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State v. Nandy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 8, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SWAPAN NANDY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-1918.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2010

Before Judges Wefing, Payne and Baxter.

Following a trial by jury, defendant Swapan Nandy was convicted of second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(c)(4) (counts one, two, three and four); second-degree attempting to lure or entice a child into a motor vehicle to commit a criminal offense, N.J.S.A. 2C:13-6(a) (count five); third-degree attempting to endanger the welfare of a child, N.J.S.A. 2C:5-1 and 2C:24-4(a) (count six); and fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:5-1 and 2C:14-3(b) (count seven).

After merging counts two, three and four with count one, the judge sentenced defendant on count one to a seven-year term of imprisonment subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On counts five, six and seven, the judge imposed seven-year, four-year and one-year terms of imprisonment, respectively, concurrent to each other and concurrent to the sentence imposed on count one.

On appeal, defendant raises the following claims:

I. THE TOTALITY OF THE CIRCUMSTANCES REQUIRED A JUDICIAL FINDING THAT DEFENDANT WAS ENTRAPPED IN VIOLATION OF THE DUE PROCESS GUARANTY OF THE STATE CONSTITUTION, N.J. CONST. ART. I. PAR. 2.

II. THE DETECTIVE'S INVESTIGATION IN THIS MATTER VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION, U.S. CONST. AMEND. XIV.

III. THE TRIAL COURT'S JURY INSTRUCTIONS WERE DEFICIENT.

IV. THE STATUTORY SCHEMES OF THE ATTEMPT OFFENSES AND THE LURING OFFENSE CHARGED WERE UNCONSTITUTIONALLY VAGUE AS APPLIED. (Not Raised Below)

V. DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON EACH OF THE COUNTS.

VI. THE PROSECUTOR MADE REMARKS ON SUMMATION WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below).

VII. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We reject these contentions and affirm defendant's conviction and sentence; however, we remand for correction of the judgment of conviction (JOC) to vacate the Sex Offender Surcharge, N.J.S.A. 2C:43-3.7, and to reflect the court's sentence of parole supervision for life, which was imposed orally at the time of sentence, but was not included in the JOC.

I.

In 2004, the Bergen County Prosecutor's Office maintained a Computer Crimes Unit, which investigated attempts by adults, using the Internet, to lure children into sexual activity. The crimes of which defendant was convicted involved "Jules," or "Julie," an undercover online persona created by Detective Brian Reich to impersonate a thirteen-year-old girl. Detective Andrew D'Onofrio, who was Reich's supervisor, developed a set of written guidelines, which were used to train investigators, and which officers were required to follow when conducting online undercover investigations involving chat rooms. The guidelines prohibited investigators from making the first contact with a suspect, but, "[a]fter that first time, depending on the circumstances of the case," they were allowed to initiate subsequent chats.

When playing the role of a child, investigators were forbidden from bringing up the subjects of sex or meeting in person and from sending pornographic images to suspects. As part of their training on entrapment, they were also instructed to let the suspect lead and to avoid being "overly aggressive in their communications of wants and desires." Nevertheless, investigators were allowed to respond to sexual comments, to determine what was "in the mind" of the suspect.

At the time defendant first made contact with Reich, Reich was using the screen name SuperjulesXOXO to impersonate "Jules." In Reich's opinion, the name had no sexual connotations and "xoxo" was not intended as a subliminal message about x-rated themes.

Reich created a profile for Jules including her name and age. Although he failed to save the original profile from 2004, Jules's 2005 profile lists her age as thirteen. Reich insisted that the age information was not altered once it was entered in 2004, but defendant claimed no age was listed on the 2004 profile.

On November 23, 2004, Reich entered a non-sexually explicit, generic New Jersey Internet "chat room" on Yahoo. Reich introduced Jules to the room by saying "Hi, I'm Julie." He then waited for someone to initiate a conversation with her by sending an instant message, which is a one-on-one communication in a private Internet chat room.

At 4:36 p.m., Jules received an instant message from defendant, whose screen name was RGB_com, to which Jules responded that she was "[o]kay. Bored. You?" Defendant, who called himself Sam and was forty-five years old at the time of the chats, asked Jules if she liked older men. She responded, "If they're cool, I guess," to which he responded that he was twenty-four. When Jules replied that she was thirteen, defendant said, "Fine with me."

Defendant explained that he thought the screen name "xoxo" was pornographic, and he believed that when he engaged in the chat with Jules, he would be asked for his credit card number in order to view a triple X show. When defendant said the screen name out loud, he pronounced it "Sexo Sexo." He claimed that he told Jules he was twenty-four because he did not want to provide his true identity, especially to a name that sounded pornographic; however, he admitted he continued the conversation even after Jules identified herself as thirteen.

After some conversation about Jules's interests and location, defendant asked if she was close to her parents. When she responded that her father didn't live with her and her mother was "always . . . out, working," defendant asked Jules if she felt "alone." When she responded that she sometimes did, he replied, "You have me to talk to" and requested that she add him to her buddy list.

Next, defendant asked Jules for her bra size. He then described himself and queried, "Penis size? Want to know? Want to know my cock size?" When she said okay, he replied, "[t]hick, hard, erected" and asked if she had ever touched a penis or put one in her mouth. Jules responded, "[o]nly once. It was kind of yucky." Defendant then asked if she touched her vagina or breasts, and instructed her to imagine him "eating [her] pussy." Jules responded with a smiley face.

Defendant contended that the question about his penis size was a test to see if Jules was role playing. He claimed he had turned the conversation in a graphic direction to determine whether Jules was a triple X user because, if not, she would have called him a pervert and blocked him. Because the conversation continued, he believed that she was an adult who "wanted to be treated like a school kid."

By this time in the first online chat, defendant had started calling Jules "sweetie." He provided his email address so she could send him a picture. Reich explained that he sent a black and white photo of a thirteen- or fourteen-year-old child, "whose parents had given consent for the likeness . . . to be used in the course of seeking out child predators on the Internet." At trial, however, defendant claimed that the picture was so small he could not identify the person, let alone determine her age.

Jules ended the first chat at 5:04 p.m. by saying her mother wanted to take her shopping, but promised to "meet" again later the same day. Reich admitted that Jules initiated all future chats.

That night, a second online chat occurred. Defendant claimed that because the chat occurred late at night, he believed Jules was "horny or she's lonely and she wants to role play," but he never thought she was a child.

Despite that claim, in this same online chat, defendant asked Jules what her favorite school subjects were and whether she went out often by herself. When she mentioned the mall, he asked, "Want to meet me at the mall someday? Do you go by yourself? Your mom lets you go by yourself?" He asked if she could drive herself there, and she reminded him that she was only thirteen. She said, "I told you how old I was before, right? You forgot," and he responded, "Yes, Jules, 14. 14." She clarified that she would be fourteen in June, but defendant nevertheless continued to pursue the idea of meeting, saying, "I don't hate you, darling," and agreeing with her that she might be mature for thirteen.

At trial, defendant maintained that he had no intention of meeting Jules, although he admitted he mentioned the idea first. He claimed he was always role playing whenever he was discussing her mom, meeting, or getting in trouble for meeting, and that he only said Jules was fourteen to continue the fantasy.

During this conversation, defendant proposed to meet Jules for lunch the following Saturday. She requested a weekday meeting because her mother worked, and asked what he wanted to do if they met. He suggested they go to the movies, shopping, and dinner, as well as possibly engaging in some kissing and touching, to which Jules replied "Yeah. Smiles" and "You sound so cool. I never did this. It's exciting."

After Jules assured defendant that her mother would not discover their plans, the conversation turned to whether they would have sex:

[Jules]: I don't think you're being honest all the way.

[Defendant]: Like, talk to me, tell me. You think I want to have sex?

[Jules]: I don't know. You think I'm too young, right?

[Defendant]: Jules –

[Jules]: What?

[Defendant]: I'm not going to have sex with you.

[Jules]: Okay.

[Defendant]: Do you want to?

[Jules]: I don't know. Maybe. If you were cool and stuff.

[Defendant]: Okay.

[Jules]: And you weren't like 500 pounds.

[Defendant]: Okay.

[Jules]: LOL. But I understand we won't then no matter what.

[Defendant]: Okay. I hear you here.

[Jules]: Hear what?

[Defendant]: That you want to if we like each other.

[Jules]: I guess yeah. But -- But you don't want to. So that's cool.

[Defendant]: We will see. You never know.

[Jules]: Okay.

Reich explained that he allowed Jules to hesitate about meeting because he "want[ed] to give [defendant] the opportunity to not commit a further crime and back out and perhaps have time to think and realize that committing this further crime could get [him] in even more trouble."

Defendant told Jules he would miss her while she was away over Thanksgiving, and asked her to imagine feeling his hands on her breasts. He asked what she would whisper while he was kissing her breasts and licking her, and she said she wasn't sure because she had never done that before. Defendant then asked whether she had panties on. He instructed her to close the door so her mother would not come in, spread her legs, and masturbate. Defendant asked, "You want me . . .[i]nside your pussy" and she said "Yeah." Jules asked if he wanted to have sex if they met, but expressed concern that she might be too young. Defendant assured her that he wanted her and did not think she was too young.

The subject then turned back to meeting, and they determined that the following Thursday at the Burger King in Fort Lee would be a suitable time and place. The following day, on November 24, 2004, Jules called defendant on his cell phone, using the telephone number he had provided, with Detective Kristen Mecionis supplying Jules's voice. The taped phone conversation began with defendant asking Jules about school, but defendant soon turned the dialogue to the previous night's conversation, asking if she had felt good while masturbating.

He also described in graphic detail what they would do to each other sexually when they met, and instructed Jules to repeat the things he wanted her to do, including kissing his penis.

Toward the end of the telephone conversation, when Jules told defendant she needed to change their meeting date, he asked her to skip school so they could spend a whole day together. When Jules said she had to hang up because people were walking by and she needed to finish her homework, defendant replied that he did not care and repeated five times that he "want[ed]" her.

A fourth Internet chat occurred on November 29, 2004, during which defendant told Jules she sounded older on the phone. He also asked if she wanted him inside her, to which she replied, "I don't know, excited, nervous, never did this before." Defendant questioned whether anyone knew they were meeting, and Jules responded, "No one. Are you crazy?" When she said she would feel better about their plans if she saw his picture, defendant switched to a webcam so Jules could watch him while they chatted; however, Jules was not visible to defendant.

The webcam conversation became sexually explicit when defendant turned the conversation to fellatio, which Jules said was "a little icky." Lifting his sweater to reveal his erection through his pants, defendant unzipped his fly, exposed his penis, and asked Jules if she would suck his penis. When she responded affirmatively, he insisted on calling her.

Reich contacted Mecionis so she could accept defendant's phone call. Reich explained that the webcam transmission continued to play during defendant's phone conversation with Mecionis. The footage was captured and saved using a program called Snagit, and was shown to the jury. The phone conversation between defendant and Mecionis, posing as Jules, started off innocently, with discussions about Jules's school, and defendant's job. They also talked about whether their upcoming meeting could be kept secret. The conversation quickly became sexually explicit, with defendant repeatedly asking Jules to say "f--k*fn1 me," and instructing her to whisper it "in a very romantic way." He told her, "I would love to f--k you." As he had done before, defendant also instructed Jules to masturbate. We will not burden the record with the precise instructions he provided. When he then suggested anal sex, Jules said it sounded "scary."

By the time of the second phone conversation, defendant claimed he knew he was talking with, and exposing himself, to an adult. Thus, although he admitted that he was moving his hand up and down his penis during the conversation, he maintained that he "didn't believe [Jules] was 13. There was no age in the profile. You can tell me 500,000 times that you are 16, I won't believe you. You can tell me five million times and I will still not believe you."

Mecionis, on the other hand, explained that she whispered during their conversations because defendant once asked her to speak romantically, and she was supposed to be in a library. She also lowered her voice during the sexually graphic discussions because she was trying to be "quiet and cute." Occasionally, she whispered to mirror defendant's mood.

On December 2, 2004, a fifth Internet chat occurred. Jules told defendant she was "a little nervous," and he asked, "About what? Meeting, us, we touching, kissing. . . . Laying down naked, you and me. I make you nervous." Jules expressed concern about defendant's age, but he continued to plan their meeting and describe what he wanted to do to her. He also asked again if she had told anyone about the meeting, warning her, "You know it's illegal to . . . [m]eet a teenager." She assured him no one knew, and that, although she "guess[ed]" it was illegal, she wanted to meet. However, she also explained that it would be okay with her if defendant thought she was too young for him and preferred not to meet. He insisted, "I want to. . . . Trust me. . . . I think about you."

Defendant proceeded to again graphically describe his plans for their meeting, including putting whipped cream on her vagina and requesting that she perform fellatio and "swallow" him. He asked if she was a "virgin."

On December 9, 2004, defendant and Jules chatted online for a sixth time. Despite Jules offering him another opportunity to change his mind, defendant insisted on meeting, proposing December 17. When he promised he would be there, she said, "I am too young for you. I'm too young and you are nervous to get in trouble." Defendant responded, "Yes, hon. Exactly, baby." Jules provided him a second chance to change his mind, but he said he was "taking some precautions." The conversation ended with defendant imagining aloud what he and Jules would do if he accompanied her to bed that night.

On December 11, the two had a brief online conversation about rescheduling their December 17 meeting, and Jules ultimately cancelled. They chatted again on December 13, when Jules admitted that she cancelled because she was nervous that defendant might get in trouble. He assured her he would not.

Later that evening, while talking online about Jules's dislike for school, defendant again segued into graphic sexual imagery. Jules reminded him he did not have to meet her because she was still worried, but he insisted it was okay as long as they agreed that if anyone asked she would say he was fixing her computer. They then rescheduled their meeting for Wednesday, December 22, with defendant promising to wear a red sweater.

On the morning of December 22, 2004, Mecionis called defendant twice to confirm their meeting. She did not record the calls because she was at home on maternity leave and did not have the necessary equipment. She also failed to file reports on the calls, but briefed Reich and D'Onofrio. Mecionis explained that although it was an oversight on her part not to record the calls, both were very short and insignificant.

Defendant claimed that he attempted to cancel the meeting during the first phone conversation that morning. He insisted he had told Jules that he was uncomfortable because he was unsure who she was. At that point, defendant claimed Jules reprimanded him, saying "You're pissing me off. I want you to come." He refused.

Defendant claimed that during the second call Jules threatened, "I know where you are," which frightened him and provoked him to drive to the Burger King to discover her identity. He maintained that if Jules was a child he would have left, but he needed to know who was talking to him.

The Burger King where defendant and Jules were supposed to meet had been vetted as a suitable location by Reich's unit. At approximately 11:00 a.m., police saw a Subaru enter the parking lot and identified the driver as defendant, who was wearing the promised red sweater. He was placed under arrest and read his rights.

Defendant signed a Miranda*fn2 form and agreed to be interviewed without an attorney present. He also gave police permission to search his car, computers, office, and home. Reich described defendant as calm, cooperative, coherent, and somewhat nervous. Defendant provided a signed statement, admitting that he may have initiated the first conversation with Jules and that "[s]he said she was 14." In response to the question of who initiated the subject of sex, defendant replied, "Could be me, could be her, maybe me." He claimed he asked Jules to meet in person only because she wanted to meet him.

Defendant further admitted that he wanted to kiss and touch and to have sex if Jules was willing. Specifically, he confessed that he intended to engage in oral sex and touch her vagina. Defendant admitted that he asked Jules to masturbate during their online chats and had exposed his penis on a webcam, but he denied masturbating while talking to her.

At trial, defendant alleged that Reich and D'Onofrio threatened him, by saying that if he did not sign the statement and agree with what they wanted him to say, he would "be there for a long, long time." Because he was scared and they promised he would be released if he did as they asked, he agreed to everything. He maintained that he never intended to have sex with a minor, and believed Jules was an adult because she was "constantly, constantly, constantly com[ing] after" him and their chats "were continuously nothing but sex talk."

Prior to trial, defendant filed a motion to dismiss the indictment, arguing that he had been entrapped, which violated his right to due process. At the conclusion of the September 7, 2006 hearing, during which Reich was the only witness, the judge reviewed the evidence presented by the State. He found that, although "many if not most of the subsequent chats appear[ed] to be initiated by law enforcement . . . at least the first conversation was initiated by [defendant]." Moreover, defendant was the first to mention sex during the initial online chat and all of the later "sexual conversations [also] appear to have been initiated by [defendant]." The judge rejected defendant's argument "that the individual taking the persona of Jules . . . controlled or directed the commission of the crime." Instead, according to the judge, "Jules merely agreed to [defendant's] suggestions." The judge denied defendant's motion, also finding "that the State did not resort to excessive inducements in order to lure . . . defendant." The judge agreed to instruct the jury on the statutory defense of entrapment.

II.

In Points I and II, which we consider jointly, defendant argues that the judge erred when he rejected defendant's claim that he was entrapped and when he refused to dismiss the indictment. Whether due process entrapment occurred is a legal question. State v. Florez, 134 N.J. 570, 584 (1994). Thus, the trial court's decision is "not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

"The essence of due process entrapment inheres in the egregious or blatant wrongfulness of the government conduct." State v. Johnson, 127 N.J. 458, 470 (1992). As a defense, it "arises when conduct of government is patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness." Id. at 473. If the defendant "put[s] forth some evidence of due process entrapment," the burden will shift to the State to disprove entrapment by clear and convincing evidence. Florez, supra, 134 N.J. at 590.

In analyzing whether due process entrapment occurred, the court must adopt "a comprehensive approach encompassing careful scrutiny of the nature of government conduct in light of all the surrounding circumstances," as well as the objectives of law enforcement. Johnson, supra, 127 N.J. at 474. The Court identified four factors relevant to this analysis:

(1) whether the government or the defendant was primarily responsible for creating and planning the crime, (2) whether the government or the defendant primarily controlled and directed the commission of the crime, (3) whether objectively viewed the methods used by the government to involve the defendant in the commission of the crime were unreasonable, and (4) whether the government had a legitimate law enforcement purpose in bringing about the crime. [Ibid.]

The primary factors forming "the operative standard" for a due process entrapment analysis are the law enforcement officers' justifications for investigating a particular defendant and "the nature and extent of the government's actual involvement in bringing about the crime." Id. at 474-75.

In State v. Davis, 390 N.J. Super. 573, 580 (App. Div.), certif. denied, 192 N.J. 599 (2007), an undercover sting investigation commenced after authorities received reports that the defendant had engaged in sexual activities with underage females. Investigators created the persona of a fourteen-year-old girl named Krissy, who entered a chat room and initiated a private chat with the defendant. Id. at 581. The first several conversations included the subjects of sex and how Krissy's mother could be kept from learning about the chats. Ibid. The defendant also repeatedly offered to teach Krissy how to masturbate and provided explicit instructions. Id. at 582-84. He even planned a meeting so that he could instruct her in person. Id. at 583. When questioned by the authorities, the defendant "admitted 'role-playing' with females online, but contended that he believed them to be eighteen years old, or older." Id. at 585. He ascertained their ages by speaking with them on the phone. Ibid.

We held in Davis that "[n]othing prohibits the police from creating characters to conduct undercover investigations. Rather, 'decoys, traps, and deceptions properly may be used to apprehend those engaged in crime or to obtain evidence of the commission of a crime.'" Id. at 593 (quoting State v. Rockholt, 96 N.J. 570, 575 (1984)). In affirming the denial of the defendant's entrapment motion, we reasoned that the defendant initiated almost every conversation after the first, was first to mention sex and masturbation, encouraged Krissy to masturbate, and offered to instruct her. Davis, supra, 390 N.J. Super. at 593. Krissy did nothing more than go along with his suggestions; "[s]he never 'controlled [or] directed the commission of the crime,'" nor did she "'resort to excessive inducements' to lure [the] defendant." Ibid. (quoting Johnson, supra, 127 N.J. at 474, 479). Therefore, no due process entrapment occurred. Ibid.

The first step in a Johnson due process entrapment analysis requires the court to analyze "whether the police had adequate justification to target and investigate" the defendant. Johnson, supra, 127 N.J. at 475. Here, unlike in Davis, the authorities did not have preliminary information targeting defendant as a potential sex offender. Rather, Reich adopted an undercover persona and waited in a chat room for someone to contact Jules and perhaps attempt to initiate a sexual conversation. This is permissible in the context of an undercover investigation intended to detect individuals involved in the commission of a crime. Davis, supra, 390 N.J. Super. at 593. However, at the time Reich entered the chat room, he lacked "a reasonable suspicion that . . . defendant [in particular] was participating in crimes similar to those charged." Johnson, supra, 127 N.J. at 475.

Nevertheless, the question of who "initiated the original contact or instigated the criminal scheme is . . . relevant" to whether the police were justified in investigating a defendant. Id. at 476. Here, defendant initiated the original contact, and, upon learning that Jules was thirteen, had the option of ending the chat or blocking her from contacting him. Instead, he continued the conversation, encouraging Jules to talk to him if she felt lonely, and ending the conversation by asking her to imagine him "eating her pussy."

Thus, although prior to being contacted by defendant, Reich had no reason to suspect defendant was committing the type of crimes for which he was ultimately convicted, defendant's behavior in the initial online chat was sufficient to instigate the criminal scheme and warrant further investigation. See Johnson, supra, 127 N.J. at 477 (finding no entrapment where "[d]efendants initiated the chain of events that eventuated in the criminal acts"). As in Johnson, because the police were "[c]onfronted with a realistic possibility of serious crimes by defendant[]" they possessed "a legitimate law enforcement purpose to expose and stop that kind of criminal activity." Ibid.

In addition to law enforcement's justifications for investigating a defendant, "[d]ue process entrapment is equally concerned with the nature and extent of the police involvement in bringing about the crime." Ibid. To that end, courts must consider the effort expended by the authorities in creating and manufacturing the crime. Id. at 478.

Here, as in Davis, defendant was the first individual to mention sex and masturbation, as well as cunnilingus and fellatio. In fact, he initiated every sexually explicit conversation and was the first to suggest the idea of meeting. Like Krissy in Davis, Jules merely agreed to defendant's suggestions and played along with the scheme he established. Thus, although Reich initiated the majority of conversations following the first, "[t]he record . . . does not suggest that the crime[s] w[ere] primarily police-inspired." Johnson, supra, 127 N.J. at 478.

Courts must also consider [t]he nature of the efforts directed to encourage defendant[] to commit the crime. . . . Tactics like heavy-handed pressure; repetitive and persistent solicitation, or threats or other forms of coercion; the use of false and deceitful appeals to such humanitarian instincts as sympathy, friendship, and personal need; and the promise of exorbitant gain are generally disallowed because they can overwhelm the resistance of ordinary people. [Ibid.]

Here, Jules frequently expressed hesitation about performing certain sexual acts, referring to them as "scary" or "icky." Additionally, although she admitted to wanting to meet defendant, she offered him numerous opportunities to back out and often mentioned her concern that he might get in trouble. Defendant nevertheless pursued the idea of meeting and ultimately drove to Fort Lee with the intention of meeting Jules and engaging in a variety of sexual acts. Whatever minor resistance defendant occasionally showed was overcome without resort to the use of heavy-handed tactics, coercion, or threats.

In concluding that police used no heavy-handed pressure, we recognize defendant testified at trial that during his second phone call with Jules, she threatened him, saying "I know where you are." Notably, as we have already observed, defendant did not testify at the motion hearing on entrapment. Reich was the sole witness. Thus, at the time Judge Carroll denied defendant's entrapment motion, the "I know where you are" remark was not part of the record.

Finally, a trial judge ruling on an entrapment motion must consider the extent to which the authorities "directed and controlled the enterprise," including the importance of their role as compared to defendant's, and whether they provided essential tools defendant could not have obtained from another source. Ibid. The reasonableness of police techniques must be weighed against "the type of crime, the level of danger involved, and the circumstances of the suspect." Id. at 480. The level of danger posed by a particular suspect is directly commensurate with the scope of permissible police activities. Ibid.

Here, defendant took the lead in discussing sexual themes and arranging a meeting. Thus, it was he who "directed and controlled the enterprise." Id. at 479. As we have noted, Jules did nothing more than agree with his suggestions and participate in his scheme. At no point did she try to persuade defendant to commit the charged crimes, and in fact, often attempted to discourage him by suggesting he might get in trouble. As for the initiation of the sexually graphic conversations and webcam exposures, defendant required no prodding at all from Jules.

Thus, application of the Davis factors causes us to agree with Judge Carroll's denial of defendant's entrapment motion. We therefore reject the claims defendant advances in Points I and II.

III.

In Point III, defendant argues that his convictions must be reversed because the jury instructions failed to specify that an actual child must have been the victim of the charged crimes, thereby lessening the State's burden of proof. Alternatively, in Point IV, he contends, for the first time, that the attempt statute and other criminal statutes under which he was convicted are void for vagueness as applied to him, because the statutes are unclear as to: 1) whether there must be an actual victim; and 2) whether his belief as to Jules's age was relevant.

We turn first to the claim defendant advances in Point III. In criminal proceedings, "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Because the charge is "a road map to guide the jury," without which it "can take a wrong turn in its deliberations," an "erroneous instruction[] on material points [is] presumed to be reversible error." State v. Martin, 119 N.J. 2, 15 (1990).

At the charge conference, defendant objected to the court's proposed attempted sexual assault instruction, which stated that "the State would have the burden to prove beyond a reasonable doubt" that at the time of [defendant's conversations with Jules], he "reasonably believed that the alleged victim was at least thirteen." The same reasonable belief requirement was applied to the other counts.

The judge explained why he chose to instruct the jury on "reasonable belief," stating:

I have read the [Davis, supra, 390 N.J. Super. at 573] decision . . . and also in reviewing the statutes together, especially [the] attempt statute where it indicates that the defendant must have acted purposefully and under . . . circumstances as a reasonable person would believe them to be, reading those statutes in conjunction with each other, I think . . . it really only makes sense if [the second element of the sexual assault statute is] defined in that [manner] so I'm not inclined to make any changes and it shall remain that at the time of the penetration [defendant] reasonably believed that the alleged victim was at least 13 but less than 16 years old. [(Emphasis added).]

Moreover, the judge concluded that the jury was capable of determining "what a reasonable belief would be in the context of the circumstances as a reasonable person would believe them to be." With respect to the luring charge, the court kept the "reasonably believed" language because it was "right in the statute" and taken from the model jury charge.

The court instructed the jury as to the difference between an attempt and the completed crime in accordance with the model jury charge for attempt. With respect to each individually charged attempted crime, the judge also explained the requisite elements the State was required to prove. He added the "reasonably believed" language to each age requirement, with the exception of the attempted luring charge, in which such language was already part of the statute. See N.J.S.A. 2C:13-6(a) (specifying that a person is guilty of the offense if he uses electronic means to lure a person he "reasonably believes" to be a child into a motor vehicle for the purpose of committing a crime with or against the child).

On appeal, defendant argues that addition of the "reasonably believed" language impermissibly diluted the State's burden of proof because, for each of the charged crimes, the State was no longer required to prove that the victim was real and within the proscribed age range.

Defendant is correct when he asserts that to prove commission of the completed crime, the State must establish the existence of an actual child victim. However, defendant was not charged with the completed crimes. Rather, he was charged with the attempted commission of each crime in accordance with the "substantial step" theory of attempt, which states:

a. . . . A person is guilty of attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

[N.J.S.A. 2C:5-1(a)(3) (emphasis added).]

In State v. Condon, 391 N.J. Super. 609, 612-13 (App. Div.), certif. denied, 192 N.J. 74 (2007), we specifically approved the use of the very portion of the attempt statute that Judge Carroll used here. In Condon, the defendant proposed meeting and conducted graphic sexual Internet chats with an investigator posing as a thirteen-year-old girl. We held that only the substantial step theory of attempt was applicable because the "defendant did not complete the criminal act, nor under the circumstances could he have done so." Id. at 617. In other words, where, as here, the victim is the fictional, underage persona of a police officer, a defendant can be charged with committing attempted crimes against that victim in accordance with N.J.S.A. 2C:5-1(a)(3). See also Davis, supra, 390 N.J. Super. at 590, 593 (finding use of decoys, deception, and traps permissible to apprehend criminals or obtain evidence of crime, and that defendant who had graphic sexual conversations and attempted to meet with underage undercover persona of investigator could be charged under N.J.S.A. 2C:5-1(a)(3)).

Thus, the question facing the jury here was whether defendant's alleged conduct constituted a substantial step toward the commission of sexual assault, endangering the welfare of a child, criminal sexual contact, and luring "under the circumstances as a reasonable person would believe them to be." N.J.S.A. 2C:5-1(a)(3). The actual circumstances, that Jules was a fictional undercover persona, were irrelevant to that analysis. Moreover, the court's use of the "reasonably believed" language properly cast the crimes in the context of attempt. As we recently observed in State v. Kuhn, ___ N.J. Super. ___, ____ (App. Div. 2010)(slip op. at 12), even though the charged sexual offenses required a victim of a particular age, conviction for the attempted crimes without regard to the actual age of the victim was appropriate if it was the defendant's purpose to engage in the conduct with a person that age and a "reasonable" person would believe that the victim was that age. Thus, because defendant was charged with the attempted crimes, his defense that he believed Jules was an adult could be considered by the jury. As is evident, the jury did not accept his defense.

However, with respect to the attempted luring charge, the luring statute itself incorporates the judge's "reasonably believed" language as to the victim's age. N.J.S.A. 2C:13-6. The legislative history reveals that this language was utilized so that the statute would clearly "apply in sting-type situations, where there is no actual child victim, as long as the person reasonably believes that a child is involved." Senate Judiciary Committee, Statement to Assembly, No. 2397 (June 11, 2001).

Thus, we are satisfied that Judge Carroll's charge to the jury accurately and clearly conveyed each of the elements of the alleged offenses. Instructing the jury that the State need prove only that defendant "reasonably believed" the victim was between thirteen and sixteen years old; and failing to instruct the jury that there must be a real victim within the proscribed age range, was not error. We thus reject the claim defendant advances in Point III.

IV.

In Point IV, defendant alternatively argues that the statutes under which he was convicted are void for vagueness as applied because they do not specify whether a real victim is required, or whether instead, the reasonable belief that one existed is sufficient.

"The requirement of statutory clarity 'is essentially a due process concept grounded in notions of fair play,'" thereby rendering vague laws unenforceable under both the State and Federal Constitutions. State v. Cameron, 100 N.J. 586, 591 (1985) (quoting State v. Lashinsky, 81 N.J. 1, 17 (1979)). Such laws "deprive citizens of adequate notice of proscribed conduct, and fail to provide officials with guidelines sufficient to prevent arbitrary and erratic enforcement." The Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983) (citation omitted). As a matter of due process, a law is invalid "if it is so vague that persons 'of common intelligence must necessarily guess at its meaning and differ as to its application.'" Ibid. (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926)). "A statute may . . . be vague as applied if 'the law does not with sufficient clarity prohibit the conduct against which it is sought to be enforced.'" State v. Ball, 141 N.J. 142, 170 (1995) (quoting Cameron, supra, 100 N.J. at 593), cert. denied, 516 U.S. 1075, 116 S.Ct. 779, 133 L.Ed. 2d 731 (1996).

We reject defendant's argument that the relevant statutes are ambiguous. On the contrary, with the exception of luring, N.J.S.A. 2C:13-6, the statutes regarding the completed crimes all require existence of a real victim. N.J.S.A. 2C:14-2(c)(4), 2C:14-4(a), and 2C:14-3(b). The luring and attempt statutes, however, require only that a defendant reasonably believe that a victim within the proscribed age range exists. N.J.S.A. 2C:5-1(a)(3) and 2C:13-6.

Here, defendant had numerous sexually explicit conversations with a girl he reasonably believed to be thirteen or fourteen years old. He also admittedly attempted to meet her with the intention of engaging in a variety of sexual acts. Thus, defendant took a substantial step towards commission of sexual assault, endangering the welfare of a child, criminal sexual contact, and luring. It is not necessary to "guess," Town Tobacconist, supra, 94 N.J. at 118, as to the statutes' meanings to see that they applied to defendant's conduct. We thus reject the claim defendant advances in Point IV.

V.

In Point V, defendant argues that the judge erred by denying his motion for judgment of acquittal. A trial judge must deny a defendant's motion for a judgment of acquittal if, "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of . . . all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). Reviewing courts utilize the same standard to determine if the trial court's decision was proper. State v. Moffa, 42 N.J. 258, 263 (1964).

Defendant moved for acquittal on the grounds that there was no evidence that: (1) he reasonably believed Jules was a child (attempted luring); (2) he masturbated on the video, thought a fourteen-year-old was watching, or that anyone under sixteen or a detective was subjected to sexual contact (attempted criminal sexual contact); or (3) he took substantial steps toward digitally or vaginally penetrating a detective, performing cunnilingus on a detective, or receiving fellatio from a detective (attempted sexual assault).

The judge rejected these arguments. The judge recounted the evidence presented at trial and noted that the State was not required to establish existence of an actual victim so long as it proved the other elements of the crimes. Moreover, the judge found that defendant was afforded substantial notice that Jules was either thirteen or fourteen years old. Finally, with respect to each charged crime, Judge Carroll held that the State satisfied its burden by presenting sufficient evidence from which the jury could find defendant guilty.

The record amply supports the court's ruling. Defendant often graphically instructed Jules to masturbate, and imagined vaginally penetrating her, performing cunnilingus, and having her perform fellatio. He planned to meet her and drove to the Burger King in Fort Lee with the admitted purpose of intending to engage in sexual acts. In light of this evidence, and giving the State the benefit of all favorable inferences, the judge properly concluded that a jury could find defendant guilty of each of the charged crimes beyond a reasonable doubt. Reyes, supra, 50 N.J. at 459.

There is also no merit to defendant's contention that, with respect to the criminal sexual contact charge, the State was unable to satisfy the criteria that he knowingly exposed and touched his penis while Jules was present and within her view because defendant actually "knew that she was not present but instead was absent and was watching him over a webcam transmission." To establish that the act occurred within Jules's view, "it is sufficient for the State to prove, beyond a reasonable doubt, that either (1) the underage child actually observed the act; or (2) there was an unreasonable risk that the underage child might view the act." State v. Breitweiser, 373 N.J. Super. 271, 286-87 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005). The record shows that defendant believed Jules was present insofar as she was watching his webcam transmission, which satisfies the requirement that she view the act.

We thus affirm the court's denial of defendant's motion for a judgment of acquittal and reject the claim defendant presents in Point V.

VI.

In Point VI, defendant contends, for the first time, that prosecutorial misconduct during summation deprived him of a fair trial and warrants reversal of his convictions.

Reversal of a judgment of conviction on the basis of prosecutorial misconduct requires the court to evaluate "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). Reversal is justified when the prosecutor's conduct [was] "clearly and unmistakably improper," and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense. In determining whether the prosecutor's comments were sufficiently egregious to deny defendant a fair trial, [the court must] consider the tenor of the trial and the responsiveness of counsel and the [trial] court to the improprieties when they occurred. [Ibid. (citations omitted).]

In presenting closing arguments to a jury, "[p]rosecutors are afforded considerable leeway . . . as long as their comments are reasonably related to the scope of the evidence presented. Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999) (citations omitted). A prosecutor is also permitted to suggest inferences derived from the record so long as the prosecutor's argument rests on facts presented to the jury. State v. R.B., 183 N.J. 308, 330 (2005). Nevertheless, a prosecutor should refrain from using derogatory epithets, which "are especially egregious when . . . the prosecutor pursues a persistent pattern of misconduct throughout the trial." State v. Pennington, 119 N.J. 547, 577 (1990), overruled on other grounds, State v. Brunson, 132 N.J. 377, 392 (1993).

When a defendant fails to object to a prosecutor's remarks, they generally "will not be deemed prejudicial." Timmendequas, supra, 161 N.J. at 576. Such a failure "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Ibid. Additionally, it "deprives the court of the opportunity to take curative action." Ibid. Where no objection was made, the prosecutor's remarks are reviewed for plain error. R. 2:10-2.

On appeal, defendant objects to the prosecutor's denigration of his role playing fantasy defense. In his summation, the prosecutor argued:

I wanted to put a thought in your head as I give my closing argument and it does have to do with this alleged fantasy that the defendant was having. What I want to suggest to you is I want you to think about the type of person that would even engage in the idea of a chat room. Even whether it's illegal or not, I want you to think about a grown man, 45-year-old man, that would continue the concept of having a sexual conversation with somebody portraying themselves as a 13-year-old?

Ladies and gentlemen, who would want to fantasize about sex with a 13-year-old? Who in their right mind would continue that façade? . . . Because those are all things that he talked about. What kind of person would do that? And why didn't he stop it? And I want you to think about that as we continue to go through this.

The prosecutor also stated:

Now, [defense counsel] again took a lot of time talking about there's nothing wrong with chatting, this was all a fantasy. But again remember I asked you to keep [in] your mind the kind of character and person that could envision in their mind being with a 13-year-old sexually. This man by his own admission is fantasizing involved in a role play involving a girl in considering the concept that when he's f--king her, she's going to start to bleed. That's who this man is. In his mind, according to him, he can envision these scenarios and play them out and he's envisioning her bleeding through this.

As we have noted, defendant testified at trial that he believed he was engaged in role play with another adult, and he participated simply to facilitate her fantasy. We agree with the State's argument that the prosecutor's remarks in summation were intended to undermine this contention. In addition to asking the jury to keep in mind the sort of person who would willingly participate in a fantasy involving sex with a thirteen-year-old girl, the prosecutor reminded them that the alleged fantasy extended to more reality-based concerns about getting in trouble, and maintaining secrecy surrounding the online chats and the meeting at Burger King. Specifically, the prosecutor stated:

[T]his is a pretty elaborate fantasy. Not only is [defendant] fantasizing about her being a 13-year-old girl, but he wants to make believe in this fantasy that he can get in trouble, he's got to hide it. That's a pretty extensive fantasy.

I mean, he's got to pretend he's nervous in this fantasy. He's got to really play it up to make it, I guess, steamy, the idea of maybe you can get caught so that's more interesting or sexually arousing of having this idea of being with a 13-year-old.

These remarks were all designed to negate defendant's primary defense: that he did nothing more than participate in another person's fantasy. The prosecutor based his summation on facts in the record, drawing reasonable inferences from them. Contrary to defendant's contentions, the State did not "improperly ascribe highly prejudicial fantasies to defendant." Rather, the prosecutor suggested to the jury that these were fantasies, which defendant wanted to fulfill in reality.

Moreover, the prosecutor was not asking the jury to draw conclusions about defendant's character or propensity to commit the charged crimes. Instead, his remarks merely encouraged the jury to question the reasonableness of defendant's contentions, particularly in light of the fact that defendant, more so than Jules, actively participated in creating graphic sexual fantasies involving a thirteen-year-old. Thus, the prosecutor's summation went to the core of the State's case, namely, that defendant reasonably believed he was speaking to a thirteen- year-old child and not to an adult who had created a role play fantasy. The comments were reasonable under the circumstances and were not so egregious or prejudicial as to deprive defendant of a fair trial. Timmendequas, supra, 161 N.J. at 575.

Defendant also takes issue with the prosecutor's description of him as a "sucking eerie creepy crawler." The prosecutor argued:

And I'm going to submit to you that after this mountain of evidence, chat after chat of defendant talking sexually to what he believed was a child, that a sucking eerie creepy crawler with that low voice and that instruction to tell Jules to masturbate and lick her fingers, you take all of that evidence together, the only verdict to support the evidence in this case is one of guilty and that goes to all of the charges. [(Emphasis added).]

The State contends that its description of defendant as a "sucking eerie creepy crawler" was only intended to characterize defendant's voice on the tapes and to counteract defendant's characterization of Mecionis's voice. We agree with defendant that the prosecutor's description of him as a "sucking eerie creepy crawler" is the sort of derogatory epithet the Court condemned in Pennington, supra, 119 N.J. at 577. In particular, we reject the State's claim that the prosecutor was merely describing defendant's voice.

Although we strongly disapprove of the prosecutor's comment, it was an isolated reference in a thirty-seven page closing argument that was, in all other respects, well within the bounds of legitimate advocacy. So viewed, this lone improper remark was not "clearly capable of producing an unjust result." R. 2:10-2. We thus reject the claim defendant advances in Point VI.

VII.

In Point VII, defendant argues that his sentence was manifestly excessive and should be reversed.

Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). In the context of appellate review of sentencing, a reviewing court focuses on: (1) whether the trial court followed the sentencing guidelines; (2) whether the aggravating and mitigating factors that the trial court found are based upon competent, credible evidence in the record; and (3) whether, even though the court sentenced in accordance with applicable sentencing guidelines, nevertheless, the application of the guidelines to the facts of the case is so clearly unreasonable as to "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

The court found only one aggravating factor, number nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others. As for mitigating factors, the court found only factor seven, N.J.S.A. 2C:44-1(b)(7), the fact that defendant had no prior offenses. The judge specifically rejected mitigating factors one and two, N.J.S.A. 2C:44-1(b)(1) and (2), because he found that, had the circumstances been as defendant reasonably believed, defendant contemplated causing or threatening serious harm, and his actions would have done so. The judge further rejected defendant's request for mitigating factor five, N.J.S.A. 44-1(b)(5), that defendant was provoked or "'induced'" by the victim to act the way he did, and mitigating factor eight, N.J.S.A. 2C:44-1(b)(8), that these were circumstances unlikely to recur. As to the latter, the judge reasoned that the emails went on for a "significant period of time as opposed to just being one or two isolated instances." Finally, the court declined to find that mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), that defendant's "character and attitude indicate that he is unlikely to commit another offense," and mitigating factor eleven, N.J.S.A. 2:44-1(b)(11), that imprisonment would cause defendant to suffer an excessive hardship.

Contrary to defendant's contentions, there was no evidence that his conduct neither caused nor threatened harm because had Jules been a real thirteen-year-old child, serious harm would have resulted. Additionally, investigators did not provoke, induce, or facilitate defendant's actions. Instead, on numerous occasions Jules provided defendant with the opportunity to opt out of meeting, yet he insisted. Moreover, all talk of sexual activity was initiated and primarily carried out by defendant. Finally, the record reveals no grounds warranting the justification or excusal of defendant's behavior. Thus, as the record did not support the existence of these mitigating factors, the judge was entitled to reject them. State v. Dalziel, 182 N.J. 494, 504-05 (2005).

As for defendant's contention that there was no basis for the court's finding of aggravating factor nine, the need to deter, this argument is meritless. The need to deter defendant and others from attempting to prey on children is enormous.

Defendant requested either probation or that the judge sentence him one degree lower than the crimes of which he was convicted. The judge observed that in order to comply with defendant's request he would have "to be clearly convinced that the mitigating factors substantially outweighed" the aggravating factors. Instead, Judge Carroll properly found that the aggravating and mitigating factors were "relatively comparable," leading him "to conclude that a sentence toward the middle of [the] second-degree range would be most appropriate."

The court's sentencing decision was well-reasoned and based on credible evidence in the record. The judge imposed a midrange sentence, rather than the ten years requested by the State, in order to account for defendant's lack of prior offenses. Defendant has presented no argument warranting our intervention with the wholly appropriate sentence Judge Carroll imposed, a sentence that was well within the discretion Roth affords. We therefore reject the sentencing claim defendant advances in Point VII.

The State requests, however, that we order a sentencing remand so that the judge may modify the JOC to vacate the Sex Offender Surcharge and to indicate the court's oral finding of lifetime parole supervision in the JOC. In accordance with N.J.S.A. 2C:43-3.7, the Sex Offender Surcharge does not apply to attempted sexual assaults and, therefore, was improperly imposed here.

A judge's oral findings take precedence over the written JOC. Therefore, the order for lifetime parole supervision, which was imposed orally, should have been included in the JOC. State v. Vasquez, 374 N.J. Super. 252, 270 (2005). See also State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956) (finding "where there is a conflict between the oral sentence and the written commitment, the former will control if clearly stated and adequately shown, since it is the true source of the sentence, instead of the latter which is merely the work of a clerk"). We therefore remand for amendment of the JOC to vacate the Sex Offender Surcharge and to reflect the court's sentence of lifetime parole supervision.

Affirmed; remanded for amendment of the JOC.


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