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State v. Finesmith

July 13, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ROSS FINESMITH, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-07-111-S.

The opinion of the court was delivered by: Collester, J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 28, 2008

Before Judges Skillman, Collester and Grall.

Pursuant to leave granted, the State appeals from that portion of the March 3, 2008 order limiting the temporal scope of a communications data warrant (CDW) issued pursuant to N.J.S.A. 2A:156A-29(c) and (e) to a two-week period. We reverse.

In October 2004, the New Jersey State Police Digital Technology Investigation Unit received information from the Wyoming Internet Crimes Against Children Task Force that certain Internet Protocol (IP) addresses assigned to New Jersey residents were making or had been making available pornographic videos and images involving children to others through peer-to-peer filing networks accessed through downloading and installing a file sharing program.*fn1 As the possession, receipt, and distribution of child pornography is prohibited by N.J.S.A. 2C:24-4b(5)(a) and (b), State Grand Jury subpoenas were issued to Internet Service Providers (ISPs) for subscriber information on the IP addresses. Optimum Online responded to the subpoena by disclosing that one IP address was in the name of Leslie Finesmith in Basking Ridge. Further investigation by the State Police disclosed that Leslie Finesmith is the wife of defendant, Dr. Ross Finesmith, a medical doctor and pediatric neurologist, who lives at the Basking Ridge address with his wife and three daughters, ages eleven, fourteen, and fifteen.

On January 27, 2005, the State Police executed a search warrant on the Basking Ridge residence. Six computers and related media were seized: two desktop computers in the daughters' upstairs bedrooms, two on the first floor, one in an area of the basement used as a home office, and a laptop found in defendant's Honda minivan parked in the garage.*fn2 Forensic analysis of the desktop computer in the home office identified child pornography offered in the same manner as the child pornography found by Wyoming authorities. Subsequent analysis of the laptop computer also revealed the presence of child pornography that was last viewed the day before the date of execution of the search warrant.

Defendant was arrested on the date the warrant was executed. On July 14, 2005, he was indicted by the State Grand Jury on charges of second-degree endangering the welfare of a child by distribution of child pornography, in violation of N.J.S.A. 2C:24-4(b)(5)(a) (count one), and fourth-degree endangering the welfare of a child (possession of child pornography), in violation of N.J.S.A. 2C:24-4(b)(5)(b) (count two).

The central issue in controversy is the identity of the person who downloaded the child pornography on to the home office desktop computer and the laptop computer. The defense strongly contests that defendant was the "offeror" and possessor of the child pornography and has suggested another member of the household was responsible. To rebut any such defense, the State made an ex parte application to the trial judge*fn3 for a CDW to require an ISP called "DocISP," a provider of email services for doctors, to provide electronic communications of the defendant as a registered user including:

Emails with attachments, opened or unopened; subscriber name, address, contact numbers; all associated information including but not limited to billing information; method and history of payment; usage; access; internet protocol logs; customer service records; static or dynamic protocol address; and any information located on the DocISP service or other databases that indicate internet sites, chat rooms or any activity or service provided by or through DocISP to its associated user Ross Finesmith.

The application sought the stored electronic content without a limitation as to the temporal scope. The State subsequently advised the court that the available stored electronic content for DocISP included electronic mail received and undeleted by the user for the period of June 28, 2004 to January 28, 2005.

The affidavit of Detective Sergeant Gorman in support of the CDW stated that on January 23, 2005, the person using the laptop accessed defendant's DocISP email account, read at least six messages, and deleted 123. The user also visited three medical sites and attempted to read a news article titled "Pediatric Patients Get Poor Follow-Up After ADHA Diagnosis," on one of the sites. About thirty minutes later, during the same computer session, the user ...


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