On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-03-0298.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves and J. N. Harris.
Defendant was convicted of luring or enticing a child, N.J.S.A. 2C:13-6 (count one), attempted child endangerment, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a) (count four), and endangering the welfare of a minor, N.J.S.A. 2C:24-4(b)(5)(b) (count five),*fn1 and sentenced to eight years in the custody of the Commissioner of the Department of Corrections on count one (luring or enticing) and a consecutive fifteen months on count five (endangering). A concurrent five-year sentence was imposed on count four (attempted endangering). However, the judgment notes an aggregate sentence of twenty-three years (that would be right if it were eight years plus fifteen years, not eight years plus fifteen months) and must be corrected.
Counts one through four, including the two counts on which defendant was found not guilty, were alleged to occur in Wayne, Passaic County during July through September 2005. Count five alleged possession of photos, film, videotapes or a computer program "which depicts a child engaging in a prohibited sexual act or in the simulation of such an act." This count relates to conduct occurring in Bayonne, Hudson County, and detected on September 1, 2005, following defendant's arrest and the execution of a consent warrant to search his basement apartment.
Defendant argues his convictions must be reversed because he was denied a fair trial by virtue of the introduction and "utilization of the alleged child pornography," in violation of N.J.R.E. 404(b), and its admission without a limiting instruction; the court erred in not dismissing count five (endangering) "due to lack of evidence"; counts one through four "should have been dismissed for due process entrapment"; count five (endangering) charging possession of pornography "should have been severed"; the internet conversations should have been excluded as they were "not properly presented"; the verdict is against the weight of the evidence; the "cumulative trial errors" require reversal; an ex parte communication between the judge and the Avenel evaluator warrants rejection of the Avenel report; and the judge improperly found aggravating factors and failed to find mitigating factors (except seven--no prior record). We disagree and affirm.
Detective Juan Passano (Passano) of the Passaic County Sheriff's Office investigates "crimes against children, child pornography, and luring and enticing of minors by adults." In July 2005, Passano created Vivalagirl12 as a "screen name" and a "member profile."*fn2 Vivalagirl12's profile indicated that she was female, her name was "Sarah," she was located in New Jersey, she was single and that she was Italian and Spaniard. During the trial, Passano testified as to the nature of the internet conversations he had with defendant.*fn3
The first conversation occurred on July 14, 2005.
Defendant initiated that conversation using the screen name LAtnLvR321. During that first conversation, defendant asked "Sarah" her age and where she was from. "Sarah" responded that she was a twelve-year-old female from Wayne, New Jersey.
"Sarah" also told defendant that she was in the sixth grade. Defendant then told "Sarah" that he was eighteen years*fn4 old and he lived in Bayonne, New Jersey. Thereafter, defendant asked "Sarah" if she had a picture. When she said she did not, defendant asked her to describe herself. After describing herself, defendant asked "Sarah" if she "got a man?" "Sarah" replied that she did and that he seventeen years old. Defendant then asked "Sarah" if she "like[d] older guys." "Sarah" answered in the affirmative and asked defendant if he "like[d] younger girls." Defendant responded, "[w]ell, I don't care about age so long as you don't act like six, you know."
Thereafter, defendant asked "Sarah," "Do you [want to] meet?"
Sarah responded that she did not know defendant well enough to meet him. Then defendant asked, "You wanna be my girl."
"Sarah" responded, "I don't know you yet, damn." Defendant then asked, "You think maybe tomorrow morning maybe I can see you?"
"Sarah" indicated that it was too early to meet defendant.
However, defendant persisted in arranging a meeting and tried to find ways in which he could meet "Sarah." Defendant then asked "Sarah" if her current boyfriend was the oldest boyfriend she had had, how long she had been with him, and if she loved him. "Sarah" responded that her current boyfriend was the oldest person she had dated, that she had not been with him for long, and that she did not love him. Subsequently, defendant asked to be excused from the conversation.
When defendant returned, few minutes later, defendant initiated a rather graphic and sexually explicit conversation with "Sarah." The relevant portions of the conversation are as follows:
A: Of course. So what do you like to do,....
Q: I like hanging with my friend, go to the malls, movies.
Q: I... [don't] have a car.
A: I mean would you like that,....
A: Well, I have to see you in them first. LOL*fn6
A: So you don't kiss or anything like that.
Q: I'm only 12, daaa. Haven't done that yet. Virgin, too.
A: You haven't kissed yet,....
A: So since you haven't kissed or anything, I guess I might be your first for everything, right. LOL.
A: Don't be sorry. I wanna teach you, as long as you wanna learn,....
Q: Yeah. What you gonna teach me.
A: Well, it depends on what you gonna let me teach you.
Q: I don't know that much.
A: So then I can teach you everything.
A: What's the farthest you done,...
A: Like have you touched a guy or a guy touch you,...
Q: No, [I] haven't gotten touch yet.
A: Okay, I can teach you that too. Okay.
A: You have a big booty,....
Q: Yeah, I do. I mean [it] is kinda big for my age.
A: How about your chest,...
A: You ever seen a guy's you know what.
Q: No, I get in trouble with my [pa]rents,....
A: Okay. So if I show you mine, you not gonna tell them, right.
A: Okay. You gonna show me yours too,....
Q: It'll be the one time I'll show somebody.
A: You gonna touch it,...
A: I can touch yours too, right.
A: I'll let you - - I'll tell you what I wanna do, and you tell me if it's okay. Okay?