On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-04-00814.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 1, 2012 -
Before Judges Axelrad and Sapp-Peterson.
On April 6, 2010, defendant Vipulkuma Patel was indicted on ten counts of third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4 (counts one, four, seven, nine, eleven, fifteen, seventeen, nineteen, twenty-one, and twenty-seven); ten counts of second-degree attempting to lure or entice a child into a motor vehicle, structure or isolated area, N.J.S.A. 2C:13-6 (counts three, six, ten, twelve, fourteen, sixteen, eighteen, twenty, twenty-three and twenty-four); four counts of third-degree public communication of obscene materials, N.J.S.A. 2C:34-4b and N.J.S.A. 2C:34-3b (counts two, eight, thirteen, and twenty-two); two counts of second-degree attempting to commit sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c (counts five and twenty-five); and one count of fourth-degree attempting to commit an act of sexual contact under a superseding indictment, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3b (count twenty-six).
On June 14, 2010, defendant filed a motion to dismiss the indictment, arguing he could not be convicted because in each count there was no real child but, rather, a "virtual person." Following argument on August 5, 2010, Judge James E. Isman rendered an oral decision, denying defendant's motion.
Defendant then pled guilty to one count of second-degree attempted sexual assault (count five) and one count of second-degree attempted luring (count twenty-four). Pursuant to the negotiated plea, on February 4, 2011, defendant was sentenced to a five-year custodial term for each of the offenses, to run concurrently, and the remaining charges were dismissed. The judge also ordered that defendant would be subject to the provisions of Megan's Law, N.J.S.A. 2C:43-6.4, requiring parole supervision for life, and imposed appropriate fees and fines. Defendant appealed. We affirm.
Defendant was arrested and subsequently named in a twenty-seven count indictment after a sting operation revealed he had inappropriate sexual conversations and attempted to meet a manufactured juvenile female, "Nelly," who was constructed by Sergeant Thomas Finan of the Atlantic County Prosecutor's Office. The officer created a profile to portray Nelly as a fourteen-year-old girl who lived in Mays Landing, entered a chat room with a screen name, and recorded the ensuing online conversations. On March 3, 2009, defendant, age thirty-two, but who claimed to be a twenty-eight-year-old man, contacted Nelly, who immediately identified herself as a fourteen-year-old girl, in the eighth-grade. According to the investigator's report and transcription of the conversation, defendant proceeded to send Nelly a live video-feed of himself masturbating and a hyperlink to a pornography website, and provided graphic details of what sexual acts he would perform on Nelly and what she would perform on him. Nelly reminded defendant that she was only fourteen years old and told him he could get girls his own age, to which he replied, "younger are more fun . . . I will teach u."
Defendant also instructed Nelly not to tell her parents about the conversation and to delete her internet history.
According to defendant's plea allocution, the next day defendant initiated another online sexually explicit chat room conversation with Nelly, who he believed to be a fourteen-year-old girl. He instructed her to digitally penetrate herself via masturbation. In several instant message conversations with Nelly over the ensuing weeks, defendant continued to pursue a meeting for sex.
The message log of March 16, 2009, reflects that defendant finalized the details for his plan to meet Nelly in a parking lot in Mays Landing the following day, after which he would drive her in his car to his home. Defendant described in extremely graphic terms the sexual acts they would engage in and sent Nelly a link to a pornographic website. The following morning, defendant sent Nelly instant messages confirming that he left and arrived at the meeting place. Defendant was placed under arrest in the parking lot.
In the factual allocution for his guilty plea to the attempted luring offense, defendant admitted that he had made arrangements over the internet to meet Nelly, whom he believed to be a fourteen-year-old girl, at the predetermined location, and his intention, as communicated to her, was to drive her to his house to engage in vaginal or ...