On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-08-1816.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011
Before Judges Grall, C.L. Miniman and LeWinn.
Defendant Clement Bilski, Jr. appeals his conviction and sentence. A jury found defendant guilty of 143 crimes he committed against the child Jane Doe from July 22, 1998 through February 28, 2003. At the time of the first offense, Jane was two years old and defendant was thirty-five. The evidence supporting defendant's convictions was seized from his home pursuant to a warrant: video and audio recordings made by him that memorialize his sexual penetration and sexual contact with Jane and him showing pornographic material to her; the handheld and fixed cameras he used; and CDs on which he had compiled and titled the recordings.*fn1
Prior to sentencing, defendant was examined as required by N.J.S.A. 2C:47-1; it was determined that his conduct was characterized by a pattern of repetitive and compulsive behavior and that he is amenable to treatment. Although the judge accepted the finding, he imposed a sentence that he recognized makes such treatment unlikely. See N.J.S.A. 2C:47-3h-k.
The judge sentenced defendant to an aggregate term of eighty years with sixty-one years of parole ineligibility. That sentence consists of consecutive twenty-year terms for four of defendant's fifty-two convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1). Three of those terms are subject to periods of parole ineligibility and supervision mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and one is subject to a ten-year period of parole ineligibility imposed by the judge pursuant to N.J.S.A. 2C:43-6b.
The remainder of defendant's sentences are concurrent with one another and the eighty-year term. The judge merged one conviction for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, with the aggravated sexual assault convictions and imposed concurrent sentences for the remaining convictions: forty-eight counts of first-degree aggravated sexual assault; fifteen counts of second-degree sexual assault based on sexual contact with Jane, N.J.S.A. 2C:14-2b; seventy-four counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and one count of promoting obscene material, N.J.S.A. 2C:34-3b(2). The judge also imposed a $3750 VCCB assessment, a $5265 SNSF penalty, a $30 LEOTEF penalty, a $70,400 SANE assessment, and a $3800 surcharge.
On appeal, defendant challenges three pretrial rulings: a protective order governing defense access to the evidential recordings, the denial of a motion to suppress evidence obtained by grand jury subpoena issued to the providers of his internet service without notice to him and the denial of a motion for change of venue. He also contends that his sentence is manifestly excessive and contrary to governing legal principles.
Finding no legal error or abuse of the judge's discretion, we affirm.
The Maryland State Police provided the information that brought defendant to the attention of New Jersey law enforcement. A Maryland trooper had traced a video image of child pornography displayed on a peer-to-peer file sharing network to the Internet Protocol address of a computer with service provided by Comcast Cable in Monmouth County, New Jersey. Through grand jury subpoenas issued to Comcast and another provider, the Monmouth County Prosecutor acquired defendant's name and address and then obtained a warrant authorizing the search of his home. During their search, they recovered defendant's video recordings, films and CDs, and the equipment used to produce CDs.
One video segment recovered from defendant's home showed the license plate number of the Does' car. Subsequently, the police showed Jane's father two photographs produced from videos they had seized. He identified the pictures as depicting Jane and the second-floor bathroom of his house.
Jane was about nine years old when her father identified the pictures. Defendant is a home-improvement contractor. Jane's parents first hired him on the recommendation of friends when Jane was under the age of two. Between 1997 and February 2003, he worked on multiple projects in the Does' home. Over the years, defendant constructed a bedroom and closet in their basement and remodeled a second-floor bathroom used by Jane, the kitchen, the dining room, den and living room. Although the Does were not fully satisfied with the time it took defendant to complete the jobs, they were pleased with the quality of his work. All of the Does' children seemed interested in his work, and the parents trusted him. While defendant worked for the Does, he "pretty much had a run of the house."
The vantage point in several recordings of defendant and Jane suggested that the video had been shot with a fixed camera. The police therefore inspected the Does' home for hidden cameras. They did not find any, but discovered a hole in the sheetrock ceiling of the bathroom defendant remodeled, a wire leading to the attic from a vent in Jane's bedroom and a hole in the casing on the door to the bedroom that defendant built in the basement. These findings were consistent with a hidden camera having been present in the past. That conclusion was supported by invoices showing that the defendant had two "pinhole board" cameras shipped to the Does' house while he was working there.
Each crime charged in the indictment was depicted on the videos found in defendant's home. The indictment and a joint exhibit introduced at trial identify the State's exhibit and the section of the exhibit that supports each crime.
The videos depict Jane with defendant at ages two through six. The conduct shown includes fellatio; cunnilingus; vaginal penetration by defendant's penis, sexual devices and a toilet plunger; anal penetration by defendant's penis and tongue; sexual contact; and display of pornographic material. The acts took place at the Does' home in the living and family rooms, Jane's bedroom, her second-floor bathroom, the basement bedroom, and the driveway in defendant's van.
Defendant did not testify or present expert testimony. His defense was that he did not possess the requisite state of mind at the time he committed the offenses. The jury by its verdict rejected that claim.
On appeal, defendant argues:
I. THE COURT ERRED IN RULING THAT THE DEFENSE WOULD NOT BE PERMITTED TO OBTAIN ITS OWN COPIES OF DISCOVERY MATERIALS.
II. THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AS A MATTER OF PUBLIC POLICY BECAUSE THE INTERESTS OF THE THIRD PARTY TO WHOM THE GRAND JURY SUBPOENA WAS ISSUED ...