NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4855-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
P.R.R.1
Defendant-Appellant.
Submitted February 25, 2020 – Decided April 9, 2020
Before Judges Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-02-0506.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Stephen Anton Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
1 We use initials to protect the privacy of the victim. See R. 1:38-3(c)(9). PER CURIAM
Following denial of his motion to suppress evidence seized pursuant to a
search warrant, defendant P.R.R. pled guilty to first-degree kidnapping and
aggravated sexual assault for vaginally penetrating his tenant's daughter, L.L.,
when she was between the ages of ten and eleven years old. The acts were
performed in defendant's truck, in the vicinity of a shopping mall, after L.L.'s
parents entrusted the child to defendant's care. Defendant was sentenced to an
aggregate prison term of twenty-five years, with a mandatory minimum term of
twenty-five years without parole pursuant to N.J.S.A. 2C:13-1(c)(2).
The charges ensued from a nine-month law enforcement investigation
involving the transmission of child pornography videos through online peer-to-
peer files. Defendant's internet provider (IP) address was implicated during that
investigation. Following the execution of a search warrant, police seized and
searched several computers, hard drives, and external storage devices.
Hundreds of images of child pornography, including videos of defendant
engaging in sexual activity with L.L., were contained on those devices.
On appeal, defendant raises two points for our consideration:
POINT I
. . . DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS
A-4855-16T3 2 GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.
A. The Affidavit Does Not Establish Probable Cause.
B. . . . Defendant is Entitled to a Franks[2] Hearing. Because the Affidavit in Support of the Search Warrant Contains Material Misrepresentations of Fact the Officer Knew or Should Have Known Were False.
POINT II
THE SENTENCE IS EXCESSIVE[.]
We have considered the contentions raised in point I in light of the record
and applicable legal principles, and conclude they lack sufficient merit to
warrant extended discussion in our written opinion, R. 2:11-3(e)(2), beyond the
following comments. We affirm defendant's kidnapping convictions and
sentence. But we vacate the penalties and fines imposed on the aggravated
sexual assault convictions and remand the matter to the Law Division to merge
those convictions into the kidnapping convictions and issue an amended
judgment of conviction.
2 Franks v. Delaware, 438 U.S. 154 (1978). A-4855-16T3 3 I.
A.
We briefly address defendant's argument that the seventeen-page affidavit
lacked probable cause because it was based upon "stale" information. In
particular, defendant claims the affiant's description of a file shared by
defendant's IP address on December 1, 2012 was "stale by the time application
was made on January 29, 2013 . . . ." In doing so, we undertake a de novo review
of the adequacy of probable cause supporting the search warrant, State v. Handy,
206 N.J. 39, 44-45 (2011), recognizing defendant bore the burden of challenging
the search and proving a lack of probable cause. State v. Boone, 232 N.J. 417,
427 (2017).
Referencing page fifteen of the affidavit, the trial court cited the affiant's
"extensive training in child exploitation and child pornography" and her
explanation that child pornographers "rarely, if ever, dispose[] of . . . sexual [ly]
explicit images of minors . . . because the images are treated as prize
possessions." As the court noted, the affiant aptly cited our Supreme Court's
decision in State v. Evers, 175 N.J. 355, 384 (2003), "for the proposition that
'[p]edophiles, preferential child molesters, and child pornography collectors
maintain their materials for significant periods of time.'" The trial court found
A-4855-16T3 4 the affiant's statements were corroborated by the facts set forth elsewhere in the
affidavit that "defendant's computer was sharing child pornography on three
separate occasions over the span of eight months."
Accordingly, the court found "[b]ased on the totality of the circumstances"
it was "reasonable to conclude . . . defendant would continue to possess that
child pornography on January 29, 2013." In reaching his decision, the court
correctly noted it was required to defer to the issuing judge's probable cause
determination. See State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2016).
Based on our de novo review of the record, Handy, 206 N.J. at 44-45, we discern
no basis to disturb the trial court's decision.
B.
Little need be said regarding defendant's cursory argument that the
affidavit contained materially false information warranting a Franks hearing. To
support his claim, defendant cherry picks one statement from paragraph fifteen
of the affidavit, which supported the application for a "no knock" warrant. He
claims "the known presence of a firearm by one of the occupants" is a false
statement because police should have known none of the occupants "ha[d] a
firearm application on file."
A-4855-16T3 5 Defendant's argument is erroneous: defendant's son – who resided at the
premises – was a law enforcement officer. As noted by the court and as set forth
in a previous paragraph of the affidavit, one of the residents of the premises was
"employed by the . . . Department of Corrections and as such, was issued and
possesse[d] a Glock, Model 19 (9mm) handgun."
Based upon our de novo review of the affidavit, we conclude defendant
has failed to "make[] a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and [that] the allegedly false
statement [wa]s necessary to the finding of probable cause," warranting a
hearing. Franks, 438 U.S. at 155-56; see also State v. Howery, 80 N.J. 563, 567-
68 (1979). We further note that the affiant's statements concerning the firearm
did not bear upon probable cause. See Howery, 80 N.J. at 568 (citing Franks,
438 U.S. at 171) (recognizing a misstatement is considered material if, when
excised, the warrant affidavit "no longer contains facts sufficient to establish
probable cause" in its absence).
We hasten to add, however, that there was more than sufficient support
for a no-knock warrant set forth in the affidavit. Indeed, paragraph fifteen
further provides that the affiant was aware of "the presence of potential counter
A-4855-16T3 6 surveillance (security cameras)." And, paragraph five, which describes the
premises to be searched, provides: "Mounted to th[e] patio roof are two
surveillance cameras angled to the patio and street[,]" and affixed to the wrought
iron gate is a sign indicating the premises "has video surveillance cameras."
Accordingly, the affidavit contained more than generalized suspicions and
"boilerplate language" to justify dispensing with the knock and announce rule
iterated by our Supreme Court in State v. Johnson, 168 N.J. 608, 619, 623
(2001).
II.
Turning to defendant's excessive sentencing point, we first set forth the
terms of the plea agreement, as amended prior to sentencing, to give context to
the length of the sentence imposed.
Defendant pled guilty to two counts of first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(1), by vaginal penetration of a child, who was less
than thirteen years old; and two counts of first-degree kidnapping, N.J.S.A.
2C:13-1(b)(1), by committing aggravated sexual assault on a child, who was less
than sixteen years old. Pursuant to the negotiated plea agreement, the prosecutor
recommended a twenty-five-year custodial sentence with an eighty-five percent
period of parole ineligibility pursuant to the No Early Release Act (NERA),
A-4855-16T3 7 N.J.S.A. 2C:43-7.2, to run concurrently with defendant's then-pending federal
sentence on related child pornography charges, 3 and all mandatory fines and
penalties. The State recommended dismissal of the remaining sixteen counts
charged in the twenty-count indictment.
At the start of the sentencing hearing, defendant's newly-appointed
counsel4 provided the court with copies of the amended plea form, reflecting
"the actual recommended sentence is twenty-five years" with "twenty-five years
[of] parole ineligibility" pursuant to N.J.S.A. 2C:13-1(c)(2), and the amended
NERA form, stating: "Does not apply." Defendant initialed the forms and
acknowledged the revisions on the record.
Defendant now argues his sentence "is patently excessive" because, as a
sexagenarian, a twenty-five-year period of parole ineligibility "is tantamount to
a death sentence." For the first time on appeal, defendant contends the State
was bound by its initial plea offer. Defendant also claims the court improperly
determined the aggravating and mitigating factors. Defendant does not,
3 Although the record on appeal does not contain the federal judgment of conviction, the parties do not dispute that the federal court sentenced defendant to a thirty-year prison term prior to imposition of sentence by the trial court in the present matter. 4 Retained counsel represented defendant during all prior proceedings. A-4855-16T3 8 however, dispute that his sentence was mandated by the applicable subsection
of the kidnapping statute.
When the victim of a kidnapping is less than sixteen years old and sexually
assaulted under N.J.S.A. 2C:14-2, the sentencing court is required to impose a
prison term between twenty-five years and life, with a parole ineligibility period
of twenty-five years. N.J.S.A. 2C:13-1(c)(2). As we have observed,
Where the Legislature has provided a mandatory minimum sentence for a particular offense, as expressly and clearly as it has done in the last paragraph of N.J.S.A. 2C:13-1(c)(2), a court may not employ its discretion to reach a different sentencing result, no matter how carefully it articulates the reasons or considers them imperative in the interests of justice.
[State v. Lopez, 395 N.J. Super. 98, 109 (App. Div. 2007).]
Because the trial court was mandated to impose a twenty-five-year term
of imprisonment we reject any implication by defendant that the sentence was
illegal because it was the functional equivalent of life without parole. And, the
record contradicts any further implication that defendant did not agree to be
sentenced to that term.
Before turning to defendant's challenges to the court's determination of
the aggravating and mitigating factors, we pause to note – although not raised
by the parties – we independently discern that merger of the convictions for
A-4855-16T3 9 aggravated sexual assault with kidnapping was mandated by N.J.S.A. 2C:13-
1(c)(2) (providing "the crime of kidnapping [committed against a child under
the age of sixteen] and underlying aggravating crimes [including aggravating
sexual assault] shall merge for the purposes of sentencing"); State v. Cooper,
151 N.J. 326, 406 (1997). Moreover, the failure to merge convictions when
appropriate results in an illegal sentence, State v. Romero, 191 N.J. 59, 80
(2007), which is a legal issue we review de novo, State v. Drake, 444 N.J. Super.
265, 271 (App. Div. 2016).
We turn to the court's assessment of the aggravating and mitigating
factors, observing that because defendant was sentenced at the lowest end of the
permissible range for kidnapping under the circumstances of this case, see State
v. Bieniek, 200 N.J. 601, 608 (2010), pursuant to the negotiated plea agreement,
the court lacked any discretion to impose a lesser sentence. "Even a sentence
recommended as part of a plea agreement, however, may be vacated if it does
not comport with the sentencing provisions of our Code of Criminal Justice."
State v. Fuentes, 217 N.J. 57, 71 (2014).
We review the sentence imposed pursuant to a plea agreement under a
deferential abuse-of-discretion standard. State v. Sainz, 107 N.J. 283, 292
(1987); State v. Roth, 95 N.J. 334, 364-65 (1984). We affirm a sentence if: (1)
A-4855-16T3 10 the trial court followed the sentencing guidelines; (2) its findings of fact and
application of aggravating and mitigating factors were based on competent,
credible evidence in the record; and (3) its application of the law to the facts
does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228
(2014) (quoting Roth, 95 N.J. at 364-65).
The sentencing court must identify and consider "any relevant aggravating
and mitigating factors" that "are called to the court's attention[,]" and "explain
how [it] arrived at a particular sentence." State v. Case, 220 N.J. 49, 64-65
(2014) (internal quotation marks omitted). The court's explanation of the
aggravating and mitigating factors need not, however, "be a discourse." State
v. Dunbar, 108 N.J. 80, 97 (1987), overruled in part by State v. Pierce, 188 N.J.
155 (2006). We must affirm the sentence "as long as the trial court properly
identifie[d] and balance[d] aggravating and mitigating factors that [were]
supported by competent credible evidence in the record." State v. O'Donnell,
117 N.J. 210, 215 (1989).
The trial court found, and ascribed heavy weight to, aggravating factors
one, N.J.S.A. 2C:44-1(a)(1) (the offense was committed in a heinous, depraved
or cruel manner), and two, N.J.S.A. 2C:44-1(a)(2) (the victim was particularly
vulnerable). The court also found, and assigned moderate weight to aggravating
A-4855-16T3 11 factors three, N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will commit
another offense), and nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter defendant
and others from violating the law). Acknowledging defendant led a law-abiding
life for thirty-five years prior to the commission of the present offenses, the
court found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), affording it
moderate weight. Concluding the aggravating factors preponderated over the
mitigating factors, the court sentenced defendant in accordance with the plea
agreement.
In overlapping arguments, defendant contends the trial court improperly
found aggravating factors one and two based upon L.L.'s age and vulnerability,
which "were essential elements of the crime." Although we find no merit in
defendant's challenge to aggravating factor two, we agree that the court
impermissibly applied aggravating factor one.
While "sentencing courts frequently apply both aggravating factors one
and two, each requires a distinct analysis of the offense for which the court
sentences the defendant." State v. A.T.C., 454 N.J. Super. 235, 255 (App. Div.
2018), aff’d in relevant part, 239 N.J. 450 (2019) (internal quotation marks
omitted). When evaluating aggravating factor one, "[a] sentencing court may
consider 'aggravating facts showing that [a] defendant's behavior extended to
A-4855-16T3 12 the extreme reaches of the prohibited behavior.'" State v. Miller, 237 N.J. 15,
29 (2019) (alterations in original) (quoting Fuentes, 217 N.J. at 75).
Aggravating factor two "focuses on the setting of the offense itself with
particular attention to any factors that rendered the victim vulnerable or
incapable of resistance at the time of the crime." State v. Lawless, 214 N.J. 594,
608 (2013). The trial court "must engage in a pragmatic assessment of the
totality of harm inflicted by the offender on the victim, to the end that defendants
who purposely or recklessly inflict substantial harm receive more severe
sentences than other defendants." State v. Kromphold, 162 N.J. 245, 358 (2000).
Relying on our decision in State v. Taylor, 226 N.J. Super 441, 453 (App.
Div. 1988), the trial court determined aggravating factor one applied based
solely upon the victim's age of ten at time of the offense. But in Taylor, we
concluded the sentencing judge properly considered a victim's extreme youth in
finding aggravating factor two, where the victim of sexual abuse was only four
years old and the defendant was her uncle. Because L.L.'s age was an
"[e]lement[] of [the] crime, including [the element] that establish[ed] its grade,"
Lawless, 214 N.J. at 603, the trial court impermissibly found the victim's age as
an aggravating factor here.
A-4855-16T3 13 Ordinarily, we might remand for resentencing where, as here, the trial
court engages in impermissible double-counting. See Fuentes, 217 N.J. at 70.
We instead conclude the error was harmless. See State v. Gallagher, 286 N.J.
Super. 1, 21 (App. Div. 1995) (recognizing the sentencing court's reference to
the defendant's use of a gun in committing the aggravated sexual assault was not
improper double counting, but if it were, the error was harmless because the
court found five aggravating factors and no mitigating factors); see also R. 2:10–
2. In view of the weight afforded to the other aggravating factors, the minimal
weight afforded to the mitigating factor, and that the court imposed sentence at
the lowest end of the permissible range for kidnapping, a remand for
resentencing is not warranted.
Regarding aggravating factor two, the trial court observed defendant's
relationship with L.L. rendered her particularly vulnerable to the crimes.
Defendant capitalized on his relationship with L.L.'s family, "posed [as] a family
member" and used his relationship to "manipulate" and "assault" L.L.
Defendant's factual basis underscores his deceit, wherein he acknowledged he
told the victim's "mother that [he was] going to take L.L. to the mall" but instead
"commit[ted] an aggravated sexual assault against L.L."
A-4855-16T3 14 According to the victim, defendant perpetuated that ruse by purchasing a
gift for her at the mall after he sexually assaulted her and threatened that her
undocumented family would be exposed if she reported the abuse. See Lawless,
214 N.J. at 611 (aggravating factor two "focuses on the setting of the offense
itself with particular attention to any factors that rendered the victim vulnerable
or incapable of resistance at the time of the crime"). The record amply supports
the application of aggravating factor two under the circumstances of this case.
See O'Donnell, 117 N.J. at 215.
The trial court's findings that aggravating factors three and nine applied
were based largely upon defendant's prior federal child pornography conviction.
As to aggravating factor three, defendant faults the court for failing to "conduct
any psychological risk analysis tests or cite other evidence that would indicate
he was at risk to commit another offense." Defendant also claims his evaluation
by the Adult Diagnostic Treatment Center psychologist demonstrates he "was
not a compulsive offender."
Defendant's argument is belied by that same evaluation, which concludes
defendant met the criteria for repetition. The repetitive nature of the present
offenses supports the court's finding of aggravating factors three and nine. See
O'Donnell, 117 N.J. at 215. Defendant's contention that the need to deter "has
A-4855-16T3 15 lost its value as a meaningful aggravating factor" is an argument best left to the
other two branches of government. State v. Saavedra, 433 N.J. Super. 501, 525
(App. Div. 2013); see also R. 2:11-3(e)(2).
Lastly, defendant argues the trial court failed to consider his "repentance"
in mitigation of sentence. For the first time on appeal, he contends the court
should have found mitigating factors eight, N.J.S.A. 2C:44–1(b)(8) (defendant's
conduct was a result of circumstances unlikely to recur), and nine, N.J.S.A.
2C:44-1(b)(9) (defendant's character and attitude indicate it is unlikely he will
commit another offense). Defendant's argument fails in view of his likelihood
of recidivism and continual abuse of L.L. in this case. While it is possible to
find contradictory factors, provided they are "specifically explained," Fuentes,
217 N.J. at 63, the trial court specifically considered and rejected defendant's
purported repentance, which failed to address any "feeling" or "empathy for
th[e] young girl." The court also rejected defendant's "characteriz[ation of] what
[he] did as a mistake," finding defendant's actions were "a scheme to create a
situation where [he] took advantage of a young child and her family." It is
beyond peradventure that neither mitigating factor eight nor nine applies here.
A-4855-16T3 16 In sum, the sentence imposed by the trial court, pursuant to the amended
plea agreement, does not shock our judicial conscience. Bolvito, 217 N.J. at
228.
Affirmed in part; vacated and remanded in part. We do not retain
jurisdiction.
A-4855-16T3 17