On appeal from Superior Court of New Jersey, Law Division, Morris County, 00-7-912-I.
Before Judges Collester, Lintner and Parker.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Pursuant to leave granted, the State appeals from an order of the Law Division dismissing the first count of an indictment against defendant Kevin Sisler, charging him with the second degree offense of endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4b(4), *fn1 commonly known as the child pornography law. We affirm.
The record below consists of the following testimony before the Morris County Grand Jury. FBI Agent William J. DeSa, Jr. received information in November 1999, that a man was using one of the public computers at the Morris County Library in Hanover Township to view and print child pornography. DeSa went to the library on December 15, 1999, and saw a man subsequently identified as defendant sitting in front of one of the library computers and using the Internet to view images of children engaged in what DeSa described as prohibited sexual acts. He saw the man access web sites named Boy Lovers, Man/Boy Lovers, and Child Starlets and use the library printer to copy images of male children which focused on their genitalia. DeSa did not testify as to the number of copies of each image that were printed. He did say the copied pages were piled about an inch and a half thick.
When the defendant left the Morris County Library, Agent DeSa followed to obtain the license plate number on defendant's car in order to identify the man. The result was that later on the same day the police obtained a search warrant for defendant's car and residence. They found in his room a large number of photographs of naked children printed from computer images. The State later produced thirty images before the grand jury as a "sample" of what was found. *fn2
The following day, December 16, 1999, the defendant admitted to Detective Angelo Rosato of the Morris County Prosecutor's Office that he often viewed child pornography web sites at the county library because it was near where he worked. He admitted having photographs and images of nude young men at his home and explained that he often masturbated while viewing the pictures. There was no proof adduced before the grand jury that defendant possessed the material for any purpose other than his own use.
On June 7, 2000, the Morris County Grand Jury returned a two count indictment. The first count alleged that on December 15, 1999, the defendant "knowingly did use the computer to reproduce the image of a child in a prohibited sexual act," contrary to N.J.S.A. 2C:24-4b(4), a second degree offense, which reads as follows: Any person who photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree.
The second count charged the same conduct as a violation of N.J.S.A. 2C:24-4b(5)(b), a fourth degree crime described as follows:
Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a chid engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree.
Defendant moved for dismissal of the first count of the indictment on grounds that the grand jury testimony did not describe conduct violative of the second degree offense. Judge B. Theodore Bozonelis granted the motion, holding that printing a copy of a computer image of alleged child pornography did not fall within the second degree crime of N.J.S.A. 2C:24-4b(4) requiring the reproduction or reconstruction of an image of a child constituting child pornography.
On appeal the State argues that printing a computer image of child pornography constitutes reproduction of the image within the meaning of N.J.S.A. 2C:24-4b(4). On the other hand, defendant seeks affirmance based on Judge Bozonelis' reasoning that the statute relates to reproducing the image of a child in a prohibited sexual act on the computer for purposes of dissemination as opposed to the act of making a copy of the image for personal gratification.
Statutory interpretation begins with the examination of statutory language to discern legislative intent. See James v. Bd. of Trustees of Public Employees' Retirement System, 164 N.J. 396, 404-05 (2000); State, Dep't of Law & Pub. Safety v. Gonzalez, 142 N.J. 618, 627 (1995). Since the term "reproduce" as used in N.J.S.A. 2C:24-4b(4) was not defined, the State argues that we must look to the common ordinary meaning of the word and points to the dictionary meaning "to make a copy of." Webster's New World Dictionary (1996). However, the State's position oversimplifies the issue. While making a copy of an image of child pornography from an Internet web site arguably constitutes reproducing the image, it can also be asserted that in this context "reproduce" connotes the use of a computer to disseminate such an image as opposed to generating a copy for purposes of viewing or possessing the image in violation of N.J.S.A. 2C:24-4b(5)(b). When a statute is subject to two conflicting interpretations, courts will look to legislative history as a guide to the underlying legislative intent. See State in the Interest of M.T.S., 129 N.J. 422, 431 (1992). We begin the analysis with the 1978 version of N.J.S.A. 2C:24-4. Subsection b(3) addressed persons who initiated or orchestrated the use of a child for pornographic purposes, specifying that "[a]ny person... who causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if such person knows, has reason to know, or intends that the crime may be photographed or filmed, is guilty of a crime of the second degree." N.J.S.A. 2C:24-4b(3). The statute next ...