On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-01-0039.
The opinion of the court was delivered by: Simonelli, J.S.C., t/a
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Lihotz and Simonelli.
A Somerset County grand jury indicted defendant for second and third degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3, stemming from his theft of over $650,000 from his employer. Defendant pled guilty after the denial of his motion to suppress evidence obtained from the warrantless search of a Sony Vaio laptop computer (the laptop) and an Ultra desktop computer (the tower) conducted pursuant to his employer's consent. On appeal, defendant contends that his employer had no authority to consent to the search because defendant, not the employer, owned the computers; and that he had a reasonable expectation of privacy in personal information stored in the computers. We conclude the search was valid and defendant had no reasonable expectation of privacy in the content of the computers. Because we also conclude defendant's sentence was appropriate, we affirm.*fn1
Defendant is no stranger to the criminal justice system. In October 1990, he was charged with two counts of forgery, contrary to N.J.S.A. 2C:21-1a(2), and one count of theft by deception, contrary to N.J.S.A. 2C:20-4. He was accepted into the Pretrial Intervention Program for twelve months and discharged on January 15, 1992. On February 15, 1992, defendant was charged with fourteen counts of forgery, contrary to N.J.S.A. 2C:21-1a(1) and (3), stemming from his theft of $221,871.05 from an employer. He pled guilty, was sentenced to five years probation, and was ordered to serve 364 days in the Middlesex County jail and to pay restitution. Defendant completed all conditions of probation, except restitution. A civil judgment was entered against him for the amount of the theft. Defendant was discharged from probation on May 17, 2002.
Defendant was still on probation in September 1997, when Joseph Braun, a majority owner of Certified Data Products (CDP),*fn2 hired him as a temporary bookkeeper primarily responsible for accounts payable.*fn3 CDP, located at 51 Old Camplain Road, Hillsborough,*fn4 manufactures adhesive backed labels. At the start of defendant's employment, Braun advised him "that the computers or anything in the office is company property." Also, defendant signed a non-disclosure of confidential information and non-compete agreement.
Defendant soon became a trusted employee. In January 1998, he became CDP's permanent full-time bookkeeper with increased job duties including invoicing, order entries, payroll, and bank and payroll records. Defendant's duties eventually expanded to include some operational matters, overseeing other employees, and assisting with sales by using the laptop to perform label printing demonstrations during sales calls.
Defendant had a private office at CDP, that had a door with a lock. Braun testified at the suppression hearing, the door was "never closed" and "never locked[,]" and the only time the door may have been closed was when defendant was on the phone; however, on weekends when defendant left, "it was always open." Defendant did not dispute Braun's testimony and admitted Braun "might have had [a key to the door]."
In addition to working for CDP, defendant owned a business known as Dynamic Data Solutions (DDS), through which he sold used computers and related equipment. CDP purchased approximately ten computers from DDS, which defendant installed. Because Braun had no computer training, and because defendant was an expert in computers, Braun also gave defendant computer responsibilities and relied on defendant for computer issues.
Defendant upgraded the company's computer system and established a computer network system. To log into the network system, employees used the same password*fn5 and then entered their name. Unbeknownst to Braun, defendant placed a separate password in the tower and laptop and stored personal information in them.
Once logged into the network, employees could log into the Zetex system.*fn6 The Zetex system had only two administrators, Braun and defendant, both of whom had equal access capabilities, and could "go in to see what anybody [logged-in the network] [was] doing at any given time[.]" Only Braun, his wife Petra,*fn7 and defendant could access CDP's financial records, including the electronic check registers.
On June 4, 2001, CDP purchased the tower from DDS for approximately $1500. The tower was connected to CDP's network, and located in defendant's office. According to Braun, defendant previously owned the laptop and brought it to work several times. In 2001, defendant was no longer using the laptop and wanted to get a new one. Because CDP needed a laptop, it purchased the laptop from defendant on September 7, 2001 for $500.*fn8 However, unbeknownst to Braun, in August 1999, defendant had used Braun's corporate credit card to purchase the laptop for $3017.99 and paid the credit card bill with a CDP ...