October 2, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOHN DZIEGIEL, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-09-234.
Law Offices of Jef Henninger, attorneys for appellant (Joseph J. Compitello and Jef Henninger, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, of counsel and on the brief).
Before Judges Sapp-Peterson and Lihotz.
Defendant was charged in Monmouth County Indictment 08-09-234 with two counts of second-degree child endangerment for distributing child pornography, N.J.S.A. 2C:24-4b(5)(a), and one count of fourth-degree child endangerment by possessing child pornography, N.J.S.A. 2C:24-4b(5)(b). Tried by a jury, he was convicted on all charges. After merger, defendant was sentenced to six years in state prison, with no minimum period of parole ineligibility, and required to comply with Megan's Law, N.J.S.A. 2C:7-2. Defendant appeals from his conviction and the sentence imposed, arguing:
THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION TO DISMISS.
THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO SIX YEARS OF STATE PRISON.
The facts are taken from the record during the three-day jury trial, presided over by Judge Richard W. English. The State presented the testimony of investigating detectives employed by the New Jersey State Police digital technology investigation unit (DTIU); a detective from the State Police regional computer forensics lab, who examined defendant's hard drive; and the video evidence obtained from defendant's computer.
On July 26, 2007, Detective Cyril Bleistine of the DTIU was searching the internet for persons who received or transmitted child pornography. Specifically, he downloaded Phex software, which allowed him to log onto the peer-to-peer file sharing network, "Gnutella, " in search of persons who shared child pornography media files. Detective Bleistine entered search terms representative of child pornography and was provided with a list of files posted and available for download by Gnutella peers. His search results contained the internet protocol (IP) addresses identifying the device of the sharing peer, as well as a cryptographic secure hash algorithm (SHA-1) of the file. The search yielded defendant's IP address showing files available for download, which, based on the file names, were believed to be child pornography. Detective Bleistine reconnected to defendant's computer through the Gnutella network and located one file he knew contained child pornography. Although defendant's computer was on and connected to the Gnutella network, Detective Bleistine's attempt to download the suspect file was unsuccessful. However, he recorded ninety-five other on-line peers who were connected to defendant's IP address on the network.
Detective Bleistine applied for and obtained a search warrant for defendant's computer. In the search of defendant's residence, his modem, router, and computer were seized. Defendant was Mirandized,  and he then provided a taped statement admitting he had installed LimeWire software to enable peer-to-peer file sharing. He denied intentionally searching for child pornography, but acknowledged it was "possible" on two or three occasions he accidently encountered images of children engaged in sexual acts while he searched for adult pornography. Further, defendant admitted it was possible there were five images of children having sex on his computer. Defendant also explained he kept any images in his share folder and fully understood the downloaded images were available to others on the Gnutella network. Defendant repeatedly stated he understood viewing and sharing of child pornography was illegal.
The forensic analysis of the seized hard drive by Detective Carlos Hernandez revealed defendant had downloaded thirty-five video files containing child pornography. The videos were in files marked "shared" or "shared 1" and were available to those in the peer-to-peer network. None of the files had been deleted. At least two files unmistakably contained child pornography based on the file names that identified the young age of the child and specific sexual acts performed in the videos.
On appeal, defendant argues Judge English erred in denying his motion for acquittal of the endangering charges made at the close of evidence. Defendant maintains the State's case, grounded on distribution of child pornography, was not proven because Detective Bleistine was unable to actually download any offending videos from his share files and the State offered no proof the files were ever shared. We are not persuaded.
In reviewing a motion for acquittal based on insufficient evidence, pursuant to R. 3:18-1, we apply the same standard as the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Felson, 383 N.J.Super. 154, 159 (App. Div. 2006). Thus, a motion for judgment of acquittal will not be granted where
viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
In this regard, "a jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference." State v. Kittrell, 145 N.J. 112, 131 (1996) (quoting State v. Brown, 80 N.J. 587, 592 (1979)).
Defendant was charged with criminal endangering of a child's welfare, which includes:
(a) Any person who knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree.
(b) Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree.
Although the terms in subsection (a) are not specifically defined, giving them their ordinary meaning, see State v. Rangel, 213 N.J. 500, 509 (2013) ("In carrying out that goal, we begin by looking at the statute's plain language, giving words 'their ordinary meaning and significance.'") (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)), Judge English determined the thirty-five files, downloaded on defendant's computer and kept in his share file on the peer-to-peer network, were available for reproduction by another. He concluded these facts evidenced distribution, citing State v. Lyons, 417 N.J.Super. 251, 260 (App. Div. 2010), and denied defendant's motion.
In Lyons, we examined the State's challenge to an order granting the defendant's motion to dismiss an indictment charging him "with possessing, offering and distributing child pornography by use of a peer-to-peer file sharing network on the internet." Id. at 253. The trial judge found the State's evidence did not include proof the defendant intended to transfer or distribute the images with peers on the Gnutella network through his LimeWire shared folder. Ibid. The trial judge concluded that although the defendant knew the shared child pornography files "were accessible to others over the Internet by virtue of being in such a folder, [his] passive conduct could not be sufficient to constitute distributing or offering the materials" as used in N.J.S.A. 2C:24-4b(5)(a). Id. at 254. We disagreed, id. at 257, stating "[i]n the context of this statute, these terms commonly mean the act by which one person makes known to another that he or she may have for the taking an item possessed by the offeror." Id. at 260. Further, we considered the terms in the statute in light of the legislative initiatives, concluding
the terms should be construed very broadly. The evidence of what [the] defendant did, while knowing what he knew, is the kind of conduct targeted by these enactments. [The d]efendant used the modern technology of computers and the Internet, with a file sharing network, to provide and offer child pornography he possessed in his shared folder.
[Id. at 262.]
Lyons makes clear, under N.J.S.A. 2C:24-4b(5)(a), the State's burden is to prove an offer was made; it need not show actual access to a defendant's shared files occurred. Id. at 260-63. In this matter, the State's evidence sufficiently supported the offense charged as defendant acted to "offer" his downloaded child pornographic videos by making them available through peer-to-peer file sharing, thereby allowing others on the network to access and copy an item in his shared files. Further, defendant fully understood the illegal video files when placed in shared files were accessible and was fully knowledgeable of the mechanics of the LimeWire software when used on the Gnutella network. See Lyons, supra, 417 N.J.Super. at 263.
We also reject defendant's challenge to his sentence as excessive. Judge English set forth his findings to support his conclusions in compliance with the sentencing guidelines.
Our review of a criminal sentence imposed by the trial court is limited. State v. Natale, 184 N.J. 458, 489 (2005). "Although appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts, when reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (internal quotations marks and citations omitted).
Reviewed under these standards, we find Judge English appropriately weighed aggravating factors, applying (3) the risk of re-offense, N.J.S.A. 2C:44-1a(3), and (9) the need to deter defendant and others, N.J.S.A. 2C:44-1a(9); considering the applicable mitigating factor (7), that defendant had no prior criminal record, N.J.S.A. 2C:44-1b(7); and providing thoughtful consideration of each. See State v. Dalziel, 182 N.J. 494, 501 (2005) (holding sentencing "require[s] that an exercise of discretion be based on findings that are grounded in competent, reasonably credible evidence" and that "the factfinder apply correct legal principles in exercising its discretion") (internal citations omitted). The judge concluded the aggravating factors outweighed the mitigating, and imposed a sentence at the lower end of the second-degree range.
We find no abuse of the reasoned discretion afforded trial judges tasked with sentencing convicted criminals. When "conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Court] . . . they need fear no second-guessing." Id. at 181 (quoting State v. Roth, 95 N.J. 334, 365 (1984)).