On appeal from Superior Court of New Jersey, Law Division, Bergen County, 01-12-3117-I.
Before Judges A. A. Rodríguez, Wells
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The State appeals from the trial court's dismissal pursuant to N.J.S.A. 2C:1-3f of an indictment charging defendant Daniel Gruber with second-degree child endangerment (distribution of child pornography), N.J.S.A. 2C:24-4b(5)(a), and fourth-degree child endangerment (possession of child pornography), N.J.S.A. 2C:24-4b(5)(b). The court premised the dismissal on the ground that Gruber was prosecuted for the same conduct in New York and on its determination that New Jersey's penal interests were adequately served by the New York prosecution. We reverse.
The following facts, which we take from the trial court's written opinion dismissing the indictment, were not disputed for the purposes of Gruber's motion to dismiss.
On February 27, 2001, the defendant, Daniel Gruber, age 23, a student at New York University was using a computer and through his America Online (AOL) account he entered a chatroom called"WestchesterNYM4M." At 4:09 p.m. the defendant instant messaged a person who identified himself as a 14-year-old boy. The person the defendant encountered over the Internet was not a 14-year-old boy but was instead Investigator Pascal Storino from the Westchester County District Attorney's Office posing as a 14-year-old boy.
The AOL conversations or"chats" between the parties began on February 27, 2001, and continued intermittently until April 30, 2001. During the course of these conversations there were six instances when the defendant either engaged in sexual conversations or forwarded sexually explicit images of young males to the apparent youth. During these conversations the defendant let it be known that his primary residence was located in Englewood, New Jersey.
On two separate occasions the undercover officer attempted to solicit a meeting between the parties. On both occasions the defendant did not go to the proposed meeting. When the attempts to meet were unsuccessful, Storino contacted the New Jersey State Police to secure a search warrant for the defendant's Englewood residence from the New Jersey State Police.
On May 7, 2001, members of the New Jersey State Police and Storino went to the defendant's residence in Englewood, New Jersey and searched the property pursuant to a valid warrant. The result of this search was the seizure of the defendant's personal laptop. At the time of the seizure the laptop was still hot and secured while in the standby mode. When the laptop was confiscated, it had a sexually explicit photo displayed on the monitor.
Gruber allegedly conducted several of his conversations with Storino from his parents' home in New Jersey, including conversations held on March 12, 2001, April 18, 2001 and April 30, 2001. It appears that an additional conversation and transmission of pornographic material from New Jersey occurred on April 14. However, the location of the transmission is not identified in Storino's affidavit or his testimony before a state grand jury in New Jersey. During each chat with Storino, Gruber sent to Storino through the Internet photographs of naked, under age boys engaged in sexual acts including anal intercourse and masturbation. In all, six files containing thirty images were transmitted from New Jersey. None of the transmissions appears to have originated from New York, and Gruber has stated that he maintained no child pornography in his New York computer.
Upon seizure and examination by the New Jersey State Police, the computer that Gruber kept in New Jersey was found to contain over six hundred pornographic pictures depicting juvenile males. Most showed boys between eight and nine years of age, but some depicted children as young as three to five years old. Gruber admitted possession and transmission of the images in a confession given shortly after his New Jersey computer was seized.
Gruber was prosecuted in New York on a six-count felony complaint charging one count of attempted dissemination of indecent material to minors in the first degree in violation of N.Y. Penal Law § 110.00 and § 235.22 and five counts of promoting an obscene sexual performance by a child, contrary to N.Y. Penal Law § 263.10. The New York complaint was based upon Gruber's online communications with Storino, including the March 12, April 14, April 18, and April 30, 2001 communications just described.
On September 19, 2001, Gruber pled guilty to one count of violating N.Y. Penal Law § 263.10 (promoting an obscene sexual performance by a child), based upon his March 12, 2001, transmission of child pornography to Storino. The prosecutor recommended a sentence of five years' probation along with sex offender registration. At the plea hearing, defense counsel indicated to the New York court that there was a corresponding investigation in New Jersey, arising from the same conduct, as to which he"anticipate[d] a guilty plea" before December 5, 2001.
On December 20, 2001, the New York court sentenced Gruber to the five-year probationary period recommended by the prosecutor, and required that Gruber register as a sex offender, undergo counseling, and complete an approved sex offender treatment program. The court dismissed all remaining counts of the complaint against him.
Parallel proceedings occurred in New Jersey. On May 7, 2001, the day the search warrant was executed, the New Jersey State Police filed a one-count complaint against Gruber, charging him with fourth-degree endangering the welfare of a child as the result of his possession of child pornography. On December 19, 2001, three days before Gruber was sentenced in New York, Gruber was indicted in New Jersey on one count of second degree endangering the welfare of a child (distribution of child pornography) and one count of fourth degree endangering the welfare of a child (possession of child pornography).
Following his indictment, Gruber sought its dismissal under N.J.S.A. 2C:1-3f, arguing that his previous criminal prosecution in New York arose out of the same conduct and satisfied New Jersey's penal interests. The State opposed that motion, arguing that New Jersey's interests were unsatisfied because (1) the New York conviction was based on only one transmission of child pornography, whereas New Jersey had indicted Gruber on six transmissions, involving thirty different images; (2) the crime to which Gruber pled guilty in New York was not the same as the crimes charged in New Jersey, because the New York crime did not address transmission of child pornography by means of a computer, which the State contended was a more ubiquitous medium of transmission, therefore rendering the crime a more serious offense; and (3) Gruber faced a presumption of incarceration in New Jersey for the crime of second-degree endangering the welfare of a child, but he received only a probationary sentence in New York.
Following oral argument, the court dismissed the New Jersey indictment, finding that the New York prosecution was based on"identical" proofs and served New Jersey's penal interests. In considering the interests of the two states, the court first observed that"[t]his was a New York investigation in which New Jersey's participation was peripheral." The court then compared the sentences Gruber faced in New York and New Jersey. The court found that, for violating N.Y. Penal Law § 263.10, Gruber faced the possibility of receiving up to seven years in prison. Although Gruber was in fact sentenced to only five years' probation, the court noted the many conditions attached to the sentence, including an obligation to register as a sex offender and the requirement of psychological counseling and treatment. The court recognized that, under New Jersey law, Gruber faced a prison term of five to ten years for second-degree child endangerment, with a presumption of incarceration, and a term of zero to eighteen months for fourth-degree child endangerment. The court noted, however, that"[a]s a practical matter many counts charging second-degree are rescinded by a plea to a third degree charge along with probation."
Ultimately, on the issue of comparative sentencing, the court concluded that the difference in potential sentence is not so disparate that New Jersey's interests in this matter would not be served. The defendant is subject to Megan's Law as a condition of probation and if the defendant violates probation, he could be sentenced for up to seven years. The probation sentence subject to Megan's Law given in the New York plea does not trivialize the defendant's exposure to incarceration. As a final matter, the trial court found that Gruber had not engaged in forum shopping in order to receive a more favorable result in New York, because (1) although both States filed complaints against Gruber on May 7, 2001, the New York prosecution preceded the New Jersey prosecution; (2) the May 7, 2001, complaint in New Jersey alleged only a fourth-degree offense; and (3) New Jersey did not take action by filing the indictment until shortly before Gruber was sentenced in New York, and, until then, Gruber had no knowledge that New ...