RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4364-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW J. PLURA,

Defendant-Appellant.

Argued May 26, 2021 – Decided June 17, 2021

Before Judges Whipple, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 17-08-0139.

Douglas R. Helman, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Douglas R. Helman, of 

counsel and on the briefs).

Daniel Finkelstein, Deputy Attorney General, argued 

the cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Daniel Finkelstein, of counsel and on 

the briefs).

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NOT FOR PUBLICATION WITHOUT THE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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A-4364-18

Following a violation of probation (VOP) hearing, defendant Andrew J. 

Plura was found guilty of failing to comply with court-imposed restrictions on 

his internet access and failing to report to his probation officer on March 13, 

2018 and June 25, 2018. Defendant now appeals from a March 1, 2019 judgment 

of conviction (JOC). Defendant seeks to vacate the VOP, the three-year 

extension of his probationary term, and the internet restriction. Defendant does 

not attack his guilty plea to the underlying charge or seek to withdraw it. Nor 

does he argue his original sentence or his VOP sentence was illegal.

Defendant presents the following points for our consideration:

POINT I

A NEAR-BLANKET BAN ON USING THE 

INTERNET AS A CONDITION OF PROBATION IS 

UNCONSTITUTIONAL.

(Not raised below).

[A]. The internet ban facially violates the 

First Amendment because it is overbroad, 

and this is true even though the ban is a 

condition of probation, not of parole or 

[Community Service for Life (CSL)].

[B]. The internet ban is further 

unenforceable as applied to [defendant] 

because the condition is vague, it is not 

"reasonable" under the probation statute, 

and it is disconnected from [defendant]'s 

original offense.
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POINT II

BY FAILING TO PRESERVE THE IMAGES THAT 

PREMISED [DEFENDANT]'S PROBATION 

VIOLATION, THE STATE VIOLATED HIS DUE 

PROCESS RIGHTS. THE VIOLATION SHOULD 

HAVE BEEN DISMISSED.

In his reply brief, defendant further contends:

POINT I

[DEFENDANT] DID NOT WAIVE HIS 

CHALLENGE TO THE UNCONSTITUTIONAL 

INTERNET BAN IN THIS MATTER. 

POINT II

[DEFENDANT] ALSO CHALLENGES THE 

PROBATION VIOLATION FOR HIS PURPORTED 

FAILURE TO APPEAR. 

Because we reject defendant's constitutional and reasonableness 

challenges to the internet restrictions he negotiated with the State as a condition 

of his initial probationary term, we affirm defendant's VOP as it pertains to his 

failure to comply with those restrictions. But we remand for the VOP court to 

set forth its reasons for imposing an employment-only internet restriction on the 

VOP sentence – or to consider alternatives that are not unduly restrictive of 

defendant's liberty while preventing re-offense and protecting the public. In 

addition, we reverse the VOP court's determination that defendant failed to 
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report on March 13, 2018, and remand for further proceedings as to defendant's 

alleged failure to report on June 25, 2018.

I.

We set forth the procedural history in some detail to give context to the 

VOP court's decision. In August 2017, defendant was charged in a one-count 

State Grand Jury indictment with third-degree endangering the welfare of a child 

by possessing 100 or more items of child pornography, N.J.S.A. 2C:24-

4(b)(5)(b). Pursuant to a negotiated agreement with the State, defendant pled 

guilty to "possessing less than 100 images" which overcame the presumption of 

incarceration.1 During his plea allocution, defendant admitted he "viewed 

certain images on the internet" that "depicted children under the age of eighteen 

engaging in sexually explicit acts" on diverse dates between October 18, 2016 

and March 4, 2017. 

1 As enacted when defendant was charged with the present offense, N.J.S.A. 

2C:24-4(b)(5)(b) classified all possession of child pornography as a third-degree 

offense and included a presumption of imprisonment for possession of 100 or 

more items of child pornography. In 2017, the Legislature amended 

subparagraph (b), adding three sub-subparagraphs to enhance penalties 

dependent upon the number of child pornography images possessed. N.J.S.A. 

2C:24-4(b)(5)(b)(i) to (iii); see also L. 2013, c. 141; New Jersey Senate 

Committee Statement, S.B. 3219 (2017). Relevant here, the presumption of 

imprisonment for possession of 100 or more items remains in effect. 
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The State also agreed to recommend a two-year noncustodial probationary 

term, with certain conditions. Pertinent to this appeal, defendant "agree[d] to 

limit his internet access to communicating with family and friends, or anything 

that has to do with school or work." Defendant's guilty plea did not include 

registration under Megan's Law or parole supervision for life (PSL). In 

exchange, defendant agreed not to appeal his sentence. According to the trial 

court, that meant: "[W]hile [defendant] ha[d] a right to file an appeal, the State 

ha[d] a right to take this deal back, and we'd go back to the beginning." 

On March 2, 2018, the same judge sentenced defendant pursuant to the 

terms of the plea agreement, with one notable exception. Without explanation, 

the court restricted defendant's "computer" access to "employment use only." 

Neither defendant nor his assigned counsel2 objected to the conditions imposed. 

On the day of sentencing, defendant signed the "New Jersey Judiciary 

Standard Conditions of Adult Probation" form. On April 9, 2018, he signed 

Attachment A to that form, entitled: "Special Conditions of Probation for 

Internet Access and Supervision Pursuant to N.J.S.A. 2C:45-1." Among other 

provisions, defendant's special probation conditions included "the monitoring of 

2 The attorney assigned to represent defendant at the sentencing hearing was 

not the public defender who represented defendant at the plea hearing. 
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[his] computer and/or electronic device activity by a probation officer and/or 

computer/device specialist through the use of electronic means." Another 

condition – handwritten on the form – indicated defendant further agreed that 

his "[c]omputer access [was] limited to employment only." The conditions 

closely tracked the requirements set forth in N.J.S.A. 2C:45-1(d)(2). 

Defendant did not appeal from his conviction or sentence. Nor did he seek 

clarification or modification of the conditions of probation imposed by the 

sentencing court.

On July 12, 2018 – four months after he was sentenced – Probation Officer 

Andrea Perez formally charged defendant with violating his probation by failing 

to: (1) comply with the internet restriction imposed by the sentencing court; (2) 

pay certain financial obligations; and (3) report to his probation officer on March 

13, 2018 and June 25, 2018. During the February 22, 2019 VOP hearing before 

another judge, Perez testified regarding her personal observations of the images 

on defendant's phone, and defendant's two alleged missed probation meetings. 

Because Perez acknowledged defendant was current on his financial obligations, 

the State withdrew the second charge. Defendant neither testified nor presented 

any documentary evidence on his behalf. 
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According to Perez, defendant failed to report for their initial meeting on 

March 12, 2018 but reported the following day. The State did not ask Perez why 

she issued a charge for defendant's failure to report on March 13, 2018. 

Perez also told the court defendant failed to report on June 25, 2018. But 

on cross-examination, Perez acknowledged the notation, "T.C." on defendant's 

probation card indicated he called the probation office. She could not, however, 

recall whether defendant "called in . . . or called to say he wasn't coming." Perez 

"couldn't recall exactly what [defendant] said [on] the telephone call, just that 

there was a telephone call on that day." 

At each monthly meeting with defendant, Perez reviewed the standard 

rules and regulations of probation and the special internet conditions. Perez

monitored the employment-only internet3restriction during office visits by: 

"accessing defendant's phone, [and] looking through files to see if there was 

[sic] any internet access or images on the phone"; defendant's self-reporting; and 

remotely accessing computer monitoring software installed on defendant's 

phone. 

3

 The parties and the Law Division used the terms "internet" and "computer" 

interchangeably.
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During a July 9, 2018 office visit, Perez searched defendant's cellphone 

and found "[n]ine images of questionably-aged females baring one or both naked 

breasts." Defendant told Perez "he did a search for small breasts in the Pinterest 

application."4 

Law enforcement officers inspected the images but could not determine 

the ages of the females depicted. Using a Kodak digital camera, Perez 

photographed the images that were downloaded to defendant's cellphone and 

returned the phone to him without deleting the images. The probation 

department later deleted the images from the digital camera because, among 

other reasons, defendant was not criminally charged with possessing the images. 

Following closing arguments, the VOP court issued a decision from the

bench. The court credited Perez's testimony as clear, concise, and reasonable. 

The court found defendant was aware of his probationary terms and conditions, 

which required him to report and limited his internet access to employment 

purposes. Based on those facts, the court concluded the State proved by a 

preponderance of evidence that defendant failed to comply with the internet 

4 According to its website: "Pinterest is a visual discovery engine for finding 

ideas like recipes, home and style inspiration, and more." All About Pinterest, 

Pinterest, https://help.pinterest.com/en/guide/all-about-pinterest (last visited 

June 4, 2021).
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restrictions imposed as a condition of probation and "failed to report on March 

13, 2018." The court did not, however, make any findings regarding defendant's 

failure to report on June 25, 2018. However, the VOP JOC reflects that the State 

proved defendant violated probation by failing to report on both dates. 

Reweighing the same aggravating and mitigating factors as those that 

were assessed by the sentencing court, the VOP court imposed an additional 

probationary term of three years and continued, without elaborating, " [a]ll 

previously imposed conditions and terms of probation." Defendant neither 

objected to the conditions imposed nor otherwise moved to reduce the 

employment-only internet restriction imposed by the VOP court. Defendant 

appealed from his VOP sentence. At his request, we transferred the matter from

an excessive sentence calendar to our plenary calendar.

II.

For the first time on appeal, defendant raises a constitutional challenge to 

the employment-only internet restriction imposed as a condition of probation on 

his original sentence. Defendant contends the restriction is both "facially 

unconstitutional as overbroad" under the First Amendment to the United States 

Constitution and unenforceable as applied to him because it is vague, 

unreasonable, and "disconnected" from his underlying offense. Accordingly, 
10 A-4364-18

defendant contends his VOP and extended probationary term on the first charge 

must be vacated and the internet restriction excised from his original 

probationary term. 

Although not expressly argued as such, defendant's assertions implicate 

the legality of the sentences imposed by both the trial and VOP courts. "We 

usually refer to an 'illegal' sentence in terms of one which is not consistent with 

the dictates of the controlling statute, although a defendant can also challenge a 

sentence because it was imposed without regard to some constitutional 

safeguard or procedural requirement." State v. Tavares, 286 N.J. Super. 610, 

618 (App. Div. 1996). 

"A defendant may challenge an illegal sentence at any time." State v. 

Zuber, 227 N.J. 422, 437 (2017). Accordingly, we are not persuaded by the 

State's argument that defendant waived his right to challenge the internet 

restriction by failing to appeal his initial sentence. We therefore consider 

defendant's constitutional challenges on the merits. 

Our review of an illegal sentence is de novo. See State v. Nance, 228 N.J. 

378, 393 (2017). Likewise, our interpretation and the constitutionality of a 

statute involve questions of law that we review de novo. See State v. Robinson, 

217 N.J. 594, 603-04 (2014). Because defendant failed to raise his constitutional 
11 A-4364-18

challenges before the trial or VOP court, however, we apply the plain error 

standard. See State v. Singh, 245 N.J. 1, 13 (2021); see also R. 2:10-2. 

When imposing a sentence of probation, a court "shall attach such 

reasonable conditions . . . as it deems necessary to insure that [the defendant] 

will lead a law-abiding life or is likely to assist him to do so." N.J.S.A. 2C:45-

1(a). Pursuant to subsection (b) of the statute, a court "may require the 

defendant" to satisfy various conditions, including those that are "reasonably 

related to the rehabilitation of the defendant and not unduly restrictive of his 

liberty or incompatible with his freedom of conscience." N.J.S.A. 2C:45-

1(b)(12). The court may also impose "Internet[-]access conditions" as set forth

in subsection (d)(2). The list is not exhaustive. See, e.g., N.J.S.A. 2C:45-1(c) 

to (e). But the conditions must "conform[] with contemporary standards of 

decency, . . . not [be] grossly disproportionate to the offense and [be] reasonably 

related to a legitimate penological objective." State v. Krueger, 241 N.J. Super. 

244, 256 (App. Div. 1990).

To prevail on a VOP, the State must prove by a preponderance of the 

evidence that the defendant has "inexcusably failed to comply with a substantial 

requirement imposed as a condition of probation." State v. Reyes, 207 N.J. 

Super. 126, 135 (App. Div. 1986). Essentially, the question a court must decide 
12 A-4364-18

is whether a violation of a condition of probation has occurred and whether the 

violation is serious enough to justify revocation of probation. State v. Baylass, 

114 N.J. 169, 175 (1989). 

On resentencing after a violation of probation, the court is not required to 

impose a sentence in accordance with the initial plea agreement because "the 

original plea agreement does not survive a violation of probation." State v. 

Frank, 280 N.J. Super. 26, 40 (App. Div. 1995). "Thus, to determine the 

appropriate terms of the resentence, the judge refers to the sentencing scheme 

provided in the Code for the crime to which defendant originally pled guilty 

rather than the terms of the sentence agreed upon by defendant in the plea 

agreement." State v. Sepulveda, 253 N.J. Super. 447, 451 (App. Div. 1992) 

(citing State v. Ervin, 241 N.J. Super. 458, 465-70 (App. Div. 1989)); see also

N.J.S.A. 2C:45-3(b) (permitting a resentencing court on a revocation of 

probation to "impose on the defendant any sentence that might have been 

imposed originally for the offense of which he was convicted"). Moreover, on 

resentencing, the judge "should view [the] defendant as he stands before the 

court on that day." State v. Randolph, 210 N.J. 330, 354 (2012).
13 A-4364-18

A.

Against that legal backdrop, we first consider defendant's challenge to the 

internet ban imposed by the sentencing court as it relates to his VOP. Although 

we are not revisiting the original sentence, we note the court departed from the 

internet restriction negotiated by the parties – that permitted defendant's internet 

access to communicate with defendant's friends or "anything" related to 

defendant's employment or school – without explanation. We also recognize in 

limiting defendant's "computer access to employment use only," the sentencing 

court generally cited N.J.S.C. 2C:45-1, without referencing a subsection or 

subparagraph. 

Defendant generally argues the sentencing court imposed the 

employment-only internet ban under subparagraphs (a) and (d) of N.J.S.A. 

2C:45-1(d)(2). Under those subparagraphs a court "may" impose internet-access 

conditions that 

(a) Prohibit the person from accessing or using a 

computer or any other device with Internet capability 

without the prior written approval of the court, except 

the person may use a computer or any other device with 

Internet capability in connection with that person's 

employment or search for employment with the prior 

approval of the person's probation officer; [and]

. . . .
14 A-4364-18

(d) Require the person to submit to any other 

appropriate restrictions concerning the person's use or 

access of a computer or any other device with Internet

capability.

A statute is presumed valid. State v. Lenihan, 219 N.J. 251, 266 (2014). 

"As the party challenging the constitutionality of a statute, [a] defendant bears 

the burden of establishing its unconstitutionality." Id. at 265. "The first step of 

a facial challenge to a law on the basis of overbreadth and vagueness is 

determining whether the enactment reaches a substantial amount of 

constitutionally protected conduct." State v. R.K., 463 N.J. Super. 386, 401 

(App. Div. 2020). "The challenge fails if it does not." Id. at 402. As our 

Supreme Court has cautioned, "whenever possible, [courts] should avoid 

interpreting a legislative enactment in a way that would render it 

unconstitutional." State v. Fortin, 198 N.J. 619, 630 (2009).

To support his overbreadth challenge to N.J.S.A. 2C:45-1(d)(2), 

defendant primarily relies on Packingham v. North Carolina, ___ U.S. ___, 137 

S. Ct. 1730, 1733-34, 1738 (2017) (invalidating a statute that banned all 

registered sex offenders from accessing social networking websites); J.I. v. New 

Jersey State Parole Bd., 228 N.J. 204, 229 (2017) (overturning a "near total" 

parole ban on internet use because it was not "reasonably tailored to advance the 

goals of rehabilitation or public safety"); R.K., 463 N.J. Super. at 411, 416-17
15 A-4364-18

(reversing the imposition of a parole regulation banning social networking as a 

condition of CSL because it violated the parolee's constitutional free speech 

where his underlying conviction did not implicate the internet and lessrestrictive means were available); and K.G. v. New Jersey State Parole Bd., 458 

N.J. Super. 1, 36, 45 (App. Div. 2019) (vacating PSL conditions that restricted 

certain internet access where the parolees had not used the internet to commit 

their underlying offenses and the Parole Board failed to advance a "significant 

public safety concern to justify these conditions"). Defendant also cites various 

federal and out-of-state cases.

Notably, none of the authority cited by defendant implicates internet 

restrictions imposed as a discretionary condition of probation under any 

subsection of N.J.S.A. 2C:45-1. Further, contrary to defendant's contentions, 

N.J.S.A. 2C:45-1(d)(2)(a) is not applicable because defendant did not need 

Perez's approval to search the internet for employment purposes. And we are 

not convinced N.J.S.A. 2C:45-1(d)(2)(d) is overbroad here, where "any" 

restriction on internet use imposed under that subsection must be "appropriate." 

Because imposition of the condition is discretionary and cannot be imposed 

unless it is appropriate, "the reach" of the subsection does not "extend[] too far."
16 A-4364-18

Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n.21 (1983); see also State 

v. Lashinsky, 81 N.J. 1, 15-18 (1979). 

Nor are we persuaded by defendant's as-applied constitutional challenge 

that N.J.S.A. 2C:45-1(d)(2)(a) and (d) are vague or that the internet restriction 

was otherwise unreasonable. A statute is void for vagueness only "if it is so 

vague that persons of common intelligence must necessarily guess at its meaning 

and differ as to its application." Lenihan 219 N.J. at 267 (internal quotation 

marks omitted). A law "that is challenged as vague as applied must lack 

sufficient clarity respecting the conduct against which it is sought to be 

enforced." Ibid. (internal quotation marks omitted). 

Here, a person of ordinary intelligence would reasonably understand that 

searching the Pinterest application for small breasts was proscribed by the 

restriction imposed by the sentencing court, notwithstanding that defendant 

agreed to a less restrictive condition. While we recognize the sentencing court 

failed to impose the restriction that was negotiated by the parties, neither the 

agreed-to condition nor the court-imposed condition permitted defendant to 

"search for small breasts in the Pinterest application." Notably, defendant does 

not dispute that, in connection with his agreement to plead guilty to possessing 

child pornography, he expressly bargained for a sentence that included an 
17 A-4364-18

internet restriction that did not permit him to search for such images via Pinterest 

or any other website. 

Moreover, defendant's internet restriction was vastly different from the 

ban imposed under CSL or PSL over which the parolees had no bargaining 

power. Accordingly, the cases cited by defendant are factually distinguishable.

As one notable example, the parolee defendant in R.K. was convicted of 

two separate sex offenses and sentenced to CSL in 2000. 463 N.J. Super. at 393. 

In 2007, the Parole Board added a ban on use of social media for all CSL 

parolees, which was codified in 2010. Ibid. Accordingly, in 2011, the defendant 

was restricted from accessing "sexually-oriented materials." Id. at 394. 

Thereafter, the defendant was convicted of violating these restrictions by 

responding to "personal ads" on Craigslist and was sentenced to 364 days in the 

county jail. Id. at 394-95.

Six years later, the defendant in R.K. filed two separate motions to correct 

his sentences, arguing they were not authorized by law "because the restrictions 

[we]re overbroad, vague, and criminalize[d] his protected free speech." Id. at 

395. The defendant alternatively argued "the restrictions [we]re 

unconstitutional as applied to him." Ibid. The trial court denied the motions. 

Ibid.
18 A-4364-18

We reversed, holding the principles enunciated by the United States 

Supreme Court in Packingham applied to "social networking bans automatically 

imposed on new CSL sentences and as a CSL condition of R.K.'s supervised 

release, making illegal the sentences imposed on R.K. for violating the CSL 

conditions." Id. at 409-10. Acknowledging the statute in Packingham was 

distinct from the restriction imposed by the Parole Board, we declared: "From 

our perspective, the restriction on R.K.'s free speech rights under our federal and 

state constitutions is the same regardless of the source of governmental restraint 

– statutory or regulatory supervised release condition . . . ." Id. at 410.

We also concluded the social media restriction was unconstitutional as 

applied to R.K. Id. at 413. In doing so we recognized that "imposing the social 

networking restriction on R.K.'s CSL sentence in 2007, which later became the 

regulatory social networking ban in 2010, violate[d] his constitutional rights of 

free speech because his sexual offense convictions . . . resulting in his CSL 

sentence were not related to his use of a social networking website, or even the 

Internet at all." Id. at 416. The Parole Board's general concern about the 

recidivism of sexual offender parolees was insufficient to justify the restrictions. 

Id. at 417.
19 A-4364-18

Conversely, in the present matter, defendant's underlying offense was 

committed through his use of the internet. Defendant admitted he accessed the 

internet over a five-month period to view images of children engaged in sexually 

explicit acts. Unlike the parolee defendant in R.K., defendant expressly agreed 

to restrict his internet access in exchange for a guilty plea that avoided 

imprisonment. And unlike the PSL condition in R.K., defendant's internet 

restriction was limited to his agreed upon two-year probationary term. Under 

these specific circumstances, we therefore discern no reason to disturb the VOP 

court's finding that defendant violated the employment-only internet restriction 

by searching for images of small breasts on the Pinterest application. 

We are troubled, however, by the employment-only internet restriction 

continued by the VOP court, without setting forth its reasons for doing so. 

Because "the original plea agreement d[id] not survive" defendant's VOP, Frank, 

280 N.J. Super. at 40, the VOP court was permitted to impose "any sentence that 

might have been imposed originally for the offense of which he was convicted," 

N.J.S.A. 2C:45-3(b). 

However, the internet restriction, as all conditions of probation, must be 

"reasonable." N.J.S.A. 2C:45-1(a). And internet restrictions – at least in the 

context of CLS – must "serve[] any public-safety, rehabilitative, or other 
20 A-4364-18

penological goal." J.I., 228 N.J. at 211. Indeed, we would be remiss if we did 

not recognize the prevalence of the internet and its importance in our daily lives. 

Four years ago, Justice Albin commenced the Court's opinion in J.I. by 

recognizing: "Today, the Internet plays an essential role in the daily lives of 

most people—in how they communicate, access news, purchase goods, seek 

employment, perform their jobs, enjoy entertainment, and function in countless 

other ways." Id. at 210. More recently, we have cited the vital role of the 

internet in providing access to our State's court system. See D.M.R. v. M.K.G., 

___ N.J. Super. ___, ___ (App. Div. 2021) (slip op. at 2).

Moreover, because the plea agreement was terminated, defendant no 

longer agreed to any restrictions on his internet use. Although his argument in 

support of continuing probation did not expressly address defendant's internet 

access, defense counsel told the court that since the time he was violated early 

in his probationary term, defendant had been compliant "with every single 

requirement placed upon him subsequently." Defendant completed "a specific 

sex offender treatment program"; "made all payments"; and "made all reporting 

dates." 

To be clear, before the VOP court, defendant neither argued against the 

imposition of an employment-only restriction on his internet access nor 
21 A-4364-18

otherwise asserted that his constitutional rights of free speech were impeded by 

the restriction. And defendant never moved before the sentencing or VOP court 

to lessen the employment-only internet restriction. However, because the VOP 

court imposed the condition without explanation, we cannot discern on this 

record whether the restriction was reasonable and served a public-safety, 

rehabilitative, or other penological goal. 

Accordingly, we vacate defendant's VOP sentence and remand for the 

court to provide a statement of reasons. Defendant may move for less restrictive 

conditions before the VOP court, which may in its discretion reopen the 

sentencing hearing. In that case, the VOP court shall view "defendant as he 

stands before the court on that day." Randolph, 210 at 354. 

B.

Little need be said regarding defendant's due process argument. Prior to 

the VOP hearing, the court denied defendant's ultimate motion to dismiss the 

first charge for spoliation of evidence.5 The court rejected defendant's hearsay 

contentions, concluding instead that the State satisfied the three-part test 

5 The judge granted defendant's initial motion to compel discovery of the images 

before the probation department advised the State that the images had been 

deleted.
22 A-4364-18

enunciated in State v. Hollander, 201 N.J. Super. 453, 479 (App. Div. 1985). 

Pursuant to that test, the trial court must consider: 

(1) whether there was bad faith or connivance on the 

part of the government; (2) whether the evidence 

suppressed, lost or destroyed was sufficiently material 

to the defense; (3) whether defendant was prejudiced by 

the loss or destruction of the evidence.

[Ibid. (citations omitted); see also State v. Robertson, 

438 N.J. Super. 47, 67-68 (App. Div. 2014); Pressler & 

Verniero, cmt. 3.4 on R. 3:13-3 (2021).]

Applying the Hollander test, the VOP court found: (1) the "State did not 

act in bad faith because the State had a reasonable explanation as to why [it was] 

[sic] deleting those images"; (2) "the images [we]re not material because the 

violation of probation [was not] based on the content of . . . those images; it 

[wa]s based on the search of the internet" for "other than work purposes"; and 

(3) "defendant [wa]s not prejudiced by the loss of this evidence because, again, 

these images [we]re not material or relevant to the violation of probation." 

On appeal, defendant reprises his argument that Perez's testimony 

concerning the images she observed on defendant's cellphone constituted 

inadmissible hearsay under State v. Mosley, 232 N.J. 169 (2018), and the VOP 

court erroneously relied on our decision in Hollander. Defendant's reliance on 

Mosely is misplaced for two reasons: (1) hearsay may be introduced in a VOP 
23 A-4364-18

hearing if it is sufficiently reliable, 232 N.J. at 189-90; and (2) Perez's testimony 

was not hearsay. Indeed, Perez testified that she personally discovered the 

images when she searched defendant's cellphone. Notwithstanding that the 

images were deleted from the probation department's digital camera, the judge 

credited Perez's unrefuted testimony about the images.6 Because the court 

correctly applied the Hollander factors, we discern no due process violation.

C.

Finally, we turn to the VOP court's decision on defendant's failure to 

report. Ordinarily, we are not obliged to address a point first raised in a reply 

brief, in part because the respondent did have the opportunity to properly address 

it. Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 

(App. Div. 2001); see also Lenihan, 219 N.J. at 265. Here, however, we granted 

the State's motion to file a sur-reply brief. Moreover, we do so in the interests 

of justice. Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. 

6

 We decline to consider defendant's reliance on a description of the images that 

is contained in notes that were not introduced in evidence at the hearing. 

Inexplicably, defendant's appendix includes this document among others that 

were not admitted in evidence. Because those documents were not presented to 

the VOP court for consideration, they are inappropriate for consideration on 

appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014). 
24 A-4364-18

Super. 510, 543 (App. Div. 2009); see also Pressler & Verniero, cmt. 5 on R.

2:6-2 (2021). 

The VOP court determined defendant failed to report on March 13, 2018 

as charged. Perez testified, however, that defendant reported on that date and 

failed to report on March 12. The State did not elicit any testimony regarding 

that disparity. While we decline to consider defendant's belated assertion on 

reply "that on March 12, [he] asked Perez if they could meet the following day 

instead, and she complied[,]" we nonetheless conclude the evidence supporting 

the March 13, 2018 failure to report is insufficient to support that charge and 

reverse the court's decision.

Regarding defendant's failure to report on June 25, 2018, the trial judge 

made no findings whatsoever. See R. 1:7-4(a) (requiring the court to "find the 

facts and state its conclusions of law . . . in all actions tried without a jury"); see 

also State ex rel. L.W., 333 N.J. Super. 492, 498 n.3 (App. Div. 2000) (noting 

Rule 1:7-4 applies to criminal case). We therefore vacate the VOP court's 

decision on the June 25, 2018 charge and remand the matter to the court to make 

the requisite findings of fact and conclusions of law in accordance with Rule

1:7-4. In doing so, we do not suggest a preferred result, but only that the court 

reconsider the matter and fulfill its duty to the parties to address the factual and 
25 A-4364-18

legal arguments presented as to the June 25 charge. We leave it to the court's 

discretion as to whether to reopen the testimony. 

* * * *

In sum, we affirm defendant's VOP as it pertains to his failure to comply 

with the internet restriction imposed by the trial court. But we remand for the 

VOP court to state its reasons for imposing an employment-only internet 

restriction and whether that restriction is reasonable and serves any 

rehabilitative, penological or public-safety goal. The court may open the 

resentencing hearing upon motion of defendant. We also vacate the court's 

finding that defendant failed to report on March 13, 2018 but remand for 

findings of fact and conclusions of law as to defendant's alleged June 25, 2018 

failure to report.

To the extent not addressed, defendant's remaining arguments lack 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). 

Affirmed in part; vacated and remanded in part. We do not retain 

jurisdiction.