On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Somerset County, 99-3-176-I.
Before Judges Kestin, Fall and Weissbard.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant was charged with two counts of endangering the welfare of a child: the second-degree crime established in N.J.S.A. 2C:24-4b(5)(a) for his alleged receipt and subsequent distribution of child pornography, and the fourth-degree crime established in N.J.S.A. 2C:24-4b(5)(b) for his alleged possession of child pornography. After a jury trial, defendant was convicted of both charges. The trial court merged the convictions, and sentenced defendant to a five-year term of imprisonment followed by sex offender registration pursuant to N.J.S.A. 2C:7-1 to -19.
Appropriate statutory fees, penalties and assessments were also ordered.
On appeal, defendant raises the following issues:
POINT I BECAUSE IT PROHIBITS A SUBSTANTIAL AMOUNT OF PROTECTED SPEECH, N.J.S.A. 2C:24-4b IS UNCONSTITUTIONALLY OVERBROAD IN VIOLATION OF THE FIRST AMENDMENT.
POINT II BECAUSE THE STATE'S OWN EXPERTS COULD NOT ASCERTAIN WHETHER THE IMAGES OF CHILDREN IN THIS CASE WERE COMPUTER-GENERATED OR ACTUAL PHOTOGRAPHS, DEFENDANT IS ENTITLED TO A JUDGMENT OF ACQUITTAL UNDER ASHCROFT V. FREE SPEECH COALITION.
POINT III BY PERMITTING THE STATE TO PROVE THAT A PERSON DEPICTED IN AN IMAGE WAS A CHILD WITHOUT SUBMITTING EVIDENCE OF ACTUAL AGE, N.J.S.A. 2C:24-4b(6) UNCONSTITUTIONALLY SHIFTS THE BURDEN TO DEFENDANTS TO PROVE THAT THE MATERIALS THEY POSSESSED DO NOT DEPICT CHILDREN.
POINT IV THE DELAY OF MORE THAN TWO AND ONE HALF YEARS IN BRINGING DEFENDANT TO TRIAL DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.
POINT V THE TRIAL COURT ERRED IN REFUSING TO DOWNGRADE DEFENDANT'S OFFENSE TO THE THIRD DEGREE FOR SENTENCING PURPOSES.
POINT VI BECAUSE THE OFFENSES WHICH DEFENDANT WAS CONVICTED OF DO NOT FALL WITHIN THE PURVIEW OF MEGAN'S LAW, N.J.S.A. 2C:7-2b(2), THAT PORTION OF HIS SENTENCE REQUIRING HIM TO REGISTER AS A SEX OFFENDER IS ILLEGAL AND MUST BE VACATED. (Not Raised Below)
The terms of the pertinent provisions of N.J.S.A. 2C:24-4b in effect at the times charged in the indictment, June 1, 1998 to October 27, 1998, are in the unemphasized portions of the following excerpt. The emphasized language was added to the statute by L. 1998, c. 126, effective May 1, 1999.
(5)(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, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree.
(b) 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 child 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.
(6) For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of 16 in any photograph, [or] film, videotape, computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 16.
If the child who is depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act is under the age of 16, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was under the age of 16, nor shall it be a defense that the actor believed that the child was 16 years of age or older, even if such a mistaken belief was reasonable.
No argument defendant raises concerning the meaning and application of the amendments themselves has bearing upon the questions presently before us. The amendments have no impact upon our understanding of how the pre-amendment provisions apply to the case at hand. See State v. Sisler, ___ N.J. ___ (2003); State v. Brady, 332 N.J. Super. 445 (App. Div.), certif. denied, 165 N.J. 606 (2000).
The factual bases of the charges were that defendant had distributed and possessed child pornography he posted to and received from the Internet on his home computer. Among the defenses at trial was the contention that the images were not of actual children, but rather of dolls and virtual, computer-drawn and-created images of children. In advancing that argument, defendant relied on Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999). That decision has since been affirmed sub nom. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002), in which the United States Supreme Court determined that certain definitional sections of the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C.A. §2251 to §2260, to the extent they criminalized the possession or distribution of virtual images, were overly broad in their abridgements of freedoms protected by the First Amendment to the United States Constitution and, hence, unconstitutional. The Court reasoned that the governmental interest in protecting children did not extend to the use of images in the production of which real children had not been involved. The Court did not consider issues bearing on the process known as"computer morphing," i.e.,"alter[ing] innocent pictures of real children so that the children appear to be engaged in sexual activity." 535 U.S. at ___; 122 S. Ct. at 1397; 152 L. Ed. 2d at 416.
The primary questions before us are whether N.J.S.A. 2C:24-4b is unconstitutional in whole or in part and, if the statute survives constitutional scrutiny, whether the trial court committed reversible error when it instructed the jury relative to what may be termed defendant's virtual-image defense that, because the State alleged the images possessed and distributed by defendant were of real children, the issue of whether N.J.S.A. 2C:24-4b(5) is violated by possession and distribution of virtual images of children was not before the jury. We are also called upon to determine whether the trial court erred when it: (1) denied defendant's motion for acquittal at the close of the State's case, (2) assertedly shifted to defendant the burden of proving the age of the persons depicted in the images obtained from his computer, (3) denied defendant's motion to dismiss the indictment based on the alleged violation of his right to a speedy trial, (4) denied defendant's request to be sentenced as a third-degree offender, rather than as a second-degree offender; and 5) ordered compliance with sex offender registration laws.
There is no essential factual dispute. In June and July 1998, the New York State Attorney General's Office investigated the dissemination of child pornography over the Internet. The investigation centered on"news groups," which are Internet sites devoted to specific topics and which were described at trial as functioning"[m]uch like the bulletin board at your local supermarket." News groups allow a person to post messages and files on a site for other persons to read, and they allow a person to read and download messages and files posted on the site by other persons. The New York authorities were mainly interested in the news-group site designated as"alt.binaries.pictures.erotica. preteen."
Monitoring that site, the New York authorities determined that a news-group user who identified himself as"email@example.com" made postings to the site on June 16, July 2, and July 5, 1998. The postings contained many images that could be characterized as child pornography. The New York authorities traced the postings to their origin, determining that they had come from defendant's home computer in New Jersey. At that point, the New York authorities referred the matter to the New Jersey State Police.
On October 27, 1998, representatives from various law enforcement organizations executed a warrant to search defendant's home in Bridgewater, seizing defendant's computer and other equipment, including floppy disks, that were in the room with the computer. Defendant's pre-trial motion to suppress this evidence was denied. That denial is not in issue on appeal.
The computer's hard drives and the floppy disks were subsequently examined by Detective Peter J. Wolf of the New Jersey State Police Division's High Technologies and Computer Vehicles Support Unit. Wolf testified for the State as an expert in"computer forensics," which involves the"technical aspects of computer analysis."
Wolf determined that the matter inspected contained about 959"image files." Of those, Wolf determined that approximately 300 files pertained to the child-pornography investigation because he"believed that they contain[ed] children in sexually explicit poses or in sexual activities." At trial, the State introduced fifty eight of those image files into evidence against defendant.
The trial judge precluded the prosecutor from eliciting on direct examination Wolf's opinion about the ages of the persons depicted in the fifty-eight images presented to the jury. The court instructed the jurors that Wolf had not been qualified as an expert for the purpose of determining age and that the jury had to make its own determination about the ages of the persons in the images. On cross-examination, Wolf testified that he had no"factual knowledge" concerning the age or identity of the persons depicted in the fifty-eight images, and, on redirect examination, he stated that it"really takes an expert, usually a pediatrician," to make such a determination of age.
Wolf testified on direct examination that one of the images in evidence appeared to be a"morphed photograph," which is an image made when one"take[s] two photographs, maybe one of an adult and one of a child, and take[s] the child's head and put[s] it on the adult body or rearrange[s] it in any way you want to arrange it." On cross-examination, Wolf acknowledged that, through computer"morphing," it was possible to"take a picture of an adult and cause that picture to change into the same recognizable face, but with a younger look to it[.]" Wolf conceded that, by employing computer-morphing software, it would be possible to take a picture of him, an adult, and transform it"into a picture of... a four foot tall little boy, but recognizable" as him. Wolf also agreed that morphing is"a process of transforming an image into something that it never was."
Wolf was then asked whether it was"possible in your opinion" that some or all of the fifty-eight images"of the young people" presented to the jury"might have been morphed images." Wolf testified that it was"possible," but that he did not believe most of the images depicted were morphed.
Wolf replied in the affirmative that it was"possible to create an image entirely on the computer." He also conceded the possibility that all fifty-eight of the images before the jury could have been"computer generated," but he rejected the premise that a particular image was a"doll," stating that the image looked"very real" to him. On redirect examination, Wolf clarified that his opinion of the image as that of a real"human being" and not a"doll" was based on the"shading" of the image and the"expressions on the child's face." On recross-examination, Wolf explained the term "computer generated" by agreeing with the following questions:"If an image is computer generated, then there is no child involved, no actual child involved? Correct? No actual child was photographed?" Wolf stated further, though, that a"child may have been used as a model" for the computer-generated image.
Wolf was also asked on redirect examination about morphed images among the fifty-eight images presented to the jury, and he repeated that"some of them, I believe, were morphed... but the majority of them I do not believe were morphed." He stated here, too, that this opinion was based on the lack of distortion in ...