July 21, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANK C. INTERSIMONE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 25, 2010
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 no underwear. Kara also questioned Sandgurl92 about her sexual experience and her willingness to perform particular sex acts with her and her boyfriend.
When Kara asked Sandgurl92 for a photo of herself, Gelber e-mailed Kara two photos of Officer Tracy Barrett of the Long Branch Police Department, taken when Barrett was fourteen years old. Kara e-mailed back a photo of her boyfriend, later identified as defendant, who was actually thirty-seven years old at the time. Kara eventually told Snadgur192 that her boyfriend's name was "Frank," and that he was a "cute Italian" who was "really nice and sweet," who "wouldn't care that [she] was younger" and would be "gentle" with her. Kara also said that defendant's screen name was "Ffooter26."
The next day, Sandgurl92 communicated with Smokin42o via an instant message. During a subsequent internet communication, Kara once again asked Sandgurl92 about the sex acts she was willing to perform with her and defendant, and reiterated that defendant liked to "date younger" and would want to see Sandgurl92 in a "little skirt, a cute top." Kara then told Sandgurl92 that defendant was online and encouraged her to send an instant message to Ffooter26. At that point, Gelber engaged in a simultaneous conversation with Kara and defendant during which they discussed sexual activities, and defendant expressed a desire to meet Sandgurl92 and do whatever she felt comfortable doing. Defendant stated that, once they met, he would want Sandgurl92 to be his girlfriend and that he would want to see her "again and again."
Between July 13, 2006, and August 28, 2006, Sandgurl92, defendant and Kara engaged in many more sexually explicit communications. Defendant and Kara repeatedly asked whether Sandgurl92 would be willing to "open [her] legs" for defendant while wearing her little skirt, and whether she would let defendant "put it in [her] for a minute without a condom on and then let him pull it out and then put it on." During one of these internet communications, defendant revealed that he regularly took one of his roommates to AA meetings. On August 8, 2006, Gelber taped a sexually explicit phone conversation between defendant and another female officer, Detective Maria Reverendo of the Monmouth County Prosecutor's Office, who posed as Sandgurl92.
Gelber learned from AOL that Mary Smith,*fn1 who resided in Stanhope, was the subscriber associated with the screen names Smokin42o and Ffooter26, and she paid her AOL account with a Discover card. Gelber also learned that defendant resided at Smith's home, both Smokin42o and Ffooter26 logged onto the internet using the same IP address, which indicated that they were communicating from the same computer, and the IP address was assigned to defendant's phone number.
On August 29, 2006, Sandgurl92 agreed to meet defendant the next day at the Union Square Mall in Middletown. Defendant said that he would be driving a black Mazda and would bring condoms. In a follow-up communication the next morning, defendant confirmed that he would meet Sandgurl92 at noon.
Detective Gotfredsen of the Long Branch Police Department conducted surveillance on defendant's home in Stanhope the morning of August 30, 2006. At 10:52 a.m., Gotfredsen saw a black Mazda, later found to be registered to defendant, leave the home. The officer immediately notified Gelber, who was at the Union Square Mall.
Defendant was immediately arrested upon his arrival at the mall. Police searched his car and found a cell phone, a Discover card with the same account number as that used to pay Sule's AOL account, and a condom. Later that same day, the police searched defendant's home and seized a Toshiba laptop computer.
Lieutenant William Wei of the Monmouth County Prosecutor's Office, who supervised the investigation, performed a forensic examination of defendant's laptop. He concluded that the laptop's operating system had a single user account which was password protected and contained antivirus software registered to defendant. He ascertained that AOL had been installed on the computer and that the screen names Smokin42o and Ffooter26 had both been used on it. Utilizing a forensics program called "Encase," Wei found portions of several of the communications between Sandgurl92, Smokin42o and Ffooter26. He also found one of the photos of Barrett that Gelber had e-mailed to Smokin42o.
The AOL account was created in Smith's name on May 20, 2005, and six screen names were linked to the account including Ffooter26 and Smokin42o. The computer's user could sign on to AOL under one screen name and then go to AIM.com and simultaneously sign on under another screen name.
One of defendant's Stanhope housemates testified that defendant drove him to AA meetings in the summer of 2006, there were three separate phone lines to Smith's house, defendant regularly used a laptop, which he would put away quickly whenever he was interrupted, and defendant had a few girlfriends between late 2005 and August 2006.
Another housemate testified that defendant was popular with women and sometimes dated two or three at a time, defendant once dated a "Carasis Wright," defendant told him that when conversing with dating prospects over the internet he would sometimes pretend to be a woman in order to "get his foot in the door," and defendant would occasionally pretend to be younger than he his actual age. The housemate confirmed that defendant used his laptop a lot and would close it whenever he stopped by defendant's room to talk.
Smith testified that she knew defendant for more than five years, stayed at the Stanhope house for six months in 2005, and began living with her boyfriend in Hamburg by the summer of 2006. She denied permitting defendant to use her name to obtain internet service.
Defendant testified in his own defense. He confirmed that he lived in Stanhope in the summer of 2006 and drove one of his housemates to AA meetings but maintained that he was seldom home. He also claimed that he only used his laptop to play games, Smith set up the AOL account in her name using his Discover card because she had bad credit, and he continued paying for the account long after Smith had moved out because he believed his girlfriend, Kara, was still using it. He denied knowing the password or using any of the screen names associated with that account, frequenting chat rooms, or communicating with Sandgur192. He maintained that the photos Gelber received were not e-mailed from his laptop.
Defendant also claimed that he dated three or four women over the years, all of whom had access to his laptop, and he dated two women in the summer of 2006, both of whom regularly stayed in his room. One of these women, Kara, was his girlfriend for eight or nine years and knew about the New York incident. Defendant believed that Kara set him up with respect to the instant offenses after discovering that he had cheated on her with one of her friends. On direct examination, defendant claimed that he had no further contact with Kara after his arrest and did not know her whereabouts. On cross-examination, he could not recall Kara's prior address or phone number, or the address of the other women he dated during the summer of 2006.
Defendant admitted that he participated in the recorded phone conversation with Reverendo but insisted that he thought he was talking to one of Kara's friends. He explained that Kara had offered to get him a "threesome," and denied knowing anything about Kara's conversations with Sandgurl92.
Defendant also claimed that he drove to the mall on August 30, 2006, because Kara had suggested that they drive down the shore to meet one of her friends for lunch. They took two cars because Kara said that she needed to return to her mother's house later that day.
It is against these facts that defendant raises the following contentions:
POINT ONE - PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amend. VI, XIV; N.J. CONST. Art. I, Pars. 1, 9, and 10 (Not Raised Below).
A. GENERAL PRINCIPLES.
B. IMPROPER BURDEN SHIFTING.
C. INFLAMMATORY CROSS-EXAMINATION AND SUMMATION.
POINT TWO - THE COURT ERRED IN PERMITTING DETECTIVE WEI TO OFFER EXPERT TESTIMONY WITHOUT HAVING BEEN QUALIFIED AS AN EXPERT, AND BY NOT DELIVERING AN INSTRUCTION ON EVALUATING EXPERT TESTIMONY, IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), Art. I, Pars. 1, 9, 10. (Not Raised Below).
POINT THREE - THE RISK THE JURY WOULD CONSIDER EXCESSIVE DETAILS ABOUT THE PURPORTED UNCANNY SIMILARITY BETWEEN THE PRIOR OFFENSE AND THE PRESENT CHARGED OFFENSE AS EVIDENCE DEFENDANT HAD A PROPENSITY TO COMMIT SUCH OFFENSES COULD NOT BE CURED BY ANY CAUTIONARY INSTRUCTION, SO DEFENDANT WAS THEREBY DENIED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. Amend. VI, XIV; N.J. CONST., Art. I, Pars. 1, 9, and 10. (Not Raised Below).
POINT FOUR - THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF THE INDIVIDUAL ERRORS, AS SET FORTH ABOVE, DO NOT CONSTITUTE REVERSIBLE ERROR. THE ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL. POINT FIVE - THE 16-YEAR EXTENDED TERM SENTENCE WITH AN 8-YEAR PERIOD OF PAROLE INELIGIBILITY WAS ILLEGALLY IMPOSED.
A. DEFENDANT DID NOT MEET THE CRITERIA NECESSARY TO IMPOSE A PERSISTENT OFFENDER EXTENDED TERM.
B. THE PRESENT OFFENSE WAS NOT A SECOND CONVICTION FOR LURING, ENTICING A CHILD BY VARIOUS MEANS.
C. THE COURT ILLEGALLY IMPOSED TWO EXTENDED TERM SENTENCES.
Defendant's contentions in Points One, Two, and Three raised for the first time on appeal, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following comments.
As to Point One, the prosecutor committed no prosecutorial misconduct in either his cross-examination of defendant, or in his summation. The prosecutor's questioning of defendant about Kara was in response to defendant's direct examination and constituted a permissible challenge to defendant's credibility. The prosecutor's summation was fair comment on the evidence and a permissible response to defense counsel's attempt in his summation to place blame on Kara for the internet communications with Sandgur192.
As to Point Two, Wei did not testify as an expert or give an expert opinion linking the computer to the communications between Sandgur192, Smokin42o and Ffooter26. Rather, he testified as a fact witness about his forensics investigation into defendant's laptop, and merely reported what he found on its hard drive utilizing a forensics computer program of unquestioned reliability.
As to Point Three, identity was the main issue in this case. The trial judge conducted a Rule 404(b) hearing to determine the admissibility of the New York offense to prove that defendant sent the internet communications to Sandgur192, not someone else. The judge found that the internet communications in the New York case and those in this case were "almost . . . carbon cop[ies]" or "mirror images" in terms of their content, and thus were admissible to prove defendant's identity. The judge also found this evidence admissible because it "sheds light" on defendant's intent, plan, and lack of mistake. Prior to the presentation of this evidence to the jury, the judge gave an appropriate limiting instruction regarding the use for which the jury could consider this evidence.
We discern no error, let alone plain error, in the judge's rulings. Having reached this conclusion, we need not address Point Four.
In Point Five, defendant challenges his sentence, contending that the judge erred in imposing an extended-term sentence on count one, and in imposing an extended-term sentence with a mandatory period of parole ineligibility on count two.
We discern no abuse of discretion in the imposition of an extended-term sentence on count one. At sentencing, defendant conceded he was extended-term eligible as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The judge agreed, finding that defendant had committed two separate prior offenses; specifically, in April 2004 in New York, and six months later in New Jersey.
Also, N.J.S.A. 2C:13-6d required the judge to impose a mandatory period of parole ineligibility on count two because this conviction was essentially defendant's second conviction for luring. The judge was satisfied, and we agree, that the crime of luring, as defined by N.J.S.A. 2C:13-6a, bears a "substantial resemblance" to the New York offense of disseminating indecent material to minors, N.Y. Penal Law § 235.22, for which defendant was convicted in April 2004.
We also find as properly supported by the record the trial judge's findings of aggravating factors N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law); and the finding of no mitigating factors.
However, the State concedes, and we concur, that N.J.S.A. 2C:44-5(a)(2) prohibits the imposition of an extended-term sentence on count two. Accordingly, we vacate the sentence on count two and remand for re-sentencing on that count to set the base term of imprisonment pursuant to N.J.S.A. 2C:43-6 (ordinary term).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.