State of New Jersey v. Jose G. Veras

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0837-23

STATE OF NEW JERSEY, Plaintiff-Respondent,

v. JOSE G. VERAS,

Defendant-Appellant.

__________________________

Argued June 3, 2026 – Decided September 9, 2026 Before Judges Smith, Berdote Byrne and Jablonski.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No.

21-10-1198.

Alexandra Marek, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Alexandra Marek, of counsel and on the briefs).

Bethany L. Deal, Deputy Attorney General, argued the cause for respondent (Jennifer Davenport, Attorney General, attorney; Bethany L. Deal, of counsel and on the brief).

PER CURIAM Defendant, Jose G. Veras, appeals his conviction and sentence for second-

degree endangering the welfare of a child by possessing child pornography, N.J.S.A. 2C:24-4(b)(5)(b)(ii). For the reasons which follow, we affirm on the merits, but remand for resentencing to recalculate the fines and penalties associated with his conviction and sentence.

I.

In July 2019, defendant's internet service provider discovered that one of its users uploaded potential child sexual abuse and exploitation material (CSAEM) to their OneDrive account. The internet service provider notified Microsoft. On August 26, 2019, Microsoft, via its CyberTipline, reported to the National Center for Missing and Exploited Children (NCMEC) that an unidentified user uploaded suspected CSAEM. The report included: an internet protocol (IP) address and a Microsoft User Identification Number; an incident date; and the images which triggered the NCMEC notification, but not the individual's name nor full address. NCMEC informed the New Jersey State Police, who subsequently notified the Monmouth County Prosecutor's Office (MCPO).

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MCPO Captain Eric Singer led the ensuing investigation. The prosecutor's office learned the IP address and Microsoft OneDrive account belonged to a Gabe Veras, who lived in Keansburg. Gabe is defendant's middle name.

On February 7, 2020, around 6:00am, Capt. Singer and several members of the prosecutor's office executed a search warrant at defendant's residence, where he lived with his family. Defendant admitted to Capt. Singer that he may have been in an internet chatroom where he saw "inappropriate images" of child pornography that someone shared on their screen.

Officers recovered several laptops and two external hard drives from defendant's upstairs bedroom. During the search, Detective Richard Shin conducted a forensic preview of these devices, revealing hundreds of images and videos of suspected CSAEM. Officers also seized defendant 's cellphone, which also contained suspected CSAEM. At the conclusion of the search, police arrested defendant.

Defendant waived his Miranda1 rights and gave a taped statement to police. During the interview, defendant told police he was on a website called Telegram when someone started sharing videos of CSAEM, prompting him to

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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leave the site. Defendant also stated to police that someone shared with him a hyperlink to Mega, a cloud-based internet storage website, which allowed him to download "a bunch of images and videos of naked children" from there. He admitted to police that he knew the downloaded items were CSAEM.

FBI Agent Nicholas Perone later conducted a more comprehensive forensic examination of defendant's devices. He tagged each item on defendant's devices that he suspected constituted CSAEM and issued a report to Capt. Singer, who then reviewed each video and image from the devices. From the memory chip on defendant's phone, Capt. Singer reviewed eighty-one files of suspected CSAEM, all of which came from Telegram on April 6, 2019. From one of two external hard drives, Singer reviewed 397 items. Each item used the root name "Megasync," and were contained in a folder labeled "perv." Within that folder were three subfolders labeled "B+M," "boysgettingf****dpyt," and "boys video." Each subfolder was created on July 11, 2019, at three different times that evening. The video titles contained the children's ages and clearly indicated they were pornographic material. The other two devices did not reveal any suspected illegal material.

Defendant contacted Microsoft the day after the folders were created, stating he was having trouble accessing services and blamed a "visitor" for

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uploading unauthorized content onto his computer. Microsoft responded to defendant, stating his account "was disabled due to serious violation[s] of one of [its] service agreements."

On October 1, 2021, a grand jury indicted defendant, charging him with second-degree endangering the welfare of a child by possessing child pornography, N.J.S.A. 2C:24-4(b)(5)(b)(ii). Defendant was tried between January 4 and January 10, 2023, with the jury viewing over 100 CSAEM items captured from defendant's devices.

At trial, FBI Agent Perone testified that he examined the devices seized during the search and found that a Toshiba external hard drive and an HP laptop contained suspected CSAEM. He also testified that he was not qualified to determine what the images constituted. Perone testified that the subfolders were created on July 11, 2019, but the forensic analysis could not reveal who downloaded the files, who sent them, nor the source of the files.

Capt. Singer testified regarding the police investigation, the forensic review of the devices, and the content discovered on the devices.

Defendant testified that during 2019 and into early 2020, he was living with family members, and that his father was present on weekends. He said he was not home all the time and that when he left, he did not take the laptop with

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him. He also testified that he kept personal photographs, tax returns, school papers, and other personal documents on the computer. By February 7, 2020, he still had not repaired the computer because he was not using it, did not have funds, and did not consider repair a priority.

Defendant stated that sometime in July 2019 or during that summer, while he was in a "chat room" or "camming session," he received content that he identified as child pornography. He said he did not know exactly how he got the material, did not know who sent it, and assumed it was a download. Defendant described his response to receiving this content as closing the window and leaving the chat room. He claimed that he never went back. He testified that he tried to delete the material but could not later relocate it.

Defendant further testified that, during and after that period, his computer repeatedly displayed a blue screen with an error message, and it rebooted on its own. He said that on July 19, he contacted Microsoft because he could not sign into his Microsoft account. He informed Microsoft that his computer had recently been accessed by a "person visiting" who had loaded unauthorized content onto it, and that he could not access Microsoft services using his account. Defendant also testified that these problems occurred numerous times

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and extended into the fall of 2019. He also said he did not call police because he did not know the proper procedures for that type of situation.

In describing how the material got onto his devices, defendant gave several explanations. He testified that the material appeared in a Telegram chat and that someone shared child-pornography video. He also admitted that he had downloaded material from Mega and that the downloads contained a large number of images and videos of naked children. He stated that after seeing a few of the downloaded items he understood their nature. He said he did not intentionally keep them, did not intentionally move them to an external hard drive, and believed his devices were synced. He did not know the total number of files and did not think the files were on remote storage once he could no longer find them.

Defendant also testified that the "person visiting" described in his Microsoft request was the same "third party" from the chat room, and he characterized that person as a "cyber person" who had remotely accessed the computer. He later added that because his bedroom door had no lock, someone else in the house could have physically accessed the computer in his room. He also believed there may have been two different people involved. He said he did not create the folder names found on the hard drive and did not know how

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all of the files came to be on the laptop, the hard drive, or the phone's memory chip. He stated that, to his understanding, the computer was clean.

Defendant also admitted that he did not tell Capt. Singer that another person had accessed his computer.

At the jury charge conference, the court asked counsel if they had reviewed the jury instructions and had objections, proposed modifications, or comments. Each approved the proposed charge without objection. The jury instructions included the elements of N.J.S.A. 2C:24-4(b)(5)(b)(ii), as well as the definitions relevant to whether defendant knowingly possessed or viewed over 1,000, but less than 100,000 items of CSAEM depicting children in a sexually suggestive manner.

The jury convicted defendant of second-degree endangering the welfare of a child. At sentencing, the trial court found aggravating factors three and nine, as well as mitigating factor seven applied. N.J.S.A. 2C:44-1(a)(3), (a)(9), (b)(7). The court sentenced defendant to an eight-year term of imprisonment and imposed Megan's Law registration requirements, parole supervision for life, and penalties and fines.

On appeal, defendant argues:

POINT I:

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THE JURY WAS ERRONEOUSLY INSTRUCTED TO CONSIDER AN UNCONSTITUTIONAL PROVISION WHEN DECIDING AN ESSENTIAL ELEMENT OF THE CRIME, THUS DEFENDANT'S CONVICTION MUST BE REVERSED. (Not raised below).

POINT II:

THE FAILURE TO INSTRUCT THE JURY THAT THE STATE MUST PROVE THAT DEFENDANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT THE INDIVIDUALS DEPCITED IN THE IMAGES AND VIDEOS PRESENTED WERE UNDERAGE VIOLATES FREE SPEECH AND DUE PROCESS PROTECTIONS AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTION. (Not raised below).

POINT III:

THE CYBERTIPLINE REPORTS WERE INADMISSIBLE TESTIMONIAL HEARSAY, AND THEIR ADMISSION CONSTITUTES PLAIN ERROR. (Not raised below).

POINT IV:

THE IMPROPER ADMISSION OF POLICE OPINION TESTIMONY REGARDING THE IMAGES AND VIDEOS DISCOVERED AND PRESENTED TO THE JURY REQUIRES REVERSAL OF DEFENDANT'S CONVICTION. (Not raised below).

POINT V:

RESENTENCING IS REQUIRED BECAUSE THE TRIAL COURT IMPROPERLY EVALUATED THE

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RELEVANT AGGRAVATING AND MITIGATING FACTORS AND IMPROPERLY IMPOSED CERTAIN FINES.

A. The Trial Court Improperly Found Aggravating Factor Three and Failed to Find Mitigating Factors Eight and Nine.

B. The Trial Court Improperly Imposed and Assessed Certain Fines.

II.

A.

Because four of defendant's five arguments on appeal are raised for the first time, we recite our well-settled standard of review for plain error.

Rule 2:6-2 restricts our review to questions or issues presented in the record to the trial court. J.K. v. N.J. State Parole Bd., 247 N.J. 120, 138 n.6 (2021). While we have the discretion to consider allegations of omissions or errors if they satisfy the plain error rule under Rule 2:10-2, we often decline to do so when the opportunity to object was available in the trial court. Ibid. This applies to constitutional issues as well. Ibid. "Plain error has intentionally been created as a high bar for parties to meet in order to encourage litigants to raise any objections to evidence at the trial level where the court can best 'forestall or correct a potential error,' in a timely manner." State v. Santamaria, 236 N.J.

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390, 409 (2019) (quoting State v. Bueso, 225 N.J. 193, 203 (2016)). "[E]ven if it were error, a party cannot strategically withhold its objection to risky or unsavory evidence at trial only to raise the issue on appeal when the tactic does not pan out." Ibid.

B.

We review jury charges and corresponding instructions under the plain error standard to determine if the error was "clearly capable of producing an unjust result." State v. Munafo, 222 N.J. 480, 488 (2015) (quoting R. 2:10-2). A new trial will be granted "only if the jury could have come to a different result had it been correctly instructed." Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 374 (2007). "The test to be applied . . . is whether the charge as a whole is misleading, or sets forth accurately and fairly the controlling principles of law." State v. Baum, 224 N.J. 147, 159 (2016) (quoting State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)).

C.

We defer to a trial court's evidentiary rulings, absent an abuse of discretion. State v. Burney, 255 N.J. 1, 20 (2023). We ask if "a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" State v. Taylor, 261 N.J. 440,

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449 (2025) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). "We will not substitute our judgment unless the evidentiary ruling is 'so wide of the mark' that it constitutes 'clear error in judgment.'" State v. Garcia, 245 N.J. 412, 430 (2021) (quoting State v. Medina, 242 N.J. 397, 412 (2020)). "A trial court's 'discretion is abused when relevant evidence offered . . . and necessary for a fair trial is kept from the jury.'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting State v. Cope, 224 N.J. 530, 544-55 (2016)).

D.

Finally, when we review a court's imposition of a sentence, we apply an abuse of discretion standard. State v. Torres, 246 N.J. 246, 272 (2021).

N.J.S.A. 2C:44-7 states

[a]ny action taken by the court in imposing sentence shall be subject to review by an appellate court. The court shall specifically have the authority to review findings of fact by the sentencing court in support of its findings of aggravating and mitigating circumstances and to modify the defendant's sentence upon [their]

application where such findings are not fairly supported on the record before the trial court.

A trial court's sentencing must be affirmed on appeal unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly A-0837-23

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unreasonable so as to shock the judicial conscience.'" State v. Rivera, 249 N.J. 285, 297-98 (2021) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

III.

A.

Defendant first argues the trial court committed reversible error when it included N.J.S.A. 2C:24-4(b)(1)(c)'s definition of "portray[ing] a child in a sexually suggestive manner" in the jury instructions, because our Supreme Court found section (b)(1)(c) unconstitutional. We are unpersuaded.

We consider the issue through the lens of the United States Constitution, the statute and our Supreme Court's holding in State v. Higginbotham, 257 N.J. 260, 267 (2024).

The First Amendment to the U.S. Constitution prohibits laws that abridge the freedom of speech. U.S. Const. amend. I. However, certain categories of speech are "so utterly lacking in social value that they [fall] outside the protections of the First Amendment altogether." Higginbotham, 257 N.J. at 274 (quoting State v. Hill, 256 N.J. 266, 281 (2024)). These groups of unprotected speech include, among others, obscenity and child pornography. Ibid.

"The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty 'without due process of law.'" U.S. Const.

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amend. V. Due process in criminal trials requires "convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." State v. Bailey, 231 N.J. 474, 483 (2018) (emphasis omitted) (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)). If an element of the crime charged is unconstitutionally overbroad, the defendant's rights are infringed upon as the law "reach[ed] farther than is permitted or necessary to fulfill the [S]tate's interests." State v. Borjas, 436 N.J. Super. 375, 388 (App. Div. 2014) (second alteration in original) (quoting Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n.21 (1983)).

Therefore, "jury instructions in criminal trials are critical, as someone's liberty is at stake." State v. Cooper, 256 N.J. 593, 610 (2024) (citing State v. Green, 86 N.J. 281, 289 (1981)). A jury must be accurately instructed on every essential element of a crime to render its verdict and ensure a fair trial. State v. Vick, 117 N.J. 288, 292-93 (1989).

Defendant was charged with N.J.S.A. 2C:24-4(b)(5)(b)(ii), which states that "[a] person commits a crime of the second degree if the person knowingly possesses, knowingly views, or knowingly has under the person's control, through any means, including the Internet, at least 1,000 but less than 100,000 items depicting the sexual exploitation or abuse of a child." An item is an image

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which meets this standard if it "portray[s] a child in a sexually suggestive manner." N.J.S.A. 2C:24-4(b)(1).

The statute defines items as digitally or physically stored images which:

(a) . . . depict a child's less than completely and opaquely covered intimate parts, as defined in N.J.S.A.

2C:14-1, in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or

(b) . . . depict any form of contact with a child's intimate parts, as defined in N.J.S.A. 2C:14-1, in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or

(c) . . . otherwise depict a child for the purpose of sexual stimulation or gratification of any person who may view the depiction where the depiction does not have serious literary, artistic, political, or scientific value.

[Ibid. (emphasis added).]

The court instructed the jury to determine whether the State proved each element of N.J.S.A. 2C:24-4(b)(5)(b)(ii) beyond a reasonable doubt. It read the jury the three definitions so they could determine if one or more of the images portrayed a child in a sexually suggestive manner consistent with a violation of N.J.S.A. 2C:24-4(b)(5)(b)(ii).

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Defendant argues for reversal and a new trial because the Higginbotham Court found subsection (c) unconstitutionally overbroad. 257 N.J. at 267. Defendant does not challenge subsections (a) and (b). Nonetheless, he contends the entire jury charge is defective, because "[i]t is simply too 'speculative to forecast what verdict a jury would have returned if properly instructed . . . " (quoting Vick, 117 N.J. at 292).

The Higginbotham Court held subsection (c) "unconstitutionally overbroad because it criminalizes a large swath of material that is neither obscenity nor child pornography." 257 N.J. at 267. The Court looked to Miller v. California, which established the seminal three-part test to determine whether material is obscene, unprotected speech under the First Amendment. 413 U.S. 15, 24 (1973). To determine if speech is obscene, courts consider:

(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, . . . (b)

whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

[Ibid.]

The Higginbotham Court found that N.J.S.A. 2C:24-4(b)(1)(c) did not satisfy the first two prongs of Miller. 257 N.J. at 282. The Court then concluded A-0837-23

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that subsection (c)'s definition was overbroad and unconstitutional. Id. at 289- 90. While the Higginbotham Court held subsection (c) of N.J.S.A. 2C:24-4(b) unconstitutional, it did not hold the related jury charge nor the entire statute unconstitutional. The Court opined that subsections (a) and (b) may stand without subsection (c), and that subsection (c) alone was unconstitutional. Id. at 289.

We disagree with defendant's argument that if the trial court had not included subsection (c) from the jury instructions, the jury may not have determined the evidence showed children were sexually abused or exploited. The record shows that the images and videos introduced into evidence included adults committing sexual acts on children, toddlers, and infants. These images were not suggestive, but rather quite explicit, and are easily classified as child pornography covered by subsections (a) and (b).

Viewing the charge as a whole, we discern no defect that would support defendant's acquittal, because subsections (a) and (b) apply to the conduct at issue. We conclude the trial court's jury instructions fairly uphold the controlling principles of law and were not misleading. See Baum, 224 N.J. at 159. Defendant has failed to show that the trial court's instructions were capable of producing an unjust result, as the jury would not have likely come to a

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different result. Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257 N.J. 33, 75 (2024).

B.

We turn to defendant's argument, raised for the first time before us, that the trial court should have instructed the jury that the State was required to prove that defendant knew the individuals shown in the materials were minors. We disagree.

Generally, the prosecution must prove a culpable mental state to secure a conviction. N.J.S.A. 2C:2-2. However, sexual crimes involving minors are an exception, and the prosecution is not required to show that the defendant knew or should have known the age of the victim. N.J.S.A. 2C:14-5(c). If the defendant is found to have committed the act, it is no defense that the defendant did not know the victim's age or believed them to be an adult, even if that belief were reasonable. Ibid. The State is not required to provide expert testimony nor direct proof of the individuals' ages in suspected CSAEM. State v. May, 362 N.J. Super. 572, 593-94 (App. Div. 2003). Presenting the images and videos alone is sufficient. Id. at 594-95.

The ample evidence depicting infant, toddler, and prepubescent children in sexual materials demonstrates that the victims depicted were minors. In

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addition to the images in evidence, defendant admitted that he knew the materials found on his devices were child pornography. The trial court was not required to instruct the jury that the State had to prove defendant knew the individuals depicted in the materials were minors.

C.

We turn to defendant's argument that the NCMEC's CyberTipline reports were inadmissible hearsay. In support of his position, defendant relies on a decision from the First Circuit that found CyberTipline reports to be inadmissible hearsay because the primary purpose of the tipline is to "'establish[] or prov[e] past events potentially relevant to later criminal prosecution.'" United States v. Cameron, 699 F.3d 621, 651-52 (1st Cir. 2012) (quoting Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011)). The First Circuit concluded that the prosecution's use of CyberTipline evidence to establish the basis for an investigation violated that defendant's Sixth Amendment Confrontation Clause rights. U.S. Const. amend. VI. We are unpersuaded by this non-precedential opinion, and we conclude that the CyberTipline report is not inadmissible hearsay.

We note, again, that defendant failed to object to the admission of this evidence at trial, requiring our review for plain error. R. 2:10-2.

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"Hearsay consists of three classic elements: (1) a 'statement;' (2) 'other than one made by the declarant while testifying at the [present] trial or hearing; ' and (3) offered in evidence for its truth, i.e., 'to prove the truth of the matter asserted' in the statement." James v. Ruiz, 440 N.J. Super. 45, 59 (App. Div. 2015) (quoting N.J.R.E. 801(c)) (alteration in original). "The long-standing policy disfavoring the admission of hearsay in Anglo-American courts, as codified in New Jersey, instructs that '[h]earsay is not admissible except as provided by [the evidence] rules or by other law.'" Ibid. (quoting N.J.R.E. 802) (emphasis and alteration in original). "The hearsay prohibition 'ensure[s] the accuracy of the factfinding process'" by excluding those statements that are inherently untrustworthy. Neno v. Clinton, 167 N.J. 573, 579 (2001) (quoting State v. Engel, 99 N.J. 453, 465 (1985)).

Defendant contends the NCMEC's CyberTipline reports were out-of-court statements offered to prove the truth of the matter asserted—that the IP address and Microsoft User ID downloaded CSAEM in July 2019. Defendant also contends that Singer's testimony—that the images contained in the tipline report were suspected CSAEM—was being used for the truth of those statements.

"[W]here statements are offered not for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain

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action as a result thereof, the statements are not inadmissible hearsay." Spragg v. Shore Care, 293 N.J. Super. 33, 56 (App. Div. 1996).

On direct examination, the State asked Capt. Singer "[d]id these tips direct you towards a particular Microsoft user identification number?" to which he replied, "[y]es, sir." Singer testified that he investigated those allegations because he received a tip from the CyberTipline that images and videos triggered a concern about a user's possession of illegal material. His review of that material led him to believe the material was child pornography.

This testimony did not substantiate the veracity of the reports, but rather explained that concerning material was downloaded to a Microsoft OneDrive account and law enforcement was notified. Singer's mere review of the report does not lead to an inference that its contents were true. Rather, his review was the catalyst for additional investigation, which was the product of the steps Singer took after reviewing the report. This analysis is consistent with Spragg, which holds that information introduced for its effect on the listener is not inadmissible hearsay. 293 N.J. Super. at 56.

We conclude there is no error as defendant's rights under the Confrontation Clause are not implicated here.

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D.

Defendant argues before us, for the first time, that the trial court erred in allowing opinion testimony from officers about whether the materials found on his devices constituted CSAEM, in violation of his due process rights, as this was a determination for the jury to make and was clearly capable of producing an unjust result.

We consider the relevant portions of the record, and we begin with the CSAEM testimony at issue.

Detective Richard Shin testified about CSAEM on direct:

Q: Did you review – did you review the contents of those three folders?

A: Yes.

Q: What did you locate, if anything, in those three folders?

A: Multimedia depicting child sexual abuse materials.

Captain Singer identified CSAEM twice during his trial testimony:

Q: [D]id you review the images that were contained on S-1?

A: Yes sir.

Q: And what did you determine? What did you conclude?

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A: The conclusion was that this was child pornography.

Later, Captain Singer testified again:

Q: And . . . as part of this investigation, did [you], in fact, view that video in its entirety . . . ?

A: Every single one.

Q: And, did that video depict child abuse?

A: Yes, sir.

Despite defendant's failure to object to any of the testimony from Det, Shin and Capt. Singer, the trial court nonetheless instructed the jury to disregard Capt. Singer's last answer.2 We presume that the jury followed the instructions given to it by the trial court, both in the moments after Capt. Singer's testimony, as well as the general charge which the court imparted after trial. State v. Santamaria, 236 N.J. 593, 607 (2022).

Defendant failed to object to any of this testimony at trial, necessitating a plain error review. R. 2:10-2. Indeed, defendant not only failed to object, but,

2 The record shows that at this juncture of the trial, the transcript contains reference to a sidebar between court and counsel, then identifies the ensuing colloquy between counsel and the court as "indiscernible." The transcript resumes with the trial court back on the record, stating, "the last answer from the, um, record. Okay, you can proceed, [counsel]." The audio record contains additional detail, and is dispositive here. It reveals that the court stated, "Jury, I'm going to ask you to disregard the last answer from the witness."

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through counsel, actually referred to the suspected CSAEM as pornography during opening statements and at other junctures of the trial. When we combine defendant's own repeated characterizations at trial of suspected CSAEM as pornography with the trial court's instructions to the jury, who remained the ultimate factfinder, we discern no error "clearly capable of producing an unjust result." Munafo, 222 N.J. at 488.

IV.

Defendant contends a new sentencing hearing is required due to the trial court's errors in applying the aggravating and mitigating factors and imposing penalties and fines that do not align with the crime for which he was convicted. We address each issue in turn.

A.

Defendant first argues the trial court misapplied the aggravating and mitigating factors during sentencing. We disagree.

Defendant contends that the sentencing court considered inappropriate reasons for assigning heavy weight to aggravating factor three (risk of re - offense). The court found that the risk of re-offense is high because defendant did not express remorse, did not accept responsibility, and demonstrated limited insight or willingness to change. The record shows defendant had over 1,000

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items of CSAEM on his devices. He was found to have committed these acts over months at a time. The sentencing court's findings are grounded in the evidence presented at trial.

Defendant also argues the trial court's failure to apply mitigating factors eight (defendant's conduct was the result of circumstances unlikely to recur) and nine (defendant's character and attitude indicate he is unlikely to commit another offense) is linked to its rationale for applying aggravating factor three. Given the court's thorough review of the record and its in-depth analysis in weighing the aggravating against the mitigating factors, we find no error.

B.

Finally, defendant argues the trial court erred in imposing penalties and fines not associated with second-degree endangering the welfare of a child by possessing child pornography. N.J.S.A. 2C:24-4(b)(5)(b)(ii). The trial court imposed a $100 Sex Offender Surcharge. The record does not reveal which statute requires this fine, though defendant speculates that this penalty is associated with N.J.S.A. 2C:14-2 for crimes of sexual assault. As the record is unclear on whether this was the court's intention, we remand for a recalculation of the penalties and fines imposed as defendant was not convicted for a crime of sexual assault. The remaining fines imposed were within the statutorily

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proscribed limits and defendant's argument for a reduction of his sentence is meritless.

To the extent we have not addressed any of defendant's remaining arguments, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(e).

We affirm the conviction and substantive sentence but remand solely for a recalculation of the penalties and fines associated with a conviction and sentence under N.J.S.A. 2C:24-4(b)(5)(b)(ii). We do not retain jurisdiction.

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