On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 08-12-00267.
The opinion of the court was delivered by: Lisa, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Sabatino.
Defendant was charged in a three-count indictment with possessing, offering and distributing child pornography by use of a peer-to-peer file sharing network on the Internet. The trial court granted defendant's motion to dismiss the counts charging offering and distributing, both second-degree crimes in violation of N.J.S.A. 2C:24-4b(5)(a).*fn1 The court was of the view that these counts were defective because the State presented no evidence to the grand jury that defendant intended to transfer or distribute the images contained in his shared folder, and, even though defendant knew they were accessible to others over the Internet by virtue of being in such a folder, defendant's passive conduct could not be sufficient to constitute distributing or offering the materials. We granted the State leave to appeal and now reverse.
What follows is a summary of the evidence presented to the grand jury. LimeWire is a software program that, when installed on a computer, creates a shared folder and allows the user to access other shared folders on the network. Peer-to-peer file sharing is a process by which users of programs such as LimeWire can receive and transmit data from and to each other over the Internet. They do so by accessing each other's shared folders. Users of the same network, here the Gnutella network, may therefore access and download files that other users have made available by placing them in their shared folder. Indeed, the purpose of the shared folder is to effectuate the exchange of files from one user's computer to that of another user.
LimeWire's default setting is such that materials in a user's shared folder are accessible to others on the network. In this mode, when one user searches for and downloads materials from another user, the materials go into a shared folder and become available to all other users on the network. However, users have the ability to change the setting in a manner that precludes others from accessing their shared folder. A user could also prevent access to materials by removing them from the shared folder.
On May 30, 2007, Detective John Gorman of the New Jersey State Police Digital Technology Investigations Unit (DTIU) logged on to the Gnutella Network via LimeWire and entered search terms indicative of child pornography. He located a computer that had available in its shared folder a known child pornography video. He downloaded it to his computer. The video depicted a naked prepubescent girl, clearly under the age of sixteen, performing oral sex on an adult male. Gorman also downloaded other suggestively named files from the shared folder, which were later confirmed to be pictures and videos depicting child pornography. Subsequent forensic investigation established that the computer from which the video was obtained belonged to defendant.
Based on that information, a search warrant was issued for defendant's residence. The police executed the warrant on September 25, 2007. Defendant lived alone. He was present when the warrant was executed. He acknowledged that the two computers in the residence were his. An on-site forensic preview located child pornography on one of the computers. After the computers were seized, a detailed forensic examination located approximately twenty-five videos of children engaged in sexual activity, including the above-described file that Gorman downloaded on May 30, 2007. The file was identifiable by its secure hash algorithm (SHA) value, a numerical value that acts as a data file's digital DNA. These files were located in defendant's LimeWire shared folder. The examination also revealed that defendant's LimeWire program was set to permit sharing of files with other users.
While still in his home at the time of the search warrant execution, defendant gave the police a recorded statement after he was advised of and waived his Miranda*fn2 rights. DTIU Detective Charles Allen, the team leader of the search warrant execution, took the statement. Allen was the State's sole witness before the grand jury. In his testimony, he referenced and highlighted portions of defendant's statement, and the transcribed statement was marked as an exhibit and given to the grand jurors.
In his statement, defendant acknowledged having significant familiarity with computers and the Internet. He had received training in computers, and had built and worked with computers. Indeed he described the desktop computer in his residence as one that "I built myself." When asked whether he had any "file sharing clients" on that computer, defendant answered in the affirmative and said he had LimeWire on his computer. Defendant then admitted his awareness that files in his shared folder were accessible to others:
[Allen]: Can you just, just briefly in your own words tell me what [LimeWire] is and how it works?
[Defendant]: It's a file sharing program[.] [I]f I type in a keyword on the search program it will find it and I'll go to other people's computers and pull the file to it.
[Allen]: Do you realize that when you download a file using Lime[W]ire it goes to a shared folder and that the shared folder is available for others to obtain . . .
[Defendant]: Yes. [Allen]: . . . the information? [Defendant]: Yes. [Allen]: You know that? [Defendant]: Yes.
In his answer to the next question, defendant acknowledged that he knew he had the ability to "set it not to share," but said he did not do so because he "just forgot."
Defendant also acknowledged that he obtained the child pornographic videos on his computer by conducting a "simple search" on LimeWire, using key words such as "kiddy," "Lolita," or "preteen." In response, "a bunch of them came up, [I] just clicked on a couple, and here I am." After watching the videos, defendant sometimes kept them. When he did, he kept them in his shared folder. Defendant answered affirmatively when asked whether he "kn[e]w -- that possessing and ...