State v. Evers

showing operating capital remanded the ease for trust from charitable contributions or Mothers’ Center is derived income, Summary favor judgment in of the Moth- it is reversed. Fadem, agent, as Laura its reinstated. ers’ Center and part/reversing part Justice PORITZ affirming For —Chief LaVECCHIA, COLEMAN, LONG, VERNIERO, and Justices ZAZZALI, ALBIN —7.

Opposed—None.

815 A.2d 432 JERSEY, AND OF NEW PLAINTIFF-APPELLANT STATE EVERS, CROSS-RESPONDENT, DEFEN v. WILLIAM T. AND DANT-RESPONDENT CROSS-APPELLANT. February 13, Argued September 2003. 2002 Decided General, Attorney argued cause Wendy Way, Deputy Alice (David Samson, Attorney Gen- cross-respondent appellant for attorney). Jersey, eral of New respondent and cross- argued the Jackson cause

Paul J. appellant. the Court was delivered opinion

ALBIN, J. validity of a challenges the search Evers

Defendant William T. evidence of by a warrant that uncovered authorized of his home on the pornography of child possession and transmission his of the child multiple violations and led to his conviction of Internet statute, challenges The State N.J.S.A. 2C:24-4. endangerment second-degree for probationary term to a defendant’s sentence presumption endangerment, an that carries offense child these claims. resolve imprisonment, 2C:44-ld. We now N.J.S.A. I.

By appearances, very all defendant was model middle- happily class decorum and He had been success. married for thirty years, Nutley twenty-five years, lived in the same home for birth, daughter, adopted years. and reared a for age eleven At fifty, steady employment defendant had satisfaction good played upbringing health. He a direct role of his daughter, activities, participated community and had never been all, arrested in his All in exemplary life. he seemed an citizen. defendant, But was kept there another side he side hidden view, public surfing from an obsession with Internet adult pornography. and child purchased

In personal defendant first computer, his which placed wife, he in the Elayne, opened basement of his house. His (AOL) an America charges Online account with the billed to her credit card at Nutley. family their home in Each member used computer, separate each had AOL screen names and passwords. names,

Defendant assumed two AOL screen one reserved exclu- sively for interactions with adult pornography and child Internet sites, “BTE324,” friends, and the other for interactions with family, sites, and some additional adult pornography “WTE324.” routine, In a familiar defendant pornography would visit adult computer every websites and chat rooms on his morning. By downloading photographs onto computer, the hard drive of the library. defendant was able to assemble pornographic More year than a after his first venture pornography, into on-line adult began exploring he “special pornography child interest” chat daily rooms on a exchanging basis and pornography child period weeks, other Over approximately users. six collected pornographic “pictures several hundred through of kids” April Internet. defendant suffered an attack of “conscience” “caught” and became concerned might that he be authorities, wife, law enforcement daughter, his or his so he ceased his pornography excursions the child chat rooms. His however, maintaining on detection, him from did not deter fear pornographic images of nude scores of computer his hard drive day girls in activities. The fifteen-year-old engaged sexual ten- to library of arrest, browsing through his defendant was before his pornography. child the Michael A. DiMatteo of February Deputy Sheriff Department was County California Bernardino Sheriffs

San pornography on Internet. He investigating the use child AOL, “Tightone4u”—and logged onto created a screen name — suggestive of sexual bearing strongly a entering chat title room his submitted activity He involving children —“NOxHAIRxYET.” employed by the e-mail address to a list-serve1 name and screen in this subscribers interested that allowed other AOL chat room 15, 1999, February him. On subject communicate with matter to responses and discovered his e-mail account DiMatteo checked room from the chat ninety-eight screen names from different response, containing images a nude “NOxHAIRxYET.” One position, from user provocative was sexually child female fifty “BTE324,” images to sent same name who had of screen names as well. other screen information, Superior applied to the Court DiMatteo

With this purpose County for a warrant for search of San Bernardino ninety-eight screen learning the identities of users He received warrant trading pornography. in child names Dulles, headquarters Virginia. corporate it to AOL’s and mailed jurisdiction, AOL manner of service challenging the Without in the information demanded DiMatteo with the simply provided billing warrant, holder and the including the of the account name “BTE324.” the screen name address of mailing of e program automatic list that creates an 1 A list-serve computer messages addresses are transmitted solely sent to those mail addresses. Any the intended through in the first instance by can be viewed e-mail and only recipient. learning billing After account for screen name Nutley, Elayne Jersey, “BTE324” was Evers of New DiMatteo investigation Nutley forwarded the results of his to the Police information, Department. Nutley Armed Police Detec- Sergeant applied tive Meehan for Daniel a warrant to search the “any computers, Evers’ and all computer programs, residence drives, disks, diskettes, any hard and soft computer or related equipment, plus any may and all information which lead to the identity using of the individuals BTE324.” screen name Superior judge

A Court reviewed Meehan’s affidavit and found probable 25,1999, May Nutley cause to issue the On warrant. police residence, seizing searched the Evers’ the hard drive of family Defendant, computer. time, who was home at the was concerning arrested and made full confession his use of the computer acquire pornography. to and trade child initially second-degree

Defendant was indicted on one count of endangering the by distributing welfare of a child photograph “a Internet, through depicted engaged which prohibit- child in a act,” (current 2C:24-4b(4)(a) N.J.S.A ed sexual version 2C:24-4b(5)(a)), N.J.S.A. fourth-degree and on one count of endan- gering by knowingly possessing viewing photograph on and/or (current 4b(4)(b) N.J.S.A personal computer, his version at 2C:24— 2C:24-4b(5)(b)). N.J.S.A. plea After he refused a offer from the State, investigators “cracked” the hard drive defendant’s com- puter forty and images retrieved over which defendant conceded depicted pornography. child photographs generally depict The girls age under naked engaged sixteen various sexual acts with adults.

The State then a superseding charging obtained indictment defendant with single the same count of second-degree distribu- forty-three tion and fourth-degree possession counts of of child pornography. pled guilty Defendant not charges to those and sought County into admission the Essex Pretrial Intervention (PTI). Program prosecutor’s The trial court affirmed the denial request defendant’s PTI and denied defendant’s motion to pursuant and seized suppress his the evidence confession then entered a condition- Jersey Defendant New search warrant. pornography and of child guilty plea to one count distribution al The possession pornography. court forty counts of of child downgrading charge by one the distribution agreed to consider on the and degree imposing concurrent sentences distribution and charges. possession second-degree downgraded the distri- sentencing, the court

At N.J.S.A. third-degree sentencing range, to the bution offense 2C:44-lf(2), imprisonment would concluded that sentence N.J.S.A 2C:44-ld. injustice,” court a “serious constitute years’ probation on five conditioned then sentenced defendant to jail. County The court days of in the Essex incarceration suspended jail pending its six-month county custodial term that defendant receive of defendant’s ease and ordered review Diagnos- Avenel Adult outpatient counseling and at the treatment (Avenel). Defendant was also ordered tic Treatment Center registration the and address verification comply to with annual Law, 2C:7-2; N.J.S.A. 43-6.4. N.J.S.A requirements Megan’s of forty pornography possession imposed The on the child sentences run with another and with charges were made to concurrent one remaining possession counts charge. The three the distribution on motion. were dismissed the State’s on the probationary imposed sentence appealed State the 2C:44-lf(2), de- second-degree charge, and distribution N.J.S.A to among things, the of his motion appealed, other denial fendant of his home. In an suppress evidence seized in the search panel Division affirmed the unpublished opinion, Appellate the limited to respects. in all dissent convictions and sentences issue, pre- Judge Steinberg concluded that the sentencing the charge second-degree of distri- sumption imprisonment on the the overcome and that pornography of child had not been bution by imposing a term of discretion trial court had abused its probation. appeal right,

Our consideration of the as of on State’s based the below, to propriety probation dissent is limited of defendant’s ary second-degree sentence of child pornography. for distribution 3(b); 1(a)(2); R. sought R. R. 2:12-11. The State has not 2:12— 2:2— of, disturb, review and we shall not the trial court’s determination downgrade second-degree to sentencing purposes. offense for petition certification, granted We defendant’s limited to the arising issues out defendant’s claim that the evidence seized pursuant Jersey to the New search warrant be suppressed. should 2:12-11; W.T.E., (2002). R. v. State 172 N.J. 796 A.2d 895

II. In challenging validity of the warrant issued for the search home, First, of his defendant raises two issues. defendant claims support that the Jersey affidavit of the New search warrant acquired by contained information County Deputy San Bernardino expectations Sheriff DiMatteo in violation of his reasonable privacy, law, as well Virginia thereby as California and tainting Second, the affidavit making fatally defective the warrant. he search claims of his home was authorized a warrant probable that did not meet cause standard. The resolution of those issues interpretation must be found in the text and Fourth Amendment to United States Constitution its state I, analogue, Paragraph Article Jersey the New Constitution.

A. claims expectation Defendant that he had a reasonable privacy respect pornographic material he unloosed into the electronic stream of commerce photo when he e-mailed two graphs of under-aged girl exposed an nude position fifty- an one protections chat-room subscribers. To invoke the of the I, Fourth Jersey Amendment2 its counterpart, and New Article 2 The Fourth Amendment to United States Constitution provides:

369 3 legiti 7, show that reasonable or Paragraph defendant must by government au privacy was trammeled expectation mate 2577, 735, 740, Maryland, 442 99 S.Ct. U.S. thorities. Smith v. Marshall, 1, (1979); 220, 2580, v. 123 N.J. Ed.2d 226 State 61 L. 1306, denied, 929, 66, (1991), 113 cert. 507 U.S. S.Ct. 586 A .2d 85 (1993). test, To he must establish meet this 122 L.Ed.2d 694 and expectation privacy,” (subjective) had both “an actual he recognize Katz v. society as reasonable.” prepared to “one that 576, 507, 516, 19 States, 347, 361, 88 S.Ct. L.Ed.2d 389 U.S. United Marshall, (1967) J., supra, N.J. at (Harlan, concurring); 123 588 66-67, long accepted' that “[w]hat A.2d It has been 586 85. subject public ... is not knowingly exposes to the person 351, Katz, 88 supra, U.S. at protection.” 389 Fourth Amendment (citations Marshall, omitted); 511, 19 L. Ed.2d at 582 S.Ct. 67, ordinarily An A.2d 85. individual supra, 123 N.J. at privacy to expectation of information a reasonable surrenders infor third-party third-party. If that discloses revealed to a individual, falsely his who believed government, mation to maintained, have Fourth generally will no would be confidence Miller, 435, 443, 96 v. 425 U.S. Amendment claim. United States Leis, (1976). v. 1619, 1624, See also Guest L.Ed.2d S.Ct. Cir.2001). (6th 255 F.3d houses, persons, papers, and people right their of the be secure The violated, seizures,

effects, against shall not be searches and unreasonable issue, cause, probable supported by upon Oath or but and no Warrants shall searched, affirmation, describing place and the particularly be and things persons seized. or to be IV.] [U.S.Const. amend. I, provides: Paragraph 7 of our State Constitution Article houses, persons, papers, and right people to in their be secure violated; seizures, effects, not be against shall searches unreasonable cause, supported by except upon probable oath issue and warrants shall no affirmation, describing place and the particularly to be searched or papers things to be seized. I, ¶ [N.J. 7.] art. Const. Applying principles, clearly these had no rea expectation privacy sonable in the of content e-mail he forward fifty-one recipients, to happened ed intended one of whom an to be police undercover officer. Defendant transmitted the forbidden e peril recipients mail one of the wrongdo would disclose his ing. There is no protection misplaced constitutional confidence judgment committing or bad when crime. Nor can defendant refuge Jersey find in the Wiretapping New and Electronic Surveil Act, lance Control Wiretapping N.J.S.A. 2A:156A-1 to -34. The give Act does protected privacy not defendant a interest in the child pornography e-mail communication he to forwarded a Cali who, turn, fornia law enforcement officer disclosed illicit See, 2A:156A-4(b) content of that e.g., communication. N.J.S.A. (explicitly excluding interception by of electronic communication officer, party communication,” law enforcement who a“is to the purview). 2511(2)(c) § from Act’s also (providing See 18 U.S.C.A. not chapter “[i]t shall be unlawful under person this for a acting wire, oral, under color of law intercept to or electronic communication, person party where such is a to the communica parties tion one of the given to the communication prior has 2511(2)(d) consent to such interception”); § (excluding 18 U.S.C.A. person, communication, is party who prohibitions from Wiretap by Federal Act as amended Electronic Communications 1986). Privacy Act of possessed

We next examine objec whether defendant an tively expectation reasonable privacy under our Federal or State Constitutions in the subscriber information stored at AOL headquarters in Virginia. Although defendant’s wife was the named account family, AOL holder for the Evers will we assume privacy that defendant has standing interest sufficient to invoke challenge the constitutionality of the use the subscriber procure Jersey Alston, information to a New warrant. State v. 211, 228-29, (1981). N.J. A.2d Curry, See also State v. 7-9, (1987). 109 N.J. 532 A.2d 721 head- mail on AOL search warrant served The California Dulles, account information concern- Virginia, sought quarters name, address, and yielded ing screen name “BTE324” Evers, names associated Elayne other screen telephone number Internet, account, accessing the method of with the did This account information account information. additional basic logged on or off when screen name not contain a record of each any of e-mail communication. the Internet or the content e-mail, Deputy pornographic Sheriff the time he received At way of screen name knowing that the holder DiMatteo had no Jersey Jersey enforce- a New New law “BTE324” was resident. any way procuring in in DiMatteo did not assist ment authorities not magistrate. DiMatteo did from California the warrant Nutley Department until after any with the Police have contact warrant, AOL, him the forwarded to response in to the California billing holder for screen revealing the account information account name “BTE324.” Jersey’s constitu purpose by applying served New

No would be sovereign people places over which the standards to tional Mollica, v. power no or control. See State power of the state has (1989) 347, (holding 329, “protections 554 A.2d 1315 114 N.J. entity sovereign control by the afforded constitution I, entity”). sovereign Article agents of that only of the actions rights people protects the Paragraph our Constitution 7 of State by Jersey searches seizures from unreasonable within New agents to officials, jurisdictional power extends and its state procuring evidence beyond the state’s borders state who act has Our Constitution prosecutions in our courts. State criminal law enforcement ability of a California influence the behavior no Jersey has an interest in know New not even that officer who does Therefore, hold that we decline to investigating. matter he I, Paragraph right privacy protected Article had a Virginia. headquarters information at AOL 7 in the subscriber analysis Fourth Amendment. now under the proceed with We Smith, Supreme that a Court held supra, United States 372 legitimate expectation privacy

defendant did not have a in the phone through numbers he dialed were pen revealed (as calls) and, register opposed telephone to the contents of the therefore, protection could not invoke the of the Fourth Amend 743-44, at ment. U.S. 61 L.Ed.2d at S.Ct. 228-29. courts, likewise, protected Other federal have held that there is no Fourth privacy Amendment interest in subscriber information Guest, given provider. supra, to an Internet service 255 F.3d at (noting “computer legitimate do expecta users not have a privacy they tion of in their subscriber information because have conveyed person system operator”); it to another United —the (D.Kan.2000) (“When Kennedy, F.Supp. States v. 2d agreement defendant entered into an with Road Runner for service, knowingly Internet he revealed all information connected protocol] the [Internet address 24.94.200.54. He cannot now privacy to have a Fourth Amendment interest claim his sub information.”). scriber

Defendant contends that the Federal Electronic Communi (ECPA), Privacy 2701-2712, §§ cations Act of 1986 18 U.S.C.A provides by which means government entity may the which a acquire subscriber from an provider, information Internet service objectively creates an expectation privacy reasonable of recog by nized Fourth requires govern the Amendment. The a ECPA entity seeking procure ment to subscriber information from an warrant, order, provider by Internet service to subpoe do so court na, 2703(c)(1).4 or § consent of the subscriber. 18 U.S.C.A Al-

4 18, Title section 2703 of the United States Code in relevant provides, part: (c) concerning Records electronic communication service or remote com- puting service.— (1) governmental A a entity communica- may require provider electronic of computing tion service or remote service to disclose a record or other pertaining (not to a subscriber to or customer such service information of communications) including governmental the contents when the only of entity— (A) using a obtains warrant issued the in the described Federal procedures jurisdiction Rules Criminal court Procedure a over by offense investigation under or equivalent warrant; State

373 statutory privacy rights § 2703 for though provides 18 U.S.C.A. subscribers, objec- not an does afford provider service it Internet the Fourth Amend- expectation privácy under tively reasonable ment. Hambrick, Hampshire police officer

In v. New United States on the defendant’s Hampshire subpoena state served a New Atlanta, Georgia for MindSpring, provider, service Internet 504, F.Supp.2d 55 505 information. defendant’s subscriber (4th denied, Cir.2000), (W.D.Va.1999), cert. F.3d aff'd (2001). subpoena L.Ed.2d 714 S.Ct. U.S. Peace, who was Hampshire New Justice of signed was government department, and the police the local also a member of Through the invalidity subpoena. Id. at 506. conceded procured and later subpoena, information was invalid subscriber defendant’s home. warrant to search the used to secure a home, suppress gained the search of moving to evidence from acquired the inval challenged from the information which was as the basis MindSpring, on used subpoena id served The district court held: obtaining warrant. Ibid. the search (d) (B) of this under subsection obtains a court order for such disclosure section; disclosure; (C) or to of the subscriber customer such has consent (2). (E) paragraph under seeks information computing (2) provider or service remote A of electronic communication entity governmental the— shall service disclose name; (A) address; (B) records, (C) long telephone or records of distance connection local and durations; and session times utilized; date) (D) types (including length service start and of service (E) or telephone or subscriber number identi- instrument number other or address; temporarily assigned ty, including any network any (including (F) payment credit for such service means source number), customer of such of a or bank account subscriber card entity subpoena governmental an uses administrative service when the grand jury by statute a Federal or State a Federal or State or authorized (1). any paragraph subpoena available or means under or trial added).] 2703(c)(l)(A)-(C), (c)(1)(E), (c)(2)(A)-(F)(emphasis § U.S.C.A. [18 Although Congress willing recognize degree of to that individuals have some [Internet in the stored data transactional that records their service privacy legislative retain, the ECPA is that hardly determination this providers] expecta- objective” tion of is one that rises the level of for Fourth privacy “reasonably Congress Amendment its concern for did not purposes. Despite privacy, provide for where a obtains data or stored transactional records suppression party of violation the Act For Fourth Amendment court does this not find purposes, legislatively that the ECPA has an has a determined that individual reasonable of expectation name, his social privacy address, security number, credit card number, and Internet connection. The fact ECPA does not proof turning over such information to entities buttresses the conclu- proscribe private sion that the ECPA does not create a reasonable in that expectation privacy information.

[Id. at 507.] expectation privacy defendant had no reasonable in the subscriber information. The district court decided issue as though MindSpring had govern- disclosed the information to the requiring subpoena. circumstance, ment without MindSpring disclosure, defendant could sue for the unwarranted suppression but not insist on prosecu- the evidence in a criminal Id. at Kennedy, supra, F.Supp.2d tion. 509. See also at 1110 (holding objectively that defendant had “not an demonstrated expectation reasonable privacy in his subscriber information” ECPA). despite his reliance on

Accordingly, we hold that had no Fourth Amendment I, Paragraph or Article protected privacy right in the subscriber provided information to AOL.

B. Having possessed decided that defendant no constitutional ly protected privacy right in the subscriber information at AOL headquarters Virginia, question remains whether violation law, of a federal proved, statute sister-state even if ais ground Jersey sufficient apply New exclusionary its rule. argues Defendant that the warrant in Virginia was unenforceable and, power because the of California law ends at its state line therefore, the subscriber information delivered AOL to DiMat was in teo violation of the ECPA and California law would not

375 does not court. Defendant in a admissible California been have by a Califor- on AOL was issued served that the warrant contest comported cause and finding probable upon a magistrate nia Federal Constitution. requirements of the warrant the basic with un- Nevertheless, information was the subscriber he claims that as a basis for have been used lawfully acquired and should not Jersey. in a home New a to search issuance of warrant that the sub persuaded not by noting that we are begin We from would not obtained AOL that DiMatteo information scriber DiMatteo obtained court. in a California have been admissible magistrate, California and detached from neutral search warrant the offense.” 18 U.S.C.A. jurisdiction over “a court despite 2703(c)(1)(A). warrant comply with the chose to § AOL warrant authority of a jurisdictional California questionable at all clear Virginia. It is not headquartered company over a warrant, in another though unenforceable even that California the standards of not meet Virginia, as did jurisdiction such require to the ECPA Congress intended the extent To ECPA. warrant, objective that of a scrutiny the issuance judicial before ECPA, Moreover, a violation of even if there was met. was Kennedy, remedy. provided as is not exclusion of evidence if Runner (holding even Road 1110 “that supra, F.Supp.2d pursuant to a court information subscriber divulged defendant’s suppression application, government inadequate an based on order Hambrick, ECPA”); remedy contemplated under is not a unconvinced Accordingly, we remain F.Supp.2d at 507. supra, 55 have been inadmissible would information that the subscriber Hines, 997, 64 People v. 15 Cal.4th law. See under California (1997) 388, (holding pursuant 594, P.2d Cal.Rptr.2d Constitution, evidence that is “relevant of California amendment admissible, nonetheless law is under California illegally obtained denied, admission”), cert. bar its law does not long as federal so (1998). 855, 139 also Cal. 1077, 118 L.Ed.2d 755 See S.Ct. 522 U.S. 28(d) provided state I, (mandating except as § Const. art. any criminal be excluded statute, shall not “relevant evidence 1628, 16 Court, Cal.App.4th Superior v. Miranda proceeding”); (1993) 858, Cal.Rptr.2d (applying “good 860-62 exception faith” exclusionary Leon, rule as stated United States v. 468 U.S. (1984)). Nevertheless, 104 S.Ct. 82 L. Ed.2d 677 assuming arguendo law, violations of the ECPA and California we would not exclusionary invoke the rule of this state. purpose exclusionary rule is to act as a safeguard “deterrent to ensure that the Fourth Amendment is not ” Ohio,

reduced to ‘a Mapp 643, 648, form words.’ v. 367 U.S. 1684, 1688, (1961) 1081, 81 S.Ct. 6 L.Ed.2d (quoting 1086 Silvert States, 385, horne 392, Lumber Co. v. United 251 U.S. 40 S.Ct. 182, 183, (1920)). 319, 64 L.Ed. ‘prime 321 purpose’ “[T]he of the rule, one, if not the sole ‘is to police deter future unlawful ” Janis, conduct.’ 433, 446, United States v. 428 U.S. 96 S.Ct. 3021, 3028, (1976) 1046, 49 L.Ed.2d 1056 (quoting United States v. Calandra, 338, 347, 613, 619, 414 561, U.S. 94 S.Ct. L. 38 Ed.2d 571 (1974)). States, See also 206, 217, Elkins v. United 364 U.S. 80 1437, 1444, (1960) (“The 1669, S.Ct. 4 L.Ed.2d 1677 [exclusionary] rule prevent, is calculated to repair. not to purpose Its is to compel respect deter —to for the guaranty constitutional in the only effectively way by available removing the incentive to disre — it.”). gard deterrence, Other than exclusionary rule advances “imperative judicial integrity” profit removes the motive from Wayne LaFave, “lawless 1 behavior.” R. Search and 1.5(c) (3d Seizure: A § Treatise on the Fourth Amendment ed. Supp.2003). Mollica, 1996 & supra, See also State v. 114 N.J. at 353-54, 554A.2d 1315.

Ordinarily, exclusionary this state’s rule will not be in voked to bar otherwise reliable and gathered by relevant evidence law enforcement jurisdiction officers of another over which our state has no authority, control or when those officers act in conformity Mollica, with the Federal supra, Constitution. 114 347-49, N.J. at 554 A.2d prospect 1315. “The of deterrence is remote, judicial more as is the acceptance taint from evidence,” Jersey when public New profited officers have not from 1.5(c). LaFave, their wrongdoing. § own supra, warrant, officers, Mollica, without supra, federal v. State a hotel and occupant of billing records of an telephone secured authorities, who enforcement to state law the records over turned Mollica’shotel warrant for to obtain search information used the authori independently of state acted federal officers room. The seizing telephone conformity federal law ties and I, 334-35, Article 554 A.2d 1315. at billing records. N.J. however, a search 7, officials to secure requires state Paragraph 345, Id. at billing records. seizing telephone warrant before Hunt, 338, 348, 450 A.2d 952 v. 91 N.J. A.2d See also State 1315. (1982). Nevertheless, for state it was not unlawful we held that conveyed to them information officers to use the law enforcement establishing probable purpose for the by the federal authorities Mollica, hotel room. warrant for Molliea’s to issue a search cause 349-50, recognized that the A.2d 1315. We supra, 114 N.J. at jurisdiction’s law any over another agency or control absence application of the constitution limited the authorities enforcement 1315, state, and that “the 554 A.2d this id. at standards of al another to the officers of state constitution application of the comity, principles of federalism jurisdiction would disserve the interests,” id. advancing legitimate state properly without A. 1315. 554 2d (1989), 269, similarly, Minter, A.2d 570 116 N.J. 561

In State v. investigation in accordance an agents conducted federal would telephone call that intercepted wiretap law and federal The federal proceeding. in a federal court admissible have been of state however, procedures demanded not follow agents, did 271, 276, 561 A.2d wiretap Id. at Jersey’s law. agents New under results comply with state law agent to of a state The failure 570. 278- prosecution. Id. at in a state of the evidence in the exclusion Nevertheless, notion of federal 79, respecting the 561 A.2d 570. exclusionary rule policies of the ism, principles or that “no we held proceed court from state categorical exclusion would call for the by officers federal that has been obtained ings wiretap evidence wiretap require not state law but in accordance with federal 280, A.2d 570. Id. at 561 ments.” 233, Knight, 240-41, 243,

In State v. 145 N.J. 678 A .2d 642 (1996), law, agent, acting conformity a federal in with federal interrogated California, in defendant who was under indictment I, Jersey. Paragraph New Article Jersey 10 of the New generally prohibits Constitution state law enforcement officers initiating from a conversation with a defendant after indictment Const, ¶I, 10; without the consent of counsel. N.J. art. State v. Sanchez, (1992). 277, 279, 129 N.J. 609 A.2d 400 In Knight, we found a sufficient record to investiga conclude that the federal acting tor agent was as an Jersey prosecutor’s a New office defendant, interrogated when he required and we the exclu 258-61, sion of the evidence under our state law. 145 N.J. at A .2d642. analysis case, however,

The in this is different from Mollica and Minter, where the federal acting officers were in conformity with law, the federal Knight, from where a federal officer was acting Here, in concert with state alleges authorities. acting DiMatteo was jurisdic- violation of the law of his California, and federal law—the ECPA. sug- There is no tion— gestion that acting DiMatteo was Jersey concert with New authorities. securing of evidence in violation of the Fourth Amendment

in another require state would Jersey, pursuant New to the Clause, Supremacy apply exclusionary though rule as evidence had wrongfully been VI, obtained here. U.S. Const. art. cl. 2. Mapp, supra, See also 1689-90, 367 U.S. at 81 S.Ct. at 1087; Elkins, L.Ed.2d at supra, 221-22, at U.S. S.Ct. 1446, 4 question L.Ed.2d at 1679-80. The is whether it would be policy sound prosecution exclude from a criminal Jersey in New the fruits of a jurisdiction violation of local by law of another a law jurisdiction. enforcement LaFave, officer of that See 1 supra, 1.5(c). § Jersey’s

None of New ordinarily interests advanced exclusionary rule would be in by suppressing vindicated this case gathered the evidence out-of-state. allegation There is no by Jersey in insolence office New law enforcement or authorities in, any Nutley suggestion played any that Detective Meehan role of, any knowledge had or indeed issuance of the California Any Virginia. alleged on in warrant served AOL defects in the use and service the California warrant were not of prosecution in in constitutional dimension of a case New Jersey. Undoubtedly, AOL understood it could raise jurisdictional objection by to a California warrant served mail on Virginia headquarters. compliance its AOL’s with the extra- warrant, moreover, may subject possible territorial it to a civil suit 2707(a). by § suppressing defendant. See 18 U.S.C.A. But evi- voluntarily by given dence AOL to law enforcement California purpose authorities would further no deterrent under the laws Jersey. New jurisdictions other

The courts of have reached similar results. Lucas, (Minn.1985), In v. State 372 N.W.2d 735-36 the issue Wisconsin, telephone taped allegedly in was whether conversations law, in violation of Wisconsin were admissible in a Minnesota prosecution. Although Supreme murder the Minnesota Court ultimately by decided that the law of neither state was violated evidence, police means the used to secure the it enunciated the principle guiding exclusionary its rule: It is clear that evidence obtained in another state in violation of the Federal subject same rule of if the Constitution exclusion that would apply had been in this is, however, evidence obtained state. There no requirement in another be in this it evidence obtained state excluded state because merely if

would be inadmissible were that other state. prosecution (citations omitted).] [Id. at 736 (5th Cir.1974) Estelle, Burge also v. 496 F.2d See (holding may that “Texas as the forum state choose its own determining admissibility [gathered standards for of evidence long so as minimum federal Oklahoma] constitutional standards honored,” are and that Texas is not bound “Oklahoma’s choice deterrent”). of a conclusion, Jersey engaged participated no New official

any acquisition unlawful conduct in the of the Evers’ subscriber 380 exclusionary rule would Virginia. apply To the

information in judicial integrity, and purposes deterrence, none of its advance — process illicit would disserve the imposing a cost on behavior —and by preventing introduction of doing justice in this state the prosecution. criminal Use of relevant evidence in a reliable and integrity of our in this state will not offend that evidence pro- may circumstances in which the judicial process. There be jurisdiction, although by agents of another curing of evidence Constitution, would so offend the compliance with the Federal judicial notions of fairness and conscience and our state’s basic would not countenance the admission of justice that our courts But is not such a case. We in a trial. this such evidence information obtained AOL hold that the subscriber therefore by Nutley securing properly was used Detective Meehan warrant for the search of defendant’s home.

C. claims that Detective Meehan’s affidavit did not Defendant also probable justify a to search his home. provide cause to warrant particularly, argues billing he address for More AOL question screen name “BTE324” did not answer the whether actually computer purposes “BTE324” used the for illicit at the therefore, location, well-grounded that there was not a same yield suspicion that a search of the Evers’ home would evidence of circumstances, pornography. disagree. present child We billing address of the Internet screen name —a screen name logical photographs pornography that had e-mailed of child a—was identity place to search for evidence of the of the holder of the screen name and evidence of the crime. I, Paragraph

The Fourth Amendment and Article 7 enjoin probable judge issuing from a search warrant unless analysis begins with a cause is established the record. Our review of the four corners of Detective Meehan’s affidavit and the “totality presented circumstances” in that affidavit to determine sufficiency support information offered in of the warrant.

381 Gates, 213, 230-31, 2328, 2317, Illinois v. 462 U.S. 103 S.Ct. 76 527, (1983); Sullivan, 204, L.Ed.2d 543-44 State v. 169 N.J. 210- (2001). 12, warrant, issuing any 777 A.2d judge Before must probable be satisfied that there cause to believe that a crime has being specific been or is committed at a location or that evidence Sullivan, place of a crime is at supra, to be searched. Laws, 210-11, 60; 159, 173, N.J. at 777 A.2d State v. 50 N.J. (1967), denied, A .2d 633 cert. 393 U.S. S.Ct. (1968); 250, 256-57, L.Ed.2d 384 v. State 39 N.J. A.2d 188 Macri (1963). 389 many Probable cause has been defined in different ways, defying “common-sense, precision. prac scientific It is a dealing “probabilities” tical standard” “practical and the everyday considerations of prudent life on which reasonable and men, technicians, Sullivan, legal 211, not supra, act.” 169 N.J. at (internal omitted). A quotation 777 .2d60 marks Probable cause is legal necessary though “less than evidence to convict more than Mark, 262, 271, suspicion.” mere naked v. State 46 N.J. 216 A.2d (1966). grounded’ suspicion 377 It is “a ‘well that a crime has Waltz, being particular place. been or is at a committed” State v. (1972) 83, 87, Burnett, (quoting 61 N.J. 293 A.2d 167 42 State v. 377, 387, (1964)). N.J. 201 A.2d39 jurisprudence preference

Our constitutional has a Ventresca, searches conducted with warrants. United States v. 102, 109, 741, 746, 684, (1965); 380 U.S. 85 S.Ct. 13 L.Ed.2d Valencia, 126, 138, (1983); v. State 93 N.J. 459 A.2d 1149 State v. 110, 115-16, (1968). 52 N.J. 244 A.2d 101 A search Kasabucki valid, presumed warrant is to be and defendant bears the burden demonstrating probable that the warrant was issued without Valencia, cause that the search was otherwise unreasonable. 133, Gates, supra, supra, 93 N.J. at 459 A.2d 1149. See also 236, 2331, 546-47; at at L.Ed.2d U.S. 103 S.Ct. Kasabucki Therefore, supra, 52 N.J. at A.2d 101. substantial paid by reviewing must be deference court to the determination judge finding probable who has made a cause to issue a search warrant. met standard affidavit that Detective Meehan’s

We conclude affidavit, providing Mee- That addition probable cause. experience, enforcement training, and law qualifications, han’s investigation. De- of his particularity the details described with Deputy case file of Sheriff received the California tective Meehan 29,1999, following: April which revealed the DiMatteo on (1) a child February Deputy DiMatteo entered In Sheriff entitled “NOxHAIRxYET.” pornography chat room (2) program name into a that listed typed DiMatteo his screen site. him at the chat room Time,

(3) 15, 1999, p.m., February at 9:35 Pacific Standard On containing two his and found an e-mail DiMatteo checked account name from a sender with the screen pictures of a naked child Mee- were reviewed Detective photographs Both “BTE324.” han, depicted appeared to be that the individuals who determined represented photographs age of sixteen and that under the erotica.” pornography child child “both (4) AOL, served on it was learned response to a warrant Elayne name of Evers billing for “BTE324” was account Nutley, Jersey. New (5) pornographers rarely explained how child Detective Meehan destroy photographs images prurient and of their interest and may stored on electronic media such as pornography “child be diskettes, drives, magnetic digital computer computers, hard tapes computer and CD-ROMs.”

(6) experi- expressed opinion an based on his Detective Meehan “the training probable there was cause to believe ence and Nutley, Jersey Elayne New [address omitted] account of Evers of BTE324, pornography engaged in child under the screen name of 2C:24-4b, Jersey Penal Statute in violation of the New Code ” ‘Endangering the Welfare Children.’ (7) “any requested a court order to seize and Detective Meehan drives, any programs, hard and soft and computers, computer all may identity of the individuals which lead to the all information being in the which is used name BTE324 using the screen pornography.” child of this distribution computers are a living in world in which We are in society. Computers are in use both our feature of common businesses, and, laptop, of the with the advent homes and place. people Business and stu every conceivable almost other locations, laptops, use them at other their homes with dents leave billing of an account The address return home with them. and may guarantee name not be an absolute computer screen tied to computer at computer name used the of the screen that the holder activity, a fair criminal but there is billing address to commit computer probably will be found that the logical and inference not, identity of the and, if at least evidence that address simple and there. This name will be found holder of the screen See, by other courts as well. has been reached sensible conclusion Cir.2000) (10th 1143, Campos, v. F.3d e.g., United States for defendant’s residence validity of search warrant (upholding agents determined that AOL subscriber enforcement after “[l]aw [defendant]”); Hause v. ‘IAMZEUS’ was who used the name 4-5, 11-12 Commonwealth, (Ky.Ct.App.2001) (uphold 83 S.W.3d that was defendant’s residence ing validity of search warrant for through from AOL by information obtained supported subscriber DiMatteo, warrant, by Deputy also Sheriff search California officials). by Kentucky law enforcement verification address probable cause to believe that there was also conclude We retained on the images of children would be pornographic that the “BTE324.” Detective person using screen name computer of the belief in his reasons for this particularized forth his Meehan set investigative Meehan’s precedent affidavit. There is solid Lamb, F.Supp. v. reasoning. In United States (N.D.N.Y.1996),the district court found: images pornography by to be hoarded of child are likely observation that homes is of their supported in those materials the privacy interested persons illegal to distribute the materials are common sense and the cases. Since obtaining images, Having succeeded is difficult. initial collection possess, illegality and the them. Because of their destroy collectors are unlikely quickly 384 stigma images social severe such collectors will want to imprimatur carry, secret

them in secure like residence. This is not places, private novel proposition either state or court: federal child pedophiles, preferential molesters, and child pornography significant collectors maintain materials their of time. periods (N.D.N.Y.2002) [See also Cox, United States v. 190 330, 333-34 F.Supp.2d Lamb).] (quoting Kline, 135, 138, (1964), Unlike v. 42 State N.J. 199 A. 2d 650 pursuant case in which a search to a warrant was held invalid because facts or “[n]o circumstances were set forth in the affidavit grounds which afforded reasonable bookmaking to believe that being home,” case, was carried on in the present reasonable and natural inferences were that evidence of the crime would be found in the home. applying Before for the search case, warrant in this Detective Meehan billing ascertained that the was, fact, address a residence. privacy interests of the home are highest entitled to the

degree respect protection in the framework of our constitu system, tional securing home, and in a warrant for the search aof law present enforcement authorities should reliable and accessible information to probable establish cause. nothing There is in the present record to indicate whether possible or not it was to precise point determine the of transmission of the e-mail sent to Deputy argument, Sheriff DiMatteo. At oral the State admitted it did not know whether such information was obtainable. cases, We note approval that in several other law enforce ment officials took steps verify computers additional that the from which offending images were sent were located in the See, Bender, defendants’ e.g., residences. United States v. 290 (11th Cir.2002) F.3d 1281 (noting that search warrant was subpoenaed based on information from AOL and BellSouth “that person sending revealed that [containing e-mails child pornography] computer address]”), used a located at [defendant’s _ denied, U.S. _, cert. (2002); 123 S.Ct. 457 L.Ed.2d Cox, supra, F.Supp.2d at (denying motion suppress where affidavit used to secure search warrant daily “detailed the activity, notably ”); AOL account p.m. ‘most between 6 and a.m.’ Lamb, 446, 460 supra, F.Supp. (denying suppress motion to information was released noting after AOL subscriber that “[fjurther investigation jury subpoena, grand to federal pursuant in located a modem was computer equipped with that a confirmed AOL”). Al- access used to and that it “was home” defendant’s such suggest that nothing in the record to is though there case, law enforcement available in this was information additional of infor- should, available sources possible, turn to when officers cause accuracy probable the may give greater which mation I, Paragraph Article Fourth Amendment The determination. ignorance bliss. not render 7 do to obtain the possible if were suggest that it

We do not case, do so failure to in this point transmission precise However, technological ad the warrant. would have invalidated vances, may permit law enforcement they already, soon if do not providers the easily through Internet service determine officers'to single A computer e-mail. personal point of transmission exact AOL, may as provider, such Internet service billing account for an computers used different charges for a number cover society, mobility even of our family. Given of a members others may at home and family, computers be some of the nuclear may pay the example, parents For locations. in more distant college. laptop A by their children computers used account for other than any number of locations at computer can be used reason, application reviewing an judge a this billing address. For that reliable make certain a home should search of for the manner, utilized in timely information, in a which is accessible the locale of com probable cause determination making the words, our courts In other purposes. puter for criminal used technologi ever-expanding of our the new realities must consider warrant Nonetheless, support search proofs cal world. and not in a common-sense to be examined will continue Ventresca, at supra, 380 U.S. manner. See hypertechnical 746, 13 L.Ed.2d at 689. S.Ct. for the standard probable cause are satisfied

We case. met in this warrant was of a search issuance III.

We must also determine appropriately whether the trial court applied injustice” the “serious standard enunciated in N.J.S.A. in sentencing 2C:44-ld probationary to a term for second-degree endangerment. child Appellate panel The Division unanimously affirmed the trial downgrade court’s of the child pornography charge second-degree distribution from a ato third- degree sentencing offense for purposes. panel, however, was not in affirming imposition unanimous probationary of a 364-day sentence conditioned on a custodial county jail term the based on the trial court’s determination presumption that the of imprisonment had been overcome.

In dissenting, Judge Steinberg concluded that in this child case, pornography background defendant’s probably was “not many offenses,” unlike others who commit similar and that the record did support finding not “imprisonment would be a injustice serious which overrides the need to deter such conduct by others” under N.J.S.A 2C:44-ld. conclude that the presumption imprisonment for this

.We second-degree offense was not overcome and that the factual findings support probationary of a part sentence were in based factors, on inappropriate irrelevant and and were otherwise not adequately supported by the record. We therefore reverse and remand for resentencing.

A. It is well settled that reviewing when a trial court’s decision, sentencing appellate may “[a]n court not substitute its judgment for that Johnson, of the trial court.” State v. 118 N.J. 10, 15, (1990) O’Donnell, 570 A .2d395 (citing 210, State v. 117 N.J. 215, (1989)). However, 564 A. 2d 1202 appellate an may court modify review and a sentence when the trial court’s determination “‘clearly Jabbour, was 1, 6, mistaken.’” State v. 118 N.J. 570 (1990) (internal omitted) A.2d quotation 391 (quoting marks State

387 (1989)). Jarbath, 394, 401, these 555 A.2d 559 Within v. 114 N.J. limitations, can appellate an court

“(a) sentencing legislative if here the review sentences to determine policies, (b) aggravating mitigating guidelines, found were review the and factors violated; credible whether those factors were based upon competent below determine (c) though even court sen- whether, in the determine record; evidence guidelines, of the with the nevertheless application tenced accordance guidelines as to makes unreasonable so clearly to the facts of this case the sentence judicial shock the conscience.” (1984)).] (quoting 471 A.2d 370 [Ibid. Roth, 334, 364-65, v. N.J. State Jersey New Code of Criminal guiding purpose (Code) rehabilitation, for punishment, rather than Justice clear— Roth, Jabbour, 6, 391; supra, at 570 A.2d wrongful acts. 118 N.J. 353-56, purpose, To achieve that supra, 95 N.J. at A.2d 370. uniformity sentencing, “channels] the Code as well as gravity offense focusing on the discretion trial courts” capacity for rehabilitation. than blameworthiness rather the offender’s 6, our, (citing supra, 118 570 A.2d 391 State N.J. at Jabb (1984); Roth, 369, 375, supra, Hodge, 95 A.2d 389 v. N.J. 370). 471 A.2d N.J. through judges system of guides the discretion of

The Code sentencing. degrees presumptive grading crimes into four Roth, 2C:43-1; supra, 4; 95 N.J. at N.J.S.A N.J.S.A. See 2C:1 — first-degree, serious A .2d A the most 370. crime scale, ten ordinarily range of sentence between has on the 2C:43-6a(1), a years twenty imprisonment, of N.J.S.A. and may or de years, fifteen which increase of presumptive sentence mitigating aggrava weighing of the and depending on the crease 2C:44-1f(l)(b). factors, mitigating aggra If the ting N.J.S.A. applies. equipoise, presumptive the term vating factors are sentencing range of between second-degree A crime has a Ibid. 2C:43-6a(2), presumptive with a years, and ten N.J.S.A. five 2C:44-lf(l)(c). years, N.J.S.A. of seven sentence judge, applies the the Code further channel the discretion of To first- or person convicted of a presumption imprisonment to a a of 2C:44-ld, crime, applies presump- second-degree N.J.S.A. or person to a convicted of a third- non-imprisonment tion of offender, fourth-degree who is a first time crime N.J.S.A. 2C:44- clearly le. “[W]here the court is that mitigating convinced the substantially outweigh aggravating factors the factors and where demands,” justice may the interest person of the court sentence a convicted second-degree of a crime of the first- or within the sentencing ranges degree of crimes one lower. N.J.S.A 2C:44- lf(2). presumption imprisonment of for first- and second- crimes, however, degree regardless play comes into whether a defendant has led a crime-free or life. blameless presumption imprisonment

Defendant seeks to overcome the applies crime, second-degree to his of a conviction so we look to the relevant statute and case law to determine whether he has provides met his sentencing burden. The Code that a court shall deal with a who has been convicted of a crime of the first or person second degree imposing having regard by unless, sentence to the imprisonment character and condition the it is defendant, that his opinion imprison- injustice ment would be a which serious overrides the need to deter such conduct others. by added).] (emphasis

[N.J.S.A 2C:44-ld proper finding injustice” Absent a of “serious outweighs deterrence, general need a trial court must sentence, Roth, impose 358-59, a custodial supra, 95 N.J. at A .2d eligible unless the defendant has found been for an specifically by Code, alternative sentence authorized State v. 525, 537-38, (1999). 156 N.J. 722 A.2d 95 The presump Soricelli imprisonment tion of dispelled merely is not because the trial clearly court is mitigating convinced that the factors substantially outweigh aggravating justice factors and the interests of justify downgrading first- second-degree pursuant offense 2C:44-lf(2). Jabbour, N.J.S.A. supra, 118 N.J. 570 A.2d 391. event, In that court impose the trial must nevertheless a term of imprisonment downgraded sentencing range within because presumption imprisonment by is determined “not imposed[,] sentence but the offense for which a defendant is convicted,” O’Connor, 399, 404-05, State v. 105 N.J. 522 A.2d 423 (1987).

389 prerequisite to downgrading The of an offense is not a finding presumption imprisonment for a first- or the Jarbath, supra, 114 has been second-degree conviction overcome. 413, overcoming the 555 A 559. standard for N.J. at .2d imprisonment downgrad is from that for presumption of distinct Moreover, dispel offered to the ing an the reasons offense. compelling than imprisonment be even more presumption of must might downgrading an offense. State v. Me those that warrant (1996). 484, 498-502, 673 A.2d 259 gargel, 143 N.J. of “the character and condi permitting

In consideration imprisonment determining whether tion of the defendant” power left injustice,” “serious the Code “a residuum would be a it sentencing imprison court not to those few eases where Roth, entirely supra, so.” inappropriate would to do N.J. be omitted). (internal 358, quotation marks 471 A.2d 370 One imposition of of the Code was to avoid the purposes central 408, Jarbath, supra, 114 See N.J. at disproportionate sentences. consistently held that this residuum 555 A.2d 559. We have “truly extraordinary may legitimately in those power be exercised punishing a unanticipated” where the “human cost” of eases committing his offense particular defendant to deter others from Rivera, 122, 125, 590 A.2d great.” v. N.J. would be “too State (1991) (internal Roth, omitted); supra, 95 quotation marks omitted). (internal 358, quotation marks 471 A.2d 370 N.J. at Jarbath, 394, date, supra, 114 only In one case to State v. N.J. that the has had occasion hold “serious 555 A.2d this Court satisfied, overcoming presumption of injustice” standard was Jarbath, observed, example,” imprisonment. “[f]or we that one might met group of cases where standard be within class condition of the where character and includes those “instances idiosyncratic incarceration or extended are so war imprisonment purposes general deterrence not psychotic, A.2d Id. at 559. Jarbath was ranted.” woman, who of her nineteen- mentally retarded caused death accidentally him on coffee day-old dropped “after twice son she 398, charged table.” Id. at 555 A .2d She was with the 559. pled of to guilty murder her son and the lesser offense of reckless manslaughter. prison, Ibid. While Jarbath was abused almost daily attempted other and to commit suicide. We inmates Ibid. imprisonment emotionally impaired observed that of an moth killing baby,” er involved “the accidental of a a defendant who “ sufficiently comprehend could not “wrongfulness of con her ” duct,’ any recognized goal general would not further of deter 405-06, Jarbath, Id. at rence. 555 A.2d 559. We also noted that condition, impaired due to her could prison not “endure life in suffering” privation greatly without unusual that exceeded relatively person what a could normal bear under similar circum Id. at 555 A. stances. 2d 559. case, “general

In such we found that deterrence unrelated to specific relatively insignificant deterrence has penal value.” Id. at highly A.2d unlikely 555 559. We also found that it was that imprisonment Jarbath type example would be the needed to neglecting parental deter others from their or child-care re 405-06, sponsibilities. Id. at A. 2d 555 559. sum of her culpability condition and character —and the level of her on the continuum of manslaughter reckless us to conclude that —led imprisonment injustice defendant’s outweigh constituted serious 408-09, ing general the “needs of deterrence.” Id. at A.2d 555 E.R., 262, 265, 269, N.J.Super. 273-74, 559. See also v. State (App.Div.1994) 641 A.2d 1072 (affirming resentencing of defendant pled with full-blown guilty second-degree possession AIDS who to pipe seven-year-custodial bombs five-year-probationary from to term, imprisonment where hardship would entail excessive specific longer defendant because deterrence was no consideration light physical undisputed incapacity of his death imminent months). six within cases, rejected all other Court Code this the defendants’

claims the sum of their was circumstances so rare and extraordinary punishment that the human cost of their exceeded the need to committing deter others from like See offenses. 3-4, 8-9, Jabbour, (vacating five- supra, N.J. at 570 A.2d 391 youthful, first-time offender who year probationary sentence four-year-old, de guilty second-degree sexual assault pled given psychiat prospects spite promising his rehabilitation intense 14-20, Johnson, counseling); supra, N.J. at 570 A.2d ric five-year probationary of first-time offender (vacating sentence first-degree aggravated sexual pled guilty to two counts of who drug stepdaughter, despite his deafness and young assault of dependent support and his status as sole economic condition 219-20, 178, 188, family); Kelly, 97 N.J. primarily his deaf State v. (1984) (holding five-year 478 A .2d 364 custodial sentence manslaughter of of imposed woman convicted reckless on battered injustice, despite “chil spouse not serious abusive did constitute home”); Roth, supra, mother at 95 N.J. need to have their dren’s 340-41, 366-69, five-year probationary (vacating 471 370 at A.2d first-degree pled guilty to of offender who sentence first-time by young strolling with aggravated forcing sexual mother assault despite perform knifepoint, act on at infant to sexual defendant “abject con remorse” for his problems, abuse severe substance duct, community support,” cooperation and range of “broad authorities). Soricelli, supra, N.J. also 156 enforcement See law 526, 528-32, 537-40, (vacating 95 three-and-one-half- at 722 A..2d pled guilty to sec year probationary sentence of defendant who distribute, despite to ond-degree possession of PCP with intent restaurant,” rehabilitation, employment in his own “responsible obligations”); Riv assumption “child-support of and visitation and 123-27, era, (vacating two- illegal at A.2d 238 supra, N.J. pled imposition year suspension of of sentence of defendant who robbery, link second-degree despite between defendant’s guilty to 405-08, offense); O’Connor, supra, 105 N.J. at addiction and three-year 410-11, (vacating probationary sentence A.2d 423 aggravated pled guilty second-degree to of first-time offender who arson, any imprisonment finding presumption of in absence of 371-72, 378-80, overcome); supra, Hodge, 95 N.J. had been probationary conditioned on (vacating five-year sentence A.2d 389 pled days’ offender who sixty-three imprisonment of first-time guilty first-degree aggravated thirteen-year- to sexual assault of step-daughter, despite support family good old his of his prospects). rehabilitation suggests heavy

A review these eases the burden borne defendant who seeks overcome presumption imprison- running through ment. The common thread each is the focus on offense, gravity implicates specific which the need for general deterrence. none these cases was defendant able show that his unique character and condition were so or extraordinary, compared when facing to the class of defendants incarceration, similar terms of that he was entitled to relief from presumption imprisonment. Our case amply law has described those instances that do not injustice” meet jurisprudence, the “serious standard. Our howev- er, given not guideposts determining has the trial courts extraordinary extremely or unusual case where the human cost of imprisoning a defendant for the sake of deterrence constitutes a injustice. serious The standard must be more “I than know it when I see it.” Code, previous law, as well our provides as case

analytical framework in which to set defining standards for when the “character and condition” of is so unusual unique that imprisonment injustice” be would a “serious over- riding paramount the State’s concern for deterrence. We need look N.J.S.A only to find 2C:44-lb to factors to be considered determining whether the and of “character condition” a defendant highly unique is so unusual injustice” or toas meet the “serious provides standard. The Code weighing aggravating for the of mitigating calculating specific factors in imprisonment the term of sentencing 2C:43-6a; within a range. N.J.S.A N.J.S.A. 2C:44- la, -lb, —lf(l). In those mitigating circumstances where the outweigh factors, factors the aggravating judge a is authorized to a impose the presumptive term. N.J.S.A 2C:44- sentence below lf(l). In “clearly those cases where the trial court is convinced mitigating that the substantially outweigh factors aggravating the demands,” may justice court the interest of factors and where the or second- person a crime of the first- a convicted of sentence sentencing range degree a crime one lower. degree within the 2C:44-lf(2). 498-501, N.J. at Megargel, supra, In N.J.S.A. injustice recognized the serious standard we that 673 A.2d prison is “in or out” of whether a defendant determines which downgrading an for necessarily higher be than standard must 2C:44-lf(2). offense under N.J.S.A mitigating factors to be consid- forth 2C:44-lb sets N.J.S.A. generally imposing court sentence: by ered the trial harm; serious conduct neither caused nor threatened The defendant’s or his conduct would cause threaten The defendant did not that contemplate harm; serious strong The under provocation; defendant acted justify grounds tending or to excuse defendant’s There were substantial fading though defense; to establish conduct, commission; its conduct induced or facilitated The victim of defendant’s his or will the victim of conduct The has compensated compensate defendant program damage injury he or will in a sustained, participate service; community or has activity or criminal The has no history prior delinquency defendant law-abiding time the commission of life for a substantial before led a period offense; present to recur; was a result of circumstances unlikely The defendant’s conduct to indicate that he is unlikely attitude of the defendant The character and offense; commit another to to is likely affirmatively probationary The defendant respond particularly treatment; to would entail excessive hardship The defendant imprisonment or his himself dependents; willingness law authori- enforcement of the defendant cooperate ties; another of a was influenced substantially The conduct youthful more mature than the defendant. person [N.J.S.A 2C:44-lb.] deciding and condition” of whether the “character standard, injustice” a trial court “serious defendant meets the convincing evidence determine whether there clear should present extraordi- mitigating factors an are relevant there and, so, nary degree cumulatively, if they greatly whether so any aggravating imprisonment exceed factors that would consti- injustice overriding tute serious the need for deterrence. We do suggest every not mitigating factor will bear the same in weight assessing relevance and the character and condition of defendant; quality the it the the factor factors their uniqueness particular in the setting that matters. determining play the role that deterrence should in the injustice standard, begin restating

serious we that there is a presumption imprisonment for those convicted of first- and However, second-degree crimes. 2C:44-1d. N.J.S.A violation may of a criminal egregious depending statute be more or less on “In particular evaluating severity crime, the facts. trial court must consider the nature and the relevant circum pertaining Every stances to the offense. offense in differ arises 500, ent factual Megargel, supra, circumstances.” 143 N.J. at Jarbath, example, supra, A.2d 259. For in assessing Court culpability the defendant’s manslaughter, for referred to the crimi “accidental,” nal as act focused on severe mental retarda 405-06, tion of the defendant. N.J. at 555 A.2d 559. haveWe that “[e]ourts noted should consider defendant’s role in the incident to determine the need to deter him from further crimes corresponding and the protect public need to from him.” “ 501, Megargel, supra, 143 N.J. at 673 A.2d 259. ‘[D]emands for strengthened deterrence are proportion gravity direct to the and harm[ful]ness of the offense and the deliberateness of the ” 501, (second added) offender.’ Id. at 673 A.2d 259 alteration (quoting B.A.R., State the Interest & 89 N.J. of C.A.H. (1982)). 446 A.2d 93

Accordingly, trial statutory courts should look to the sentencing mitigating factors and determine whether those factors present degree are such extraordinary greatly an and so exceed aggravating particular factors that a is distin guished particular from the “heartland” of cases offense. (2001) See U.S. Sentencing § Guidelines Manual 5K2.0 cmt. departure sentencing range estab- from (discussing grounds for the extraordi- quality It is the of by applicable guidelines). lished weighed together that must be nary mitigating taken factors met. injustice” has been standard deciding whether the “serious offense with gravity at the also must look The trial court paramount determine how peculiar facts of a case to respect to the and Generally, for first- equation. in the will be deterrence overwhelming presumption an second-degree there will be crimes will of value. deterrence be that intuitively today applied has been

The we articulate standard jurispru- this and consistent with Court’s as Jarbath such cases injustice” standard. on the “serious dence

B. two hearing, found sentencing the trial court At defendant’s commit anoth- that would the risk defendant aggravating factors: 2C:44-la(3), by report his Avenel crime, as indicated N.J.S.A. er law, violating from and others the need to deter defendant and 2C:44-la(9). mitigating factors: The found four court N.J.S.A. cause or contemplate conduct would not his that defendant did 2C:44-lb(2); no harm, he had that N.J.S.A. threaten serious 2C:44-lb(7); conduct, he that history prior criminal N.J.S.A probationary affirmatively to likely respond to particularly was coop- lb(10); willingly treatment, that he had and N.J.S.A. 2C:44— by giving complete authorities law enforcement erated with case, contesting facts of his not police to the statement 2C:44-lb(12). clearly that court was convinced N.J.S.A. fac- aggravating substantially outweighed the mitigating factors justice the interests of The court then determined tors. second-degree as if his sentenced that defendant be demanded third-degree, N.J.S.A a crime of offense were distribution 2C:44-lf(2). were favoring defendant the trial court found

Among the factors (1) completely conduct arose out following: “defendant’s apparently entered pornography, and he legal viewing of adult (2) accident”; particular room pornography chat for child there suggestion “originated, was no created or manufac- transmitted, image tured the nor did the defendant transmit (3) children”; anything attempt any to children or contact initially the outset of the case the State recommended a sentence flat,” years sentencing range “three the low end of the for third- (4) offenses; degree voluntarily long- defendant had entered into (5) psychological issues”; term treatment to “deal his he sexually gratifying was not accused himself with or in front of children, third-degree which would be no more than a offense pursuant in any N.J.S.A. 2C:24-4a event. Based on these considerations, judge the imposing trial found that a second- degree “disproportionate” compared sentence would be when to endangerment other “second-degree child crimes and crimes in general.” judge, evaluating

The trial after the character and condition of defendant, imprisonment determined that “would be a serious injustice deterrence,” which the gave overrides need for and her specific reasons: middle-aged all From indications is a man who has maintained a long-term marriage raising a in

stable, home which he and wife his are an daughter. adolescent Defendant has worked in the Held as mason construction to his support family. There is evidence of in involvement school and activities, and community apart from this a total situation, absence of criminal in court behavior his life. The is told this that entire house of cards will is if defendant sent to collapse prison. engaged Defendant in the in without that activity question it any appreciation diminishing was criminalized. Without his conduct in and the fact that it any way growing the market for what is is perpetuated called it the court’s cyber-pom, view sending that of the this evil network will not participation be deterred others by this bit to He than player prison. should be viewed someone differently who originates offending or manufactures the material. being The deterrence of defendant is himself the embarrass- accomplished by pending ment and of this case and the of anxiety The prospect imprisonment. objectives long-term can be satisfied appropriate penal by supervision, coupled Megan’s and the specific treatment, life-time Law. requirements [Ijntemet journey That is what the defendant’s into the the dark side of has brought down himself and his upon family. standing Looking individual before this the total this picture presented justice sending will be him to and the by prison, I not served court, find do not it. require interests society c. support is sufficient credible evidence the record

There ing finding mitigating aggravating the trial court’s question weighing factors. remains and the of those The factors judge properly exercised her discretion within the trial whether by N.J.S.A. permitted by 2C:44-ld power” the “residuum of We therefore turn to trial imposing probationary sentence. overcoming justify presump to findings factual offered court’s second-degree imprisonment for distribution conviction. tion of pornography downgrading the child Although propriety third-degree charge second-degree offense from a distribution appeal, sentencing not raised in this we purpose for the they necessarily findings judge’s to the extent were examine determining presumption of building that the used as blocks was overcome. imprisonment following judge relied on the factors

To the extent that standard, they injustice we cannot conclude meet the serious us, supported or so extraordi- credibly by the record before are imprisonment. presumption of nary dispel as to (1) particu- finding “apparently entered the that defendant is difficult to pornography child accident” lar chat room for he knew of “hundreds” confession that reconcile with defendant’s them, many of and interacted with pornography web sites child 15, 10, 11, year triple old The sheer including X[sic].” “under pornography Internet knowledge of child scope defendant’s daily visiting a acts those sites on his affirmative sources and disseminating requesting and six while period for a of weeks basis into descent the notion that defendant’s pornography belie such “accidental.” pornography of child was the world (2) “voluntary” of defendant’s entrance Although the nature to “deal with his issue” long-term psychological treatment into weight be and “mitigating commended entitled to as a factor” in determining sentence, downgrade length or of his when ad- dressing injustice” standard, ignore the “serious this cannot Court psychological defendant’s initial evaluation occurred some eleven months after his arrest. The record also reveals that best, regarding defendant was “at psychotherapy” ambivalent only any psychotherapy,” “[did] needfed] not believe he began attending psychotherapy approximately sessions seventeen after months his arrest and six months before his March sentencing.

(3) offer, agreement plea rejected The State’s initial which was by prior grand jury’s superseding return of the indictment, factor. N.J.S.A. 2C:44- sentencing was not a relevant 1c(1); 410; v. Pennington, 344, 362-63, N.J.R.E. State 154 N.J. (1998). prosecutor 712 A.2d 1133 Statements made a or attorney during plea negotiations, defense which do not in a result guilty plea, generally are inadmissible. Plea offers are tendered reasons, for multitude of prosecutor’s some which address a resources, desire to conserve scarce or anticipated proof to avoid Biunno, Jersey at trial. See Current New problems Rules of Evidence, (2002) (noting N.J.R.E. comment on that “[i]t would appear agreed obvious that evidence that the State or offered to accept plea proof should not be invalidity admissible as or charges,” weakness of the State’s because hold “[t]o otherwise impair ... plea-bargaining process would which has become part justice”). Moreover, critical of the administration of criminal State neither its offer renewed nor extended another after indictment, superseding return of the forty-two which added possession counts of of child pornography.

(4) Although may reassuring it be that defendant not did com- mit more serious crimes creating manufacturing such as or child pornography, Internet, attempting to interact with children on the sexually gratifying children, proof himself front of of this negative culpability is irrelevant to defendant’s for the sole see- charged and convicted of: the crime that he was

ond-degree pornography. of child knowing distribution (5) imposing a judge concluded that second- The trial in relation to the degree “disproportionate would be sentence of the statute and second- of crime under other sections treatment conclusion, reaching plain degree general.” this she crimes in judicial by substituting her will for ly prerogative exceeded her Legislature weighed evil the the the clear intent of statute. graded pornography trade in child and harm caused the second-degree That crime. was the act of distribution as of statute is not legislative prerogative. Deciding the wisdom the McCrane, judicial Sports Expo. Auth. v. prerogative. N.J. & 1, 8, Borough E. appeal sub nom. N.J. 292 A.2d dismissed Auth., Sports Expo. v. 93 S.Ct. N.J. & U.S. Rutherford (1972). 270, 34 L.Ed.2d 215 findings judge well. with other of the trial as agree We cannot engaged in persuaded that example, “[defendant For are not we any it was activity question appreciation without the in Indeed, pornography web- defendant visited child criminalized.” might he be every morning for weeks until he was afraid sites six library continued, however, reviewing his “caught.” personal He stopped visiting those photographs daily after he of favorite even websites.

Moreover, readily the that he distributed admitted the express purpose encouraging offending photographs for the by sending pornography more child recipients reciprocate him Legislature type trafficking exactly the in return. That perpetua- stop the demand for and meant to shut down order exploitation Defendant’s so-called tion of the sexual of children. pornography industry nevertheless player” child “bit role second-degree crime brought sweep him within imprisonment dispel the notion that his and does not distribution words, from, judge’s “perpetu- trial would deter others by soliciting and ating] growing cyber-porn” for ... market disseminating pornography. This statute treats distribu- child severely robbery, of pornography burglary, tion child as as a significant grading may theft. However the of harsh this offense appear, Legislature. that was the intent of the

Finally, offender, “family defendant’s status as a first-time man,” “breadwinner,” community, and esteemed of the member worthy however of deciding commendable and consideration in the length incarceration, of term extraordinary his is not so toas imprisonment alter the conclusion his that would not constitute injustice overriding serious Compare, the need for deterrence. Jabbour, 8, Johnson, e.g., supra, 391; 118 N.J. at 570 supra, A.2d 17, any way 118 N.J. at 570 A.2d 395. diminishing Without the life, rigors prison we find cannot that defendant will face privation “hardship greatly exceeding that which would be Jarbath, accepted by ordinary and endured supra, inmates.” 409, at N.J. 555 A.2d 559. Legislature

The enacted this section of the child pornography exploitation statute to halt the sexual by making of children child pornography trafficking a second-degree offense. See Senate (Dec. Judiciary 8,1983) Comm. Statement (stating to S. that 1984 amendment to N.J.S.A. “expand 2C:24-4b was intended to scope by the of the pornography adding child statute language indicating procuring, manufacturing, giving, providing, lending, trading, mailing, delivering, transferring, publishing, dis tributing, circulating, disseminating, presenting, exhibiting, adver tising, offering agreeing to pornography depict offer material ing prohibited”); Sponsor children is also Statement to S. 1843 (Oct. 1982) 25, (stating purpose fortify “[t]he is this bill child pornography by making law” above-listed acts “crime[s] degree”). of the second judge’s estimation that the offense pornography child improperly distribution has been graded by the Legislature absolutely bearing has punish no on appropriate for ment defendant’s judiciary distribution crime —“ ‘[t]he does not punishment determine the for up Legisla crimes. That is ” Soricelli, 538, ture.’ supra, 156 (quoting N.J. A.2d 95 Cannon, 546, 559-60, (1992)). State v. 128 N.J. 608 A .2d 341 “may sentencing guidelines this adherence to We realize harsh, consequence legislative is but ‘that seem ” 9, scheme,’ Jabbour, (quoting 570 A.2d 391 supra, 118 N.J. at 83, (1987)), Dunbar, 80, which v. N.J. 527 A.2d 1346 State second-degree child presumption imprisonment creates a Al pornography. child endangerment dissemination of familiarity judge’s defendant’s though appreciate the we “previously circumstances, recognize that defendant’s and we Roth, supra, compassion,” 95 N.J. at life evokefs] blameless agree of those circumstances we that the sum 471 A.2d cannot extraordinary of defendant’s that the “human cost” so rare and society’s imperative to deter others imprisonment exceeds need Accordingly, we hold disseminating pornography. child from concluding imprisonment judge in that defendant’s the trial erred would constitute second-degree his distribution conviction for overriding injustice the need for deterrence. serious suggest in that the reach this case should not decision we mentally by a injustice only be met retarded serious standard can wrong-doing or appreciation of or her little his defendant with case terminally-ill patient. Although may it be rare AIDS standard, trial courts need not injustice” “serious satisfies of a condition whether the character and be afraid to examine rigorous this test. particular in a case meet IV. respect judgment Appellate Division

We affirm appeal, respect to the State’s appeal, reverse with to defendant’s resentencing the matter to the Law Division and remand opinion. this consistent with LONG, VERNIERO,

Chief PORITZ Justices Justice opinion. ALBIN’s join ZAZZALI Justice LaVECCHIA concurring opinion. separate filed a Justice COLEMAN part; For part; reversal in and remandment— affirmance PORITZ, COLEMAN, LONG, Chief Justice and Justices VERNIERO, LaVECCHIA, ZAZZALI and ALBIN —7.

Opposed—None.

COLEMAN, J., concurring in judgment. the Court’s separately that, I write express although the view some Fourth opinion Amendment discussion in the not Court’s disposition essential to the appeal, this I nonetheless concur judgment. the Court’s joins opinion.

Justice Verniero in this

815 A.2d 460 CARTER, WIFE, DAVID CARTER AND DONNA HUSBAND AND PLAINTIFFS-RESPONDENTS, REYNOLDS, v. ALICE F. DE FENDANT,STEVENS, FLUHR, CHISMAR, ALVINO & SCHECHTER, C.P.A., DEFENDANT-APPELLANT. Argued February November 2002 Decided 2003.

Case Details

Case Name: State v. Evers

Court Name: Supreme Court of New Jersey

Date Published: Feb 13, 2003

Citation: 815 A.2d 432

Court Abbreviation: N.J.