On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-11-2526.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Simonelli.
A jury convicted defendant Frank Intersimone of second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2c(4) (count one); second-degree luring, enticing a child by various means, N.J.S.A. 2C:13-6 (count two); and third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and 2C:24-4a (count three). The charges stemmed from defendant's internet communications with an undercover police officer posing as a fourteen-year-old girl.
The trial judge granted the State's motion to impose an extended-term sentence as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The judge also found that the luring conviction was a second such conviction, which mandated a period of parole ineligibility of up to one-half of the sentence imposed. The judge then merged count three with count one and sentenced defendant to a extended sixteen-year terms of imprisonment with eight years of parole ineligibility on counts one and two, to run concurrently. The judge also imposed the appropriate assessments and penalties, and ordered defendant's sentence to be served at the Adult Diagnostic Treatment Center. Defendant was also subjected to the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -19, and parole supervision for life.
We derive the following facts from the evidence presented at trial.
Prior to the incident forming the basis of the charges in this matter, defendant pled guilty in New York to second-degree attempted rape and two counts of first-degree attempted dissemination of indecent material to minors, for which he was sentenced to a thirty day jail term and ten years probation. Six months later, he was convicted in New Jersey of fourth-degree endangering the welfare of a child by disseminating and/or knowingly possessing a photo of a child engaging in a prohibited sex act, for which he was sentenced to a twenty-nine day jail term and two years probation.
The New York charges stemmed from defendant's internet communications during the fall of 2002 and winter of 2003 with an undercover police officer posing as a thirteen-year-old girl. Defendant's conduct in that case was strikingly similar to his conduct in the present case. In the New York case, a detective with the New York City Police Department had created the screen name, "BabyGee1989," which purportedly belonged to a thirteen-year-old girl. He used the screen name in a chat room called "BiF/For/OlderBiF."
BabyGee1989 received an instant message from "NJBiGurl069," who said she was a twenty-three-year-old bisexual voyeur who wanted to watch her boyfriend engage in sexual activities with another girl. BabyGee1989 told NJBiGurl069 she was thirteen years old. NJBiGurl069 then said her name was "Kara" and her boyfriend "Frank," later identified as defendant, was a twenty-four-year-old "cute Italian" guy who was "really sweet." Kara told BabyGee1989 that defendant was also online and that she could instant message him at the screen name "Fci469." Thereafter, NJBiGurl069 described the various sexual activities she wanted the three to participate in, and asked about BabyGee1989's sexual experiences, what she would be willing to do, and when they could meet. Kara told BabyGee1989 that when they met, she "want[ed] [her] in a cute small skirt."
NJBiGurl069 and Fci469 had seventy more sexually explicit instant message conversations with BabyGee1989. During these conversations, Fci469 asked whether BabyGee1989 would wear a "short skirt" and let him touch her while he was driving, and whether he could "put it in [BabyGee1989] for like five minutes without [a condom] . . . then . . . take it out and put it on." The police eventually learned that defendant was the America Online (AOL) subscriber associated with both NJBiGurl069, Fci469 and several other screen names including "Ffooter014," which defendant also used to communicate with BabyGee1989.
BabyGee1989 and defendant made arrangements to meet in Washington Square Park and then, if they liked each other, proceed to a nearby hotel to engage in various sex acts.
Defendant arrived at Washington Square Park at the designated time and met with a young female New York City Police Department detective who pretended to be BabyGee1989. Defendant was arrested in the hotel room he had rented to engage in sexual activity with BabyGee1989. As previously stated, defendant was convicted of second-degree attempted rape and two counts of first-degree attempted dissemination of indecent material to minors, for which he was sentenced to a thirty day jail term and ten years probation.
In the summer of 2006, Detective Russell Gelber of the Monmouth County Prosecutor's Office Computer Crimes Task Force participated in an internet investigation targeting sexual predators. He used the screen name "Sandgurl92," which purportedly belonged to a fourteen-year-old girl from Middletown. Gelber used this screen name in an AOL chat room called "Places New Jersey."
On July 10, 2006, Sandgurl92 received an instant message from "Smokin42o," an AOL screen name purportedly belonging to a twenty-five year-old woman named "Kara." After greeting Sandgurl92, Kara revealed her age and inquired about Sandgurl92's age and relationship status. Sandgurl92 replied that she was fourteen and single. Kara responded that she was bisexual and wished to find another female to engage in three-way sex acts with her and her twenty-seven-year-old boyfriend. Kara asked if Sandgurl92 was willing to date older men, if she wore skirts and if she would "wear a short one for us" with ...