                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0496-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

G.N.W.,

     Defendant-Appellant.
_________________________

                    Argued October 29, 2019 – Decided January 28, 2020

                    Before Judges Messano, Ostrer and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 14-07-
                    1248.

                    Cody Tyler Mason, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Cody Tyler Mason, of
                    counsel and on the brief).

                    Mary Rebecca Juliano, Assistant Prosecutor, argued the
                    cause for respondent (Christopher J. Gramiccioni,
                    Monmouth County Prosecutor, attorney; Mary Rebecca
                    Juliano, of counsel and on the brief).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      This case involves the sexual predation of children while in the sanctuary

of their own bedrooms, highlighting the dangers children face today when they

use the internet and internet-connected gaming devices. Defendant, G.N.W.,

appeals from his trial convictions for first-degree aggravated sexual assault and

related charges of manufacturing and distributing child pornography. Defendant

insisted upon representing himself at trial, took the witness stand, and freely

admitted that he used the video chat and photo messaging features of his Xbox

videogame console to encourage boys between the ages of ten and fifteen to

send him sexually explicit videos. Defendant also admitted, among other things,

that he sent the children videos of himself masturbating. The State's trial proofs,

which included electronic evidence seized from defendant's home and the live

testimony of four 1 underage victims, established that defendant induced the

children to perform and video record sexual acts, including anal penetration.

      Defendant has been steadfast in his contentions that pedophiles are a

persecuted minority and that the New Jersey Code of Criminal Justice



1
   A fifth child chose not to testify, and the trial court dismissed charges
involving that child at the close of the State's case.
                                                                           A-0496-17T1
                                        2
wrongfully makes this conduct a crime. These tenets are the foundation of his

defense strategy. He also argued that his conduct was not unlawful because the

children consented to every request he made. The jury rejected this defense and

convicted defendant of twenty-one crimes involving the four underage victims.

He was sentenced to an aggregate term of forty-six years of imprisonment during

which he must serve thirty-eight years before becoming eligible for parole.

      On appeal defendant raises a number of contentions challenging both his

trial convictions and sentence.      After reviewing the record in light of the

applicable legal standards, we reject all but one of defendant’s arguments on

appeal.   Specifically, we cannot determine whether the seven-year delay

between defendant’s arrest in 2009 and his trial in 2016 violated his

constitutional right to a speedy trial.

      It appears that much of the delay was attributed to (1) the high volume of

defense motions; (2) the nature of an investigation involving forensic analysis

of digital evidence used to identify out-of-state victims; and (3) additional

charges being lodged as a result of new information provided by child witnesses

who had been reluctant initially to reveal certain sexual acts. However, as the

State acknowledges, the trial court did not make specific findings with respect

to the four factors set forth in Barker v. Wingo. 407 U.S. 514 (1972). It


                                                                        A-0496-17T1
                                          3
therefore is necessary to remand the case to the Law Division to undertake the

fact-sensitive analysis required by Barker.

                                        I.

      This case, which four different Law Division judges presided over, has a

long and tortuous procedural history. We summarize the most significant events

to provide context for defendant's speedy trial claim.

      In October 2009, defendant was arrested the day after the Monmouth

County Prosecutor's Office executed a search warrant and seized electronic

devices and storage media from defendant's home.           The ensuing forensic

examination revealed the Xbox usernames of children with whom defendant

communicated and shared pornographic photographs and videos.

      On January 7, 2011, a Monmouth County grand jury charged defendant in

a nineteen-count indictment.

      On February 6, 2012, defendant filed motions to dismiss the indictment

and to suppress evidence seized pursuant to the search warrant. He also moved

for a bill of particulars and requested a Michaels2 taint hearing. On January 9,


2
   State v. Michaels, 136 N.J. 299 (1994). The court at a Michaels hearing
determines whether police used improper interview techniques with alleged
child-sex-abuse victims, and whether those techniques "so infected the ability
of the children to recall the alleged abusive events that their pretrial statements


                                                                           A-0496-17T1
                                        4
2013, defendant's attorney withdrew the motion for a bill of particulars, and the

first judge assigned to the case denied defendant’s motion to dismiss the

indictment. The judge denied the Michaels motion without an evidentiary

hearing on October 29, 2013, and the motion to suppress was denied on

December 13, 2013.

      On February 3, 2014, defendant appeared at a plea cutoff hearing pursuant

to R. 3:9-3(g). At the hearing he acknowledged the maximum sentence that

could be imposed for each count of the nineteen-count indictment. A trial date

was scheduled for May 6, 2014.

      At some point in the course of the preparation for trial, the State became

aware that defendant encouraged two of the victims to penetrate themselves

anally, conduct constituting first-degree crimes that the grand jury had not

charged in the initial indictment. Defendant did not agree to allow the State to

proceed with these additional charges by accusation. Accordingly, the State

scheduled a grand jury hearing for June 20, 2014.

      On July 16, 2014, a Monmouth County grand jury returned a superseding

indictment charging defendant with twenty-seven counts.        The superseding


and in-court testimony based on that recollection are unreliable and should not
be admitted into evidence." Id. at 315–16. We note that defendant does not
appeal from the denial of his Michaels motion.
                                                                         A-0496-17T1
                                       5
indictment charged five counts of third-degree child endangerment, N.J.S.A.

2C:24-4(a) (counts one, nine, sixteen, twenty-one, and twenty-two); four counts

of second-degree manufacturing child pornography, N.J.S.A. 2C:24-4(b)(4)

(counts two, ten, seventeen, and twenty-three); four counts of second-degree

causing a child to engage in child pornography, N.J.S.A. 2C:24-4(b)(3) (counts

three, eleven, eighteen, and twenty-four); four counts of third-degree

distribution of obscene material to a person under eighteen, N.J.S.A. 2C:34-

3(b)(1) and (2) (counts four, twelve, nineteen, and twenty-five); three counts of

second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts five, thirteen, and

twenty); two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-

3(b) (counts six and fourteen); two counts of first-degree aggravated sexual

assault, N.J.S.A. 2C:14-2(a) (counts seven and fifteen); two counts of second-

degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (counts eight and twenty-six); and

one count of fourth-degree possession of child pornography, N.J.S.A. 2C:24-

4(b)(5)(b) (count twenty-seven).

      On August 18, 2014, defendant filed a motion to dismiss the superseding

indictment. A second judge heard and denied that motion on October 10, 2014.

Two weeks later, a third judge assigned to the case was preparing to decide

another motion to suppress when the judge received a pro se submission from


                                                                         A-0496-17T1
                                       6
defendant seeking to represent himself at trial. This submission led to the

postponement of the re-scheduled trial date of January 5, 2015. Defendant later

entered a formal request to proceed pro se and underwent a competency

evaluation on February 24, 2015.      The third judge found defendant to be

competent on September 24, 2015. On October 20, 2015, the court found that

defendant knowingly and voluntarily waived his right to counsel, whereupon the

court granted defendant's application to represent himself.

      The case was reassigned to a fourth judge, who on March 9, 2016, denied

defendant's motions to dismiss the superseding indictment for vagueness and

violations of the First Amendment; to dismiss for a violation of speedy trial; to

suppress evidence; and to recuse both the third and fourth judges who had heard

aspects of the case.

      On March 10, 2016, the trial court held a new plea cutoff hearing for the

superseding indictment at which time defendant was apprised that if convicted

on all counts, he faced a maximum sentence of 239.5 years imprisonment with

a 59.5-year period of parole ineligibility. A trial date was set for October 12,

2016. In the interim, defendant filed motions on June 20, August 5, September

8, and September 27, 2016.




                                                                         A-0496-17T1
                                       7
      Trial commenced on October 20, 2016. At the close of the State's case,

defendant moved to dismiss several counts, in part because one of the child

witnesses did not testify. The trial judge granted that motion and entered

judgments of acquittal on those counts.

      On November 18, 2016, the jury convicted defendant of the remaining

twenty-one counts. Defendant moved for a mistrial, which the trial court denied

on April 28, 2017.

      The sentencing hearing was held on April 28, 2017. After appropriate

mergers, the court imposed an aggregate forty-six-year sentence with a thirty-

eight-year term of parole ineligibility pursuant to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. The court also imposed multiple terms of Parole

Supervision for Life (PSL), Megan's Law restrictions, and fees, penalties, and

assessments totaling $33,080.

                                       II.

      We next summarize the facts elicited at trial. Law enforcement authorities

were alerted that defendant had posted a YouTube video in which he professed

to be attracted to young boys and advocated for pedophilia. Defendant, who

was nineteen years old at the time, admitted to detectives during a noncust odial

interview that he found ten-year old boys "just so hot." Defendant discussed his


                                                                         A-0496-17T1
                                       8
Xbox video game console and its attached camera and microphone, which he

used to communicate with "many people, including children" under his

username, TEENTECH.

      Five months later, S.S. went into the bedroom of her twelve-year-old son,

Z.M., and saw that the user profile for TEENTECH was displayed on the

computer screen with a personalized caption that read, "[I]'m 20 years old and I

like little boys."   S.S. sent a message to TEENTECH telling him to stop

communicating with her son. Defendant responded by sending a message to

Z.M., stating, "I don't care what your mom says."

      When S.S. learned of defendant’s defiant response, she filed a report with

the National Center for Missing and Exploited Children (NCMEC), and this

information was, in turn, provided to the Monmouth County Prosecutor's Office

detective who had previously interviewed defendant about his YouTube video.

The following month, S.S. discovered that Z.M. was texting with defendant.

NCMEC placed S.S. in contact with the Monmouth County Prosecutors Office

detective. She provided the detective with Z.M.'s cell phone and consented to a

forensic search of the phone.

      That examination revealed inappropriate text messages between defendant

and Z.M. The Monmouth County Prosecutors Office obtained a warrant to


                                                                        A-0496-17T1
                                       9
search defendant's home, which was executed on October 21, 2009. Police

seized numerous electronic devices and media. A preliminary search of one of

defendant's hard drives revealed what appeared to be child pornography.

Defendant was arrested the next day.

      A more intensive forensic examination of the seized devices/media,

conducted pursuant to a separate warrant, yielded thousands of images of ch ild

pornography. The examination of defendant's Xbox also revealed the usernames

of the four victims who testified in this prosecution, along with corresponding

videos, photographs, and messages. Further investigation provided the actual

identities and locations of these victims.

      The four child victims were: J.S., who was between twelve and thirteen

years old during the period of communication with defendant; C.G., who was

between ten and eleven years old during the period of communication with

defendant; A.J., who was fifteen years old during the period of communication

with defendant; and Z.M., who was between eleven and twelve years old during

the period of communication with defendant.

      The State at trial presented video that defendant had recorded of himself

as he was viewing messages and images provided by the victims. This recording

showed that defendant highlighted messages from their accounts in his inbox,


                                                                       A-0496-17T1
                                       10
opened the messages, viewed illicit webcam photographs/videos of the children,

verbally commented in a lewd manner on the pictures, and sent appreciative

messages back to the children, instructing them to keep quiet.

      The State also presented video evidence seized from defendant’s hard

drive that recorded some of defendant’s live chats with the children. During one

of these chats, defendant pleaded with J.S. to disrobe, urging the child, "please,

strip for me. Let me just watch. Come on get out. Get out of those blankets."

Defendant threatened J.S. that if he did not do as he asked, defendant would

"turn off [his] console right now."

      The four victims testified at trial and each provided a similar account of

their relationship with defendant. J.S. testified that the recorded video chat in

which defendant urged J.S. to disrobe and threatened to disable his Xbox console

was "a common occurrence" and "something that was very, very regular over

the course of the two years." J.S. testified that defendant was “very flirtatious

and very forward" when they first met electronically and "almost immediately"

started trying to get J.S. to disrobe. During one of their video conversations,

defendant convinced J.S. to penetrate his rectum with his finger, and at a later

time, convinced defendant to penetrate his rectum with a marker.




                                                                          A-0496-17T1
                                       11
      C.G. testified that during their video chats, defendant was "naked most of

the time. He would have no shirt on. No pants on. . . . [And] he would touch

himself." At defendant's urging, C.G. sent defendant photographs depicting

C.G. naked and touching himself sexually.

      A.J. testified that defendant told him he "was hot" and asked the child to

touch his own penis and "make it hard and stuff like that." At defendant's urging,

A.J. sent defendant photographs depicting A.J. holding his penis and penetrating

his anus.3 Defendant also sent child pornography to A.J. through a photo sharing

application on the Xbox.

      Z.M. testified that defendant would urge him to take and send photographs

of Z.M. masturbating using both his hand and the Xbox controller that vibrated.

Also, at defendant's urging, Z.M. tried "sticking a finger in [his] anus."

                                        III.

      Defendant raises the following contentions on appeal:

            POINT I

            REVERSAL IS REQUIRED BECAUSE THE TRIAL
            COURT DID NOT ENSURE DEFENDANT'S

3
    According to the law, "sexual penetration" means "vaginal intercourse,
cunnilingus, fellatio or anal intercourse between persons or insertion of the
hand, finger or object into the anus or vagina either by the actor or upon the
actor's instruction. The depth of insertion shall not be relevant as to the question
of commission of the crime." N.J.S.A. 2C:14-1.
                                                                             A-0496-17T1
                                        12
WAIVER OF COUNSEL WAS KNOWING AND
INTELLIGENT, AND, IF THE WAIVER WAS
VALID, BECAUSE IT INTERFERED WITH
DEFENDANT'S RIGHT TO REPRESENT HIMSELF
BY PREVENTING HIM FROM ARGUING
MOTIONS AND TESTIFYING OTHER THAN BY
BEING QUESTIONED BY STANDBY COUNSEL.

     A. THE WAIVER OF COUNSEL WAS
     NOT VALID BECAUSE THE COURT
     DID NOT FIRST ENSURE THAT
     DEFENDANT UNDERSTOOD THE
     PENAL     CONSEQUENCES,     THE
     NATURE OF THE OFFENSES, THE
     AVAILABLE DEFENSES, AND THE
     RISKS OF PROCEEDING PRO SE.

     B. THE TRIAL COURT VIOLATED
     DEFENDANT'S RIGHT TO SELF-
     REPRESENTATION WHEN IT DENIED
     A MOTION TO SUPPRESS EVIDENCE
     BEFORE GRANTING HIS MOTION TO
     PROCEED PRO SE[] AND ORDERED
     THAT HIS TESTIMONY BE ELICITED
     THROUGH     QUESTIONING     BY
     STANDBY COUNSEL.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN NOT SEVERING THE COUNTS
RELATING TO THE DIFFERENT CHILDREN, IN
NOT TELLING THE JURY TO DISREGARD
EVIDENCE OF DISMISSED CHARGES, AND IN
ALLOWING THE STATE TO IMPROPERLY
BOLSTER ITS CASE.



                                         A-0496-17T1
                   13
     A. THE TRIAL COURT COMMITTED
     PLAIN ERROR BY NOT SEVERING
     THE     COUNTS     CONCERNING
     UNRELATED     CHILDREN   AND
     EVENTS.

     B. THE TRIAL COURT COMMITTED
     PLAIN ERROR IN NOT CHARGING
     THE JURY TO DISREGARD THE
     OTHER-CRIME          EVIDENCE
     REGARDING     THE   DISMISSED
     COUNTS.

     C. REVERSAL IS REQUIRED BECAUSE
     THE STATE BOLSTERED ITS CASE
     AND DISPARAGED DEFENDANT'S
     CREDIBILITY WITH INADMISSIBLE
     TESTIMONY.

     D.   THE  ERRORS  AT   TRIAL
     INDIVIDUALLY            AND
     CUMULATIVELY         REQUIRE
     REVERSAL     OF  DEFENDANT'S
     CONVICTIONS.

POINT III

DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS
VIOLATED BY THE NEARLY SEVEN-YEAR
DELAY BETWEEN HIS ARREST AND TRIAL
SUCH THAT A REMAND FOR DISMISSAL OF THE
INDICTMENT IS REQUIRED.

POINT IV

RESENTENCING IS REQUIRED BECAUSE THE
COURT ERRED IN FINDING AGGRAVATING
FACTOR TWO AND NOT ADDRESSING

                                          A-0496-17T1
                   14
            MITIGATING FACTOR FOUR, DID NOT MAKE
            APPROPRIATE FINDINGS IN IMPOSING FINES,
            AND IMPOSED ILLEGAL CONDITIONS ON
            CERTAIN COUNTS.

                   A. THE TRIAL COURT ERRED IN
                   FINDING AGGRAVATING FACTOR
                   TWO BASED ON DOUBLE-COUNTING
                   AND WITHOUT CONSIDERING THE
                   NATURE OF THE OFFENSES[] AND IN
                   NOT ADDRESSING OR FINDING
                   MITIGATING FACTOR FOUR DESPITE
                   AMPLE EVIDENCE OF DEFENDANT'S
                   CHILDHOOD TRAUMA AND MENTAL
                   HEALTH ISSUES.

                   B. THE TRIAL COURT ERRED IN
                   IMPOSING $16,500 IN FEES UNDER
                   N.J.S.A.  2C:14-10     WITHOUT
                   ADDRESSING THE FACTS OF THE
                   CASE AND ISSUES AFFECTING
                   DEFENDANT'S ABILITY TO PAY.

                   C. THE TRIAL COURT ERRED IN
                   IMPOSING PAROLE SUPERVISION
                   FOR LIFE ON COUNTS TWO, TEN,
                   SEVENTEEN, AND TWENTY-THREE,
                   AND MEGAN'S LAW ON COUNT
                   TWENTY-SEVEN.

Defendant also raises several contentions in a pro se brief: 4

            POINT I



4
   The brief does not follow a traditional format and these are the closest
approximations of point headings.
                                                                    A-0496-17T1
                                       15
INEFFECTIVE ASSISTANCE OF COUNSEL FOR
NO RECORD OF COUNSEL FILING MOTION FOR
DISMISSAL OF INDICTMENT FOR DENIAL OF
SPEEDY TRIAL BASED ON ANY POTENTIAL
ISSUES TO BE TESTED BY COURT IN THE TIME
PERIOD OF REPRESENTING DEFENDANT AFTER
ONE YEAR AND UP TO SIX YEARS AFTER
DEFENDANTS ARREST AND CONTINUES
CONFINEMENT.

POINT II

ERROR DENYING MOTION AND/OR COURT
FAILURE TO FILE MOTION DE NOVO FOR
DISMISSAL OF INDICTMENT FOR DENIAL OF
SPEEDY TRIAL RESULTING IN IRREVERSIBLE
ASSUMED PREJUDICE AFTER AT LEAST ONE OF
THE FALLOWING [SIC]: ABOUT SIX AND A HALF
YEARS SINCE ACCUSATION OF CASE OR
INCARCERATION    PROSPECTIVELY     SEVEN
YEARS, FOURTEEN AND A HALF MONTHS TO
INDICT, THE REAPPOINTMENT OF COUNSEL
FROM PRIVATE TO PUBLIC AFTER A YEAR IN
TO CASE, HAVING TO HAVE NEW COUNSEL
REQUEST DELAY NEARLY TWO YEARS IN TO
CASE TO REVIEW RECORD, PROSECUTION
TAKING MONTHS TO FILE RESPONSE BRIEF,
PROSECUTION AFTER 4.5 YEARS POSSESSING
EVIDENCE OR LOCATION OF EVIDENCE
WANTED TO ADD.

POINT III

ERROR TRIAL COURT INTERUPTING [SIC] PRO
SE DEFENDANTS ORAL ARGUMENT DURING
MOTION FOR DISMISSAL OF INDICTMENT ON
GROUNDS OF DENIAL OF SPEEDY TRIAL
PROVENTING [SIC] DEFENDANT FROM RAISING

                                            A-0496-17T1
                   16
REPRESENIONS [SIC] OF EVENTS WHICH:
CONSTRUCTIVELY CONSTITUTE, OR ITSELF
CONSTITUTE: CITING PREJUDICE, OR CITE
OPPOSING PARTIES DELAYS.

POINT IV

ERROR TRIAL COURT DENYING MOTION FOR
DISMISSAL OF INDICTMENT ON GROUNDS
SUGGESTING THE COURT DELAYED TRIAL
RATHER THEN [SIC] STATE-PROSECUTION OR
"THE COURT WAS UNDERSTAFFED". [SIC]
HOWEVER, DISCOUNTING ANY COURT DELAY
STATE-PROSECUTION HAD EITHER OR BOTH
DELAYED CASE OR COMMITED [SIC] ACTIONS
CONTRIBUTING TO THE DEFENSE DELAY OF A
YEAR WITHOUTH [SIC] STATE PROACTIVELY
NEGATING    POSSIBLE   PREJUDICES   OR
DEFENDANT HAD SUFFERED PREJUDICE.

POINT V

ERROR TRIAL COURT DENYING MOTION FOR
DISMISSAL OF INDICTMENT ON GROUNDS OF
COURT SUGGESTING COURT DELAYED TRIAL
COURT,    RATHER    THEN   [SIC]  STATE-
PROSECUTION;   OR    "THE   COURT   WAS
UNDERSTAFFED",    [SIC]  HOWEVER,   THE
COURTS JUSTIFICATION WAS BASED ON
AXIOM OF FALSEHOOD OR WAS ITSELF A
FALSEHOOD. PERSUINT [SIC] TO U.S. CONST.
AMEND. 6 SPEEDY TRIAL CLAUSE.

POINT VI

ERROR DISTRICT TRIAL COURT EITHER NOT
FILING INDEPENDENT MOTION DE NOVO, OR
DENYING DEFENSE MOTION: FOR DISMISSAL

                                           A-0496-17T1
                  17
            OF INDICTMENT ARGUING DENIAL OF SPEEDY
            TRIAL,   BASED    ON    OTHER    SOURCE'S
            CONRABUTION [SIC] TO DELAY; DESPITE AT
            LEAST ONE OF THE FALLOWING [SIC] STATE-
            PROSECUTION DELAY OF AT LEAST ONE YEAR,
            AFTER    STATE-PROSECTION     [SIC]  HAD
            CONTRIBUED [SIC] TO AT LEAST YEAR OF
            DELAY, OR SHERE [SIC] EXTENT OF DELAY.

            POINT VII

            ERROR DENYING MOTION AND/OR COURT
            FAILURE TO FILE MOTION DE NOVO FOR
            DISMISSAL OF INDICTMENT FOR DENIAL OF
            SPEEDY TRIAL RESULTING IN IRREVERSIBLE
            ASSUMED PREJUDICE IN AT LEAST ONE OF THE
            FALLOWING [SIC] CIRCUMSTANCES: CHILD
            SEX CASE WHERE CASE OR OTHER THIRD
            PARTY JUDGEMENT [SIC], INVESTIGATION OR
            INQUIRY INSINUATED TO HAVE CAUSED
            SEVERE EMOTIONAL INJURY TO CHILDREN
            IRRESPECTIVE DEFENDANTS CASE; EVIDENCE
            EXISTED.

                                       IV.

      We first address defendant’s contention that his right to a speedy trial was

violated due to the seven years that elapsed between his arrest and trial. By any

objective measure, this is a substantial period of time, one that requires careful

scrutiny.

      In State v. Cahill, the New Jersey Supreme Court reaffirmed "that the

four-factor balancing analysis of [Barker] remains the governing standard to


                                                                          A-0496-17T1
                                       18
evaluate claims of a denial of the federal and state constitutional right to a

speedy trial." 213 N.J. 253, 258 (2013). Those four factors are: "length of the

delay, reason for the delay, assertion of the right by a defendant, and prejudice

to the defendant." Id. at 264 (citing Barker, 407 U.S. at 530). "None of the

Barker factors is determinative, and the absence of one or some of the factors is

not conclusive of the ultimate determination of whether the right has been

violated." Id. at 267 (citing Barker, 407 U.S. at 533). "[T]he factors are

interrelated, and each must be considered in light of the relevant circumstances

of each particular case." State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div.

2009) (citing Barker, 407 U.S. at 533).

      When delay exceeds one year, the court presumptively should analyze all

of the Barker factors.     Cahill, 213 N.J. at 265–66.        We have previously

cautioned, however, against deciding "how long is too long . . . 'by sole reference

to the lapse of a specified amount of time.'" State v. Detrick, 192 N.J. Super.

424, 426 (App. Div. 1983) (quoting State v. Smith, 131 N.J. Super. 354, 360

(App. Div. 1974)). Legitimate delays, "however great," will not violate the

defendant's right to a speedy trial if it does not specifically prejudice defendant's

defense. Doggett v. United States, 505 US. 647, 656 (1992).




                                                                             A-0496-17T1
                                        19
      It bears emphasis that longer delays may "be tolerated for serious offenses

or complex prosecutions." Cahill, 213 N.J. at 266. Intuitively, defense-caused

delay does not support a speedy trial violation and such delays are subtracted

from the total calculus. United States v. Claxton, 766 F.3d 280, 294 (3d Cir.

2014) (citing United States v. Battis, 589 F.3d 673, 680 (3d Cir. 2009)); see also

State v. Long, 119 N.J. 439, 470 (1990) (holding that "[a]ny delay that defendant

caused or requested would not weigh in favor of finding a speedy trial violation"

(quoting State v. Gallegan, 117 N.J. 345, 355 (1989))). Of course, purposeful

delay tactics weigh heavily against the State. Barker, 407 U.S. at 531.

      "The only remedy" for a violation of a defendant's right to a speedy trial

"is dismissal of the charge." Cahill, 213 N.J. at 276. On appeal, "we reverse

only if the court's determination is clearly erroneous." Tsetsekas, 411 N.J.

Super. at 10 (citing State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)).

      In this instance, the reasons for the seven-year period between arrest and

are clearly attributable to both sides. In part because speedy trial issues were

raised at different times, we do not have the benefit of a comprehensive Law

Division opinion that divides the overall delay into discrete periods and then




                                                                          A-0496-17T1
                                       20
explains and evaluates the reasons for delay in each of these time periods. 5

Importantly, and as the State candidly acknowledges in its appellate brief, the

trial court did not make specific findings as to the Barker factors.

      There are many circumstances to consider, including but not limited to (1)

the seriousness of the crimes; (2) the complexity and logistical challenges of an

investigation that required forensic analysis of digital evidence used to identify

and locate out-of-state child witnesses; (3) new information provided by two

child victims who had been reluctant initially to reveal that they had been urged

to engage in anal penetration; (4) the number of judges assigned to preside over

various events; (5) numerous pretrial motions defendant filed at all stages of the

case;6 and (6) defendant's unorthodox defense strategy, which may be relevant

in determining whether that defense was prejudiced by delay.


5
   Compare State v. May, 362 N.J. Super. 572, 596 (App. Div. 2003), where a
single trial judge applied the Barker factors, divided the time into discrete
periods of delay, and attributed each period to the State, defendant, or court
system.
6
  Under the third Barker factor—the extent to which a defendant asserts his or
her speedy trial right—a defendant's filing of multiple "indisputably frivolous"
motions weighs against a finding of a violation. United States v. Loud Hawk,
474 U.S. 302, 314 (1986). As noted, defendant moved to proceed pro se because
he wanted to file more motions and did so at a prolific rate after he was accorded
the right of self-representation. We are not in the best position to determine
which if any of the denied motions were frivolous, and we leave that


                                                                          A-0496-17T1
                                       21
      It is impracticable for us to review this record and exercise original

jurisdiction pursuant to R. 2:10-5 to decide the ultimate question whether

defendant's right to a speedy trial was violated. See Tomaino v. Burman, 364

N.J. Super. 234–35 (App. Div. 2003) (opining that appellate courts should

exercise original jurisdiction "only with great frugality").      Moreover, it is

conceivable, if not likely, that the current record is not adequate to permit a

fulsome review of the Barker factors. The circumstances explaining certain

periods of delay, for example, may be outside the current record, in which event

further factfinding may be necessary.       Exercise of original jurisdiction is

discouraged if factfinding is involved. State v. Micelli, 215 N.J. 284, 293 (2013)

(quoting State v. Santos, 210 N.J. 129, 142 (2012)).

      We therefore believe review of the Barker factors is best delegated to the

trial court in the first instance. A trial court is better suited than we are to

undertake "the difficult task of balancing all the relevant factors relating to the

respective interests of the State and the defendant[]," and to provide "subjective

reactions to the particular circumstances [to] arrive[] at a just conclusion."

Merlino, 153 N.J. Super. at 17.


determination to the sound judgment of the trial court on remand. We also note
that defendant was informed on multiple occasions that filing voluminous
motions would lead to further trial delays.
                                                                           A-0496-17T1
                                       22
      Accordingly, we remand the matter to the Law Division to (1) catalog and

compartmentalize all of the discrete periods of delay, (2) determine and evaluate

the specific reasons for delay, and, (3) as to delay attributed to the State,

determine whether the delay was the product of the case's complexity or other

legitimate justification, or else was the product of purposeful delay tactics or

mere inaction. The Law Division should apply the Barker factors in light of

those findings.

      As noted, this analytical process "necessarily involves subjective reaction

to the balancing of circumstances." State v. Szima, 70 N.J. 196, 201 (1976).

We leave it to the sound discretion of the trial court regarding the conduct of

those proceedings, including whether testimony is necessary. Should the court

conclude defendant's speedy trial rights were violated, it shall vacate defendant's

judgment of conviction and dismiss the superseding indictment.

                                        V.

      Defendant claims that he did not knowingly and intelligently waive his

right to trial counsel. Contrary to defendant’s assertions on appeal, the record

clearly shows that he was apprised of the risks of proceeding pro se and that he

knowingly and voluntarily, indeed gladly, accepted the challenges of self-




                                                                           A-0496-17T1
                                       23
representation, in large part because he wanted to advocate for himself publicly

and make a statement in support of pedophilia.

      Defendants have both the right to counsel and the right to represent

themselves. State v. Dubois, 189 N.J. 454, 465 (2007). To exercise the right to

proceed pro se, defendants must knowingly and voluntarily waive their right to

counsel.   State v. Reddish, 181 N.J. 553, 587 (2004).        Before allowing a

defendant to proceed pro se, a court must conduct an on-the-record inquiry of

the defendant. See In re DiLeo, 216 N.J. 449, 479 (2014) (concluding it was

improper for the trial court judge to deem the right to counsel waived wit hout a

"searching inquiry" by the court). The defendant is to "be made aware of the

dangers and disadvantages of self-representation, so that the record will

establish that 'he knows what he is doing and his choice is made with eyes

open.'" Faretta v. California, 422 U.S. 806, 835 (1975) (quoting Adams v.

United States ex. rel. McCann, 317 U.S. 269, 279 (1942)).

      The New Jersey Supreme Court specifically requires that defendants

wishing to proceed pro se be made aware of:

            (1) the nature of the charges, statutory defenses, and
            possible range of punishment; (2) the technical
            problems associated with self-representation and the
            risks if the defense is unsuccessful; (3) the necessity
            that defendant comply with the rules of criminal
            procedure and the rules of evidence; (4) the fact that the

                                                                         A-0496-17T1
                                       24
            lack of knowledge of the law may impair defendant's
            ability to defend himself or herself; (5) the impact that
            the dual role of counsel and defendant may have; (6)
            the reality that it would be unwise not to accept the
            assistance of counsel; (7) the need for an open-ended
            discussion so that the defendant may express an
            understanding in his or her own words; (8) the fact that,
            if defendant proceeds pro se, he or she will be unable
            to assert an ineffective assistance of counsel claim; and
            (9) the ramifications that self-representation will have
            on the right to remain silent and the privilege against
            self-incrimination.

            [Dubois, 189 N.J. at 468–69.]

      In this instance, the court first responded to defendant's request to proceed

pro se by ordering a competency examination by a forensic psychologist. The

psychologist examined defendant and determined that he fully grasped his legal

situation. Accordingly, the court found defendant competent to stand trial.

      The court also determined that defendant understood the crimes he was

charged with, the elements of those offenses, and the sentence that could be

imposed were he to be convicted. The judge also ensured that defendant knew

what he was giving up and what self-representation entailed. Although the judge

expressed skepticism concerning defendant's proposed defenses, defendant was

steadfast in his assertion that he could present the "best defense" for himself

because he was "well acquainted with the law . . . and . . . kn[e]w the particulars

of the case better than anyone."

                                                                           A-0496-17T1
                                       25
      On October 20, 2015, defendant was again apprised of the risks of

proceeding pro se, to which he replied that he was "better equipped than many

people" to handle his defense because he was "devoted to do this case. [He was]

. . . well aware of all the circumstances and everything surrounding the case

even beyond what's in discovery." The judge then engaged in a thorough and

probing colloquy during which defendant expressed that he fully understood the

difficulties with proceeding pro se. Although the judge continued to question

the wisdom of defendant’s election, he found that defendant's request was "clear

and unequivocal in spite of the pitfalls . . . [and] difficulties . . . he has indicated

he is aware of." The judge thereupon found defendant's waiver to be made

knowingly and voluntarily.

      After reviewing the trial court's thorough and probing colloquies with

defendant in the course of two hearings, we conclude that defendant was

properly advised by the court in accordance with Faretta and Reddish, and the

trial court did not abuse its discretion in finding that defendant knowingly and

voluntarily waived his right to be represented by counsel at trial. See Dubois,

189 N.J. at 475 (applying abuse-of-discretion standard of review to trial court

finding of knowing and intelligent waiver of right to counsel).




                                                                                A-0496-17T1
                                          26
                                        VI.

      Defendant next contends that despite having granted defendant’s request

to represent himself at trial, the trial court did not respect defendant’s

constitutional right of self-representation and instead impeded defendant from

pursuing his chosen trial strategy or allowed standby counsel to do so.

Specifically, defendant asserts that the trial court (1) refused to permit defendant

to control the litigation of a motion to suppress evidence seized pursuant to a

search warrant and (2) required defendant to answer questions posed by standby

counsel rather than permit defendant to testify in narrative fashion, thereby

allowing standby counsel to screen out questions that defendant wanted posed

to him on the witness stand.

      We begin our analysis of these contentions by acknowledging the

principles of constitutional law that we must adhere to and safeguard. Once a

defendant has waived the right to counsel and has been granted the right of self -

representation, he or she must be afforded the ability "to control the organization

and content of his [or her] own defense, to make motions, to argue points of law,

. . . to question witnesses, and to address the court and the jury at appropriate

points in the trial." Dubois, 189 N.J. at 466 (quoting McKaskle v. Wiggins, 465

U.S. 168, 174 (1984)). It does not matter that the trial court is justifiably


                                                                            A-0496-17T1
                                        27
skeptical of the defendant’s trial strategy and earnestly wants to protect a

defendant from the adverse consequences of ill-conceived pro se arguments. As

our Supreme Court noted in State v. King, "[t]he trial court was concerned

understandably about defendant's ability to present a sound defense. Such

concern, no matter how well-intentioned, cannot override defendant's exercise

of his right to decide to represent himself." 210 N.J. 2, 21 (2012).

      In determining whether a defendant's right to conduct his own defense has

been respected, "the primary focus must be on whether the defendant had a fair

chance to present his case in his own way."        McKaskle, 465 U.S. at 177.

Although the appointment of standby counsel is permitted, the defendant must

maintain "actual control over the case he chooses to present to the jury." Id. at

178. Standby counsel’s participation must not "destroy the jury’s perception

that the defendant is representing himself." Ibid. Furthermore, and of particular

importance in the circumstances of the case before us, the trial court must not

allow standby counsel to “substantially interfere[ ] with the defendant’s trial

strategy.” Reddish, 181 N.J. at 597 (citing McKaskle, 465 U.S. at 178). When

such interference occurs, the constitutional right of self-representation is

violated and reversal and a new trial is required. See State v. Gallagher, 274

N.J. Super. 285, 289 (App. Div. 1994).


                                                                         A-0496-17T1
                                      28
                                       A.

      Defendant contends the trial court erred by not respecting his right to

control the litigation of a defense motion to suppress evidence obtained from a

search warrant. The validity of the warrant and the ensuing search, which is not

challenged in this appeal, was instead litigated by appointed counsel. We reject

defendant's contention because the suppression motion was argued and decided

before defendant was granted authority to proceed pro se.            We see no

constitutional error in the judge's decision to deny defendant's request to re -

litigate a motion that had already been decided.

      As noted, a pro se litigant has the right to make motions and argue points

of law. Dubois, 189 N.J. at 466 (citing McKaskle, 465 U.S. at 174). That right

does not automatically entitle a pro se defendant to re-litigate motions that were

decided before the defendant waived the right to appointed counsel and was

formally accorded the right of self-representation. Nor was the trial court

obliged to delay ruling on the suppression motion until after deciding whether

to grant defendant's request to proceed pro se. The sequence of deciding pending

motions is a matter vested in the discretion of the trial court. See R. 3:9-1(d)

(authorizing the trial court to set dates for hearing pretrial motions and




                                                                          A-0496-17T1
                                       29
explaining "the court may in its discretion . . . schedule any necessary pretrial

hearings").

      At bottom, the record in this case makes clear that the Law Division in

this case showed great respect, and commendable patience, with regard to

defendant's right to litigate motions once he formally attained pro se status.

                                      B.

      Defendant next contends he was deprived of his right of self-

representation when the trial court required that defendant's testimony be

elicited through questions posed by standby counsel rather than in a narrative

format or by having defendant question himself. Although defendant refers to

cases where trial courts happened to allow the defendant to testify by narrative,

defendant cites to no New Jersey case that holds, or even suggests, that a pro se

defendant is entitled as of right to present testimony through a narrative format. 7

      We hold that as part of a trial court's general authority to control the

proceedings, including the "mode . . . of interrogating witnesses," N.J.R.E.

611(a), the court has broad discretion in deciding whether to allow a pro se



7
  See State v. Rubenstein, 104 N.J.L. 291, 294 (Sup. Ct. 1928), where it was
held that the court did not err in requiring the direct examination of the plaintiff
by question and answer, not narrative form, because it is "a matter within the
discretion and control of the trial court."
                                                                            A-0496-17T1
                                        30
defendant to testify in a narrative fashion or to require instead that defendant's

testimony be elicited through questions posed by standby counsel. See United

States v. Beckton, 740 F.3d 303, 306 (4th Cir. 2014) (explaining that trial

management decisions such as "whether [a pro se defendant's] testimony shall

be in the form of a free narrative or responses to specific questions" are

discretionary (quoting Fed. R. Evid. 611 advisory committee's note)).

      Although the trial court acted within its discretion in precluding defendant

from testifying in a free narrative, the decision to require a pro se defendant to

testify by answering questions posed by standby counsel is subject to an

important caveat: it is for a self-represented defendant, not standby counsel, to

decide ultimately what testimonial evidence the defense presents to the jury.

Defendant contends in this regard that standby counsel did not ask questions that

defendant wanted to have posed to him on the witness stand, thereby impeding

his right of self-representation.

      In addressing this argument, we first note that it is not the role of standby

counsel or a trial judge to prevent a pro se defendant from pursuing a reckless

or foolhardy trial strategy. See King, 210 N.J. at 21. ("[N]o matter how well-

intentioned, [a trial court] cannot override [a] defendant's exercise of his [or her]

right to decide to represent himself [or herself].").    Defendant was explicitly


                                                                             A-0496-17T1
                                        31
warned that by accepting the right of self-representation, he was waiving the

right to claim ineffective assistance of counsel. See Faretta, 422 U.S. at 834

n.46 ("[A] defendant who elects to represent himself [or herself] cannot

thereafter complain that the quality of his [or her] own defense amounted to a

denial of 'effective assistance of counsel.'"). "[E]ven in cases where the accused

is harming himself by insisting on conducting his own defense, respect for

individual autonomy requires that he be allowed to go to jail under his own

banner if he so desires and if he makes the choice '"with eyes open.'" United

States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965).

        While standby counsel may caution a pro se client of the perils of his or

her intended course of action and offer advice on a sounder approach, counsel

must not interfere with a pro se defendant’s chosen trial strategy, however ill -

conceived or self-defeating.     Reddish, 181 N.J. at 597–98.      As a general

proposition, therefore, a pro se defendant should be permitted to give testimony

that standby counsel and the court know from their experience might lessen the

chances for acquittal. It plainly appears that is exactly what happened in this

case.

        Before defendant testified on his own behalf, the trial court explored

whether defendant and standby counsel had an opportunity to review the


                                                                          A-0496-17T1
                                       32
questions that would be posed during defendant’s direct examination. During

this colloquy, standby counsel explained to the court:

                   Okay. Well, Judge, this morning I received
                   a couple of pieces of information. One is
                   questions, I think there's 215 of them here.
                   Okay. And another one has another 40 or
                   50 of them, I guess. And I had spoken to
                   the client about the fact that where the case
                   is at this point in time, what type of
                   information the jury’s already seen, and the
                   focus of the questions mainly on the four
                   individuals who testified, whereas some of
                   these other questions are more far reaching
                   and into various other, if you will,
                   collateral areas, and I had basically
                   indicated to him that I have a series of
                   questions, a limited number of questions.
                   The questions are designed to allow him to
                   give his version to the jury, because I think
                   that’s what the jury wants to hear. They
                   heard the State’s version. Now it’s [their]
                   opportunity to hear his version, and
                   obviously he would have to have latitude
                   and we try to ask general questions to allow
                   that to happen.

                   [Emphasis added.]

      Later in the colloquy, the trial court explained, “[s]o I think what [standby

counsel] is saying is that not necessarily every question he would ask, because

he’s trying his best, also, to focus you towards . . . the objective of being found

not guilty, but he’s going to ask a number of those questions.”


                                                                           A-0496-17T1
                                       33
      The court then asked defendant whether that made sense, to which

defendant replied “[o]kay.”

      The record thus shows that while standby counsel did not pose every

specific question that defendant may have drafted, he did pose general questions

designed to afford defendant the latitude to present his own version. We believe

it is especially important that defendant on appeal does not point to a single

testimonial fact that he wanted to present to the jury but was precluded from

doing so by the question-and-answer format as it was actually employed in this

case. In other words, defendant does not specify any admissible evidence8 in

support of his trial strategy that he was not able to place before the jury during

his trial testimony.

      In sum, defendant has not shown how the question-and-answer format as

actually applied in this case substantially interfered, if at all, with the

presentation of his trial strategy. We add that defendant does not claim on

appeal that the trial court or standby counsel impeded him from presenting his


8
  While a self-represented defendant has the right to decide what evidence the
defense presents, he or she has no right, of course, to introduce inadmissible
testimony. See Dubois, 189 N.J. at 468 (requiring a court to advise a defendant
that is seeking to proceed pro se of the necessity that he or she comply with the
rules of evidence). The right of self-representation, in other words, in no way
restricts a trial court’s authority and discretion in making evidentiary rulings or
otherwise managing the trial proceedings.
                                                                           A-0496-17T1
                                       34
arguments in his summation to the jury. We therefore conclude that defendant

was afforded, through the combination of his testimony and arguments, "a fair

chance to present his case in his own way." McKaskle, 465 U.S. at 177.

                                     VII.

      Defendant claims for the first time on appeal that the trial court should

have sua sponte severed the counts involving each child victim. Defendant

argues that by aggregating the offenses involving all four child victims into a

single trial, the State improperly suggested that defendant had a propensity for

child predation.

      Defendant is hard pressed to complain that the joinder of charges

inappropriately suggested his predisposition for pedophilia given that his trial

strategy emphasized that he was sexually attracted to young boys and had the

right to perform acts prohibited by law and charged in the superseding

indictment.   It was defendant, in other words, who placed his sexual

predisposition squarely before the jury.

      We add that even in the absence of such an unusual defense strategy,

joinder of similar charges may be permitted in sex abuse and child pornography

cases involving multiple victims. See State v. Davis, 390 N.J. Super. 573, 599

(App. Div. 2007) (concluding that failing to sever the case was not "clearly


                                                                        A-0496-17T1
                                      35
capable of producing an unjust result" (quoting R. 2:10-2)); State v. Krivacska,

341 N.J. Super. 1, 37 (App. Div. 2001) ("Our procedural rules provide that two

or more indictments or accusations may be tried together if, among other things,

the offenses charged 'are of the same or similar character.'" (quoting R. 3:7-6)).

      Defendant next contends, again for the first time on appeal, that the judge

should have instructed the jurors to disregard the evidence relating to charges

that were dismissed at the end of the State's case. Defendant claims that by not

doing so, defendant was unfairly convicted on the basis of additional propensity

evidence. We disagree.

      The grand jury indicted defendant on charges relating to a fifth child

victim, A.P. This child chose not to testify. As a result, after the prosecution

rested, the trial court dismissed the counts pertaining to A.P. We agree with

defendant that the trial court should have instructed the jury to disregard any

evidence that had been presented concerning this child.          In this instance,

however, the trial court's failure to instruct the jury to disregard that evidence

does not rise to the level of plain error as it was not clearly capable of producing

an unjust result. R. 2:10-2. As noted, defendant chose to place his sexual

predisposition with respect to young boys before the jury as the foundation of

his defense strategy. Furthermore, the State's evidence of guilt with respect to


                                                                            A-0496-17T1
                                        36
the criminal acts involving the four children who did testify was essentially

uncontroverted and unquestionably overwhelming.

      Defendant next asserts that Detective Andrea Tozzi, who defendant called

as a witness, improperly testified from her personal experience. She testified it

was not unusual that a child would not immediately disclose sexual penetration

to her during an interview.       Defendant argues that such testimony was

tantamount to expert testimony about "Child Sexual Assault Accommodation

Syndrome" (CSAAS) in large degree now prohibited by the new rule announced

in State v. J.L.G., 234 N.J. 265, 272 (2018), which we held applied retroactively

in State v. G.E.P., 458 N.J. Super. 436, 448 (App. Div.), certif. granted, 239 N.J.

598 (2019).

      The circumstances of Detective Tozzi's comment are significantly

different from the circumstances in J.L.G. The Supreme Court ruled that expert

testimony about CSAAS is not reliable except as to delayed disclosure. J.L.G.,

234 N.J. at 272. Here, the comment defendant contends was improper related

to delayed disclosure. Furthermore, Detective Tozzi was at no time presented

as an expert witness. Her brief comment related to her personal experience

interviewing young sexual abuse victims and their reluctance to disclose sexual

acts such as masturbation and anal self-penetration. Furthermore, the detective's


                                                                           A-0496-17T1
                                       37
comment was elicited in response to defendant's suggestion that she had

attempted to improperly influence the children by asking them questions about

sexual penetration.   In these circumstances, we conclude that no improper

bolstering of the State's case occurred. See State v. B.M., 397 N.J. Super. 367,

380–81 (App. Div. 2008) (explaining the "opening the door" doctrine, which

allows responsive evidence that would otherwise be inadmissible).

      Even if Detective Tozzi's answer were deemed to be inadmissible, her

brief, isolated remark was not clearly capable of producing an unjust result, Rule

2:10-2, considering the overwhelming strength of the State's case with respect

to defendant's role in inducing the child victims to video record themselves in

the act of masturbation and anal penetration.

      Defendant further claims that the State improperly attacked his credibility

by eliciting that defendant promised the children he would not save the videos

or pictures so as to persuade the children to send them. We conclude that the

trial court did not abuse its discretion in ruling this testimony was admissible to

show the influence defendant exercised over the children. See State v. Scott,

229 N.J. 469, 479 (2017) (stating evidential rulings are only disturbed on appeal

if there was a “clear error in judgment . . . so wide of the mark that a manifest

denial of justice resulted”) (quoting State v. Perry, 225 N.J. 222, 223 (2016))).


                                                                           A-0496-17T1
                                       38
      Finally, with respect to defendant's trial-related contentions, we agree—

and the State on appeal does not dispute—that it was inappropriate for the

prosecutor in summation to remark, "[s]o much for the defendant's argument

that he was always truthful."     This isolated, off-hand comment in no way

affected the outcome of the trial. R. 2:10-2; see also State v. Wakefield, 190

N.J. 397, 467 (2007) (holding that reviewing courts should not reverse unless

the prosecutor's conduct was "so egregious that it deprived the defendant of a

fair trial" (quoting State v. Pennington, 119 N.J. 547, 565 (1990))).

      In sum, any evidentiary, prosecutor comment, or jury-instruction errors

that may have occurred are minimal and, even when viewed cumulatively,

provide no reason to reverse defendant's convictions in light of the

overwhelming evidence presented by the State and by the defendant through his

admissions. We therefore do not hesitate to conclude that none of the alleged

trial errors, singly or collectively, "cast[] doubt on the propriety of the jury

verdict." State v. Jenewicz, 193 N.J. 440, 474 (2008).

      We similarly reject defendant's contentions regarding the sentence that

was imposed. The trial court did not engage in impermissible double-counting,

as defendant claims, when it found aggravating factor two, which focuses on the

gravity and seriousness of the offense.     N.J.S.A. 2C:44-1(a)(2).     Although


                                                                         A-0496-17T1
                                      39
"[e]lements of a crime, including those that establish its grade, may not be used

as aggravating factors for sentencing of that particular crime," State v. Lawless,

214 N.J. 594, 608 (2013), a court "does not engage in double-counting when it

considers facts showing defendant did more than the minimum the State is

required to prove to establish the elements of an offense." State v. A.T.C., 454

N.J. Super. 235, 254–55 (App. Div. 2018) (citing State v. Fuentes, 217 N.J. 57,

75 (2014)). Here, the judge properly found aggravating factor two based on a

"pragmatic assessment of the totality of the harm inflicted by the offender on

the victim." State v. Kromphold, 162 N.J. 345, 358 (2000).

      The child victims in this case presented compelling evidence of the harm

defendant inflicted by befriending them, confusing them, and ultimately

inducing them to engage in perverse sexual acts. This form of emotional a nd

psychological harm is not an element of the offenses for which defendant was

convicted, and, therefore, the sentencing court's careful attention to this type of

harm does not constitute double-counting. A.T.C., 454 N.J. Super. at 254–55.

Rather, this harm properly supports a finding of aggravating factor two. State

v. Logan, 262 N.J. Super. 128, 132 (App. Div. 1993) (upholding a finding of

psychological damage to support aggravating factor two).




                                                                           A-0496-17T1
                                       40
      Defendant's second sentencing contention, that the judge failed to find

mitigating factor four, 9 is also without merit. Although "mitigating factors that

are suggested in the record, or are called to the court's attention, ordinarily

should be considered," in this instance, defendant failed to establish any

legitimate basis upon which to conclude that there were substantial grounds to

excuse or justify his conduct. State v. Blackmon, 202 N.J. 283, 297 (2010)

(citing State v. Dalziel, 182 N.J. 494, 504-05 (2010)). Defendant asserts that he

suffers from a mental disease or defect and trauma from a troubled youth. See

State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002) (recognizing prior

abuse and mental illness are "highly relevant" when determining if mitigating

factors apply). But he has offered no evidence of any such mental impairment

and no such impairment was revealed in his competency evaluation or in his

numerous motions before the court. Furthermore, the record shows defendant

never offered evidence that he was traumatized by a troubled childhood.

      Next, defendant claims that the court improperly imposed a combined Sex

Crime Victim Treatment Fee of $16,500 pursuant to N.J.S.A. 2C:14-10. In

calculating an appropriate amount, the sentencing court must consider not only


9
   See N.J.S.A. 2C:44-1(b)(4) ("There were substantial grounds tending to
excuse or justify the defendant's conduct, though failing to establish a
defense.").
                                                                          A-0496-17T1
                                       41
the nature and circumstances of the offenses committed but also the defendant's

ability to pay. State v. Bolvito, 217 N.J. 221, 234 (2014). In doing so, the court

"should look beyond the defendant's current assets and anticipated income

during the period of incarceration." Ibid.

      In this instance, the sentencing judge considered facts about defendant,

such as his work history, that led the judge to conclude that defendant could pay

this amount at some point following his release. Any such analysis necessarily

involves speculation as to a defendant's earning potential in the distant future.

We also recognize, as defendant aptly notes, that convicted sex offenders may

face special difficulties in finding gainful employment upon their release from

prison.

      Given the inherent imprecision in predicting a defendant's future income,

we do not believe the sentencing court abused its discretion when it found that

defendant will be able to pay $16,500. We decline to substitute our own

prediction of defendant's future earnings in place of the sentencing court's

estimation. Nor do we believe the sentencing court abused its discretion with

respect to its findings pursuant to Bolvito regarding the nature and

circumstances of the offenses defendant committed. See Fuentes, 217 N.J. at 70




                                                                          A-0496-17T1
                                       42
(holding that appellate courts apply the abuse of discretion standard when

reviewing a judge's sentencing decision).

      Finally, while defendant is without question subject to parole supervision

for life pursuant to N.J.S.A. 2C:43-6.4, and to the requirements of Megan's Law

pursuant to N.J.S.A. 2C:7-2, we agree with defendant that the trial court erred

in imposing parole supervision for life on defendant's conviction for count two.

However, the judgment of conviction (JOC) does not reflect that this sanction

was imposed on that particular count, so there is no need to correct the JOC.

                                      VIII.

      To the extent we have not already addressed them, any other arguments

raised by defendant in this appeal, whether in the brief submitted by counsel or

defendant's pro se brief, see supra note 4, do not have sufficient merit to

warrant discussion in this written opinion. R. 2:11-3(e)(2).

                                       IX.

      For the foregoing reasons, we remand the case to the Law Division to

assess defendant's speedy trial claim in accordance with the instructions set forth

in Section IV of this opinion. In all other respects, we reject defendant's

contentions and affirm his convictions and sentence.           We do not retain

jurisdiction.


                                                                           A-0496-17T1
                                       43
     Affirmed in part and remanded for proceedings consistent with this

opinion.




                                                                A-0496-17T1
                                 44
