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State v. Gaikwad

March 11, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ARUN GAIKWAD, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, 98-3-415-I.

Before Judges Petrella, Steinberg and Alley.

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

As amended March 18, 2002.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ARUN GAIKWAD, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, 98-3-415-I.

Mark M. Cheser argued the cause for appellant. Wendy Alice Way, Deputy Attorney General, argued the cause for respondent (David Samson, Attorney General, attorney; Ms. Way, of counsel and on the brief).

Before Judges Petrella, Steinberg and Alley.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 28, 2002

Defendant Arun Gaikwad appeals from his conviction under Monmouth County Indictment No. 98-03-0415, after a jury trial, of third degree computer theft *fn1 (N.J.S.A. 2C:20-25c) (count one); third degree accessing a computer system (N.J.S.A. 2C:20-30) (count three); third degree unlawful access to stored communications (N.J.S.A. 2A:156A-27b) (count four); and third degree attempted accessing of a computer system (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-30) (count five). The jury acquitted defendant of second degree theft (count two) and second degree computer theft (count one). A new trial was denied. At sentencing, the judge merged the convictions on counts four and five into that for unlawful accessing of a computer system and sentenced Gaikwad to two concurrent terms of two years of probation on counts one and three. Additionally, appropriate fines and penalties were assessed.

On appeal, Gaikwad raises the following issues:

I. Failure of the court to charge the definition of "obtain" rendered the charge on count one and count four insufficient and incomplete.

II. The court's charge on count one was insufficient and incorrect and the evidence was insufficient to convict.

III. There was insufficient evidence to sustain a conviction on count four.

IV. The jury findings on count one were inconsistent with the verdicts on counts three and five.

V. The court was required to charge the lesser included offense of N.J.S.A. 2C:20-32.

VI. The court's charge on counts three and five was insufficient.

VII. The court failed to charge an affirmative defense pursuant to N.J.S.A. 2C:20-2 and 2C:20-27(b).

VIII. Authorization to access AT&T systems was not sufficiently explained given the testimony adduced in the case.

IX. The court improperly restricted cross- examination of the credibility of Michael Romano.

X. The indictment should have been dismissed on Sixth Amendment speedy trial grounds.

Prior to trial, Gaikwad's motion to dismiss the indictment on speedy trial grounds was denied. Defendant's attorney's motion to be relieved as counsel was granted and Gaikwad proceeded to trial pro se before a jury.

The following facts were developed at the trial. On September 3, 1996, Lori Kershner, a software developer with AT&T at its Red Hill location, logged onto her computer at work and noticed that the last date and time she accessed her account as reported by the computer appeared odd as it did not appear to be a time when she had logged on to the system. Although the login reported that she had recently logged on to the "trumpet system," she had not personally logged on to that system in several days. Kershner then accessed her account's history file to determine why the computer reported that she had logged onto the trumpet system. This file revealed a variety of UNIX commands which she was positive she had not entered, including a connection to AT&T's "uhura" system through a remote login command *fn2; an attempt to access the mail directory and home account of Mike Romano, an AT&T Supervisor; and an attempt to delete her history file so as to erase the record of entered commands. However, unbeknownst to the intruding user, Kershner used a different name for her history files, and thus, her history files were not erased. From these observations it became evident to Kershner that someone had broken into her account. As a result, she contacted Dave Williamson, a co-worker with a substantial knowledge of the UNIX operating system.

After discussing the matter, Kershner and Williamson called Charles Bennett of corporate security. Williamson discussed the break-in with Bennett, Glenn Evans, and the AT&T District Manager. They determined that Kershner's account had been accessed without authorization using the ".rlogin" command to edit her ".rhosts" file and then using the shortcut to navigate through systems, deleting all commands and changing the file back upon exiting the system.

On September 6, 1996, Williamson installed a program that would notify him any time Kershner's account was modified. He also installed monitoring devices to trace the intruder's actions once in her account. Williamson determined that the intruder's originating account was through a group account labeled "INT" with a single user password accessed by multiple users to test software. He then traced the access to the INT account back to the harbor system, which had been accessed through a network providing access to various AT&T systems. Williamson concluded from security billing records that the access was from outside the AT&T Red Hill location, and specifically from the Corporate- Wide Area Network, and an originating group with the name "841/297/erredfs1," and the "node name" "m97a."

From this it was further learned that the originating group was located at 580 Howard Avenue, Somerset, in a building shared by AT&T and Lucent Technologies, which had recently been spun-off from AT&T as a separate company. The node name m97a, however, belonged to Lucent.

Williamson went to Bennett with his findings and they met with Lucent's Security Manager, District Manager, and a representative from its Outsourcing Contractor, IBM Global Securities. By examining network server logs, Norborne Preas of IBM was able to determine the precise computer terminal that had accessed the AT&T system from an office occupied solely by Gaikwad.

At that time, Gaikwad was a contract employee with Lucent and was employed as a full time software developer on August 2, 1996. Gaikwad's employment with Lucent did not anticipate or require access to the AT&T computer system. Prior to his employment with Lucent, Gaikwad was a contract employee of AT&T from November 11, 1992 to July 31, 1996, as a software developer and tester. Gaikwad's supervisor during that time, Michael Romano, testified that Gaikwad's performance was generally good but towards the end of his employment there was a drop off in performance which, combined with management's desire to ...


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