NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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). A-3247-18T1 2 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
A-3247-18T1 3 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).
A-3247-18T1 4 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 5 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.
A-3247-18T1 6 "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
A-3247-18T1 7 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
A-3247-18T1 8 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
A-3247-18T1 9 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 10 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 11 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 12 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 13 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.
A-3247-18T1 14 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."
A-3247-18T1 15 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).
A-3247-18T1 16 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
A-3247-18T1 17 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).
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
A-3247-18T1 18 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
A-3247-18T1 19 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
A-3247-18T1 20 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
A-3247-18T1 21 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
A-3247-18T1 22 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.
A-3247-18T1 23