July 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NORMAN DELLAS, JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 04-12-00884.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 7, 2011
Before Judges Parrillo, Yannotti and Skillman.
Defendant, Norman Dellas, Jr., appeals from a judgment of the Law Division finding him in violation of his probation and sentencing him to a three-year term of imprisonment for his underlying third-degree child endangerment conviction. We affirm.
By way of background, defendant was indicted for second-degree sexual assault, N.J.S.A. 2C:14-2b; second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and fourth-degree possession of child pornography, N.J.S.A. 2C:24-4b(5)(b). On March 3, 2005, he pled guilty to the amended charge of third-degree child endangerment, N.J.S.A. 2C:24-4a, and was sentenced to five years probation and community supervision for life pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23.
Prior to completion of his probationary term, in 2007, the Legislature enacted N.J.S.A. 2C:43-6.6, which prohibits certain sex offenders, such as defendant, from accessing or using computers with Internet capabilities and requires the installation of software programs to monitor their compliance with this condition, including periodic unannounced examinations of Internet capable devices. Specifically, as to the monitoring condition, the statute expressly requires the offender: to submit to the installation on the person's computer or device with Internet capability, at the person's expense, one or more hardware or software systems to monitor the Internet use. [N.J.S.A. 2C:43-6.6a(3).]
Also, the statute applies retroactively to sex offenders convicted prior to its enactment for whom community supervision was imposed under Megan's Law and who otherwise met the statute's qualification requirements. N.J.S.A. 2C:43-6.6d.
There is no question here that defendant was eligible for the newly enacted condition of probation, having used the Internet to facilitate commission of the qualifying sex offense to which he pled guilty. Consequently, the State moved to modify defendant's judgment of conviction (JOC) to prohibit him from accessing any computer with Internet capabilities and to require the installation of monitoring software to ensure his compliance. Although the State initially sought to remove defendant's computer from his home altogether, the State ultimately agreed to allow him to keep the computer with an adequate monitoring software program. This agreement between the parties was memorialized in a consent order, dated June 30, 2009, modifying defendant's JOC "to reflect that [he] is prohibited from using, accessing a computer with [I]nternet capability, or having third parties . . . accessing such a computer on his behalf" and that "he will have installed at his cost, in the two computers in his residence, software which monitor sites, that has been used and approved by the N.J. Parole Department" (emphasis added).
Despite entry of the consent order, defendant did not act to effectuate this condition until six months later, and then only after his probation officer threatened to file a notice of violation of defendant's probation. As a result, on December 23, 2009, defendant ordered WebWatcher, an Internet monitoring software program, and submitted his receipt to the Probation Department as evidence of his purchase.
Defendant, however, never downloaded or installed the Internet monitoring software program as required by the consent order. This, despite the fact that the receipt clearly provided installation instructions:
STEP 1: ACCOUNT LOGIN INFORMATION
To get started with WebWatcher, please login to your account with the following information:
STEP 2: INSTALLATION
1. To Install and run your software, you MUST log in to WebWatcher's online interface, at https://www.WebWatcherData.com
2. When you first login to the above online Administrator, you'll need to complete a simple setup process. At the end of the online setup process, you'll be able to download your software.
Your username and password (noted above) are required to activate and use WebWatcher. This step typically takes just two minutes.
3. The final step in the process will give you access to your downloadable version of WebWatcher.
If you have any difficulties with setup or installation, please take advantage of our excellent customer support by logging-in to https://www.WebWatcherData.com and clicking "Help". Our Customer Support representatives are available virtually 24 hours per day, 7 days per week.
The Probation Department had not learned of defendant's non-compliance until a routine home visit on June 8, 2010, three weeks before defendant's probationary term would have been completed. On that day, defendant's probation officer, William Sheeran, discovered that defendant had failed to install the software program, effectively allowing defendant unmonitored access to the Internet via his computer.*fn1 Sheeran also inspected defendant's cell phone and discovered that defendant was capable of accessing the Internet on this device as well.
As a result of these discoveries, Sheeran filed a notice of violation of probation on June 8, 2010, charging:
The probationer has failed to meet the special Conditions of Probation imposed by the court, specifically: on [June 8, 2010], during a routine home visit, probation officers discovered that [defendant] had failed to install the computer software that had been Court Ordered on [June 9, 2009]. On that same visit [defendant's] cell phone was discovered to have Internet capabilities.
At the ensuing Law Division hearing on October 18, 2010, defendant, a math teacher with an advanced degree in science and experience in the use of computers, testified that he did not download or install the software because he thought that software purchased via the Internet was automatically installed upon purchase. He also claimed that he requested to have the Internet capability blocked on his new phone, which he never produced at the hearing, but that he never confirmed that fact.
At the close of proofs, the court, discrediting defendant's explanations, found him guilty of a violation of a condition of his probation by a preponderance of the evidence:
My conclusion is having had the opportunity to observe the testimony and listen to it, taking into account the record in the case, including the amended judgment of conviction with the statement of reasons that [the judge] had offered in that judgment, my conclusion is that [defendant] on balance is not believable, and I don't believe him.
I conclude that the violations alleged in the June 8, 2010 notice of violation are supported by the necessary preponderance of the evidence and that [defendant] did indeed violate substantial conditions of his probation in the two noted respects, in that he failed to install the software, and that he had in his possession at his beck and call an [I]nternet capable cell phone.
On appeal, defendant argues that the court erred in finding that he violated probation because the governing statute only requires that he "submit" to monitoring software to be installed by the State, not by himself personally, and that any such requirement that he install the software would cause him to violate his probation, creating a "Catch-22" situation. Alternatively, defendant argues that any violation of a condition of probation was technical in nature and de minimus, not warranting revocation of probation. We disagree with all of these contentions, as they are clearly without merit.
Upon an allegation that a defendant has violated a condition of probation, the court will not hold a new criminal prosecution but rather a hearing as "part of the corrections process." State v. Reyes, 207 N.J. Super. 126, 134 (App. Div.), certif. denied, 103 N.J. 499 (1986); State v. Lavoy, 259 N.J. Super. 594, 600 (App. Div. 1992). Thus, the court need only be satisfied "by a preponderance of the evidence that [the] defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of probation." State v. Jenkins, 299 N.J. Super. 61, 73 (App. Div. 1997) (citations and internal quotation marks omitted). N.J.S.A. 2C:45-3a(4) authorizes "[t]he court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order . . . , [to] revoke the . . . probation and sentence . . . the defendant" (emphasis added). Further, "[w]hen the court revokes . . . probation, it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted." N.J.S.A. 2C:45-3b.
Essentially, the statute provides for revocation of probation due to a violation of a condition of probation that is serious enough to justify revocation. State v. Baylass, 114 N.J. 169, 175 (1989). Thus, the courts will not revoke probation for mere technical violations. State v. Moretti, 50 N.J. Super. 223, 248 (App. Div. 1958). In Moretti, the court stated:
We suggest a viewpoint towards probation requirements which seems to us to be realistic. A probationer is not expected or required at once to achieve perfection. If his conduct is that of the ordinary well-behaved person, with no serious offenses charged against him and with no indication that he intends in the future to pursue the course which led to his original conviction, the courts and probation officers should not revoke probation upon technical violations. [Ibid.]
The statute also provides the defendant an opportunity to demonstrate an excuse for his failure to comply with a requirement of probation. Reyes, supra, 207 N.J. Super. at 139-40.
By the same token, our review of a trial judge's fact finding underlying a violation of probation is "exceedingly narrow." See State v. Locurto, 157 N.J. 463, 470 (1999); see also State v. Johnson, 42 N.J. 146, 161-62 (1964). We defer to the lower court's findings of fact, especially those that are substantially influenced by the trial judge's opportunity to hear and see the witnesses and to have the sense of the case. Johnson, supra, 42 N.J. at 161-62; State v. Elders, 192 N.J. 224, 244 (2007). Thus, we will not disturb a court's finding of a violation of probation when supported by sufficient credible evidence in the record. See Johnson, supra, 42 N.J. at 162.
Against this backdrop, we reject defendant's initial contention that he did not violate probation since the governing statute imposed no duty on him to install the software program. Regardless of how the statute's "submit" requirement is interpreted, defendant is not charged with a statutory violation, but rather with violating a condition of his probation imposed by court order. That condition plainly and unambiguously placed the requirement to install upon defendant directly and personally. In other words, the State did not indict defendant for a violation of N.J.S.A. 2C:43-6.6, a fourth-degree crime, but rather, as noted, charged a violation of a condition of probation, which had its genesis in a court order. In fact, at the June 9, 2009 hearing giving rise to the consent order, defendant was fully informed of the consequences of any such violation. He affirmed his understanding that failure to comply with this new condition of his probation may result in a prosecution for a fourth-degree crime under the statute. Moreover, by the court's express warnings, defendant was fully aware that the consent order and amended JOC limited his use of computers. Most important, the court questioned defendant whether he was "willing to install the necessary software so that [his computers] can be monitored," to which defendant replied "yes." Under the circumstances, sufficient credible evidence supports the finding of a violation of probation.
Defendant's next contention - that downloading and installing his software, as well as verifying that his cell phone was not capable of accessing the Internet would itself have led him to violate his probation - is easily dismissed. Defendant evidently accessed the Internet to purchase the required software, rendering implausible the argument that he was prohibited from continuing to access the Internet to download and install the required software. In fact, the June 30, 2009 order permitted defendant to access the Internet if "specifically authorized by the Court, Cape May County Probation Department or the N.J. District Parole Supervisor." That same order, which directed defendant to download the software program, obviously permitted defendant to access the Internet for that purpose. In any event, if defendant truly had a concern in this regard, he could have sought and obtained the approval of the court or the Probation Department to check the operation of the WebWatcher program and verify that his new cell phone did not have Internet capabilities.
Lastly, defendant argues that any violation he committed was merely technical and, in any event, excusable. We disagree, as did the trial judge who found that defendant unjustifiably failed to comply with a substantial requirement imposed as a condition of his probation. Suffice it to say, defendant violated a condition that directly related to the very reason he was placed on probation, namely accessing the Internet to commit a crime against a child, from which it may reasonably be inferred he "intend[ed] in the future to pursue the course which led to his original conviction." See Moretti, supra, 50 N.J. Super. at 248. Although there was no evidence that defendant actually accessed the Internet, his failure to install monitoring software and his possession of an Internet-capable cell phone was a clear violation of a substantial condition of his probation, the consequences of which defendant was made well-aware during the June 9, 2009 hearing wherein the court ordered the condition. That violation was also deemed inexcusable by the trial judge who found defendant's explanations in mitigation of his omissions not credible. As noted, we defer to the court's credibility finding because it was in the best position to hear and see the witnesses and to have the feel of the case. See Johnson, supra, 42 N.J. at 161-62.
Defendant's final contention of an excessive sentence is raised for the first time in his reply brief and is thus not properly before us. State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001); Goldsmith v. Camden Cnty. Surrogate's Office, 408 N.J. Super. 376, 387 (App. Div.), certif. denied, 200 N.J. 502 (2009). In any event, we do not find that the court's imposition of a three-year term "shocks the judicial conscience." State v. O'Donnell, 117 N.J. 210, 215-16 (1989).