1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized).

State v. Carlos Bolvito (A-44-12) (071493)

Argued November 6, 2013 -- Decided March 31, 2014

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court addresses whether a sentencing court may consider a defendant’s ability to pay 

when setting a monetary penalty pursuant to the Sex Crime Victim Treatment Fund (SCVTF), N.J.S.A. 52:4B-43.2.

Defendant Carlos Bolvito pled guilty to three offenses arising from sexual assaults of his stepdaughter: 

First-degree aggravated sexual assault, second-degree sexual assault, and second-degree endangering the welfare of 

a child. These predicate offenses triggered the imposition of mandatory penalties under the SCVTF, but the plea 

agreement presented to the trial court did not specifically address the SCVTF penalties to be assessed against 

defendant. Defendant signed a plea form, however, acknowledging his understanding that “as a result of [his] guilty 

plea [he would] be required to pay a mandatory [SCVTF] penalty.” The form disclosed the applicable maximum 

penalty amounts for each offense to which defendant pled guilty, and listed the “Total S.C.V.T.F. Penalty” as 

$4,000.00. During the plea colloquy, the court also asked whether defendant understood that he would have to 

contribute “a total of $4,000” to the SCVTF, and defendant responded affirmatively. Satisfied that defendant had 

set forth an adequate factual basis for a plea of guilty as to all three charges, and that defendant understood the 

consequences of his plea, the trial court accepted defendant’s guilty plea.

After analyzing the applicable aggravating and mitigating factors, the trial court sentenced defendant to a 

term of imprisonment, imposed parole supervision for life, ordered defendant to pay $6,230.40 in restitution, and 

assessed an SCVTF penalty of $4,000.00 in addition to other fines, charges, and penalties. The court did not 

provide a statement of reasons or identify the factors that it considered in setting the amount of the SCVTF penalty. 

Defendant appealed his sentence. In addition to challenging his custodial sentence and the order of 

restitution, defendant argued that he should not be required to pay his SCVTF penalty because the court did not hold 

a hearing to determine his ability to pay the penalty, and the record did not indicate how the penalty was calculated. 

The Appellate Division rejected defendant’s contention that the court should have considered his ability to pay when 

it calculated the SCVTF penalty. The panel remanded to the trial court for reconsideration of its restitution order, 

but otherwise affirmed defendant’s sentence. The Court granted Bolvito’s petition for certification, limited to the 

issue of whether a sentencing court may consider a defendant’s ability to pay when imposing an SCVTF penalty. 

213 N.J. 394-95 (2013).

HELD: A sentencing court may impose the mandatory Sex Crime Victim Treatment Fund penalty in any amount 

between a nominal figure and the upper limit prescribed by N.J.S.A. 2C:14-10(a) for the degree of the offense at issue. 

In setting the penalty, the sentencing court should (1) consider the nature of the offense and the defendant’s ability to 

pay the penalty during any custodial sentence imposed and after his or her release, and (2) provide a statement of 

reasons as to the amount of any penalty.

1. Appellate courts apply a deferential standard of review to a sentencing court’s determination, but not to its 

interpretation of a law. In reviewing the amount of a SCVTF penalty imposed by a sentencing court pursuant to 

N.J.S.A. 2C:14-10, the Court construes that provision in accordance with established principles of statutory 

interpretation. The Court’s task is to ascertain the Legislature’s intent, reflecting its chosen language, and to give 

the words of the statute “‘their generally accepted meaning.’” State v. Marquez, 202 N.J. 485, 499 (2010) (quoting 

N.J.S.A. 1:1-1). (pp. 9-10)

2. In 2005, the Legislature established the SCVTF to defray the cost of counseling and treatment services for the 

victims of certain sex offenses and their families. N.J.S.A. 52:4B-43.2; S. 781 (Sponsor’s Statement), 211th Leg.
2

(Feb. 5, 2004). To fund the services, the Legislature enacted N.J.S.A. 2C:14-10, which imposes upon defendants 

convicted of enumerated sex offenses a monetary penalty from a nominal amount to a specific maximum amount 

based upon the degree of the offense. Specifically, N.J.S.A. 2C:14-10 states that a person convicted of a qualifying 

sex offense “shall” be assessed the statutory penalty. The Legislature’s choice of language makes clear that it

intended that an SCVTF penalty be imposed on any defendant convicted of a predicate offense. That interpretation 

is underscored by the sponsor’s statement attached to the bill. S. 781 (Sponsor’s Statement), 211th Leg. (Feb. 5, 

2004) (sex offender “would be assessed a penalty for each such offense”). Thus, if a defendant commits a predicate 

offense, the sentencing court lacks the discretion to dispense with the SCVTF penalty. (pp. 11-14). 

3. Although SCVTF penalties are mandatory when the defendant commits a predicate offense, the sentencing court 

has substantial discretion with respect to the amount of the penalty. For each degree of offense, the Legislature set 

an SCVTF penalty “not to exceed” a particular amount, but there is no evidence that the Legislature intended the 

maximum SCVTF penalty for a lower degree of offense to constitute the minimum penalty for a higher degree 

offense. See N.J.S.A. 2C:14-10(a); S. 781 (Sponsor’s Statement), 211th Leg. (Feb. 5, 2004). The Legislature is 

fully conversant in the language necessary to set minimum and maximum parameters for a monetary penalty and has 

used such language in other statutes. By contrast, the “not to exceed” language in N.J.S.A. 2C:14-10 imposes a 

ceiling, not a floor, on the amount to be assessed as an SCVTF penalty for each degree of offense, and thus a court 

may impose a penalty in any amount, from a nominal amount up to the statutory maximum. (pp. 14-15)

4. When a sentencing court exercises its discretion to set an SCVTF penalty within the applicable statutory range, it 

should consider a defendant’s ability to pay. The Legislature specifically instructed sentencing courts to consider a 

defendant’s ability to pay when imposing several other monetary assessments. See N.J.S.A. 2C:44-2(c)(2)

(restitution); N.J.S.A. 2C:44-2(c)(1) (fines); N.J.S.A. 2C:43-3.1(a)(1) (Violent Crimes Compensation Board 

penalties). By contrast, other penalties prescribed by statute impose a “fixed” amount that “must be imposed 

regardless of [a] defendant’s ability to pay.” See N.J.S.A. 2C:35-15 (Drug Enforcement Demand Reduction 

penalty). Here, the Legislature did not impose “fixed” amounts for mandated SCVTP penalties, nor did it prescribe 

criteria for a court to apply when setting a penalty within the statutory range. However, N.J.S.A. 2C:1-2(c)

generally instructs courts that “‘discretionary powers conferred by the code shall be exercised in accordance with the 

criteria stated in the code and, insofar as such criteria are not decisive, to further the general purposes’ of the Code.”

State v. Yarbough, 100 N.J. 627, 636 (1985) (quoting N.J.S.A. 2C:1-2(c)), cert. denied, 475 U.S. 1014 (1986) (pp. 

15-17)

5. Applying the governing principles of Yarbough, two factors should be considered in a sentencing court’s 

application of N.J.S.A. 2C:14-10. First, the court should consider the nature of the offense when determining a 

defendant’s SCVTF penalty within the statutory range. This promotes the principle of punishment in proportion to 

the offense, encourages uniformity in sentencing, and, consistent with the legislative intent, furthers the goal of 

requiring sex offenders to alleviate the financial burden imposed on victims of sex crimes, their families and public 

resources. Second, a sentencing court setting an SCVTF penalty should consider the defendant’s ability to pay the 

amount assessed. In so doing, the court should look beyond the defendant’s current assets and anticipated income 

during the period of incarceration, and should assess the defendant’s ability to pay over the long term. If unpaid, the 

penalty does not evaporate at the conclusion of the defendant’s custodial sentence or his or her period of parole 

supervision. (pp. 17-20)

6. Finally, the sentencing court should provide a statement of reasons when it sets a defendant’s SCVTF penalty 

within the statutory parameters, so as to apprise the parties, the victim, and the public and facilitate appellate review. 

(pp. 20-21)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for proceedings 

consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and FERNANDEZ-VINA; and 

JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUDGE RODRÍGUEZ 

(temporarily assigned) did not participate. 
1

SUPREME COURT OF NEW JERSEY

A-44 September Term 2012

071493

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS BOLVITO,

 Defendant-Appellant.

Argued November 6, 2013 – Decided May 31, 2014

On certification to the Superior Court, 

Appellate Division.

Peter T. Blum, Assistant Deputy Public 

Defender, argued the cause for 

appellant (Joseph E. Krakora, Public 

Defender, attorney).

Emily R. Anderson, Deputy Attorney 

General, argued the cause for 

respondent (John J. Hoffman, Acting 

Attorney General of New Jersey, 

attorney).

JUSTICE PATTERSON delivered the opinion of the Court.

In 2005, the Legislature established the Sex Crime 

Victim Treatment Fund (SCVTF) to defray the cost of 

counseling and treatment services for the victims of 

certain sex offenses and their families. N.J.S.A. 52:4B43.2. To fund the services, the Legislature enacted 

N.J.S.A. 2C:14-10, which imposes upon defendants convicted 

of enumerated sex offenses a monetary penalty from a 
2

nominal amount to a specific maximum amount based upon the 

degree of the offense. The statute does not set forth the 

factors that a sentencing court should consider when 

imposing an SCVTF penalty. N.J.S.A. 2C:14-10. 

This appeal requires the Court to determine whether a 

sentencing court may consider a defendant’s ability to pay

when it determines the amount of an SCVTF penalty that a 

defendant owes. Defendant Carlos Bolvito pled guilty to 

three offenses arising from sexual assaults of his 

stepdaughter. In addition to a term of incarceration and 

other fines and penalties, the trial court imposed an SCVTF 

penalty of $4000, but did not provide a statement of 

reasons or identify the factors that it considered in 

setting the amount of the penalty. An Appellate Division 

panel rejected defendant’s contention that the sentencing 

court should have considered his ability to pay when it 

calculated the amount of his SCVTF penalty, and affirmed 

his sentence.

We reverse and remand for reconsideration of the 

amount of the SCVTF penalty imposed on defendant. We hold 

that the SCVTF penalty is mandatory in cases in which a 

defendant is convicted of a sexual offense identified in 

the statute. We further hold that a sentencing court may 

impose an SCVTF penalty against a defendant in any amount 
3

between a nominal figure and the upper limit prescribed by 

N.J.S.A. 2C:14-10(a) for the degree of the offense at 

issue. In setting an SCVTF penalty, the sentencing court

should consider the nature of the offense, as well as the 

defendant’s ability to pay the penalty during any custodial 

sentence imposed and after his or her release. We further 

hold that the sentencing court should provide a statement 

of reasons as to the amount of any penalty imposed pursuant 

to N.J.S.A. 2C:14-10(a). 

Accordingly, we reverse and remand to the sentencing 

court for reconsideration of the amount of defendant’s 

SCVTF penalty.

I.

On two occasions in November 2010, defendant sexually 

assaulted his seven-year-old stepdaughter. The assaults 

were discovered following a physician’s examination of the 

child. Defendant’s wife contacted the police, and in an 

interview with police officers, the child recounted the 

assaults. After being given warnings pursuant to Miranda 

v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966), defendant was interrogated. He admitted to sexual 

contact with the child.

Defendant was charged with first-degree aggravated 

sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree 
4

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

endangering the welfare of a child, N.J.S.A. 2C:24-4(a). 

Following his indictment, defendant entered into a plea 

agreement with the State in which he agreed to plead guilty 

to all three charges, and the State agreed to recommend a 

twelve-year term of incarceration subject to the No Early 

Release Act, N.J.S.A. 2C:43-7.2. In the plea agreement 

presented to the trial court, the State and defendant did 

not specifically address the SCVTF penalty to be assessed 

against defendant. 

On January 28, 2011, defendant pled guilty to all 

three of the charges in the indictment, and signed a plea 

form that included the following question: 

8. Sex Crime Victim Treatment Fund 

Penalty (S.C.V.T.F.)

Do you understand that if the crime 

occurred on or after April 26, 2005, as 

a result of your guilty plea you will 

be required to pay a mandatory Sex 

Crime Victim Treatment Fund 

(S.C.V.T.F.) penalty as listed below 

for each offense for which you pled 

guilty?

b. The mandatory penalties are as 

follows:

(1) Up to $2,000 in the case of a 1st 

degree crime

(2) Up to $1,000 in the case of a 2nd 

degree crime

(3) Up to $750 in the case of a 3rd 

degree crime

(4) Up to $500 in the case of a 4th 

degree crime
5

TOTAL S.C.V.T.F. Penalty: $ 

On defendant’s form, “yes” was circled next to the 

question seeking to verify defendant’s understanding that 

he would be required to pay the SCVTF penalty. In 

addition, subsection (1), relevant to first-degree 

offenses, and subsection (2), relevant to second-degree 

offenses, were circled by hand, and there was a handwritten 

notation of “$4000.00” on the space for the SCVTF penalty 

amount. Defendant signed and dated the form. The trial 

court then conducted a plea colloquy with defendant that 

included the following exchange:

[The Court:] Also, do you understand 

that, if the -- since the crime 

occurred after April 26th, 2005, there’s 

a Sex Crime Victim Treatment Fund to 

which you will have to make 

contributions of $2,000 for the firstdegree offense and $1,000 for each of 

the second-degree offenses for a total 

of $4,000? Do you understand that you 

will have to pay that?

[Defendant:] Yes.

The trial court stated that it was satisfied that 

defendant had set forth an adequate factual basis for a 

plea of guilty as to all three charges, and that defendant 

understood the consequences of his plea. Accordingly, the 

trial court accepted defendant’s guilty plea.
6

Defendant was sentenced on June 24, 2011. The 

sentencing court found four aggravating factors enumerated 

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

harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2); (2) 

the risk that defendant will commit another offense, 

N.J.S.A. 2C:44-1(a)(3); (3) the extent of defendant’s prior 

criminal record, N.J.S.A. 2C:44-1(a)(6); and (4) the need 

for deterrence, N.J.S.A. 2C:44-1(a)(9). It found that none 

of the mitigating factors set forth in N.J.S.A. 2C:44-1(b)

applied to defendant.

The court sentenced defendant to a twelve-year term of 

imprisonment on the first-degree aggravated sexual assault 

charge, a concurrent seven-year term of imprisonment on the 

second-degree sexual assault charge, and a concurrent 

seven-year term of imprisonment on the second-degree charge 

of endangering the welfare of a child. Parole supervision 

for life was imposed as well. The sentencing court noted 

defendant’s immigration status, and stated that he would be 

required to serve his full custodial sentence before being 

deported to Guatemala, the country of his citizenship. The 

sentencing court advised defendant that he would be barred 

from contacting the victim, required to provide a DNA 

sample and pay the cost of the DNA analysis, and subject to 

registration requirements, community notification, address 
7

verification and internet registry pursuant to Megan’s Law, 

N.J.S.A. 2C:7-1 to -19. The sentencing court also ordered 

defendant to pay restitution, several statutory assessments 

and a surcharge.

1 One of those penalties was described by 

the sentencing court, without further explanation, as a 

“4,000-dollar Sex Crime Victim Treatment Fund penalty,” 

pursuant to N.J.S.A. 2C:14-10.

Defendant appealed his sentence. In addition to 

challenging his custodial sentence and the court’s 

restitution order, defendant argued that he should not be 

required to pay his SCVTF penalty because the sentencing 

court did not hold a hearing to determine his ability to 

pay the penalty, and the record did not indicate how the 

penalty was calculated. The Appellate Division remanded to 

the trial court for reconsideration of its restitution 

order, but otherwise affirmed defendant’s sentence.

 

1 The sentencing court ordered defendant to pay $6,230.40 in 

restitution for the victim’s “loss of support and 

psychological counseling,” N.J.S.A. 2C:43-3(a). It also 

ordered him to pay $150 to the Victims of Crime 

Compensation Office, N.J.S.A. 2C:43-3.1(a)(2)(a), $225 for 

the Safe Neighborhoods Services Fund, N.J.S.A. 2C:43-

3.2(a)(1), $30 for the Law Enforcement Officers Training 

and Equipment Fund, N.J.S.A. 2C:43-3.3(a), $2400 for the 

Statewide Sexual Assault Nurse Examiner Program Fund, 

N.J.S.A. 2C:43-3.6, and a $100 surcharge imposed upon 

certain sexual offenders, N.J.S.A. 2C:43-3.7. 
8

This Court granted certification, limited to the issue 

of whether a sentencing court must consider a defendant’s 

ability to pay when imposing an SCVTF penalty. 213 N.J.

394-95 (2013).

II.

Representing that he will be unable to pay his SCVTF 

penalty, defendant argues that the trial court should have 

held a hearing to assess his financial status. He contends 

that the amount of money listed for each degree of offense 

in N.J.S.A. 2C:14-10 represents a maximum that the 

sentencing court can assess, not a mandatory penalty. 

Defendant urges the Court to require sentencing courts to 

state the reasons for imposing SCVTF penalties, and argues 

that a defendant’s ability to pay should be the primary 

consideration for the court. He proposes that a sentencing 

court should presume that a defendant’s earnings will be 

minimal following his release from a custodial sentence,

and offers several factors to guide sentencing courts in 

determining the defendant’s ability to pay and the amount 

of SCVTF penalties.

The State concurs that a defendant’s ability to pay 

may be considered by the sentencing court, but argues that 

it should be a secondary concern. It contends that the 

sentencing court should focus upon the nature and severity 
9

of the crime, given the legislative purpose of N.J.S.A.

2C:14-10 to assist victims of sexual offenses. The State 

construes N.J.S.A. 2C:14-10 as setting a range for each 

degree of offense, so that the upper limit for a seconddegree offense, $1000, constitutes the minimum SCVTF 

penalty for a first-degree offense. The State argues that 

the sentencing court properly assessed the $4000 SCVTF 

penalty in this case based on defendant’s guilty plea to 

one first-degree offense and two second-degree offenses, 

and that the Court therefore should affirm the Appellate 

Division panel’s judgment. 

III.

We apply a deferential standard of review to the 

sentencing court’s determination, but not to the 

interpretation of a law. Appellate review of a criminal 

sentence is limited; a reviewing court decides whether 

there is a “clear showing of abuse of discretion.” State 

v. Whitaker, 79 N.J. 503, 512 (1979) (internal quotation 

marks omitted); see also State v. Blackmon, 202 N.J. 283, 

297 (2010) (“Appellate review of sentencing decisions is 

relatively narrow and is governed by an abuse of discretion 

standard.”). Appellate courts must affirm the sentence of 

a trial court unless: (1) the sentencing guidelines were 

violated; (2) the findings of aggravating and mitigating 
10

factors were not “based upon competent credible evidence in 

the record;” or (3) “the application of the guidelines to 

the facts” of the case “shock[s] the judicial conscience.” 

State v. Roth, 95 N.J. 334, 364-65 (1984). 

We review only one aspect of defendant’s sentence: the 

amount of the SCVTF penalty imposed by the sentencing court 

pursuant to N.J.S.A. 2C:14-10. We construe that provision 

in accordance with established principles of statutory 

interpretation. The Legislature directs that in the 

construction of its statutes, “words and phrases shall be 

read and construed with their context, and shall, unless 

inconsistent with the manifest intent of the legislature or 

unless another or different meaning is expressly indicated, 

be given their generally accepted meaning, according to the 

approved usage of the language.” N.J.S.A. 1:1-1. Our task 

is to ascertain the Legislature’s intent, reflecting its 

chosen language, and to give the words of the statute 

“‘their generally accepted meaning.’” State v. Marquez, 

202 N.J. 485, 499 (2010) (quoting N.J.S.A. 1:1-1). We 

“‘effectuat[e] the legislative plan as it may be gathered 

from the enactment [when] read in full light of its 

history, purpose and context.’” Koch v. Dir., Div. of 

Taxation, 157 N.J. 1, 7 (1999) (quoting State v. Haliski, 

140 N.J. 1, 9 (1995)). 
11

The sponsor’s statement appended to the 2004 bill 

indicated that the Legislature was imposing the SCVTF 

penalty “to provide funding for the counseling and 

treatment of victims and their families.” S. 781

(Sponsor’s Statement), 211th Leg. (Feb. 5, 2004). The 

statute assesses a penalty against defendants convicted of 

certain sex offenses.

2 It provides, in relevant part:

a. In addition to any fine, fee, 

assessment or penalty authorized under 

the provisions of Title 2C of the New 

Jersey Statutes, a person convicted of 

a sex offense, as defined in [N.J.S.A.

2C:7-2], shall be assessed a penalty 

for each such offense not to exceed:

(1) $2,000, when the conviction is a

crime of the first degree;

(2) $1,000, when the conviction is a 

crime of the second degree;

(3) $750, when the conviction is a 

crime of the third degree; and

(4) $500, when the conviction is a 

crime of the fourth degree.

[N.J.S.A. 2C:14-10.]

To ensure that funds collected by virtue of this 

statutory penalty are used to assist sex crime victims and 

 

2 N.J.S.A. 2C:14-10 applies to offenders convicted of one or 

more of the offenses enumerated in N.J.S.A. 2C:7-2. All 

three of the offenses to which defendant pled guilty --

aggravated sexual assault, N.J.S.A. 2C:14-2(a); sexual 

assault, N.J.S.A. 2C:14-2(b); and second-degree endangering 

the welfare of a child, N.J.S.A. 2C:24-4(a) -- are 

enumerated in N.J.S.A. 2C:7-2 and therefore constitute 

predicate sexual offenses for purposes of imposing the 

SCVTF penalty. N.J.S.A. 2C:7-2; N.J.S.A. 2C:14-10.
12

their families, the Legislature created the SCVTF as a 

“separate, nonlapsing, revolving fund” administered by the

Victims of Crime Compensation Board. N.J.S.A. 52:4B-43.2. 

The fund is dedicated to “the provision of counseling and 

treatment services to victims” of sex offenses enumerated 

in N.J.S.A. 2C:7-2 pursuant to rules and regulations 

promulgated by the Victims of Crime Compensation Board, 

which is required to coordinate the treatment program with 

the efforts of several other State agencies dedicated to 

serving crime victims. N.J.S.A. 52:4B-43.2. In the 

sponsor’s statement appended to the bill, the Legislature 

indicated that the SCVTF penalty “would be in addition to 

and not in lieu of any fine authorized by law.” S. 1619 

(Sponsor’s Statement), 209th Leg. (Sept. 21, 2000).3

N.J.S.A. 2C:14-10 states that a person convicted of a 

qualifying sex offense “shall” be assessed the statutory 

penalty. Based on this language, it is clear that the 

 

3 Pursuant to N.J.S.A. 2C:46-4.1, in determining the method 

by which the State will allocate money collected from a 

defendant in satisfaction of assessments imposed pursuant 

to N.J.S.A. 2C:43-3.1, or restitution or fines imposed 

pursuant to any provision of Title 2C or N.J.S.A. 2A:4A-43, 

the Legislature assigned the SCVTF a low priority. 

N.J.S.A. 2C:46-4.1(k) ranks the SCVTF eleventh among twelve

categories of assessments, fines and restitution. N.J.S.A.

2C:46-4.1(k). Accordingly, money paid by a defendant is 

devoted to satisfying his or her SCVTF penalty only after 

he or she has paid any restitution ordered and any 

assessments or fines imposed pursuant to ten other 

statutory provisions.
13

Legislature intended that an SCVTF penalty be imposed on 

any defendant convicted of one or more of the sexual 

offenses listed in N.J.S.A. 2C:7-2. “[T]he Legislature’s 

choice of the word ‘shall,’ [] is ordinarily intended to be 

mandatory, not permissive.” Jersey Cent. Power & Light Co. 

v. Melcar Util. Co., 212 N.J. 576, 587-88 (2013); see also

State v. Thomas, 188 N.J. 137, 149-50 (2006) (stating that 

“[t]he language of [N.J.S.A.] 2C:43-6(f) clearly indicates 

that the Legislature meant enhancement to be mandatory: a 

person ‘shall upon application of the prosecuting 

attorney be sentenced by the court to an extended term’”

(quoting N.J.S.A. 2C:43-6(f))); Aponte-Correa v. Allstate

Ins. Co., 162 N.J. 318, 325 (2000) (“Under the ‘plain 

meaning’ rule of statutory construction, the word ‘may’ 

ordinarily is permissive and the word ‘shall’ generally is 

mandatory.”). That interpretation is underscored by the

statute’s legislative history; the sponsor’s statement

attached to the bill provided that a sex offender “would be

assessed a penalty for each such offense.” S. 781 

(Sponsor’s Statement), 211th Leg. (Feb. 5, 2004). Thus,

N.J.S.A. 2C:14-10 mandates that a sentencing court impose

an SCVTF penalty on a defendant convicted of an offense

listed in N.J.S.A. 2C:7-2. If N.J.S.A. 2C:14-10 applies by 

virtue of a predicate offense, the sentencing court lacks 
14

the discretion to dispense with the SCVTF penalty.

N.J.S.A. 2C:14-10.

The sentencing court, however, has substantial 

discretion with respect to the amount of the SCVTF penalty.

For each degree of offense, the Legislature set an SCVTF 

penalty “not to exceed” a particular amount -- $2000 for a 

first-degree offense, $1000 for a second-degree offense, 

$750 for a third-degree offense and $500 for a fourthdegree offense. N.J.S.A. 2C:14-10(a). The sponsor’s

statement attached to the bill confirmed that each degree 

of offense would result in a penalty “not to exceed” the 

amount prescribed in the subsection of the statute that 

addresses that degree of offense. S. 781 (Sponsor’s 

Statement), 211th Leg. (Feb. 5, 2004).

Notwithstanding the State’s contention, there is no 

evidence that the Legislature intended the maximum SCVTF 

penalty for a lower degree of offense to constitute the

minimum penalty for a higher degree offense. The 

Legislature is fully conversant in the language necessary 

to set minimum and maximum parameters for a monetary 

penalty; it has used such language in other statutes. See, 

e.g., N.J.S.A. 2C:43-3.1 (assessing defendants convicted of 

certain offenses in amount “at least $100.00, but not to 

exceed $10,000.00 for each such crime”); N.J.S.A. 39:4-50 
15

(setting minimum and maximum fines for first and second 

offenders in driving while intoxicated statute). Here, the 

“not to exceed” language in N.J.S.A. 2C:14-10 imposes a 

ceiling, not a floor, on the amount to be assessed as an 

SCVTF penalty for each degree of offense. See Maticka v. 

City of Atlantic City, 216 N.J. Super. 434, 439 (App. Div. 

1987) (holding that regulation providing for emergency 

assistance for families with dependent children imposed 

maximum time period for that assistance with language “not 

to exceed two calendar months”). Accordingly, a sentencing 

court may impose a penalty in any amount, from a nominal 

amount up to the statutory maximum based on the defendant’s

offense.

The issue at the center of this appeal is whether a 

defendant’s ability to pay should be considered by the 

sentencing court when it exercises its discretion to set an 

SCVTF penalty within the applicable statutory range. The 

Legislature specifically instructed sentencing courts to 

consider a defendant’s ability to pay when determining

whether to impose several other monetary assessments. In 

setting the amount of restitution ordered under N.J.S.A.

2C:44-2(c)(2), the sentencing court considers “all 

financial resources of the defendant, including the 

defendant’s likely future earnings;” and calibrates its 
16

order “so as to provide the victim with the fullest 

compensation for loss that is consistent with the 

defendant’s ability to pay.” N.J.S.A. 2C:44-2(c)(2).

Similarly, the Legislature instructed a sentencing court 

determining the “amount and method of payment of a fine” to 

“take into account the financial resources of the defendant 

and the nature of the burden that its payment will impose.”

N.J.S.A. 2C:44-2(c)(1).4 Similarly, the Legislature 

specifically directed sentencing courts to consider a 

defendant’s ability to pay as one of the factors relevant 

to a Violent Crimes Compensation Board (VCCB) penalty. 

N.J.S.A. 2C:43-3.1(a)(1); see also State v. Gallagher, 286 

N.J. Super. 1, 22-23 (App. Div. 1995), certif. denied, 146 

N.J. 569 (1996). In contrast, the Drug Enforcement Demand 

Reduction penalty prescribed by N.J.S.A. 2C:35-15 is “fixed 

at” an exact amount for each degree of offense by statute, 

and accordingly “must be imposed regardless of [a]

 

4 The criteria prescribed for determination of a “fine” 

under N.J.S.A. 2C:44-2(c)(1) do not apply to the assessment 

of a penalty under N.J.S.A. 2C:14-10. The Legislature 

defined the SCVTF penalty to be distinct from a “fine,” 

notwithstanding the close connection between the two terms,

and their interchangeable use in some settings. The SCVTF 

statute provides that the “penalty” imposed shall be “[i]n 

addition to any fine, fee, assessment or penalty” otherwise 

authorized by the Criminal Code. N.J.S.A. 2C:14-10. 

Further, the legislative history of N.J.S.A. 2C:44-2 

distinguished between the subject of that statute -- fines

-- and criminal penalties. See Senate Judiciary Committee

Statement to S. 738, 198th Leg. (May 15, 1978). 
17

defendant’s ability to pay.” State v. Malia, 287 N.J. 

Super. 198, 208 (App. Div. 1996). 

The Legislature imposed no such constraints on 

sentencing courts with respect to the SCVTF penalty 

mandated by N.J.S.A. 2C:14-10. Nor did it prescribe

criteria for a court to apply when setting a particular 

defendant’s SCVTF penalty within the statutory range. 

N.J.S.A. 2C:14-10. However, the Legislature provided 

general guidance in N.J.S.A. 2C:1-2(c). That statute 

instructs courts that “‘discretionary powers conferred by 

the code shall be exercised in accordance with the criteria 

stated in the code and, insofar as such criteria are not 

decisive, to further the general purposes’ of the Code.” 

State v. Yarbough, 100 N.J. 627, 636 (1985) (quoting

N.J.S.A. 2C:1-2(c)), cert. denied, 475 U.S. 1014, 106 S. 

Ct. 1193, 89 L. Ed. 2d 308 (1986). In Yarbough, an opinion 

setting forth factors to guide sentencing courts 

determining whether sentences for multiple offenses should 

run consecutively or concurrently, this Court noted:

There being no specific criteria stated

in the Code, we must fashion standards 

for discretion that will best further 

the purposes of the Code. Those 

purposes center upon the concept that 

punishment of crime be based primarily 

on principles of deserved punishment in 

proportion to the offense and not 

rehabilitative potential, and that in 
18

dispensing that punishment, our 

judicial system should attain a 

predictable degree of uniformity.

[Id. at 636-37 (footnote omitted).]

Applying those governing principles, we identify two 

factors that should be considered in a sentencing court’s 

application of N.J.S.A. 2C:14-10. The court should begin 

by considering the nature of the offense when determining a 

defendant’s SCVTF penalty within the statutory range.

Placing emphasis on the defendant’s offense promotes the 

principle of punishment in proportion to the offense and 

promotes uniformity in sentencing. Consistent with the 

legislative intent, setting the SCVTF penalty in light of

the defendant’s offense also furthers the goal of requiring 

sex offenders to alleviate the financial burden imposed on

victims of sex crimes, their families and public resources.

See N.J.S.A. 2C:14-10; N.J.S.A. 52:4B-43.2. 

Second, consistent with the Legislature’s express 

direction in N.J.S.A. 2C:44-2 with respect to two other 

discretionary decisions -- the calculation of restitution 

and the imposition of fines -- a sentencing court setting

an SCVTF penalty should consider the defendant’s ability to 

pay the amount assessed. An uncollectible SCVTF penalty
19

provides no treatment for crime victims and their families.

5 

If a substantial penalty is assessed against a defendant 

who has no realistic prospect of satisfying it, that 

penalty is destined to become an unsatisfied judgment that 

benefits no one. In contrast, a penalty below the 

statutory maximum that is paid over time from a defendant’s 

modest income may impose a more meaningful punishment than 

a higher penalty assessed against a defendant of 

substantial means. 

When it assesses a defendant’s ability to pay, the 

sentencing court should look beyond the defendant’s current 

assets and anticipated income during the period of 

incarceration. The Legislature did not impose time 

constraints on an SCVTF penalty. N.J.S.A. 2C:14-10. If 

unpaid, the penalty does not evaporate at the conclusion of 

the defendant’s custodial sentence or his or her period of 

parole supervision. To the extent that a defendant’s 

educational background and employment history may affect

 

5 When it passed N.J.S.A. 2C:14-10, the Legislature 

recognized that collecting substantial monetary penalties 

from defendants convicted of sex offenses, many of whom 

serve long terms of incarceration, would pose a challenge. 

The Assembly Appropriations Committee’s fiscal impact 

statement that accompanied the bill noted that “[a]t this 

point it is not known . . . how much of the estimated

amount from penalties would be collectible.” Assembly

Appropriations Committee Statement to S. 781, 211th Leg. 

(Feb. 7, 2005).
20

his or her potential to achieve post-incarceration 

employment and a steady income, such factors may be 

relevant to the inquiry. For purposes of the sentencing 

court’s determination, a defendant’s ability to pay should 

not be measured only by current circumstances, but assessed 

over the long term.6

Finally, the sentencing court should provide a 

statement of reasons when it sets a defendant’s SCVTF 

penalty within the statutory parameters. See State v. 

Megargel, 143 N.J. 484, 502 (1996) (noting that “as in all 

sentencing decisions, the trial court must clearly identify 

the relevant sentencing factors and describe how it 

exercised its discretion balancing these factors”); State 

v. Marshall, 130 N.J. 109, 237 (1992) (noting that

sentencing courts are required to provide “a statement of 

reasons to protect effective appellate review of the 

sentences” (citing State v. Leggeadrini, 75 N.J. 150, 157

(1977))); Yarbough, supra, 100 N.J. at 643 (stating that 

“the reasons for imposing either a consecutive or 

 

6 We do not adopt any presumption that an incarcerated 

defendant’s income will be insufficient to pay a maximum 

fine. Nor do we adopt the multifactor test proposed by 

defendant. We also reject defendant’s proposal that a 

sentencing court hold a separate hearing to determine the 

amount of the SCVTF penalty. The SCVTF penalty should be

assessed as part of the defendant’s sentencing hearing, not 

in a separate proceeding.
21

concurrent sentence should be separately stated in the 

sentencing decision”). As with respect to other 

discretionary sentencing determinations, a statement of 

reasons will apprise the parties, the victim, and the 

public and will facilitate appellate review.

IV.

The judgment of the Appellate Division is reversed, 

and the matter is remanded to the sentencing court for 

resentencing, limited to a reconsideration of defendant’s

SCVTF penalty in accordance with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and 

FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join 

in JUSTICE PATTERSON’s opinion. JUDGE RODRÍGUEZ 

(temporarily assigned) did not participate.
1

SUPREME COURT OF NEW JERSEY

NO. A-44 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS BOLVITO,

Defendant-Appellant.

DECIDED March 31, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST REVERSE AND 

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE FERNANDEZ-VINA X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) --------------------- ------------------

JUDGE CUFF (t/a) X

TOTALS 6