RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1107-19T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SHAWN BOVASSO,

Defendant-Respondent.

___________________________

Argued telephonically August 10, 2020 –

Decided August 20, 2020

Before Judges Moynihan and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 18-07-

0109.

Jennifer E. Kmieciak, Deputy Attorney General, argued 

the cause for appellant (Gurbir S. Grewal, Attorney 

General, attorney; Jennifer E. Kmieciak, on the briefs). 

James Sanford Friedman argued the cause for 

respondent.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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The State appeals from a November 12, 2019 sentence of defendant Shawn 

Bovasso to five years of probation following his guilty plea to second-degree 

endangering the welfare of a child, N.J.S.A. 24-4(b)(5)(a)(iii), for possessing 

child pornography on his computer. The State argues the offense required a 

period of mandatory imprisonment without parole. We agree, vacate the 

sentence, and remand for further proceedings.

In March 2016, New Jersey State Police detectives downloaded several 

videos containing child pornography from a file sharing website, which 

originated from an IP address linked to defendant. Detectives executed a search 

warrant and found several unregistered firearms, unsecured ammunition, and 

defendant's laptop, which contained over 2600 known files of child pornography 

and 2900 files of suspected child pornography depicting graphic sex acts by 

adult men with young children. 

A grand jury indicted defendant on the following counts: second-degree 

endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a)(1) (count one); 

second-degree endangering the welfare of a child, N.J.S.A. 24-4(b)(5)(a)(iii) 

(count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(b)(5)(b) (count three); second-degree unlawful possession of an assault 

firearm, N.J.S.A. 2C:39-5(f) (count four); and fourth-degree unlawful 
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possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count 

five). Pursuant to a negotiated plea agreement, defendant pled guilty to the 

second-degree endangering the welfare of a child offense. Notably, in exchange 

for the plea, the State offered to dismiss the other charges and recommend a 

sentence of five years imprisonment with two-and-a-half years of parole 

ineligibility.

At the initial sentencing hearing, defendant introduced evaluations by a 

psychologist and a psychiatrist, which concluded he suffered from a number of 

mental health issues and incarceration would thwart the progress he made in 

treatment. Defendant argued he was offense free during the three years since 

his arrest, and the evaluations concluded he was at low risk for reoffending. The 

State argued there were aggravating factors, namely, the numerous child 

pornography and suspected child pornography files discovered on defendant's 

computer. The sentencing judge deferred the sentencing in order to review the 

sentencing memorandum, which was not delivered to him in a timely manner. 

At the second sentencing hearing, the judge heard further argument from 

the State and defense counsel, and defendant read a statement expressing his 

remorse and letters of support from his family. Reviewing the aggravating and 

mitigating factors set forth in N.J.S.A. 2C:44-1, the judge found aggravating 
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factor one and mitigating factors one, two, three, four, six, seven, eight, nine, 

ten, and eleven applied. The judge concluded a custodial sentence would be a 

"serious injustice which overrides the need to deter such conduct by others" and 

sentenced defendant to five years of probation, 250 hours of community service, 

fines, Megan's Law registration pursuant to N.J.S.A. 2C:7-2, and required 

defendant continue his mental health treatments. The State immediately 

informed the judge it would be appealing the sentence within the ten-day 

mandatory stay of sentencing period pursuant to the Rules of Court. 

The State raises the following points on appeal:

POINT I – THE ILLEGAL PROBATIONARY 

SENTENCE SHOULD BE VACATED BECAUSE 

THE CRIME DEFENDANT ADMITTED TO 

REQUIRES A FIVE-YEAR MANDATORY 

MINIMUM SENTENCE (NOT RAISED BELOW).

POINT II – THE MATTER SHOULD BE 

REMANDED TO ALLOW DEFENDANT THE 

OPPORTUNITY TO WITHDRAW HIS PLEA 

BECAUSE THE STATE'S PLEA OFFER ALSO 

RECOMMENDED AN ILLEGAL SENTENCE OF 

FIVE YEARS WITH TWO AND ONE-HALF YEARS 

OF PAROLE INELIGIBILITY (NOT RAISED 

BELOW).

POINT III – DEFENDANT FAILED TO MEET HIS 

HEAVY BURDEN OF OVERCOMING THE 

PRESUMPTION OF IMPRISONMENT.
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In its reply brief, the State also raises the following point:

POINT I – DEFENDANT HAD NO EXPECTATION 

OF FINALITY IN THE UNDOUBTEDLY ILLEGAL 

PROBATIONARY SENTENCE, ESPECIALLY 

WHERE THE STATE MOVED QUICKLY IN 

TAKING AN APPEAL.

We review sentencing determinations under an abuse of discretion 

standard. State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 

214 N.J. 594, 606 (2013)). However, a "reviewing court is not free to ignore an 

illegal sentence." State v. Moore, 377 N.J. Super. 445, 450 (App. Div. 2005). 

"A sentence is illegal if it . . . is 'not imposed in accordance with law,' or fails to 

include a mandatory sentencing requirement." State v. Locane, 454 N.J. Super. 

98, 117 (App. Div. 2018) (quoting State v. Acevedo, 205 N.J. 40, 45 (2011)). 

"A truly illegal sentence can be corrected at any time." State v. Zuber, 442 N.J. 

Super. 611, 617 (App. Div. 2015), rev'd on other grounds, 227 N.J. 422 (2017) 

(internal citations and quotations omitted). 

The State argues defendant's sentence was illegal because a five-year 

prison sentence was mandatory. It notes its own recommendation of five years'

incarceration with two-and-a-half years of parole ineligibility was also illegal 

and requires a remand to the trial court for reconsideration. It asserts the 

sentencing judge's findings on the aggravating and mitigating factors were 
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erroneous, and the fact the mitigating factors outweighed the aggravating did 

not overcome the mandatory incarceration required by the statute. Defendant 

argues the State did not raise the illegality issue before the sentencing judge, it 

cannot withdraw the plea agreement, and granting the State relief would violate 

double jeopardy. 

Defendant's guilty plea to the second-degree endangering the welfare of a 

child offense mandated a prison term. Indeed, the version of N.J.S.A. 2C:24-

4(b)(5)(a)(iii) in effect at the time of defendant's offense stated: 

[A] person whose offense under this subparagraph 

involved at least [twenty-five] or more items depicting 

the sexual exploitation or abuse of a child shall be 

sentenced to a mandatory minimum term of 

imprisonment, which shall be fixed at, or between, onethird and one-half of the sentence imposed by the court 

or five years, whichever is greater during which the 

defendant shall be ineligible for parole.

For these reasons, defendant's sentence was illegal. Moreover, we are not bound 

by the fact the State's sentencing recommendation was itself illegal and that this 

was not raised before the sentencing judge. As we have stated: "Since a trial 

court may not impose an illegal sentence . . . a prosecutor should not offer a plea 

bargain which may not be legally implemented . . . [and a] reviewing court is 

not free to ignore an illegal sentence." State v. A.T.C., 454 N.J. Super. 235, 259 

(App. Div. 2018). 
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Finally, we reject defendant's double jeopardy argument. N.J.S.A. 2C:44-

1(f)(2) states: "[I]f the court imposes a noncustodial or probationary sentence 

upon conviction for a crime of the . . . second degree, such sentence shall not 

become final for [ten] days in order to permit the appeal of such sentence by the 

prosecution." The State filed this appeal within the time prescribed by the 

statute and the matter was stayed. See State v. Sanders, 107 N.J. 609, 616 

(1987); R. 2:9-3(c).

Defendant's sentence is vacated, and the matter remanded to afford him 

the opportunity to withdraw his plea. State v. Kovack, 91 N.J. 476, 485 (1982). 

Vacated and remanded. We do not retain jurisdiction.