Argued April 29, 2014.
Approved for Publication July 8, 2014.
[Copyrighted Material Omitted]
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-02-0314.
Karen Nazaire, Assistant Deputy Public Defender, argued the cause for appellant ( Joseph E. Krakora, Public Defender, attorney; Ms. Nazaire, of counsel and on the brief).
Ian C. Kennedy, Deputy Attorney General, argued the cause for respondent ( John J. Hoffman, Acting Attorney General, attorney; Kenneth A. Burden, Deputy Attorney General, of counsel and on the brief).
Before MESSANO, SABATINO and SUMNERS
[436 N.J.Super. 381] SABATINO, J.A.D.
This appeal concerns the constitutionality of certain provisions within N.J.S.A. 2C:21-2.1, a criminal statute that enumerates various offenses involving false governmental documents. After a jury trial, defendant Daniel A. Borjas was found guilty of three counts of knowingly making false governmental documents, which are second-degree offenses proscribed by N.J.S.A. 2C:21-2.1(b). The jury also found defendant guilty of four counts of knowingly possessing false governmental documents, which are fourth-degree offenses proscribed by N.J.S.A. 2C:21-2.1(d). The false documents in question were created or stored in hard drives of computers at defendant's residence, and were discovered by law enforcement officers pursuant to a search warrant.
On appeal, defendant contends that these provisions in subsections (b) and (d) of N.J.S.A. 2C:21-2.1 are unconstitutional, both on their face and as applied to the circumstances in this case. Among other things, he claims that these statutes are void for vagueness, and also overbroad in that they allegedly disallow substantial amounts of constitutionally-protected expression. He further argues that he was deprived of a fair trial by the manner in which the trial judge defined the statutory term " document" for the jurors. Lastly, defendant claims that his flat custodial sentence of seventy-eight months is excessive.
[436 N.J.Super. 382] For the reasons that follow, we sustain the trial court's rejection of defendant's constitutional challenges. The statutory provisions underlying his conviction are neither overbroad nor void for vagueness, either on their face or as applied to the facts in this case. We do not, however, foreclose future as-applied challenges to the statute by artists, students, or other persons who may use or store computer documents or images for benign purposes not designed to " falsely purport" that those documents or images are authentic governmental records.
We further conclude that the trial judge's instruction to the jury defining the meaning of the term " document" to encompass electronically-stored information was appropriate. We are also satisfied that defendant's sentence does not reflect any abuse of discretion. We therefore affirm his convictions and his sentence in all respects.
The two portions of N.J.S.A. 2C:21-2.1 at issue in this case, specifically subsections (b) and (d), currently read as follows:
b. A person who knowingly makes, or possesses devices or materials to make, a document or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the second degree.
. . . .
d. A person who knowingly possesses a document or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the fourth degree. . . .
[ N.J.S.A. 2C:21-2.1 (emphasis added).]
The indictment against defendant charging numerous violations of these false document provisions stemmed from a search of his apartment on April 16, 2009. That morning, several officers from the Bergen County Prosecutor's Office executed a search warrant at defendant's residence, initially on a belief that he had possessed or distributed child pornography. Pursuant to that warrant, the [436 N.J.Super. 383] officers seized various electronic devices and other related items from the apartment. In particular, they recovered three computers, six hard drives, several DVDs, several CDs, a Blackberry phone, and an internet utility bill.
The seized hard drives contained computer files that included the following: (1) an image of a New Jersey driver's license in the name of " L.C."  bearing a photograph of defendant; (2) an image of a New Jersey driver's license in the name of " M.P." bearing a photograph of defendant; (3) an image of a New Jersey driver's license in the name of " M.P." bearing a photograph of an unidentified individual; (4) an image of a Social Security card in the name of " L.C." ; and (5) an image of a Social Security card in the name of " M.P." The officers also discovered a Microsoft Word document stored on the hard drive, which contained personal identifying information for M.P.
A Bergen County grand jury subsequently indicted defendant and charged him with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a) (Count One); fourth-degree possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b) (Count Two); second-degree knowingly making, or knowingly possessing materials or devices to make, a false government document, N.J.S.A. 2C:21-2.1(b) (Counts Three, Four, Five, and Six); and fourth-degree knowingly possessing a false government document, N.J.S.A. 2C:21-2.1(d) (Counts Seven, Eight, Nine, and Ten). Counts One and Two concerning the child-related allegations were dismissed before trial.
Several days prior to trial, the court denied defendant's motion to dismiss the indictment based on claims of unconstitutionality [436 N.J.Super. 384] and insufficiency of the evidence. The judge issued an oral opinion, concluding that the indictment was supported by sufficient prima facie evidence, including proof that the images and files stored on defendant's computer comprised
incriminating " documents" within the meaning of the statute. The judge also implicitly rejected defendant's claims of unconstitutionality.
At the two-day jury trial in February 2012, the State presented four witnesses: Detective Kelly Krenn from the Bergen County Prosecutor's Office, who was one of the officers who executed the search warrant of defendant's apartment; Daniel Andriulli, a forensic analyst; Sharon Malone, a detective lieutenant from the Prosecutor's Office computer crimes unit; and M.P., one of the two persons identified on the files that the officers found in defendant's computer. Defendant did not testify, nor did he call any witnesses on his behalf.
Detective Krenn described in his testimony the search of defendant's apartment and the officers' seizure of the electronic devices. The seized items were secured in Krenn's patrol car, and were then later handed over to Lieutenant Malone. Krenn acknowledged on cross-examination that the officers had not seized from defendant's apartment any printers, laminating machines, driver's licenses in physical form, or Social Security cards.
Andriulli, the State's forensic witness, described the contents of the seized computer hardware and software. He explained that the computer from which the files had been found only contained one user account, which belonged to defendant. He stated that the computer image files were found on the computer's Windows desktop, in a file folder labeled " Adobe Photoshop CS 8.0."  Information retrieved from those computer files indicated that they had been created on March 6, 2006, and that, before the seizure, one of the files was last accessed on December 25, 2006.
[436 N.J.Super. 385] Andriulli explained that the computer files appeared to be altered because the images contained a different color behind the text than the color behind the spots without text. In his experience, such color differences signified that portions of the image were not part of the original image. On cross-examination, Andriulli acknowledged that he had not seen any physical printouts of the images found on defendant's computer.
Malone testified about her efforts in identifying L.C. and M.P., the two persons who had been referred to in defendant's computer files. Malone was able to locate M.P., but could not find or verify the existence of an individual named L.C. Malone also noted that defendant's driving privileges had been suspended from March through October 2006, and again from November through December 2006.
Finally, the State called M.P. to the stand, who verified his current address and Social Security number. His identifying information matched the information for him shown in defendant's stored images.
The jury found defendant guilty on Counts Three, Five, Six, Seven, Eight, Nine, and Ten, but not guilty on Count Four. At sentencing, the trial judge imposed a flat seventy-eight-month custodial term concurrently on Counts Three, Five, and Six. In addition, the judge imposed a six-month term on each of defendant's convictions on Counts Seven through Ten, to be served concurrently with each other, and with the convictions on the other counts.
In his brief on appeal, defendant mainly contends that N.J.S.A. 2C:21.2.1(b) and (d) are unconstitutional on their face, and as applied to him in these factual circumstances.
He specifically raises the following points for our consideration:
N.J.S.A. 2C:21-2.1 IS OVERBROAD, IMPERMISSIBLY VAGUE, AND FACIALLY UNCONSTITUTIONAL. THEREFORE, [DEFENDANT'S] CONVICTIONS MUST BE VACATED.
[436 N.J.Super. 386] A. N.J.S.A. 2C:21-2.1 Is Unconstitutionally Vague Because It Fails To Provide Adequate Notice Of Prohibited Conduct And Likewise Fails To Provide The State With Guidelines For Enforcement, Leading To Arbitrary Results.
B. N.J.S.A. 2C:21-2.1 Is Unconstitutionally Overbroad Because It Unnecessarily And Impermissibly Restricts Protected Speech By Failing To ...