with the plea agreement to an aggregate term of eighteen months

imprisonment to run concurrent to the federal sentence defendant was already

serving. On appeal, defendant challenges the constitutionality of the cyber-

harassment statute and argues that because it fails to set forth a requisite mental

state, his plea should be vacated and the indictment dismissed. He also contends

that at sentencing the trial court impermissibly relied upon victim impact

statements that were not provided to him in advance. After reviewing the record

in light of the contentions advanced on appeal, we affirm.

I.

Between March 1 and May 14, 2015, defendant made numerous social

media posts containing "disgusting and vile" information about his ex-girlfriend,

C.M.1 and her new boyfriend, A.Y., with the intent to cause both of them

"embarrassment, shame, humiliation, and extraordinary damage to their

1
We use initials to protect the privacy of the victim. R. 1:38-3(c)(12).
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reputations." Defendant posted on a "blogging site" that C.M. was a

promiscuous whore, had herpes, underwent abortions, and had severe

psychological and anger problems. During the same period, defendant also

posted on social media "obscene" and "indecent" blog posts regarding A.Y.,

falsely labeling him a "sick, faggot pedophile" and claimed he sexually assaulted

young boys and his sisters. At the time, C.M. had a final restraining order

against defendant.

On January 17, 2016, a Bergen County Grand Jury returned indictment

number 16-01-0114, charging defendant with three counts of fourth-degree

cyber-harassment, in violation of N.J.S.A. 2C:33-4.1(a)(2) (counts one, three,

and five); and two counts of fourth-degree violation of a restraining order, in

violation of N.J.S.A. 2C:29-9(b) (counts two and four). On July 16, 2018,

defendant pled guilty to two counts of fourth-degree cyber-harassment. The

remaining charges were later dismissed.

On August 3, 2018, the judge sentenced defendant, in accordance with the

plea agreement, to eighteen months in New Jersey State Prison on counts three

and five to run concurrent to each other and to a federal sentence. While

sentencing defendant, the judge stated his actions were "one of the worst, most

egregious cases of cyber-harassment that [he had] seen." After articulating the

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facts and circumstances of the case, the judge refused to find any of defendant's

requested mitigating factors.

As to the aggravating factors, the judge found factors three (the risk that

the defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3)), six (the

extent of the defendant's prior criminal record and the seriousness of the offenses

of which he has been convicted, N.J.S.A. 2C:44-1(a)(6)), and nine (the need for

deterring the defendant and others from violating the law, N.J.S.A. 2C:44-

1(a)(9)).

On August 7, 2018, defendant filed a pro se motion for reconsideration of

his sentence, arguing that the judge placed undue weight on the dismissed

charges and improperly relied on victim impact statements that were not

provided in the presentence report. On December 7, 2018, the judge heard

argument and denied the motion. This appeal followed.

On appeal, defendant's counsel raised three points:

POINT I

THE "REASONABLE PERSON" STANDARD OF
N.J.S.A. 2C:33-4.1A(2) (THE CYBER[-]
HARASSMENT STATUTE) DOES NOT SATISFY
THE SCIENTER [R]EQUIREMENT OF THE
FEDERAL AND STATE CONSTITUTIONS. (U.S.
CONST. AMENDS. V and XIV; N.J. CONST. (1947)
ART. I, PAR. 10) (NOT RAISED BELOW).

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 POINT II

COMPELLING REASONS EXIST FOR THIS COURT
TO VACATE THE PLEA AGREEMENT IN THIS
CASE. (NOT RAISED BELOW).

POINT III

RESENTENCING IS REQUIRED BECAUSE THE
SENTENCING COURT RELIED ON VICTIM
IMPACT EVIDENCE NOT PROVIDED TO
DEFENDANT AND DEFENSE COUNSEL. AS
DEFENDANT DID NOT RECEIVE THE VICTIM
IMPACT EVIDENCE, HE WAS DENIED A
MEANINGFUL ALLOCUTION. ALSO, THE
SENTENCING JUDGE ERRED BY CONSIDERING
DISMISSED CHARGES.

In his supplemental pro se brief, defendant raised the following three

issues:

ISSUE NUMBER ONE

NEW JERSEY STATE COURTS ARE BOUND TO
HEAR A CHALLENGE TO THE
CONSTITUTIONALITY OF A STATE STATUTE—
SPECIFICALLY [N.J.S.A.] 2C:33-4.1(a)—
NOTWITHSTANDING A PLEA AGREEMENT
WAIVER OF APPELLATE RIGHTS BY THE LONG-
STANDING FEDERAL PRECEDENTS UNDER THE
BLACKLEDGE-MENNA DOCTRINE AND THE
UNITED STATES SUPREME COURT'S DECISION
IN CLASS V. UNITED STATES AS COMPELLED
BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE FEDERAL
CONSTITUTION.

A-3247-18T1
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 ISSUE NUMBER TWO

NEW JERSEY'S CYBER[-]HARASSMENT
STATUTE SHOULD BE INVALIDATED BECAUSE
ITS OVERBREADTH AND VAGUENESS RENDERS
THE STATUTE UNCONSTITUTIONAL IN
VIOLATION OF THE RIGHT TO FREE
EXPRESSION PROTECTED BY THE FIRST
AMENDMENT TO THE FEDERAL CONSTITUTION
AND ARTICLE I, PARAGRAPH [SIX] OF THE NEW
JERSEY STATE CONSTITUTION OF 1947, AND IN
VIOLATION OF THE DUE PROCESS CLAUSES OF
THE FIFTH AND FOURTEENTH AMENDMENTS
TO THE FEDERAL CONSTITUTION AND
ARTICLE I, PARAGRAPH [TEN], OF THE NEW
JERSEY STATE CONSTITUTION OF 1947.

ISSUE NUMBER THREE

[THE] SENTENCING JUDGE RELIED ON "VICTIM
IMPACT STATEMENTS" NOT PROVIDED TO THE
DEFENDANT OR DEFENSE COUNSEL IN THE
PRESENTENCE REPORT OR PRIOR TO
SENTENCING IN VIOLATION OF THE
DEFENDANT'S CONFRONTATION RIGHTS.

II.

We first address defendant's assertion that the cyber-harassment statute is

unconstitutional because the reasonable person standard of N.J.S.A. 2C:33 -

4.1(a)(2) fails to satisfy the scienter requirement of the Federal and State

constitutions.

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 "Declaring a statute unconstitutional is a serious matter that courts may

not lightly undertake." State v. Saunders, 302 N.J. Super. 509, 517 (App. Div.

1997). Accordingly, "[a] presumption of validity attaches to every statute; the

burden is on the party challenging the constitutionality of the statute to establish

its unconstitutionality." State v. B.A., 458 N.J. Super. 391, 407 (App. Div.

2019) (internal quotation marks omitted) (quoting State v. Lenihan, 219 N.J.

251, 266 (2014)). Therefore, courts must construe a challenged statute "to avoid

constitutional defects if the statute is reasonably susceptible of such

construction." Ibid. (quoting Lenihan, 219 N.J. at 266).

In the context of criminalized expressive activity, courts must construe a

statute "narrowly to avoid any conflict with the constitutional right to free

speech." Ibid. (quoting State v. Burkert, 231 N.J. 257, 277 (2017)). "[A]ny act

of the Legislature will not be ruled void unless its repugnancy to the Constitution

is clear beyond a reasonable doubt." Lenihan, 219 N.J. at 266.

N.J.S.A. 2C:33-4.1(a)(2), which was enacted in 2014, provides in

pertinent part:

A person commits the crime of cyber-harassment if,
while marking a communication in an online capacity
via any electronic device or through a social
networking site and with the purpose to harass another,
the person . . . knowingly sends, posts, comments,
requests, suggests, or proposes any lewd, indecent, or

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 obscene material to or about a person with the intent to
emotionally harm a reasonable person or place a
reasonable person in fear of physical or emotional
harm to his person . . . .

(Emphasis added.)

Defendant describes the elements of the cyber-harassment statute as: (1)

an online communication; (2) made to harass another; (3) which was knowingly

sent; (4) with an intent to emotionally harm a reasonable person or place a

reasonable person in fear of physical or emotional harm. Because the last

element is dependent upon a "reasonable person's" perception of the harm, and

not the perpetrator's "criminal state" or "intent," defendant contends the scienter

requirement set forth in the statute is void and therefore, convicting him under

the statute violates his constitutional right to due process.

Defendant relies on the Supreme Court's decision in Elonis v. United

States, 575 U.S. __, 135 S. Ct. 2001 (2015), for the premise that a conviction

regarding communication of threats cannot be based solely on a reasonable

person's interpretation of a defendant's words. In Elonis, the defendant was

charged under 18 U.S.C. §875(c), which prevents the "transmi[ssion] . . . [of]

any communication containing any threat . . . to injure the person of another"

after he used the social media platform, Facebook, to "threaten" patrons and

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employees of a park, his estranged wife, police officers, a kindergarten class,

and an FBI agent. Id. at 2007-08.

Elonis characterized the alleged threats as a form of artistic expression.

Id. at 2007. At the conclusion of trial, the court denied the defendant's requested

jury instruction that the government must prove his intention to communicate a

threat, and instead, charged that a statement is a threat when "a reasonable

person would foresee that the statement . . . [w]as a serious expression of an

intention to inflict . . . injury . . . ." Ibid.

The Elonis Court acknowledged that the statute at issue did not establish

a mental state for communicating a threat, but noted, that "does not mean that

none exists." Id. at 2009. Instead, the Court summarized the underlying

principle that "wrongdoing must be conscious to be criminal" and a criminal

must be "blameworthy in mind" before being held accountable for a criminal

act. Ibid. Consequently, this mental state requirement applies "to each of the

statutory elements that criminalize otherwise innocent conduct," which, in

Elonis, was whether the defendant was aware his communication contained a

threat. Id. at 2011. Whether a "reasonable person" would interpret defendant's

communications as a threat is "inconsistent with 'the conventional requirement

for criminal conduct—awareness of some wrongdoing.'" Ibid. (quoting Staples

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v. United States, 511 U.S. 600, 606-07 (1994)). Instead, the Court held that the

defendant must know the threatening nature of his communication in order to be

held accountable. Id. at 2012.

Here, defendant argues that since N.J.S.A. 2C:33-4.1(a)(2) uses the same

ostensibly erroneous "reasonable person" language as the federal statute in

Elonis, his conviction must be vacated. Specifically, defendant challenges the

last factor of N.J.S.A. 2C:33-4.1(a)(2), contending that the emotional harm or

fear of harm cannot be based on whether a reasonable person would be harmed

or placed in fear of harm. However, we find Elonis is readily distinguishable

from the facts and circumstances of the present case.

The federal statute at issue in Elonis failed to include any mental state

requirement at all. Id. at 2008-09 ("In sum, neither Elonis nor the Government

has identified any indication of a particular mental state requirement in the text

of Section 875(c)."). Because the statute was "silent on the required mental

state," the Court applied the "mens rea which is necessary to separate wrongful

conduct from 'otherwise innocent conduct,'" the requirement that the defendant

act knowingly. Id. at 2010 (quoting Carter v. United States, 530 U.S. 255, 269

(2000)).

A-3247-18T1
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 The Court then emphasized that the newly determined mental state must

apply to each of the statute's factors, including that the communication was

intended to contain a threat. Id. at 2011. Because the defendant's conviction

was "premised solely on how his posts would be understood by a reasonable

person," and not on what defendant intended the posts to mean, the Court

reversed Elonis's conviction. Id. at 2011-12.

Moreover, the "reasonable person" language in N.J.S.A. 2C:33-4.1(a)(2)

does not eliminate the scienter requirement in the same manner as the jury

instruction in Elonis. Under 18 U.S.C. §875(c), an individual could be convicted

upon making any communication containing any "threat," regardless of the

defendant's intent. In contrast, the relevant language contained in the New

Jersey statute requires the communication to be sent "with the intent to

emotionally harm a reasonable person or place a reasonable person in fear of

. . . harm . . . ." N.J.S.A. 2C:33-4.1(a)(2) (emphasis added).

Therefore, irrespective of the "reasonable person's" interpretation of the

threat, words, or conduct under N.J.S.A. 2C:33-4.1(a)(2), the mental state

requirement that defendant must intend for his communication to be a threat still

exists, thereby distinguishing the constitutional issue presented in Elonis from

the facts and circumstances of this case. Accordingly, defendant has failed to

A-3247-18T1
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establish the language of N.J.S.A. 2C:33-4.1(a)(2) is unconstitutional, and we

affirm his conviction.

III.

We also reject defendant's argument that the cyber-harassment statute is

vague and overbroad, and that his online communications fall under the category

of "protected speech." Regardless of the statute, defendant contends his internet

posts were protected by the First Amendment.

The Supreme Court outlined the process for declaring a statute

unconstitutional:

In a facial challenge to the overbreadth and vagueness
of a law, a court's first task is to determine whether the
enactment reaches a substantial amount of
constitutionally protected conduct. If it does not, then
the overbreadth challenge must fail. The court should
then examine the facial vagueness challenge and,
assuming the enactment implicates no constitutionally
protected conduct, should uphold the challenge only if
the enactment is impermissibly vague in all of its
applications. A plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others.
A court should therefore examine the complainant's
conduct before analyzing other hypothetical
applications of the law.

[Hoffman Estates v. Flipside, Hoffman Estates, 455
U.S. 489, 494-95 (1982). See also State v. Badr, 415
N.J. Super. 455, 467-68 (App. Div. 2010); Saunders,
302 N.J. Super. at 517.]

A-3247-18T1
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 Defendant maintains that the cyber-harassment statute is

unconstitutionally overbroad because the statute's language punishing "lewd,

indecent, or obscene material" is "impermissibly vague" for prohibiting such a

wide swath of protected speech. "Overbreadth is a doctrine rooted in substantive

due process principles that addresses the statute's reach but not its clarity."

Saunders, 302 N.J. Super. at 518.

A statute is overbroad when it "reaches a substantial amount of

constitutionally protected conduct." Id. at 519 (quoting State v. Mortimer, 135

N.J. 517, 530 (1994)). "The evil of an overbroad law is that in proscribing

constitutionally protected activity, it may reach farther than is permitted or

necessary to fulfill the state's interests." Badr, 415 N.J. Super. at 468. In the

cyber-harassment context, a statute will not be overbroad if it has "a minimal

effect on speech and specifically for[bids] harassing conduct." Saunders, 302

N.J. Super. at 519 (citing Mortimer, 135 N.J. at 531). "[S]o long as [a]

harassment statute require[s] a specific intent to harass the victim, it . . . pass[es]

constitutional scrutiny as a reasonable restriction on the manner in which speech

was expressed regardless of its content." Ibid. (citing State v. Fin. Am. Corp.,

182 N.J. Super. 33, 39-40 (App. Div. 1981)). We accordingly reject defendant's

contention that the statute is overbroad.

A-3247-18T1
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 The cyber-harassment statute at issue only criminalizes speech that has

been: (1) communicated online; (2) made to harass another; (3) knowingly

disseminated "lewd, indecent, or obscene material to or about a person"; (4)

intended to emotionally harm, or place in fear of harm, a reasonable person.

N.J.S.A. 2C:33-4.1(a)(2). It prohibits a minimal amount and a specific type of

speech, which was clearly at issue in the matter under review.

During sentencing, the judge commented on the nature of the harassing

communications, explaining:

[Defendant] . . . pled guilty to counts three and five of
[the indictment], both fourth degree counts of cyber[-]
harassment. And this essentially involves [defendant],
over a period of time spanning some months between
March and May of 2015, on various social media sites,
directing an onslaught of disgusting and vile
harassment of the victims in this case . . . via various
social media sites, all, very clear to this [c]ourt, with
the sole aim of making these two individuals, the two
victims of this case, suffer embarrassment, shame,
humiliation, and extraordinary damage to their
reputations.

You put something out on the internet and out on social
media, even if it's something completely ridiculous,
disgusting, inaccurate, untrue, the potential
consequences of that can remain. We all know that.
And the victims in this case have had to deal with that.
And, as I said, it's one of the worst, most egregious
cases of cyber[-]harassment that I have seen.

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 Defendant contends that simply speaking or writing bad things about

another person as an opinion is not prohibited expression, and for the statute to

include otherwise encompasses constitutionally protected speech. However,

defendant's constitutional rights never "encompass a right to abuse or annoy

another person intentionally," B.A., 458 N.J. Super. at 409 (quoting Saunders,

302 N.J. Super. at 519), and based on the "egregious" content of defendant's

communications and his intention to bring harm unto the victims, his words

clearly fall within that prohibited category. Because N.J.S.A. 2C:33-4.1(a)(2)

legitimately protects individuals from harassment, like the communications

present in this matter, we conclude the statute does not reach a substantial

amount of constitutionally protected activity so as to make it overbroad.

Defendant further argues that N.J.S.A. 2C:33-4.1(a)(2) is impermissibly

vague. He claims the statute does not provide an objective, sufficient definition

of its elements to properly notify a person of what is expressive communication

and what is prohibited, because the statute does not define what is "lewd,

indecent, or obscene material" or what constitutes "emotional harm."

A statute is not unconstitutionally vague if it is defined "with sufficient

definiteness that ordinary people can understand what conduct is prohibited and

in a manner that does not encourage arbitrary and discriminatory enforcement."

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B.A., 458 N.J. Super. at 410. In assessing vagueness, it is important to note that

"few words possess the precision of mathematical symbols . . . and the practical

necessities of discharging the business of government inevitably limi t the

specificity with which legislators can spell out prohibitions." Saunders, 302 N.J.

Super. at 521 (quoting Boyce Motor Lines, Inc. v. United States, 342 U.S. 337,

340 (1952)). "Consequently, no more than a reasonable degree of certainty can

be demanded" in the language of a statute. Ibid. (quoting Boyce Motor Lines,

342 U.S. at 340). In our view, N.J.S.A. 2C:33-4.1(a)(2) is sufficiently clear on

its face to warn individuals of the conduct that is prohibited.

Moreover, defendant has failed to articulate how a person of ordinary

intelligence would be unable to comprehend what communications are

considered "lewd, indecent, or obscene." See Badr, 415 N.J. Super. at 471 ("It

is expected that a person of ordinary intelligence who is affected by the standard

will use common sense and be guided by principles applicable to the context.").

In fact, in Burkert, our Court used the language of N.J.S.A. 2C:33-4.1 as an

example of a statute that specifically "targets certain online 'communication[s],'"

when assessing the clarity of the harassment statute set forth in N.J.S.A. 2C:33-

4(c). 231 N.J. at 271 (alteration in original) (citing N.J.S.A. 2C:33-4.1).

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 The Court stated: "The cyber-harassment statute limits the criminalization

of speech mostly to those communications that threaten to cause physical or

emotional harm or damage. The cyber-harassment statute's precise and exacting

standard thus stands in contrast to the more loosely worded language of N.J.S.A.

2C:33-4(c)." Id. at 274. Here, defendant's language was egregious and clearly

supports the Burkert dicta that a person of average intelligence would be able to

decipher it as "lewd, indecent, or obscene."

In a defendant's vagueness challenge to a stalking statute in Saunders, we

explained that the claim "fail[ed] because the statute require[d] a specific

intent." Id. at 522. We reasoned that even if the defendant's contention was

valid that the statute's use of the words "annoy" or "reasonable fear of . . . injury"

were vague, because the statute required defendant intend to annoy or place in

fear, the statute "modified any phrases that could possibility be deemed vague."

Id. at 522-23. The specific intent requirement of the statute "clearly indicate[d]

what type of conduct [wa]s prohibited" even if the wording alone did not. Id. at

523.

Here, we are not convinced that the cyber-harassment statute is too vague

to apply to calling C.M. "promiscuous" and A.Y. a "child molester" as defendant

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admitted at his plea allocution. Accordingly, we reject defendant's contention

that the statute is unconstitutionally vague.

IV.

We next address defendant's argument, raised for the first time on appeal,

that his unconditional guilty plea to two counts of cyber-harassment should be

vacated. "Generally, a defendant who pleads guilty is prohibited from raising,

on appeal, the contention that the State violated his constitutional rights prior to

the plea." State v. Means, 191 N.J. 610, 625 (2007) (quoting State v. Knight,

183 N.J. 449, 470 (2005)). In light of our determination as to the

constitutionality of the statute, we find this argument to be without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

V.

Lastly, defendant contends the sentencing judge erred because he

improperly considered: (1) victim impact statements that were not provided to

defendant before sentencing; and (2) the dismissed charges against defendant.

He alleges resentencing is warranted.

Before sentencing, a court must "order[] a presentence investigation of the

defendant and accord[] due consideration to a written report of such

investigation . . . ." N.J.S.A. 2C:44-6(a). The report generally includes the

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defendant's history of civil commitment, medical history, and psychological

evaluations. N.J.S.A. 2C:44-6(b). It also entitles victims to provide statements

for the judge's consideration. The statements may include "the nature and extent

of any physical harm or psychological or emotional harm or trauma . . . , the

extent of any loss to include loss of earnings or ability to work . . . and the effect

of the crime upon the victim's family." N.J.S.A. 2C:44-6(b).

A sentencing court must give "due consideration" to the pre-sentence

report. State v. Jaffe, 220 N.J. 114, 121 (2014). Because of its importance, a

defendant is entitled to disclosure of a presentence report for "fair opportunity

to be heard on any adverse matters relevant to the sentencing." State v. Green,

62 N.J. 547, 564 (1973) (quoting State v. Kunz, 55 N.J. 128, 144 (1969)). The

rule was implemented to "eliminate the recurring problem of a defendant being

sentenced on the basis of inadequate or inaccurate information" and to give the

defendant sufficient opportunity "to meaningfully challenge the possible

incompleteness or inaccuracy of the report." Ibid.

Defendant claims that the victim impact reports were not included in the

presentence report, but instead, forwarded to the sentencing judge prior to

sentencing. The sentencing judge then reviewed those statements and relied on

them to sentence defendant, stating they were "compelling" and that "[he] read

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them more than once . . . in preparing for [sentencing]." Defendant raised th is

issue in his motion for resentencing, arguing that he was denied the opportunity

to review the impact statements and to correct or dispute any of the information

provided. His motion was denied, and he now raises the same issue on appeal.

We cannot discern from the record whether defendant was provided the

victim impact statements prior to sentencing. However, at the motion hearing

for reconsideration of defendant's sentence, the judge noted:

I also have a copy of [defendant's] original[] pro se
application for reconsideration of sentence, and that
was based on the fact that the victim impact statements
were not made available to him prior to sentencing,
although, I mean, my recollection was that they were.
But I understand [defendant] probably wanted some
more time to review them before we did the sentencing.

Defendant did not appear at the hearing to clarify what he received, but sent a

notarized affidavit to the judge requesting the motion be heard in absentia.

Even assuming defendant was not provided the victim impact statements,

we find there was no reversible error. Before sentencing, the judge allowed

defendant the opportunity to address the court before alluding to the victim

impact statements and provided him another opportunity after speaking to their

content. Defendant chose not to respond, and his attorney did not object or

request an adjournment to review the victim impact statements. After defendant

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raised the issue in a subsequent motion, but failed to argue the issue at the

motion hearing, the judge "considered the fact that [defendant] . . . had the

benefit of reviewing the . . . statements . . ." and since no additional comment

was made, did not address the matter any further.

The pre-sentence report is prepared "[b]efore the imposition of a sentence

or the granting of probation." R. 3:21-2(a). It includes any "presentence

material having any bearing whatever on the sentence." Ibid. Because the pre-

sentence report is given "due consideration" in sentencing, Pressler & Verniero,

Current N.J. Court Rules, cmt. 3 on R. 3:21-2 (2020) (citing Jaffe, 220 N.J. at

121-22), it is important that the information is accurate, see State v. Leckis, 79

N.J. Super. 479, 485 (App. Div. 1963) (citing State v. Pohlabel, 61 N.J. Super

242 (App. Div. 1960)). The defendant is "entitled to . . . fair opportunity to be

heard on any adverse matters relevant to the sentencing." Green, 62 N.J. at 564

(internal quotation marks omitted) (quoting Kunz, 55 N.J. at 144).

We discern no error by the sentencing judge. Defendant does not assert

that the statements contained inadequate or inaccurate information, or any

additional information not already considered by the sentencing judge. The

record clearly establishes that defendant possessed the statements before the

motion to reconsider his sentence was adjudicated. Therefore, defendant had

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the ability to challenge their purported incompleteness at that time. Defendant

has shown no evidence to the contrary.

Defendant also contends that the sentencing judge erred in considering

previous, dismissed charges when sentencing him. Specifically, defendant took

issue with the judge's statement that: "[Defendant] has multiple other arrests

involving similar conduct, although not resulting in a disposition or a

conviction, certainly, certainly give this [c]ourt great concern and certainly

evidences that [defendant] is a risk to commit another offense." Defendant

claims the judge's consideration of the dismissed charges impacted his view of

defendant and requires resentencing.

The judge explained that he considered defendant's previous arrests for

their relevance as to "the risk that he would commit another offense" of the same

type. He reasoned that "[defendant] has multiple prior arrests for similar -type

conduct, although not resulting in a conviction, [which] certainly goes toward

the risk that he would commit another offense . . . ." The previous arrests lent

support for the judge's finding of aggravating factors three, six, and nine.

"Adult arrests that do not result in convictions may be 'relevant to the

character of the sentence . . . imposed.'" State v. Rice, 425 N.J. Super. 375, 382

(App. Div. 2012) (alteration in original). Consideration of certain aggravating

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and mitigating factors in the assessment of a defendant may include "the mere

fact of a prior conviction, or even in the absence of a criminal conviction." State

v. Thomas, 188 N.J. 137, 154 (2006) (permitting "such qualitative assessments

by sentencing courts in finding aggravating factors [three], [six], and [nine]").

Because we conclude the sentencing judge properly considered defendant's

previous arrests to support his findings on the aggravating factors, we reject

defendant's argument and affirm his sentence.

We find defendant's remaining arguments to be without sufficient merit to

warrant extended discussion in a written opinion. R. 2:11-3 (e)(2).

Affirmed.

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