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State v. Brady

June 30, 2000

STATE OF NEW JERSEY,
PLAINTIFF-APPELLANT,
V.
EUGENE F. BRADY, JR.,
DEFENDANT-RESPONDENT.



Before Judges Havey, A. A. Rodr¡guez and Collester.

The opinion of the court was delivered by: Collester, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 1, 2000

On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Defendant Eugene F. Brady was indicted by a Monmouth County Grand Jury for six counts of second degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4b(5)(a), and one count of fourth degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4b(5)(b). Defendant pleaded not guilty to all counts and filed a motion to dismiss the indictment on constitutional grounds. The motion judge granted the motion to dismiss on grounds that the child endangerment statute was void for vagueness as applied to defendant and, alternatively, that the prosecutor improperly charged the grand jury to apply the statutory presumption of N.J.S.A. 2C:24-4b(6) that certain persons depicted in pictures were under the age of sixteen. We reverse the trial court's order dismissing the indictment and reinstate the charges.

The events giving rise to defendant's indictment are as follows. On June 12, 1998, Detective Michael A. DiMatteo of the San Bernardino County Sheriff's Department, San Bernardino County, California, logged onto America On-Line (AOL) as part of an undercover police operation targeting child pornography. Detective DiMatteo logged on with the screen name "Tighttone4u" and entered an AOL chat room named, "Special Interests - - pxaxnxtxixexsyxnxg." He recognized from his training and experience that the chat room name was an attempt to disguise the title "Pantiesyoung."

Detective DiMatteo observed that the chat room users were utilizing a program called "Listme.exe." Upon execution, this program compiles a list of screen names present in a chat room. When such a list is compiled, it is transmitted to each person identified by screen name on the list.

At 8:50 p.m., Detective DiMatteo received an e-mail message from a user identified as "Lostinkiss." The message included a file attachment designated "!!ROBI14.JPG" which depicted an image of a twelve to fourteen year old white female wearing only a string bikini bottom. At 8:52 p.m., he received another e-mail with a file attached as "TINY3.JPG" depicting the same child similarly clothed in a different pose. Finally, at 9:03 p.m., he received a third e-mail with a file attached as "XSWEETO1.JPG" depicting a different twelve to fourteen year old female nude.

On July 1, 1998, Detective DiMatteo obtained a search warrant in California to obtain AOL subscriber information for the person identified by the screen name "Lostinkiss." On July 20, 1998, he received AOL records which reflected that "Lostinkiss" was a screen name belonging to defendant at his address in West Keansburg, New Jersey. On August 17, 1998, Detective DiMatteo forwarded the results of his investigation to the New Jersey State Police which, in conjunction with the Hazlet Township Police Department, began investigating defendant.

Detective Peter Wolf of the New Jersey State Police learned that AOL contacted the FBI regarding "Lostinkiss." AOL, through its own monitoring of user activity, had discovered that "Lostinkiss" transmitted the following image files on June 28, 1998: "11RAFT.JPG," depicting a nude white female, who appeared to be less than sixteen years old, laying on her back on a raft with her legs slightly spread apart; "14YTWINS.JPG," depicting two nude white females, approximately fourteen years old, masturbating on a couch; and "141414.JPG," depicting three nude white females who were each approximately fourteen years old.

On August 27, 1998, Detective Wolf obtained a search warrant for defendant's residence. On September 3, 1998, New Jersey State Police and Hazlet police executed the warrant. Among other items, the search revealed approximately fifty computer floppy disks. After examining the contents of one disk, the police discovered image files depicting nude females who appeared to be under the age of sixteen.

Defendant was present during the execution of the search warrant. After his arrest, he waived his Miranda *fn1 rights. He admitted that the disks contained nude images of young girls and boys and that he sent such images to AOL users in chat rooms. He said he did not know that what he had done was wrong and could not understand why the nude images were against the law. He added he viewed the images as a way to relax.

The motion judge dismissed the indictment, holding that N.J.S.A. 2C:24-4b was unconstitutionally vague as applied to defendant. At the time of the charged offenses the applicable statue read as follows:

(4)(a) Any person who knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer any photograph, film, videotape, computer program, video game or any other reproduction or reconstruction which depicts a child engaging ...


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