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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...