### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 18T4 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. C. J.R

. , 1
Def endant

- Appellant.

_______________ _____________

Argued telephonically September 22, 2020

— Decided September 30, 2020 Before Judges Yannotti, Haas, and Mawla. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 15

- 09

- 0 780.
W hitney F. Flanagan, Assistant Deputy Public Defender, argued the cause for appellant ( Joseph E. Krakora, Public Defender, attorney ; Whitney F. Flanagan, of counsel and on the brief). Andre A. Araujo, Assistant Prosecutor, argued the cause for respondent ( Jennifer Webb

- McRae,

1 We use initials to protect the identities of the minor victims

. R. 1:38

- 3(c)(9). NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

- 3.2 A

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- 18T4 Cumberland County Prosecutor, attorney ; Andre A. Araujo , of counsel and on the brief).
PER CURIAM Defendant C

. J. R

. appeals from a December 18, 2017 order denying various pre - trial motions and also challenges his sentence following h is guilty plea to two counts of first

- degree aggravated sexual assault, N.J.S.A. 2C:14

- 2(a)(1). We affirm. Defendant ' s father and stepmoth er adopted two young children , K .R. and
C .R. In October 2013, the y contacted police and reported both girls disclose d defendant sexually abused them in the family home , at the family's vacation residence , and in defendant's Maryland home. Investigators i nterviewed the girls the same day , who both reported multiple instances of sexual abuse starting as early as seven ye ars of age . Defendant was arrested on November 1, 2013, and c harged with multiple counts of aggravated sexual assault, sexual assault, and endangering the welfare of a child. The investigation revealed defendant digitally penetrated both girls on

numer ous occasions and exposed his penis to them. Investigators determined the timing of some of the offenses against C.R. occurred between May 25 and September 30, 2007; the abuse in the vacation residence occurred between May
25 and August 31, 2009 ; and the sexual penetration occurred at the family home3 A

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between May 25 and September 30, 2011. The abuse against K.R. occurred between September 28, 2008 and September 27, 2009 in the family home , and at the vacation residence between May 25, 2011 and August 31, 2 012. Following the initial charges , investigators interviewed the girls again. Both disclosed that defenda nt also committed acts of vaginal penetration with his penis. C.R. recalled that while she, K.R. , defendant, and defendant ' s wife were in a swimmi ng pool together, defendant slipped off her bathing suit bottom on the far side of the pool , and vaginal ly pe netrat ed her with his penis. K.R. stated while she was sleeping on the living room couch , defendant removed her clothes and engaged in vaginal pen etration with his penis and only stopped when
K.R. insisted she had to use the bathroom. Defendant's stepm other discovered footage of both girls in various stages of undress on defendant's digital camera, which she turned over to police who obtained sea rch warrants for the device. Pursuant to the search, p olice found footage of the girls in their bathing suit s and multiple shots of their vaginal areas from an underwater camera. Investigators also recovered separate footage of the girls in an outdoor sh ower stall at the vacation home , recorded on a hidden

camera .4 A

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Investigators recovered a computer belonging to defendant from his aunt ' s home . The laptop was in the possession of defendant ' s wife , who was living with the aunt after defendant ' s arrest. The aunt consented to the search of her home. D efendant's wife also did not o bject to the search and led investigators into the bedroom where she was staying to retrieve the laptop. Pursuant to a search warrant, t he laptop was sent to the New Jersey Stat e Police Regional
C omputer Forensi c L aboratory to secure the data on the devic e. 2 On January 15, 2014, defendant's stepmother contacted investigators and informed them C.R. disclosed defendant may have filmed or photographed her on his iPhone. Investig ators contacted the Cumberland County Jail and confirmed an iPhone was invento ried and stored in the jail at the time of defendant's detention, obtained a search warrant for the locker containing defendant's property , and seized the phone. On February 10, 2014 , defendant ' s parents obtained defendant's Apple time capsule (an external hard drive) from his wife, which contained disturbing videos of him and C.R. that was subsequently seized by police. Investigators were unable to search the time capsule and s ent it to the State Police laboratory

2 Another laptop belonging to defendant was also seized from the family residence and forwarded for forensic analysis.5 A

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for exami nation on November 13, 2014. Due to difficulties accessing the data

on defendant's laptop , its hard drive was sent to the F ederal B ureau of
I nvestigation (FBI) Computer Imaging Center in Quantico, Virginia on June 12, 2014. The FBI did not return the har d drive until November 25, 2014. On September 3, 2014 , the State presented its e vidence to a grand j ury , which indicted defendant on twelve counts, including: four counts of first

degree aggravated sexual a ssault, N.J.S.A. 2C:14

- 2(a)(1); two counts of s econd

degree sexual assault, N.J.S.A. 2C:14

- 2(b); one count of second

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

- 4(b)(4); and five counts of third

- degree endangering the welfare of a m inor , N.J. S.A. 2C:24

- 4(a)

. Defendant was arraigned on Oc tober 27, 2014. Two weeks prior to the arraignment, defendant's wife left the country for the Philippines and , according to defendant , thereafter, traveled to Saudi Arabia for employment purposes

. She

was no t interviewed by defense counsel.
A status con ference was held on December 1, 2014

. D efense counsel was apprised discovery was available for review at the Cumberland County
Prosecutor ' s Office , and if the case was not resolved prior to the receipt of the forensic analysis of defenda nt's devices, additional charges could be filed.6 A

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D efense counsel postponed the conference request due to incomplete discovery

. A January 20, 2015 status conference was also postponed for the same reason. The State Police l aboratory completed its analysis of a laptop and the time capsule on January 21 and February 9, 2015, respectively. Another status conference , scheduled for February 26, 2015, was postponed at d efense counsel's request due to incomplete discovery. On Mar ch 4, 2015 , investigators reviewed defendant ' s time capsule and laptop which revealed additional images of child pornography . Defendant's father and stepmother i dentif ied the children in the ima ges as C.R. and K.R

. As a result, on March 17, 2015, defenda nt was charged with additional offenses

. Over th e following six months, the defense postponed seven status conferences and a bail motion due to incomplete discovery and attorney availability . Defendant's first attorney was unavailable because of medica l leave and defendant was assigned a second attorney on a temporary basis

. On September 2, 2015, a grand jury returned a s uperseding indictment charging defendant with five additional counts of second

- degree endangering the welfare of a child . Defendan t was arraigned on October 19, 2015

. However, the proceeding was postponed by defense counsel for incomplete discovery, and the arraignment was ultimately completed by De cember 7, 2015. Two months7 A

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later, defendant's counsel was re - assigned, and a third a ttorney was assigned to represent defendant . Over the course of the following four months, status hearings were postponed at the defense's request on six occasions either due to attorney unavailability or incomplete discovery. Defendant was then assigned a fourth defense attorney who postponed status hearings between April 29, 2016 and August 29, 2016 , due to incomplete discovery . The status hearing was finally completed on October 24, 2016.
A pretrial c onference scheduled for December 12, 2016, was p ostponed by defense counsel for incomplete discovery before the case was transferred to

a fifth defense attorney

. D efense counsel also postponed pretrial conference s sche duled for May 15, July 24, September 19, and October 27 , 2017. The defense then fi led the motions to sever, suppress, and dismiss , which the trial judge heard on December 8 and 18 , 2017. The defense argued the court should : 1) grant the motion for sev erance because a trial involving both victims would prejudice defendant and outweighe d the State's desire to resolve the matter efficiently ; 2) dismiss the indictment because the delay in the case violated defendant ' s Sixth Amendment right to a speedy trial ; and 3) suppress8 A

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the evidence seized from the laptop found at the aunt's house beca use it was obtained illegally. 3 In a comprehensive oral opinion, the trial judge denied the motions. Applying the Barker v. Wingo 4 factors, h e found that de spite the fou r years between arrest and the motion to d ismiss, the majority of the delays were a t the request of the defense and thus there was no speedy trial violation

. Weighing the Cofield 5 factors , t he judge denied the severance motion finding there w as

" undoubtedly a sufficient nexus between the counts of the [i] ndictment relating to [ C.R. ] and the counts of the [i] ndictment relating to K.R.

. . . . " He also found the laptop was legal ly seized from defendant's a unt ' s house because , as the homeowner , she consent ed to the search and defendant's wife did not object. On February 12, 2018, defenda nt pled guilty to two counts of f ir st

- degree aggravated sexual a ssault pursuant to a negotiated plea agreement

. T he State recommended concurrent sen tence s , each between fi fteen and twenty years,

3 In addition to the laptop from the aunt's house, the suppression motion sought to bar the evidence seized from defendant's underwater ca mera, the SD memory card associated with th e underwater camera, the Apple time capsule, the iPhone, and the laptop seized from the family residence, which are not part of this appeal.

4 407 U.S. 514, 530

- 31 (1972).

5 127 N.J. 328, 338 (1992).9 A

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subject to the No Early Release Act (NERA), N.J.S.A. 2C:43

- 7 .2

. On September 14, 2018 , the trial judge sentenced defendant to an aggregate term of eighteen years in prison, subject to NERA , Megan's L aw, and p arole supervision for life. Defendant raises the following points on appeal:
POINT I

- THE INDICTMENT MUS T BE DISMISSED BECAUSE THE FOUR

- YEAR DELAY BETWEEN [DEFENDANT ] 'S ARREST AND CONVICTION VIOLATED HIS RIGHT TO A SPEEDY TRIAL.
A. FACTOR ONE: LENGTH OF DELAY.
B. FACTOR TWO: REASON FOR DELAY.
C. FACTOR THREE: ASSERTION OF THE RIGHT.
D. FACTOR FOUR: PRE JUDICE TO THE DEFENDANT.
POINT II

- THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE POLICE SEIZED [DEFENDANT ] 'S LAPTOP WI [ TH ] OUT A WARRANT OR VALID CONSENT.
POINT III

- THE COURT ERRED IN DENYING [DEFENDANT ] 'S MOTION TO SEVER SEXUAL OFFENSES AG AINST TWO DIFFERENT COMPLAINANTS WHEN IT COULD NOT ARTICULATE ANY RELEVANCE OF ONE OFFENSE TO THE OTHER.10 A

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– [DEFENDANT ] 'S SENTENCE OF EIGHT EEN YEARS' STATE PRISON IS MANIFESTLY EXCESSIVE.
I. Defendant argues the trial judge erred in failing to dismiss the indictment because the four

- year delay between his arrest and conviction violated his right to a speedy trial. We analyze speedy trial issue s under an abuse of discretion standard. State v. Fulford , 349 N.J. Super. 183, 195

- 96 (App. Div. 2002 ). The Sixth Amendment and Fourteenth Amendment Due Process Clause s guarantee the accused the right to a speedy trial. U.S. Const. amends V I, XIV; N.J. Const

. a rt. I ¶ 10; Barker , 407 U.S. at 515; State v. Szima , 70 N.J. 196, 200

- 01 (1976). The speedy trial right attaches at the time o f arrest or indictment. Szima , 70 N.J. at 199

- 200. Defendant bears the burden of establishing a violation of his speedy trial r ight. State v. Tsetsekas , 411 N.J. Super. 1, 9 (App. Div. 2009). The trial court must bala nce the following factors: 1) the length of the delay; 2) the reasons for the delay; 3) whether and how defendant asserted his speedy

- trial right; and 4) the preju dice to defendant caused by the delay. State v. Townsend , 186 N.J. 473, 487 (2006); see also Barker , 407 U.S. at 530. If the factors are met, dismissal of the indictment is the remedy. Strunk v. United11 A

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States , 412 U.S. 434, 438 (1973). However, "if del ay is attributable to the defendant," then he may be deemed to have waived his right. Barker , 407 U.S. at 529.
T he trial judge found the delay was caused in part by the fact defendant was assigned five different attorneys , "through no fault of his own." The judge also found other causes for the delay , namely, the evidence required complex fore nsic evaluation by the State Police laboratory and the F BI , which he noted were completed in a "timely fashion " ; the discovery of additional evidence through the forensic evaluation result ing in a superseding indictment ; and defendant was charged with "ver y significant crimes, which allows for a lengthier delay."
However , the judge found the primary reason for the delay was defense counsel's postponement of twenty

- five of the thirty

- three status conference s due to incomplete discovery or attorney unavaila bility. The judge noted the defense

was advised additional delays would result in a superseding indictment, which in fact created more delays. The judge acknowledged the delay had a prejudicial effect because the memories of C.R. and K.R. , who were young when the assaults took place , could fade with time

. Ultimately, the judge concluded the12 A

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complexity of the case and the defense r equests for postponements were not unreasonable and did not violate defendant's right to a speedy trial

. The trial judge 's f

indings are supported by the substantial credible evidence in the record. Our review of the record confirms the delay was indeed occasioned by multiple defense requests for more time to address discovery and the complexity of the case. Regarding the latt er, the record supports the judge 's finding the State worked diligently to gather and examin e the evidence. Given the circumstanc es, the length of and reasons for the delay were not unreasonable and outweigh the prejudice to defendant.
II. Defendant arg ues the judge erred in denying the motion to suppress the evidence obtained from the warrantless seizure of his laptop. We will uphold
t he denial of a suppression motion where "the factual findings underlying the trial court's decision . . . are 'supporte d by sufficient credible evidence in the record.'" State v. Sencion , 454 N.J. Super. 25, 31 (App. Div. 2018 ) (quoting
State v. Boone , 232 N.J. 417, 4 2 5

- 26 (2017)). The New Jersey and United States constitutions protect against unreasonable searches and guarantee the right of individuals to be secure in their house and effects, free from unreasonable searches and seizures. U.S. Const

. ,13 A

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amends. IV, XIV; N.J. Const. , art. I ¶ 7. W arrantless searches are presumed invalid, except under a few, well

- delineate d exceptions. State v. Pineiro , 181 N.J. 13, 19 (2004); see also Schneckloth v. Bust a monte , 412 U.S. 218, 2 19 (1973); State v. Wilson , 178 N.J. 7, 12 (2003). One exception is where there is
consent. Pineiro , 181 N.J. at 19 ( citing State v. Maryland , 167 N.J. 471, 482 (2001)). "[A]ny consent given by an individual to a police officer to conduct a warrantless search must be given knowingly and voluntarily." State v. Carty , 170 N.J. 632, 639 (2002) (citing State v. Johnson , 68 N.J. 349, 354 (1975) ).
In the context of a residential search , c onsent may be given by a third

party with lawful authority over the premises or objects to be searched. United States v. Matlock , 415 U.S. 164, 170 (1974). The third

- party may be a co

occupant of the premises. Id. a t 171. In determining the validity of a third

party's consent , the c ourt considers if the individual "possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." State v. Miller , 159 N.J. Super. 55 2, 557 (App. Div. 1978) (quoting Matlock , 415 U.S. at 169

- 72). The a uthority of the third

- party

r elies not upon the law of property, ' but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co

- habitants has t he right to permit the inspection in his [or her] own right and that others have assumed the risk that one of14 A

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- 58 (qu oting Matlock , 415 U.S. at 169

- 72).]
S ee also State v. Coles , 218 N.J. 322, 340

- 41 (2014) (holding that evidence seized wherein a third

- party only had apparent authority need not be suppressed under the New Jersey Constitution because t he query is not whe ther the officer was factually correct about the third

- party's abil ity to consent to the search, but rather "whether the officer's belief that the third[

- ]party had the authority to consent was objectively reasonable in view of the facts and circumstances known at the time of the search." )

. Defendant's laptop was seized f rom a residence owned and occupied by his aunt and her spouse

. As the judge noted, d efendant's wife began residing with the aunt after his arrest as a " te mporary guest . . . because she .

. . [later] left the State and the country[ ,]" and did not own the residence or pay rent. Defendant never resided in his aunt's home. The judge concluded defendant's
aunt as the owner and occupant of the residence, clearly had

the authority to consent t o [the] search of her residence

. . . . Def endant's wife, who transported . . . [d]efendant's laptop . . . to the residence . . . where she was staying, was there.15 A

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- 18T4 . . . I have no information before me that indicated that she objected to the seizure of th at item and, in fact, both she and the owne r of the premises took . . . law enforcement to the location where it was being stored. . . . [Defendant's wife ] could have objected had she wanted to. She did not. We discern no error in the decision to de ny the suppression motion. The aunt had ac tual authority regarding the residence which she owned and occupied and there is no question she voluntarily consented to the search

. D efendant's wife also had authority regarding the laptop because she transport ed it from her family residence to the aunt 's home during her stay

. She did not object to the search , and the record shows she voluntarily consented by guiding investigators to the laptop and surrendering it

. Therefore, under either an actual or apparent authority analysis, investigators could re asonably rely on the consent both

women provided to seize the laptop without a warrant.
III. Defendant argues the motion judge erroneously denied his motion to sever the trial of the charges involving each victi m from the other

. "T he trial court is
vest ed with the discretion to sever any count in an indictment, if joinder would unfairly prejudice a defendant or the State." State v. Silva , 378 N.J. Super. 321, 324 ( App. Div. 2005) (citing R. 3:15

- 2(b)). The den ial of such motion "will not16 A

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result in reve rsal, absent an abuse of discretion." State v. Cole , 154 N.J. Super. 138, 143 ( App. Div. 1977) (citing State v. Y o rmark , 117 N.J. Super. 315, 331 (App. Div. 1971)). Pursuant of to Rule 3:7

- 6, two or more offens es may be charged in the same indictment or accusation if they "are of the same or similar character or are based on the same act or transaction or on [two] or more acts or transactions connected together or constituting parts of a common scheme or plan." If the joinder of offenses prejudices a defendant, the court may order separate trials or counts, or direct other appropriate relief. R. 3:15

- 2 (b) . However, when the offenses charged are the same or similar, based on the same t ransactions, or of

a commo n plan or scheme, joint trials are preferable in the interest of judicial economy, to avoid inconsistent verdicts, and allow for a "more accurate assessment of relative culpability." State v. Weaver , 219 N.J. 131, 148 (2014) (quo ting State v. Brown , 118 N .J. 595, 605 (1990)).
T he t rial judge should consider whether if the charges were tried separately the evidence of the offenses sought to be severed would be admissible under N.J.R.E. 404(b) in the trial of the remaining charges. State v. Alfano , 305
N.J . Super. 178, 191 (App. Div. 1997). Joinder is permitted if there is a17 A

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connection between the charges, such that evidence on one charge would be probative of another. State v. Sterling , 215 N.J. 65, 91

- 92 (2013). In denying def endant's motion, the trial judge concluded "[t] here is undoubtedly a sufficient nexus between the counts of the [ i ] ndictment relating to C.R. and the counts of the [ i ] ndictment relating to K.R." The judge found t he evidence of the offenses against one chi ld materially relevant to whether defendant sexually assaulted the other child because : 1) the victims share the same relation to defendant; 2) the assaults took place within the same time period and location s , and were similar in nature; 3) evidence from the separate assaults woul d be admissible in separate trials; and 4) "[ m ] any of the images , which were seized

. . . from the devices includ e both victims and it would be impossible to redact those images to introduce evidence that only one victim

was sexua lly assaulted, w ith [ out ] a t least acknowledging the fact there was a second victim. " The judge concluded "[p]rejudice to the [d]efendant can't be avoided .

. . . But joinder of the counts against C.R. and counts against K.R. . . . will not divert the minds of the jurors from a r easonable and fair evaluation of the basic issues of the case." The judge concluded the court could mitigate any prejudice by means of limiting instructions to the jury to consider each count separately.18 A

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We agree. D efendant' s assaults , the victims' ide ntities , and the evidence

are substantially intertwined. The overlap of facts and evidence would be admissible at both trials, and defendant would not suffer more prejudice in a joint trial than he would in separate trials. St ate v. Chenique

- Puey , 145 N. J. 334, 341 (1996). The judge did not abuse his discretion in denying the severance motion

. IV. Defendant argues his sentence is excessive. He contends the judge failed to find a mitigating factor , N.J.S.A. 2C:44

- 1(b)(11) , and double

- count ed an aggravati ng factor , N.J.S.A. 2C:44

- 1(a)(3)

. Defendant argues the judge failed to consider that he is a veteran, had no prior criminal history, and would not re offend. He claims the sentence disregards the hardship to him and his famil y whom he can no longer supp ort evidence d by the fact his wife was forced to travel abroad in search of work. We review an appeal from a sentence for an abuse of discretion

. State v.
Jones , 232 N.J. 308, 318 (2018). We must consider whether: "(1) the s entencing guidelines were vi olated; (2) the findings of aggravating and mitigating factors were . . . 'based upon competent credible evidence in the record ; ' [and] (3) 'the application of guidelines to the facts' o f the case 'shock[s] the judicial19 A

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conscien ce.'" State v. Bolvito , 217 N.J. 221, 228 (2014) (third alteration in original) (quoting State v. Roth , 95 N.J. 334, 364

- 65 (1984)). The trial judge found the following aggravating factors : N.J.S.A. 2C:44

- 1(a)(1), the nature and circumstance of the offense; N.J.S.A. 2C:44

- 1(a)(3), the risk of reoffending; and N.J.S.A. 2C:44

- 1(a)(9) , the need to deter

. The judge gave moderate weight to all of the factors and declined to find N.J.S.A. 2C:44

- 1(a)(2) as an aggravating factor in order to avoid double counting an element of the offense he relied upon to find N.J.S.A. 2C:44

- 1(a)(1)

. 6 Regarding N.J.S.A. 2C:44

- 1(a)(3), the judge noted this was defendant's first conviction, however because

[ d ] efendant's beh avior [ occurred ] over the course of years , with two separate victims , leads this [c ]ourt to believe that there is a risk of reoffending

. The nature of the offense itself carries a substantial risk of recidivism and his behavior was found to be repetitive by the doctor at [the A dult D iagnostic T reatment C enter (ADTC) ]. Not only did he perform physical acts of sexual assault but the evidence establishes that he surreptitiously videotaped the victims in the nude and saved them either on a computer or on a camera, either for future gratification or for further dissemination.

6 The ju dge also declined the State's request to fi nd N.J.S.A. 2C:44

- 1(a)(6) , the extent of defendant's prior record and the seriousness of the offenses of which he has been convicted as an aggravating factor

.20 A

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- [s]entence [r]eport . . . also supports a finding , historically and statistically, that there is a risk of reoffending. The judge found the fo llowing mitigating factors : N.J.S.A. 2C:44

- 1(b)(7), lack of a prior criminal histor y ; and N.J.S.A. 2C:44

- 1(b)(12), defendant's cooperation in sparing the victims from a trial by entering into the plea. The judge refused to find mitigating factor N.J.S.A. 2C:44

- 1(b)(11). The judge noted the sentencing range for defendant's crimes was bet ween ten and tw enty years for each offense. Because the aggravating factors outweighed the mitigating, t he judge sentenced defendant to two eighteen

- year sentences to run concurrently with each other, subject to NERA

. We find no reversible error in the sentence. N.J. S.A. 2C:44

- 1(a)(3) states that "[i]n determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court shall consider . . . [t]he risk the defendant will commit another offense." Determining the likelihood to r eoffend involves an evaluation and judgment of the individual in light of his or her history. See State v. Thomas , 188 N.J. 137, 153 (2006). Contrary to defendant's contention, the judge did not double count by finding aggravating f actor s N.J.S.A. 2C:44

- 1(a)(1) and (3) because the risk of

re - offense expressed in the latter aggravating factor is not an element of the21 A

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aggravated sexual assault, N.J.S.A. 2C:14

- 2(a)(1)

. T he judge 's findings regarding N.J.S.A. 2C:44

- 1(a)(1) noted "the depravit y of the crimes " because defendant "systematically and over the course of several years, sexually assaulted the two victims , . . . when they were seven and eight years of age." The judge found "the acts occurred at the family home and the family summer

re sidence, places certainly where the victims should feel safe." These findings stand separate from the findings t he judge made under N.J.S.A. 2C:44

- 1(a)(3)

. Moreover , b eyond defendant's crimes, t he judge considered a multitude of facts , including defendan t's lack of rem orse and the ADTC evaluation in assessing
N.J.S.A. 2C:44

- 1(a)(3) , and w e discern no error in the findings

. N.J.S.A. 2C:44

- 1(b)(11) states the sentencing judge may consider whether the "imprisonment of the defendant would entail excessive h ardship to hims elf or his dependents." "[H]ardship to children may be a significant mitigating factor." State v. Mirakaj , 268 N.J. Super. 48, 51

- 52 (App. Div. 1993). The judge declined to find N.J.S.A. 2C : 44

- 1(b)(11) as a mitigating factor noting for " [e] verybody who faces a stiff or a lengthy [s] tate [p] rison term, the families are always inconvenience d and there's always going to be a financial hardship." He concluded the evidence d id not support a finding defendant's family was significantly more af fec ted than any other family. The judge noted22 A

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defendant's father , not defendant, paid for defendant's family to return to the Philippines, and paid for medical expenses, the mortgage, and personal property so defendant's wife would have sufficient funds t o m eet the family needs

. The judge's findings are supported by the substantial credible evidence in the record

. Affirmed.