June 6, 2017
appeal from the Superior Court of New Jersey, Law Division,
Burlington County, Indictment No. 11-04-0030.
Daniel Remy, Deputy Attorney General, argued the cause for
appellant (Christopher S. Porrino, Attorney General,
attorney; Mr. Remy and Marie G. McGovern, Deputy Attorney
General, of counsel and on the brief).
Lawrence A. Leven argued the cause for respondent.
Judges Reisner, Koblitz and Sumners.
State appeals from an April 23, 2015 order dismissing the
indictment, and from an October 7, 2015 order denying its
motion to supplement the record.
trial court dismissed, on jurisdictional grounds, an
indictment charging defendant with disrupting or impairing
computer services, N.J.S.A. 2C:20-25(b), impersonating
another for the purpose of obtaining a benefit for himself or
injuring another, N.J.S.A. 2C:21-17(a)(1), and conspiring to
commit those offenses. The court later denied the State's
motion to supplement the record with information concerning a
civil case relating to the same events.
State presents us with the following points of argument:
WHILE THE TRIAL COURT INITIALLY STATED THE CORRECT PRINCIPLES
OF LAW REGARDING TERRITORIAL JURISDICTION, IT ERRED IN
REQUIRING A DIRECT NEXUS TO NEW JERSEY IN ISSUING ITS
CONCLUSIONS OF LAW, THEREBY CONTRAVENING THE PLAIN WORDING OF
EVEN IF THE DIRECT NEXUS ANALYSIS WAS CORRECTLY APPLIED, THE
STATE WOULD HAVE JURISDICTION OVER THE INDICTED OFFENSES
THE COURT ERRED IN NOT ALLOWING THE STATE TO SUPPLEMENT THE
RECORD WITH EVIDENCE OF PERJURIOUS AFFIDAVITS SUBMITTED BY
to the State's evidence, defendant, acting in Florida,
caused a series of "spam" attacks to be made on a
Utah website that was an integral part of the victim's
New Jersey-based internet business, causing the business to
incur over $100, 000 in damages. The State also produced
evidence that defendant engineered the spam attacks in part
to exact vengeance on the New Jersey resident who operated
the internet business. We hold that, as to both computer
criminal activity and impersonation, the harmful result to
the victim is an "element" of the offense, within
the meaning of the territorial jurisdiction statute. N.J.S.A.
2C:1-3(a)(1) and -3(g). Because the State produced some
evidence that the New Jersey resident, and the New Jersey
corporation he operated, suffered harm in this State which
was an element of each computer crime statute, New Jersey has
territorial jurisdiction to prosecute defendant for those
offenses. Accordingly, we reverse the April 23, 2015 order
dismissing counts two and three of the indictment and we
remand this matter to the trial court.
the parties neither briefed nor argued the section of the
territorial jurisdiction statute concerning conspiracy,
N.J.S.A. 2C:1-3(a)(3), we do not address the dismissal of
count one of the indictment. We remand that issue to the
trial court for further briefing and reconsideration in light
of this opinion. In connection with that aspect of the
remand, the State may submit to the trial court the materials
which were the subject of its motion to supplement the
on the following evidence, in 2011 a grand jury indicted
defendant on three counts: (1) second-degree conspiracy,
N.J.S.A. 2C:5-2; (2) second-degree computer criminal
activity, N.J.S.A. 2C:20-25(b) and N.J.S.A. 2C:2-6; and (3)
second-degree impersonation, N.J.S.A. 2C:21-17(a)(1) and
State presented testimony from one witness, Christina
McCarthy, a detective with the Division of Criminal Justice
(DCJ). McCarthy based her testimony on information she
learned during a conference call with other detectives and
two individual victims, Michael Moreno and Justin Williams.
The State also presented defendant's statement, made to
DCJ investigators after his arrest.
begin by summarizing McCarthy's grand jury testimony.
Moreno is a resident of New Jersey and was an owner of a
company called MedPro, Inc. (MedPro). Williams is a resident
of Utah and owns a company called Physicians Information
Services. The men were in a business relationship in which
Moreno sold cosmetic lasers and Williams fulfilled the orders
and Williams told the DCJ detectives that MedPro's email
server received a large number of undeliverable email
messages concerning emails that MedPro had not sent. This
meant that someone was sending emails from MedPro's email
address to email addresses that did not exist. As a result,
the emails were returned to MedPro as undeliverable. In some
instances, MedPro received as many as 100 undeliverable
emails per minute.
emails were sent to actual email addresses, and included a
link to MedPro's website. The emails impersonated the
identity of Moreno's business, in that they appeared to
come from "Sales@MedProOnline.com." Because many of
the recipients had no business to conduct with MedPro and
correctly viewed the emails as spam, they complained to
MedPro or its website manager that the emails were unwelcome.