On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-1918.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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]: I'm not going to have sex with you.
[Defendant]: Do you want to?
[Jules]: I don't know. Maybe. If you were cool and stuff.
[Jules]: And you weren't like ...