State of New Jersey v. Michael J. Balbosa, 335 A.3d 661

Michael J. Balbosa pled guilty to second-degree endangering the welfare of a child after possessing and distributing videos depicting a young girl in sexually suggestive poses.
The relevant statute, N.J.S.A. 2C:24-4, was amended in February 2018 to expand the definition of child pornography to include depictions of a child in a "sexually suggestive manner."
Balbosa filed for post-conviction relief (PCR), arguing ineffective assistance of counsel, First Amendment violations (overbreadth and vagueness), and Ex Post Facto violations.
The PCR court denied his petition without a hearing, finding the statute constitutional (except for subsection (c), which was later struck down in State v. Higginbotham by the NJ Supreme Court).
On appeal, Balbosa argued the statute’s subsections (a) and (b) are also unconstitutional and that he was prosecuted under an ex post facto law.
The Appellate Division affirmed, finding no ineffective assistance, no constitutional defect in subsections (a) or (b), and no Ex Post Facto violation because the charged conduct occurred post-amendment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective Assistance of Counsel	Counsel was effective; no meritorious motion to suppress or dismiss existed.	Counsel failed to file motions to suppress/dismiss, or challenge the statute’s constitutionality.	No ineffective assistance; motions would have failed.
First Amendment Overbreadth & Vagueness	Subsections (a) and (b) criminalize only unprotected child pornography and are not overbroad/vague.	Statute is overbroad/vague and covers protected speech; unconstitutional as applied/facially.	Subsections (a) & (b) are constitutional and sufficiently clear.
Ex Post Facto Violation	Charges were based on conduct after the statute was amended; no retroactive penalization.	Prosecution was for conduct initially legal, criminalized only by subsequent amendment.	No ex post facto application; charges were for post-amendment acts.
Application of Prior Precedent (Higginbotham)	Higginbotham only invalidated subsection (c); (a) and (b) are distinguishable.	The entire "child erotica" amendment found unconstitutional in prior Appellate decision.	Only subsection (c) held unconstitutional; (a) and (b) are valid.

Strickland v. Washington, 466 U.S. 668 (establishes the standard for ineffective assistance of counsel)
New York v. Ferber, 458 U.S. 747 (permits states to prohibit child pornography outside typical obscenity standards)
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (limits the categories of unprotected speech regarding child pornography)
Miller v. California, 413 U.S. 15 (defines obscenity for First Amendment purposes)
Osborne v. Ohio, 495 U.S. 103 (states may prohibit possession/viewing of child pornography at home)
State v. Higginbotham, 257 N.J. 260 (held N.J.S.A. 2C:24-4(b)(1)(c) overbroad under the First Amendment)
State v. Hester, 223 N.J. 381 (explains the elements required for an ex post facto violation)