State v. Miller, 203 A.3d 102

Background

Michael Miller possessed and shared via peer-to-peer programs over 900 images/videos of child pornography; investigators seized 33 CDs/DVDs (11 containing additional child porn) and multiple computers.
Miller admitted he used FrostWire/uTorrent/MediaGet and acknowledged files in his library were shareable; forensic exam found 631 images and 353 videos on his laptop.
Indicted for fourth-degree possession (N.J.S.A. 2C:24-4(b)(5)(b)) and second-degree distribution (N.J.S.A. 2C:24-4(b)(5)(a)); found guilty at a bench trial.
At sentencing the trial court applied aggravating factors (including factor one: nature/circumstances of the offense) because materials depicted rape/penetration and very young victims (some infants), and imposed consecutive terms: 7 years for distribution, 1 year for possession.
Appellate Division reversed: it ordered resentencing without use of aggravating factor one (finding double-counting) and directed merger of possession and distribution counts as reasonably proximate and integrally related.
The New Jersey Supreme Court reversed the Appellate Division: it reinstated the sentence, holding (1) trial courts may apply aggravating factor one in child-pornography cases where the conduct is extraordinarily brutal without impermissible double-counting, and (2) possession and distribution did not merge because possession extended for years and included media not part of distribution.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Miller)	Held
Whether applying aggravating factor one (nature/circumstances) at sentencing for child pornography is an abuse of discretion	Appellate Division's bar deprives judges of needed discretion; child-pornography offenses vary in severity and factor one may properly distinguish especially brutal cases	Aggravating factor one would double-count elements because age is an element; in most child-porn cases factor one would apply to every case producing inconsistent sentencing	Court: Trial courts may apply factor one when evidence shows conduct "extended to the extreme reaches" of the statutory prohibition (no double-counting here given extraordinary brutality and victims' extreme youth)
Whether Miller's possession and distribution convictions should merge for sentencing	Possession and distribution were temporally and functionally distinct; possession began years earlier and included CDs/DVDs not shared online	Distribution via peer-to-peer was integral to possession; downloads automatically shared so offenses were proximate and mergeable	Court: Offenses did not merge; ample evidence possession was long-term and separate (including media not distributed), so separate punishments are appropriate
Whether appellate court should substitute its judgment for trial court on aggravating/mitigating findings	State: Defer to trial court factfinding and sentencing discretion absent clear error	Miller: Appellate reversal necessary to prevent double-counting and uniformity issues	Court: Affirms deference to sentencing courts; appellate courts should not substitute factual findings absent error
Standard for determining double-counting when elements overlap with aggravating factors	State: Courts may consider aggravating facts showing extreme reach of conduct beyond statutory elements	Miller: If element (age/child) is already in statute, factoring it again is improper	Court: Double-counting prohibited, but courts may identify extraordinary brutality beyond statutory baseline and apply factor one accordingly

Key Cases Cited

State v. Fuentes, 217 N.J. 57 (2014) (sets abuse-of-discretion standard for sentencing and warns against double-counting but allows factor one for extreme conduct)
State v. Davis, 68 N.J. 69 (1975) (merger framework: analyze time/place, necessary ingredients, and whether possession was fleeting vs. substantial)
State v. Yarbough, 100 N.J. 627 (1985) (elements of offense ordinarily should not be counted again as aggravating factors)
State v. Kromphold, 162 N.J. 345 (2000) (discusses Yarbough and uniformity concerns from double-counting)
State v. Lawless, 214 N.J. 594 (2013) (the nature and circumstances of the offense is the single most important sentencing consideration)
State v. Brown, 138 N.J. 481 (1994) (flexible approach to merger, focusing on elements, legislative intent, and case facts)
State v. Taylor, 226 N.J. Super. 441 (App. Div. 1988) (permitting consideration of extreme youth under aggravating factors even when age is an element)
State v. Lyons, 417 N.J. Super. 251 (App. Div. 2010) (peer-to-peer sharing can constitute distribution when files are placed in a shared folder)