On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-06-128-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Gilroy.
Defendant Jeffrey H. Tanner appeals from the denial of his application for admission to the Pretrial Intervention Program (PTI) and the denial of his motion for reconsideration post-trial. On June 26, 2003, defendant and co-defendant Raul R. Angeles, were charged in Monmouth County Indictment No. 03-06-128-S with fourth degree endangering the welfare of children based on possessing or viewing child pornography, contrary to N.J.S.A. 2C:24-4b(5)(b) (count four). Angeles was also charged with three counts of second degree official misconduct, contrary to N.J.S.A. 2C:30-2 (counts one, two, and three).
Defendant was indicted after New Jersey authorities were informed that a computer website with child pornography, www.boyswillbeboys.net, was operating in Hackensack. Police seized over five-thousand images of alleged child pornography, as well as the website's subscription database, which contained the names of defendant and co-defendant, their e-mail addresses, and password information. After further investigation, State Police executed a search warrant on the home that defendant and Angeles shared in Asbury Park. Defendant waived his Miranda*fn1 rights, told the police both he and Angeles had subscription accounts to the www.boyswillbeboys.net website, and acknowledged visiting the website on "several handfuls" of occasions and viewing images of unclothed individuals. He denied viewing sexually explicit images or saving anything that he viewed.
The police seized three computers from the home and a large quantity of storage media, including zip discs, floppy diskettes, undeveloped film and VHS cassettes. One of the computers, a Macintosh Apple, was found in the upstairs bedroom and was operational. A Compaq Presario was also found in the bedroom, but it was disconnected. The third computer, a Quantex, was located in the basement underneath a table and it was disconnected. All of the storage media were found in the attic.
Computer forensic examiners discovered an array of suspected child pornography on the computers seized from defendant and co-defendant. Eighty-five images of suspected child pornography were found in the "allocated"*fn2 space on the hard drive of the computers. Suspected child pornography was found on two videos and on one floppy diskette recovered from the attic.
Following his indictment, defendant applied for admission into PTI. The application was denied, and defendant appealed.
On September 22, 2003, Judge Anthony J. Mellaci, Jr. entered an order remanding the matter back to the Attorney General for reconsideration, determining that defendant had been rejected solely because of the nature of the offense without properly considering the other statutory factors. The State reconsidered defendant's PTI application, but again denied him admission on October 10, 2003. Defendant appealed, and Judge Mellaci affirmed the denial of PTI.
Defendant and co-defendant Angeles were jointly tried before Judge Ira E. Kreizman and a jury for eight days commencing on September 22, 2004. At trial, the State introduced the images retrieved from the defendants' computers and storage media. The majority of the images depicted casually posed, unclothed young men. Many of the pictures were of a single person; few contained two persons engaged in a sexual act. Most of the images were retrieved from "unallocated" space. Several of the images were of a young man identified as Jesse. Detective Paul Cales of the Kentucky State Police identified Jesse as the person in at least thirteen images on defendant's computer. Detective Cales knew Jesse as a young man born in 1985 and identified those photos as having been taken when Jesse was fourteen years of age.
When defendant testified at trial, he admitted that the Macintosh and Compaq computers belonged to him, and that he subscribed to the www.boyswillbeboys.net website. He admitted viewing pictures of individuals on the www.boyswillbeboys.net website*fn3 , but denied that any of the individuals appeared to be youthful or that any of the images depicted anyone engaged in a sexual act. Defendant denied that he ever viewed any videos on the website, and denied that he saved any of the images or knew that the computer had automatically done so. Defendant testified that both he and Angeles used the computers, that he did not know what Angeles did when he was on the computer, and specifically denied viewing, downloading or saving any of the alleged pornographic images introduced into evidence. Similarly, defendant denied viewing or saving the videos or images on the floppy diskette.
Defendant was convicted of the charge of endangering the welfare of children. Defendant then renewed his application for admission into PTI and moved for a new trial, arguing that the conviction was against the weight of the evidence. After a hearing on February 25, 2005, Judge Mellaci denied the motion for reconsideration. Judge Kreizman then denied the motion for a new trial.
On April 29, 2005, defendant was sentenced to a probationary term of one year with the condition that he have no contact with children under the age of sixteen. All ...