                                NOT FOR PUBLICATION WITHOUT THE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
