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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0625-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
B.D.P.,1
Defendant-Appellant. _______________________
Argued March 24, 2025 – Decided July 16, 2025
Before Judges Sabatino and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 21-05- 0308.
Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Brian P. Keenan, of counsel and on the briefs).
Kaili E. Matthews, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney
1 We use initials of the parties to protect the child's privacy interests. R. 1:38- 3(d)(11). General, attorney; Steven A. Yomtov, Deputy Attorney General, and Kaili E. Matthews, of counsel and on the brief).
PER CURIAM
After his motion to suppress images of child pornography seized from his
cell phone pursuant to a warrant was denied, defendant pleaded guilty to charges
of possession and distribution of pornographic images and child endangerment.
In accordance with the plea agreement, the judge sentenced him to an aggregate
custodial term of fifteen years, with seven-and-a-half years of parole
ineligibility. Defendant now appeals his convictions and sentence, contending
the judge should have granted his motion to suppress. We disagree and affirm.
I.
Between August and November 2018, while incarcerated at South Woods
State Prison, defendant exchanged text messages with co-defendant Craig
Reeves.2 In substance, defendant agreed to receive "child sexual abuse
exploitive material" (CSAEM) for subsequent distribution to others. This
exchange was detected and flagged, prompting an investigation.
Following release from prison in June 2019, defendant was placed on
2 Craig Reeves is not a party to this appeal.
A-0625-23 2 parole supervision for life (PSL), with a condition that he wear an ankle
monitoring bracelet. On January 29, 2020, defendant violated conditions of
parole by removing his ankle monitor. Parole officers, joined by Sergeant Justin
Cocuzza of the Keansburg Police Department, travelled to the residence of
defendant's ex-girlfriend, Carol Paone, to inquire of his whereabouts. Paone
denied knowing his whereabouts but disclosed that she had in her possession
two cell phones belonging to defendant. Paone explained that while searching
defendant's smartphone to delete pictures of herself a month earlier, she
discovered multiple pictures and videos of "very under aged" girls performing
sexual acts. Concerned that defendant was using her laptop to access
inappropriate material, Paone voluntarily surrendered her laptop to Sergeant
Cocuzza for examination. The Sergeant also accepted in custody from Paone a
Verizon ZTE smartphone, formerly belonging to defendant.
On February 4, 2020, Paone met with Keansburg Detective Thomas
Sheehan and signed a consent form permitting a search of her laptop. The search
proved negative for images of child pornography, however, Paone maintained
her statement regarding the presence of pictures and video of children engaged
in sex acts found on the "Verizon ZTE smartphone with a cracked screen." On
February 10, Paone provided a sworn statement relaying that defendant's
A-0625-23 3 smartphone contained photographs and videos of five- to six-year-old girls
"completely naked performing oral sex with older men." She also played a voice
message from defendant in which he asked Paone to get rid of "the cracked
thing," referring to the Verizon smartphone with cracked screen.
Based on this information, Sheehan applied for a search warrant. In his
affidavit, Sheehan stated that Paone's statements sufficed to establish probable
cause. In seeking "any and all data and information, electronic or otherwise,
stored on or within" the smartphone, Sheehan cited concern with evidence
concealment and destruction and the need "to examine all the stored data to
determine which particular files are evidence or instrumentalities of crimes. "
Specifically, police sought: (1) the assigned phone number of the cell phone; (2)
serial numbers, passwords, and PIN numbers; (3) settings; (4) call histories; (5)
calendar and planner information; (6) contact and programmed numbers; (7) text
and email messages including unsent, read, unread, and draft messages and
memos; (8) photographs and videos; viewed and/or saved websites; and (9)
saved tasks and digital copies of handwritten notes among other information.
Detective Sheehan prepared an affidavit in which he avowed:
Your affiant is aware that computers, cell phones and other electronic storage devices like hard disks, diskettes, tapes, and optical disks generally can store the equivalent of thousands of pages of information.
A-0625-23 4 Additionally, a suspect may try to conceal criminal evidence; he or she might store it in random order with deceptive file name. This may require searching authorities to examine all the store data to determine which particular files are evidence or instrumentalities of crimes. This sorting process can take weeks or months, depending on the volume of data stored, and it would be impractical to attempt this kind of data search on site. Moreover, searching electronic devices and computer systems for criminal evidence is a highly technical process requiring expert skill and a properly controlled environment. The vast array of electronic hardware and software available requires even computer experts to specialize in some systems and applications, so it is difficult to know before a search which expert is qualified to analyze the system and its data. Additionally, data search protocols are exacting technical procedures designed to protect the integrity of the evidence and to recover even "hidden," erased, compressed, password-protected, coded or encrypted files. Since electronic evidence is extremely vulnerable to inadvertent or intentional modification or destruction (both from external sources or from destructive code imbedded in the system as a "booby trap"), a controlled environment is preferred for complete and accurate analysis. In fact, your affiant is aware that trained computer forensic investigators have been able to recover information from magnetic (hard drives) and other computer media long after (in some cases in excess of a year) it had been deleted by the owner/user of the computer.
Sheehan further explained in his affidavit that, to "fully retrieve data"
from the phone, "the analyst will need access to all storage media and devices
that were or may have been used by the suspect."
A-0625-23 5 That same day, a Superior Court judge approved a warrant authorizing the
Keansburg Police Department to search the entire contents of the smartphone
from which the police retrieved over 1,000 images of CSAEM stored between
September 29 and December 25, 2019. Detectives also found text messages
between defendant and his minor daughter from November 2019, in which
defendant made sexual comments and arranged for her to take an airplane flight
from Florida to New Jersey, unaccompanied by an adult.
Through a separate ongoing investigation, detectives uncovered
additional evidence of child endangerment committed by defendant. Between
August 27 and November 15, 2018, while in custody at South Woods State
Prison and prior to his release on parole, defendant had exchanged text messages
with Reeves. They agreed that Reeves would send defendant pornographic
images of children and defendant would distribute the images to other inmates
at South Woods. Defendant and Reeves also exchanged text messages in which
defendant expressed his intention to engage in sexual acts with his daughter.
In May 2021, a Monmouth County grand jury returned an indictment
charging defendant with ten counts of offenses related to possession and
distribution of child pornography and endangering the welfare of a child.
Defendant later pled guilty to three counts: second-degree conspiracy to
A-0625-23 6 endanger the welfare of a child, N.J.S.A. 2C:5-2, and N.J.S.A. 2C:24-
4(b)(5)(a)(i) (count one) (concerning his agreement with Reeves to distribute
CSAEM); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(b)(5)(b)(ii) (count five) (for possession of over 1,000 images of child
pornography); and second-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a)(2) (count seven) (for arranging his daughter—who was eleven and
twelve at the time in question—to travel unaccompanied from Florida to New
Jersey).
Franks Motion3
Defendant moved for a Franks hearing and to suppress the evidence seized
under the search warrant, maintaining the warrant did not contain facts sufficient
to establish probable cause. At the March 4, 2022 hearing, defendant asserted
detectives showed a "reckless disregard for the truth" by relying on Paone's
statements, where detectives had "control" over preparation of the statement
and, by extension, its content. Defendant contended a video-recorded statement
would have been more spontaneous and less controlled. Defendant also referred
3 Franks v. Delaware, 438 U.S. 154 (1978) (holding that a warrant is not valid if the affidavit contains a statement, necessary to the finding of probable cause, that is demonstrably false and included by the affiant knowingly and intentionally, or with reckless disregard for the truth). A-0625-23 7 to the parole officer's notes, which reflected Detective Sheehan initially did not
believe he had probable cause to search the smartphone. According to
defendant, the omission of the parole officer's notes from the affidavit evidenced
a disregard for the truth.
The State maintained Paone's statements were credible, as she consistently
described the contents of the pictures and certified the truth of her statements.
The State highlighted there was significant investigation done after the initial
encounter with Paone sufficient to form probable cause, rendering immaterial
Detective Sheehan's tentative determination that probable cause for a warrant
did not exist.
The court denied defendant's request for a Franks hearing. First, the court
found the parole officer's note "that someone told the parole officer that there
was insufficient probable cause at a time" was hearsay. Further, the court
observed that upon completion, the affidavit of probable cause supplied the
probable cause necessary to issue a warrant. It elaborated, "There was literally
nothing in what was supplied to this [c]ourt that gives this [c]ourt any pause or
any concern that there was any intentional wrongdoing or falsehood on the part
of the affiant here." Second, the court dismissed defendant's contention that
video-recorded statements were required of witnesses, noting there is no such
A-0625-23 8 requirement under rule of law or Attorney General directive. Finally, the court
noted there was nothing in the record to indicate Paone was forced into making
statements that were untrue.
Following this ruling, the State offered defendant a plea on counts one,
five, and seven, in exchange for a fifteen-year sentence with seven-and-a-half
years of parole ineligibility. At the April 25, 2022 plea hearing, the court
reviewed the terms of the plea agreement with defendant, cautioning "that that
exposure . . . you have is massive." The court also advised defendant to discuss
terms of the agreement with his attorney. After consulting with counsel,
defendant accepted the terms and articulated factual bases to the court's
satisfaction.
Several weeks later, on May 12, 2023, defendant moved to withdraw his
plea, second-guessing the factual basis he had given for count seven,
endangering the welfare of a child. The court stated it would grant the plea
withdrawal if appropriate but emphasized that defendant would then be
"exposed to life in prison." Defendant conferred with his attorney, then re-
allocuted to count seven to his, the State's, and the court's satisfaction.
A-0625-23 9 Sentencing
At the October 13, 2023 sentencing hearing, defendant acknowledged his
guilt for soliciting pornographic images of children but maintained he was
"taking steroids in there, and that made [his] libido jump through the roof." He
denied attempting to lure his daughter to New Jersey to commit sexual acts on
her. Instead, he maintained that his daughter "was clearly coached or pushed
along" to accuse him of wrongdoing. Defendant also maintained there was
insufficient proof that he possessed the smartphone that contained pornographic
images of children. The court called attention to defendant's statements during
the plea hearing in which he confirmed sending his daughter inappropriate
messages using the smartphone. Defendant insisted, however, that he had "no
choice" but to take the plea. When court reconvened, defendant reaffirmed his
allocution to count seven.
The court found aggravating factor three, citing defendant's violations of
two prior final restraining orders and parole conditions, as well as the results of
the Static-99R testing, indicating defendant was at high risk of re-offending.
The court also found aggravating factor six, noting defendant had an extensive
criminal record consisting of a juvenile adjudication for burglary, six municipal
court convictions, and four adult convictions. Finally, the court found
A-0625-23 10 aggravating factor nine, concluding there was a specific need to deter defendant
and a general need to deter abuse of young children. The court assigned all three
aggravating factors "significant" weight. While acknowledging defendant's
history of substance abuse, the court did not find substance abuse constituted a
mitigating factor.
Accordingly, the court sentenced defendant to a prison term of nine years
on count one, fifteen years with seven-and-a-half years of parole ineligibility on
count five, and ten years on count seven, all counts to run concurrent ly.
Defendant was subject to Megan's Law reporting requirements, N.J.S.A. 2C:7-
1 to -23, parole supervision for life, N.J.S.A. 2C:43-6.4, and mandatory fines
and penalties.
On appeal, defendant raises the following arguments:
POINT I
THE MOTION COURT ERRED IN DENYING SUPPRESSION OF EVIDENCE RESULTING FROM THE ISSUANCE OF AN OVERBROAD AND UNPARTICULARIZED SEARCH WARRANT AUTHORIZING THE SEARCH OF THE ENTIRE CONTENTS OF THE SMART PHONE WHEN THE AFFIDAVIT SUPPORTED ONLY A LIMITED SEARCH FOR THE PHOTOGRAPHS AND VIDEOS DESCRIBED IN THE AFFIDAVIT.
A. The Warrant Was Fatally Overbroad and Unparticularized Because The Ex-
A-0625-23 11 Girlfriend's Statement Did Not Provide Probable Cause to Examine the Entire Contents of the Smart Phone.
B. The Remedy for this Type of General Exploratory Warrant – Which Lacks Any Particularity and Authorizes the Police to Examine All Data – Is to Suppress All Data.
POINT II
THE MOTION JUDGE ERRED IN CONDUCTING THE SUPPRESSION HEARING ON A WARRANT HE SIGNED. (Not Raised Below)
POINT III
THE SENTENCING COURT FAILED TO FIND MITIGATING FACTORS PRESENT IN THE RECORD, RESULTING IN A MANIFESTLY EXCESSIVE SENTENCE.
II.
"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. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149
N.J. 310, 316 (1997)). There are three exceptions to this general rule of waiver.
One such exception is Rule 3:5-7(d), which provides, "[d]enial of a motion made
pursuant to [a motion to suppress evidence] may be reviewed on appeal from a
judgment of conviction notwithstanding that such judgment is entered following
A-0625-23 12 a plea of guilty." In reviewing the trial court's decision on a motion to suppress,
this court gives deference to findings based on credibility and determines
whether the judge's findings are supported by sufficient credible evidence. State
v. A.M., 237 N.J. 384, 395 (2019). We review legal conclusions de novo. State
v. Marolda, 394 N.J. Super. 430, 442 (App. Div. 2007). However, issues raised
for the first time on appeal are reviewed for plain error and this court " must
disregard any unchallenged errors or omissions unless they are 'clearly capable
of producing an unjust result.'" State v. Santamaria, 236 N.J. 390, 404 (2019)
(quoting R. 2:10-2).
The Fourth Amendment to the United States Constitution and the New
Jersey Constitution protect citizens against unreasonable searches and seizures.
Specifically, Article I, Paragraph 7 of the New Jersey Constitution provides that
"no warrant shall issue except upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and the papers
and things to be seized." A finding of probable cause warrant requires "a fair
probability that contraband or evidence of a crime will be found in
a particular place." State v. Chippero, 201 N.J. 14, 28 (2009) (quoting United
States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993)). "[T]he probable cause
determination must be . . . based on the information contained within the four
A-0625-23 13 corners of the supporting affidavit, as supplemented by sworn testimony before
the issuing judge that is recorded contemporaneously." Schneider v. Simonini,
163 N.J. 336, 363 (2000). Because a search warrant "enjoys a presumption of
validity, . . . a defendant challenging the validity of a search warrant bears the
burden of proving there was no probable cause supporting the issuance of the
warrant." State v. Missak, 476 N.J. Super. 302, 307 (App. Div. 2023) (citations
omitted) (internal quotation marks omitted).
Defendant contends the motion court erred in denying suppression of the
evidence because the warrant was unparticularized and not supported by
probable cause to conduct a full search of defendant's cell phone. In opposition,
the State observes defendant challenges the warrant's particularity for the first
time on appeal. The State further maintains that the search warrant was
supported by probable cause to conduct a full search of the phone as "it included
a more detailed explanation as to why examiners needed full access to
defendant's phone."
In Missak, this court addressed the proper scope of a search warrant for
the contents of a cellular phone seized from defendant following his arrest for
attempted sexual assault. 476 N.J. Super. at 307. There, the defendant used two
chatting applications to communicate with an individual he believed to be a
A-0625-23 14 fourteen-year-old girl and attempted to lure her to a location to perform sexual
acts. Ibid. Incident to defendant's arrest, the officers seized a cellphone on
defendant's person and secured it pending the approval of a search warrant. The
special agent, who had feigned being the minor girl, attested that mobile devices
have the capacity to store immense amounts of data, facilitating concealment of
incriminating evidence. Id. at 308. For that reason, the agent prepared a warrant
seeking "all of the data on a computer, electronic device, or storage media" on
defendant's smart phone, including stored electronic data, all calls and messages,
stored pictures and videos, GPS data, calendar information, encrypted files, and
any other stored information helpful to the investigation. Id. at 310. The court
approved the search warrant, finding that the agent's certification established
probable cause to search the entire contents of the phone. Id. at 311.
On appeal, the Missak court held the warrant overbroad. Id. at 312.
Specifically, "the warrant's infirmity [was] grounded in its authorization of
searches of information and data within the phone for which [the affiant]'s
certification d[id] not adequately establish probable cause." Ibid. Taking into
consideration "the complexity" of cell phones and "law enforcement's ability to
cull through" the data, the court instructed that "any future search warrant
application should address such issues to allow the court to determine the
A-0625-23 15 locations within the data and information on the cellular phone there is probable
cause to believe relevant information concerning the crimes charged may be
found." Id. at 323.
Here, as an initial matter and as observed by the State, defendant
challenged the warrant only by way of his request for a Franks hearing. He did
not challenge the warrant for lack of particularity. In so proceeding, the motion
court was deprived the opportunity to address defendant's challenge on appeal.
He has thus waived the issue. Green Knight Cap., LLC v. Calderon, 469 N.J.
Super. 390 (App. Div. 2021), aff'd as modified, 252 N.J. 265, 284 (2022).
Nonetheless, for purposes of completeness, we address the substance of
defendant's argument.
This court has explicitly held a warrant that "allows a search without
limitation of all the phone's contents . . . and data . . . satisfies the mandat[e] that
[a] warrant specifically describe the search location so that an officer can
reasonably ascertain and identify the place intended to be searched ." Missak,
476 N.J. Super. at 322 (citations omitted) (internal quotation marks omitted).
Here, the warrant specified its application to defendant's "black ZTE smart
cellular phone, labeled as evidence under case #20-868," and authorized the
search of "any and all data and information, electronic or otherwise, stored on
A-0625-23 16 or within the above referenced cell phone." While expansive, the application in
support and the warrant itself limit with particularity those nine data points
subject to search, as specified in Detective Sheehan's affidavit.
We recognize that the scope of this warrant and the technological
advances that facilitated its execution implicate concerns about unnecessary
intrusion of defendant's privacy rights. Those privacy concerns obligate us "to
ensure that [technological advances] do[] not erode Fourth Amendment
protections." Missak, 476 N.J. Super at 316 (quoting Carpenter v. United States,
585 U.S. 296, 320 (2018)). We note, however, that those concerns are attenuated
by defendant's status as a parolee.
Parolees' Fourth Amendment Rights
A parolee is not entitled to the full rights and liberties of an ordinary
citizen. Instead, parolees have "conditional liberty properly dependent on
observance of special parole restrictions." Morrissey v. Brewer, 408 U.S. 471,
480 (1972). Accordingly, "[c]onstitutional claims made by PSL offenders 'must
be examined in the context of their distinctive status as sex offenders who have
been released into the community after serving their custodial sentences, and
who are now under the Parole Board's continued supervision through
[community supervision for life] or PSL.'" K.G. v. N.J. State Parole Bd., 458
A-0625-23 17 N.J. Super. 1, 31 (App. Div. 2019) (quoting J.B. v. N. J. State Parole Bd., 433
N.J. Super. 327, 336 (App. Div. 2013)).
The United States Supreme Court has held that considering "supervision
[of a parolee] is a 'special need' of the State permitting a degree of impingement
upon privacy that would not be constitutional if applied to the public at large,"
reasonable suspicion is a justifiable "replacement of the standard of probable
cause." Griffin v. Wisconsin, 483 U.S. 868, 875-76 (1987). Thus, warrantless
searches conducted by a probation officer on reasonable grounds, pursuant to a
state regulation or a court order, satisfy the demands of the Fourth Amendment.
Id. at 872-83. In United States v. Knights, the U.S. Supreme Court clarified that
the Fourth Amendment permits probation and parole officers, as well as police
officers, who have reasonable suspicion to conduct warrantless searches of
individuals on probation or parole. 534 U.S. 112, 117-18 (2001).
In New Jersey, a parole officer is not required to obtain a warrant to search
a parolee's home; instead, the officer need only demonstrate "reasonable
suspicion" that evidence of a probation violation will be found there. N.J.A.C.
10A:72-6.3(a)(1). "'Reasonable suspicion' means a belief that an action is
necessary based upon specific and articulable facts that, taken together with
rational inferences from those facts, reasonably support a conclusion such as
A-0625-23 18 that a condition of parole has been or is being violated by a parolee." N.J.A.C.
10A:72-1.1.
"The Fourth Amendment's touchstone is reasonableness, and a search's
reasonableness is determined by assessing, on the one hand, the degree to which
it intrudes upon an individual's privacy and, on the other, the degree to which it
is needed to promote legitimate governmental interests." Knights, 534 U.S. at
112-13. "The balance of these considerations requires no more than reasonable
suspicion to conduct a search . . . ." Id. at 121. Defendant's status as a parolee
weighs against an expectation of privacy on the one hand and in favor of
legitimate government interests on the other. Put another way, a parolee's
reasonable expectation of privacy is definitionally reduced, and the State has a
concomitant legitimate government interest in apprehending parole violators
and protecting their potential victims. In this case, the government's legitimate
interest was heightened by the immediate need to protect a minor, defendant's
daughter, who the State had grounds to believe was in danger of being sexually
assaulted by defendant. The reasonableness of the warrant at issue was properly
informed and validated by these considerations.
In sum, the judge's finding of probable cause in support of a warrant for a
search of the smartphone as it pertained to CSAEM was adequately supported
A-0625-23 19 to search the entire contents of the smartphone for a full range of data.
Defendant's status as a parolee, combined with his text messages with Reeves
soliciting CSAEM, and Paone's statements, constituted probable cause to search
defendant's smartphone for evidence of additional CSAEM.
Whether the Same Judge was Suitable to Decide Both Applications
For the first time on appeal, defendant contends that because the motion
judge originally found probable cause for issuance of the warrant, his neutrality
in deciding the motion to suppress was inherently compromised. The judge
therefore should have recused himself from adjudicating the motion to suppress.
As authority for this argument, defendant cites Rule 7:5-2(b). That Rule,
which governs the procedure municipal courts employ to adjudicate motions to
suppress evidence, reads in pertinent part:
If the search was made with a warrant, a brief stating the facts and arguments in support of the motion shall be submitted with the notice of motion.
....
If the municipal court having jurisdiction over the motion to suppress evidence seized with a warrant has more than one municipal court judge, the motion shall be heard by a judge other than the judge who issued the warrant, such judge to be designated by the chief judge for that municipal court. If the municipal court having jurisdiction of the motion to suppress evidence seized with a warrant has only one judge, who issued the
A-0625-23 20 warrant, the motion to suppress evidence shall be heard by the Municipal Court Presiding Judge for the vicinage, or such municipal court judge in the vicinage that the Assignment Judge shall designate.
Although defendant concedes "there is no corresponding rule for the
Superior Court," he urges this court to adopt a like procedure. We decline to do
so. This issue has long been settled by this court. Generally, a Superior Court
judge who has approved a search warrant may rule on a defendant's motion to
suppress evidence obtained through the warrant. See, e.g., State v. Smith, 113
N.J. Super. 120, 137-38 (App. Div.), certif. denied, 59 N.J. 293 (1971). In
Smith, defendant maintained that a judge who issued a search warrant should be
disqualified from hearing the motion to suppress, considering the judge "has
given his opinion upon a matter in question in the action." Id. at 137 (quoting
R. 1:12-1(d)). The Smith court clarified that the Rule does not "prevent a judge
from sitting because he has . . . given his opinion on any question in controversy
in the pending action in the course of previous proceedings therein." Ibid.
(citing R. 1:12-1(g)). Accordingly, our Rules of Court permit a Superior Court
judge to hear a suppression motion regarding a search warrant s/he signed. Ibid.
Beyond the absence of legal authority in support of defendant's position,
were we nonetheless to adopt it, the proposed rule of disqualification would
prove extremely impractical. Motion practice is voluminous in Superior Court.
A-0625-23 21 Judges who rule on motions at the inception of a given case often preside over
applications made at later phases. It is neither practical nor necessary for
substitutions to made in the manner conducted at the municipal court level.
Finally, we note parenthetically that the motion judge here was
exceptionally impartial in his thoughtful adjudication of defendant's Franks
motion. In denying the application, he emphasized that had defendant presented
evidence that Paone's statements were coerced or not credible, he would have
concluded there was "deliberate falsehood" or reckless disregard by law
enforcement. The judge also demonstrated fair-mindedness and flexibility when
taking defendant's concerns into account when accepting the factual basis for
his guilty pleas, and in ensuring that defendant knowingly and voluntarily
accepted the terms of the plea agreement.
Sentencing
On appeal, a trial court's "sentencing determinations are entitled to
substantial deference." State v. Jaffe, 220 N.J. 114, 124-25 (2014) (quoting
State v. Pagan, 378 N.J. Super. 549, 558 (App. Div. 2005)). "Appellate review
of a criminal sentence is limited; a reviewing court decides whether there is a
'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228
(2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).
A-0625-23 22 Defendant contended before the sentencing judge and now on appeal that
his difficult childhood, substance use, and mental health issues, militated in
favor of finding mitigating factor four, N.J.S.A. 2C:44-1b(4) ("[t]here were
substantial grounds tending to excuse or justify the defendant's conduct, though
failing to establish a defense."). Defendant maintains the sentencing judge
failed to consider mitigating factor four and requests that this court remand for
resentencing.
In reviewing a trial court's sentencing determinations, this court's review
is limited to considering:
(1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience."
[State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State v. McGuire, 419 N.J. Super. 88, 158 (App. Div. 2011)).]
"With respect to the consideration of aggravating and mitigating
circumstances, 'the [sentencing] court must describe the balancing process
leading to the sentence.'" State v. Canfield, 470 N.J. Super. 234, 344 (App. Div.
2019) (quoting State v. Kruse, 105 N.J. 354, 360 (1987)). "To provide an
A-0625-23 23 intelligible record for review, the trial court should identify the aggravating and
mitigating factors, describe the balance of those factors, and explain how it
determined defendant's sentence." Kruse, 105 N.J. at 360.
Our review of the record reflects the sentencing judge took into account
defendant's Avenel and presentence reports, noting that defendant had a history
of substance abuse. In this case, the court considered the statutory mitigating
factors and determined, "there are zero mitigating factors that would be noted
here today that I could find. I went through each one of them individually as I
came to the determination here."
Although the court did not make explicit findings as to each mitigating
factor raised, it assessed defendant's history of substance use and circumstances
of the offenses. Specifically, the court determined that defendant's substance
use did not serve to mitigate his punishment. Rather, it was a "catalyst" for his
already-existing "affinity" for pornography. The court noted that defendant's
prior conviction for engaging in sexual activities with a minor evidenced he was
aware his present actions were illegal, yet he failed to refrain.
Our jurisprudence provides, "[e]ven when, as here, the commission of the
offense may be related to the offender's [substance use issues], the Code does
not condone leniency." State v. Rivera, 124 N.J. 122, 126 (1991) (citing State v.
A-0625-23 24 Jarbath, 114 N.J. 394, 407 (1989)). Particularly, drug dependency is not
considered "substantial grounds tending to excuse or justify [one's] conduct."
State v. Ghertler, 114 N.J. 383, 390 (1989) (quoting N.J.S.A. 2C:44-1(b)(4)).
Beyond this, substance use in itself does not justify leniency. See ibid.; Rivera,
124 N.J. 126. Accordingly, the sentencing judge's determination that
defendant's substance does not warrant a finding for mitigating factor four is
supported by law.
As the State correctly observes, defendant did not explain at the
sentencing hearing how his past sexual traumas and behavioral disorders would
have legally justified his possession of CSAEM or endangerment of his
daughter. Nor was legal justification established in the Avenel report. Stated
otherwise, defendant's mental conditions did not compel his commission of the
underlying offenses and therefore do not serve to legally justify or mitigate his
conduct. See State v. Hess, 207 N.J. 123, 149 (2011); State v. Nataluk, 316 N.J.
Super. 336, 349 (1998). Thus, in their totality, the sentencing judge's
determinations were supported by competent evidence in the record. Bolvito,
217 N.J. at 228.
In sum, we affirm the trial court's decision denying defendant's motion for
suppression of evidence extracted from the smartphone. The court did not err
A-0625-23 25 in deciding the suppression motion of evidence garnered from a warrant it
approved. Defendant's sentence was properly imposed.
Affirmed.
A-0625-23 26