STATE OF NEW JERSEY VS. EDWARD F. BROGAN (18-05-1055, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

S
                                       RECORD IMPOUNDED

                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0240-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EDWARD F. BROGAN,

     Defendant-Appellant.
_______________________

                   Argued March 17, 2021 – Decided May 17, 2021

                   Before Judges Fuentes, Whipple and Rose.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Camden County, Indictment No. 18-05-
                   1055.

                   Jill R. Cohen argued the cause for appellant.

                   Maura M. Sullivan, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for respondent (Jill S. Mayer, Acting Camden County
                   Prosecutor, attorney; Maura M. Sullivan, of counsel
                   and on the brief).

PER CURIAM
      Defendant, Edward Brogan, appeals from an August 6, 2019 judgment of

conviction after a jury found him guilty of second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a)(iii); and third-degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(b). We affirm.

      Defendant raises the following issues on appeal:

            POINT I: THE COURT ERRED IN AMENDING
            THE DATE OF THE OFFENSE CHARGED IN
            COUNT ONE OF THE INDICTMENT AFTER
            TRIAL STARTED.

            POINT II: IT WAS PLAIN ERROR TO ALLOW
            EVIDENCE OF BAD ACTS COMMITTED AFTER
            THE AMENDED DATE OF COUNT ONE OF THE
            INDICTMENT (not raised below).

            POINT III: THE PROSECUTOR'S CONDUCT
            DURING TRIAL AND HIS REMARKS DURING
            CLOSING WERE IMPROPER (not raised below).

            POINT IV: THE COURT'S SENTENCE WAS
            EXCESSIVE AS THE COURT FAILED TO GIVE
            CONSIDERATION TO THE APPROPRIATE
            MITIGATING FACTORS AND GAVE EXCESSIVE
            WEIGHT TO THE AGGRAVATING FACTORS.

            POINT V: TRIAL COURT ERRED IN IMPOSING A
            SENTENCE THAT THE COURT ERRONEOUSLY
            BELIEVED MADE . . . DEFENDANT ELIGIBLE
            FOR [Intensive Supervision Program (ISP)] WHEN
            THE DEFENDANT'S CONVICTION MADE HIM
            INELIGIBLE FOR ISP (not raised below).



                                                                         A-0240-19
                                      2
            POINT VI: THE TRIAL COURT ABUSED ITS
            DISCRETION BY REFUSING TO SENTENCE . . .
            DEFENDANT TO A TERM IN THE THIRD-
            DEGREE RANGE.

            POINT VII: THE COURT ORDERED PAROLE
            SUPERVISION FOR LIFE WITHOUT FINDINGS.

                                        I.

      We draw the following facts from the trial record.          In June 2017,

Sergeant Christopher Robinson of the Camden County Prosecutor's Office

High Tech Crimes Unit (the Unit) began an investigation utilizing a "torrent

program," 1 which he knew was often used to obtain and disseminate child

pornography files. A torrent program is also known as a peer-to-peer (P2P)

file-sharing program. Once a user accesses a pedestrian search engine, such as

Google, to find a torrent directory site that lists hyperlinks for specific files,

the program will take over when the user selects a link to the file they wish to

download, and begin obtaining the file from another computer that has

possession of it. Robinson testified as to prominent keywords a user seeking

child pornography can search, in order to find links. One such term known to

Robinson was "Siberian Mouse."


1
   As gleaned from the record, a torrent program allows for users to download a
file from another computer, host the file on their computer, and then allow
other users to download their "copy" of the file.
                                                                           A-0240-19
                                       3
      The Unit's specific torrent program will continuously search the torrent

networks for images and videos, which it will compare to libraries, or

repositories of known child pornography, such as the National Center for

Missing and Exploited Children and Project Vick. When a match is found, the

torrent program will download the file on the listing website from a single

user, who has a copy of the file.

      Although torrent programs typically source the file from multiple users

and machines to streamline the download, when performing an investigation,

the Unit will make sure each file is downloaded from a single, discrete

machine. After the Unit fully downloads the material, its torrent program will

block the files from being shared by its own computers. And once the Unit

confirms the material is child pornography, it will track the Internet Protocol

(IP) address of the source machine, which is in possession of the illicit harmful

material.   Finally, the Unit will subpoena the Internet Service Provider

(provider) for information related to the location and human owner of the IP

address.

      Robinson downloaded one eighteen-minute video titled "Siberian

Mouse" from defendant's IP address on June 28, 2017. This video showed two

young females, approximately twelve or thirteen years old, "kissing and


                                                                          A-0240-19
                                      4
performing various sex acts on each other." Robinson put the video, along

with the incriminating digital artifacts and information, onto a disc showing it

came from defendant's IP address as a "single-source download." 2

       After Robinson determined defendant's internet provider, he sent the

company a subpoena for information related to defendant's IP address. When

the provider responded, Robinson went to defendant's house with officers from

the Camden County Sheriff's Office and members of the Unit.           The team

photographed the home, secured any electronic devices, such as USB3 drives,

recorded the evidence, and interviewed defendant.

       When Robinson secured defendant's laptop, the team performed a

forensic preview, a precursor to a more in-depth subsequent scan, and found

archived evidence of a file with the same title of the video Robinson had

downloaded, along with numerous images of child pornography. Robinson

and a detective spoke with defendant, read him his Miranda 4 rights, and

witnessed defendant voluntarily signed a card waiving his rights.



2
  A single-source download refers to a file that was wholly downloaded from a
specific computer.
3
    Universal Serial Bus drive, also known as a "thumb drive."
4
    Miranda v. Arizona, 

384 U.S. 436

(1966).
                                                                         A-0240-19
                                       5
     During his first interview, defendant admitted using a torrent program

and acknowledged how young some of the subjects appeared. Defendant also

admitted he purposely searched for "Siberian Mouse," a clear marker of child

pornography. He further admitted gratifying himself to the media. Defendant

acknowledged the females looked twelve or thirteen years old and admitted

searching for child pornography more than a dozen times. Defendant stated he

did not know he was sharing the files once he downloaded them. At the end of

this interview, defendant admitted the "Siberian Mouse" video "could have"

been downloaded from his house, and he may have struggled with deleting and

redownloading the material.

     At this point, defendant was arrested and taken to the Pennsauken Police

Department, where he made similar statements and maintained he did not

know the torrent program meant he would be sharing files.        During this

interview, defendant stated that he assumed the websites were for downloading

adult pornography.

     Defendant acknowledged he was coming across "hundreds" of images of

underage females during his activities, and there was a video with one young

female who "was looking very cute." He did "go through some of it," but said

he deleted it, and most of the media was not "hard core stuff." Defendant had


                                                                      A-0240-19
                                     6
last looked at that video a couple days prior, after reinstalling the torrent

program once again.        Defendant denied being aroused by the child

pornography at first, but later confirmed he did gratify himself to one

particular person he thought looked older, and that he has a "problem."

      Defendant admitted downloading between three to four movies, but had

many pictures, because they would download as albums as. opposed to

individual images. Defendant continued to deny knowing the videos were

transmitted across the P2P network.

      A Camden County Grand Jury indicted defendant on count one, second-

degree endangering the welfare of a child (maintaining child pornography) on

July 27 or 28 or both, 2017, N.J.S.A. 2C:24-4(b)(5)(a)(iii); and count two,

committing third-degree endangering the welfare of a child (possession of

child pornography) on or about July 28, 2017, N.J.S.A. 2C:24-4(b)(5)(b). On

March 7, 2019, defendant's jury trial began, and on March 13, 2019, the trial

court granted the State's motion to amend the indictment. In count one, the

date of the offense was changed from July 27 or 28 or both, 2017 , to June 27

or 28 or both, 2017.

      At trial, Robinson was the only State witness; he catalogued the forensic

information from defendant's computer, noting the sixty-six search queries that


                                                                          A-0240-19
                                      7
were found on defendant's laptop. These included "Siberian Mouse," "[M]

titles" and "LS Magazine," a "known child pornography image set." They also

included terms for explicit sexual acts, with the words "young teen" attached.

"[M.B.]" is one of the young women in the pictures and videos, who defendant

also specifically searched for.

      Robinson testified defendant used a "cleaner" for his computer 170

times, although some cleanings may be reported twice. Robinson then went

through the pictures individually, noting the "hash value," or unique electronic

identifier, and any defining characteristics, such as a "LS Magazine" logo. In

his defense, defendant had six character witnesses testify, noting he had put

together golf outings, had a peaceful demeanor, and took good care of his

mother and sister.

      The jury found defendant guilty on both counts. The court sentenced

defendant to an aggregate term of seven years, to be served concurrently,

parole supervision for life, a required blood draw for DNA profiling pursuant

to N.J.S.A. 53:1-20.22, and he was ordered to comply with Megan's law,

N.J.S.A. 2C:7-2.




                                                                         A-0240-19
                                      8
                                       II.

      On appeal, defendant first argues the court erred by granting the State's

motion to amend count one of the indictment, during trial to correct a clerical

error under Rule 3:7-4. Defendant argues he was deprived of an opportunity to

mount a defense for the amended date.           The court granted the State's

application, finding the time of the offense was not essential for this particular

offense and that there would be no prejudice to the defendant given that the

expert reports all indicate that June 28, rather than July 28, was the actual date

of the first offense.

      Rule 3:7-4 provides:

             The court may amend the indictment or accusation to
             correct an error in form or the description of the crime
             intended to be charged or to charge a lesser included
             offense provided that the amendment does not charge
             another or different offense from that alleged and the
             defendant will not be prejudiced thereby in his or her
             defense on the merits. Such amendment may be made
             on such terms as to postponing the trial, to be had
             before the same or another jury, as the interest of
             justice requires.

      The New Jersey Supreme Court has interpreted this rule to prohibit

courts from amending the indictment if the error to be corrected relates to the

substance or "essence" of an offense. State v. Dorn, 

233 N.J. 81

, 94 (2018)

(first quoting State v. Middleton, 

299 N.J. Super. 22

, 34 (App. Div. 1997); and

                                                                           A-0240-19
                                       9
then citing Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 3:7-4

(2018)). Furthermore, a court cannot amend an indictment where it would

prejudice a defendant.

Ibid. Defendant argues the

amendment denied him the

opportunity to put on a meritorious defense. Having reviewed the trial court's

decision to amend the indictment under the abuse of discretion standard, State

v. Reid, 

148 N.J. Super. 263

, 266 (App. Div. 1997), we discern no error in

failing to accept defendant's bald assertion in order to disallow the amendment.

      Defendant asserts his situation is similar to that of the defendant in

Middleton, 299 N.J. Super. at 22

. There, Middleton was indicted for certain

offenses occurring on July 23, at 12:30 p.m., when in reality, the offenses

occurred at 12:30 a.m.

Id. at 28.

Middleton had prepared alibi witnesses and

built a trial strategy around the witnesses he intended to call.

Ibid. In that

light,

we held:

            The burdens placed on the defense were then
            grievously exacerbated when the State's first witness
            testified to a time of the crime completely contrary to
            the time for which, to the prior knowledge of the court
            and the prosecutor, the defendant, defense counsel,
            and defense investigator were all scurrying around
            during trial attempting to establish the alibi. At that
            point, and in view of defendant's assertion that he
            could also establish an alibi for the "new" time, the
            interests of justice demanded that he be afforded a
            reasonable opportunity to do so. That opportunity was
            not afforded. The interests at stake are too significant

                                                                         A-0240-19
                                     10
             to require a defendant accused of serious crime to
             prove his defense on the fly while the State keeps
             changing the ground rules.          Consequently, a
             continuance or even the declaration of a mistrial with
             defendant's consent was then appropriate.

             [Id. at 34-35.]

      Here, defendant's position is not similar to the material facts in

Middleton.    Defendant did not argue a date-specific defense and took no

exception to Robinson's testimony that he downloaded the video from

defendant's computer on June 28. Indeed, defendant simply argued he never

intended to download the material at all.        Additionally, defendant's six

character witnesses' testimony had no temporal link to his charges, only to his

general reputation and their experiences with him.

                                       III.

      Defendant's arguments under Points II, III and V, require us to utilize a

plain error standard of review, as "[w]hen a defendant fails to object to an

error or raise an issue before the trial court, we review for plain error. We may

reverse on the basis of unchallenged error only if the error was 'clearly capable

of producing an unjust result.'"    State v. Ross, 

229 N.J. 389

, 407 (2017)

(quoting R. 2:10-2). "The possibility of an unjust result must be 'sufficient to

raise a reasonable doubt as to whether the error led the jury to a result it


                                                                          A-0240-19
                                     11
otherwise might not have reached.'"

Ibid. (quoting State v.

Williams,

(Williams I), 

168 N.J. 323

, 336 (2001) (quoting State v. Macon, 

57 N.J. 325

,

336 (1972))). We discern no such error in the record.

      Defendant argues admitting evidence of his attempts to download

additional child pornography between July 13 and 22, 2017, was improper, as

was evidence related to his use of a file cleaner after the amended date. To

reach this conclusion, he relies on State v. Pickles, 

46 N.J. 542

(1966), which

prevents the State from presenting evidence not referenced in the indictment.

We reject his argument. In Pickles, two parents were charged with criminal

neglect and manslaughter, when the mother, specifically, placed her four-year-

old son in hot water to punish him, but caused his death.

Id. at 548-49.

There,

the defendants were substantially prejudiced when the State attempted to usurp

the dates provided in the indictment by referencing the bill of particulars.

Id.

at 550.

The only witness who testified in the trial about incidents occurring

within the dates reflected in the indictment, referred to incidents that occurred

a year earlier, unfairly surprising defendants.

Id. at 563.

      Here, defendant was not surprised by the evidence.         There was no

objection raised when Robinson testified outside the indictment time frame.




                                                                          A-0240-19
                                      12
Nor did defendant argue the evidence was not relevant or probative. And had

defendant objected, there remained adequate grounds to admit the evidence.

      Whether uncharged conduct is "intrinsic to the charged crime, and thus

need only satisfy the evidence rules relating to relevancy, most importantly

[N.J.R.E.] 403" or whether it "relates to 'other crimes,' and thus is subject to

analysis under [N.J.R.E.] 404(b)," such may be admissible. State v. Rose, 

206

N.J. 141

, 179 (2011).        If the evidence falls within N.J.R.E. 404(b)'s

requirements, its admissibility is determined under the four-part test

established in State v. Cofield:

            1. The evidence of the other crime must be admissible
            as relevant to a material issue;

            2. It must be similar in kind and reasonably close in
            time to the offense charged;

            3. The evidence of the other crime must be clear and
            convincing; and

            4. The probative value of the evidence must not be
            outweighed by its apparent prejudice.

            [

127 N.J. 328

, 338 (1992).]

      In 

Rose, 206 N.J. at 180

, the Court limited the scope of intrinsic

evidence to the two categories established in United States v. Green, 

617 F.3d

233

, 248-49 (3d Cir. 2010). "First, evidence is intrinsic if it 'directly proves'


                                                                          A-0240-19
                                     13
the charged offense." 

Rose, 206 N.J. at 180

(quoting 

Green, 617 F.3d at 248

-

49). "Second, 'uncharged acts performed contemporaneously with the charged

crime may be termed intrinsic if they facilitate the commission of the charged

crime.'" Ibid. (quoting 

Green, 617 F.3d at 248

-49).

      First, the evidence of the other crime must be relevant to a material

issue. 

Cofield, 127 N.J. at 338

. Here, defendant's searches for various child

pornography, while cleaning his computer to remove any relevant files, was

still relevant to count two, charging him with possession of the child

pornography. Under factor two, "it was similar in kind and reasonably close in

time to the offense charged." 

Cofield, 127 N.J. at 338

. In this case, defendant

acknowledged he was aware of the P2P download date, as the interviews

discussed the timeline of events during his interview at the station:

            ROBINSON: So over the course of the three or four
            weeks, whatever it was that you had these programs
            on or off your computer, about how many videos or
            images of child pornography, that you think was child
            pornography did you download?         Ten, [twenty],
            [thirty]?

            DEFENDANT: With the videos maybe a few, maybe
            like three of them, maybe four.

            ROBINSON: Pictures?

            DEFENDANT: The pictures were a lot. Like I said
            when they come in they come in in a big group.

                                                                        A-0240-19
                                      14
      Additionally, proof of defendant's possession of child pornography on

the date of July 27 or 28 is still relevant. And the three or four weeks leading

up to defendant's arrest provided foundation for his acquisition of the one-

hundred-plus pieces of material.

      The third Cofield factor requires that "[t]he evidence of the other crime

must be clear and 

convincing.” 127 N.J. at 338

. In this case, referring to

count two as the "other crime," it was clear and convincing that his use of the

torrent program and repeated searches allowed him to build his illicit

collection. And finally, "[t]he probative value of the evidence must not be

outweighed by its apparent prejudice."

Ibid. The nature of

how defendant

conducted his searches, and his patterns, was probative to the issue of whether

defendant had accessed and obtained the explicit material.

      In sum, because defendant did not raise this objection at trial, and

because there were valid reasons for the evidence to be admitted, including to

prove the second count under N.J.R.E. 404(b) if he had objected, we discern

no error by the trial court.

                                      IV.

      Next, defendant argues the assistant prosecutor elicited highly

prejudicial testimony from Robinson and improperly focused on defendant's


                                                                         A-0240-19
                                     15
bad acts during summation. "Prosecutors are afforded considerable leeway in

closing arguments as long as their comments are reasonably related to the

scope of the evidence presented." State v. Frost, 

158 N.J. 76

, 82 (1999) (citing

State v. Harris, 

141 N.J. 525

, 559 (1995)); State v. Williams, (Williams II),

113 N.J. 393

, 447 (1988).

      When a defendant raises prosecutorial misconduct for the first time on

appeal, our concern is "whether the remarks, if improper, substantially

prejudiced the defendant['s] fundamental right to have the jury fairly evaluate

the merits of [his or her] defense, and thus had a clear capacity to bring about

an unjust result." State v. Johnson, 

31 N.J. 489

, 510 (1960). Even where a

prosecutor has been guilty of misconduct, reversal of a defendant's conviction

is not necessary unless the conduct was so egregious that it deprived the

defendant of a fair trial. State v. Wakefield, 

190 N.J. 397

, 438 (2007) (quoting

State v. Smith, 

167 N.J. 158

, 181 (2001)).

      In State v. Williams, our Supreme Court recently reaffirmed the core

factors required to find reversible error due to prosecutorial misconduct: "(1)

whether defense counsel made timely and proper objections to the improper

remarks; (2) whether the remarks were withdrawn promptly; and (3) whether




                                                                         A-0240-19
                                     16
the court ordered the remarks stricken from the record and instructed the jury

to disregard them." 

244 N.J. 592

, 608 (2021) (internal citations omitted).

      First, defendant argues the assistant prosecutor should not have elicited

testimony from Robinson regarding how he was familiar with the particula r

girls in the video.    From defendant's perspective, the child pornography

depicted in this video and the girls being abused inflamed the jury and was

irrelevant, as he notes how others have downloaded it, and that was how he

gained his familiarity.   But on our review of the record, the prosecutor's

arguments were based on the facts of the case and reasonable inferences

therefrom, and thus, "afford no ground for reversal." 

Smith, 167 N.J. at 178

(quoting 

Johnson, 31 N.J. at 510

) (internal citations omitted).

                                       V.

      Next, defendant argues it was impermissible to question Robinson about

whether those who view child pornography typically gratify themselves

sexually while doing so. In this regard, the court charged the jury on what a

prohibited sexual act was: "[a] prohibited sexual act means . . . nudity, if

depicted for the purpose of sexual stimulation or gratification of any person

who may view such depiction."        Indeed, Model Jury Charges (Criminal),

"Endangering the Welfare of a Child (Pornography) (N.J.S.A. 2C:24-


                                                                         A-0240-19
                                     17
4(b)(5)(a)(iii))" (approved Sept. 2014) reads: "[a] prohibited sexual act means .

. . nudity, if depicted for the purpose of sexual stimulation or gratification of

any person who may view such depiction." Therefore, defendant cannot claim

the question of whether an accused is sexually gratified while viewing child

pornography is irrelevant to the charges in the indictment. Based on the model

charge for defendant's first count, it was necessary to discuss gratification to

prove all elements of the crime to the jury.

      Defendant also argues the prosecutor purposely and pointedly inflamed

the passions of the jury. He points to the State's summation, wherein the

prosecutor stated:

            This is a case, and I want to emphasize at this point
            the victims in this case. I want to emphasize that these
            are . . . charges of endangering the welfare of a child,
            children, and that's what this case is about. It's about
            children and it's about children who are put in
            jeopardy and in danger by the actions of this
            defendant and others that commit crimes of this
            nature.

                     ....

                  And again so that's another -- this defense
            comes back or these attempted defenses come back as,
            well, what about the [P2P]. I didn't understand. I had
            no idea. He says this over and over again. I have no
            idea. Again, mind you, a . . . contractor for the federal
            government, somebody who knows enough to find a
            [torrent file], who even knows what a [torrent

                                                                          A-0240-19
                                      18
program] is, has enough savvy to have a cleaning
program on his computer and yet doesn't understand
that the [P2P], how a [P2P] program works. Does that
make any sense? I submit to you it doesn't.

      ....

He deleted the pornography so he could not be caught.

      ....

      Sixty-six separate searches, searches, not search
terms that -- let's be straight about this.

      ....

      July 1st, 2017, one search. July 12th, 2017,
eight searches. July 13th, 2017, one day later, one
search. Two days later, July 15th, 2017, six searches.
July 17th, 2017, one search. July 18th, 2017, eight
searches. July 20th, 2017, four searches. July 22nd,
2017, three searches and then there are three
additional searches that didn't have a date that was
assigned or attached to it in the forensic extraction.

       Sixty-six different times this defendant searched
for this Siberian Mouse video or something related to
the Siberian Mouse video, child pornography, and
you're to believe that this was an accident, this was a
mistake.

      ....

      What did he download from the [t]orrent? You
heard Sergeant Robinson explain this to you from the
forensic extractions. Siberian Mouse Pack. Pack. It
had a number of things in it. He talked about what [a]
pack usually ha[s]. It's a bunch of pictures, images,

                                                           A-0240-19
                         19
             videos, stuff like that. How many times did he
             download it and when? July 13th, downloaded the
             whole pack. July 19th, downloaded the whole pack.
             July 20th, downloaded the whole pack again. July
             22nd, downloaded the whole pack a fourth time. And
             that's only [w]hat we know about because we don't
             have all of it because the defendant deleted it. Not a
             mistake.

      Under Smith, a prosecutor must "confine [his or her] comments to

evidence revealed during the trial and reasonable inferences to be drawn from

that evidence," as 

here. 167 N.J. at 178

(citing 

Frost, 158 N.J. at 86

; State v.

Marks, 

201 N.J. Super. 514

, 534 (1985)). But "if a prosecutor's arguments are

based on the facts of the case and reasonable inferences therefrom, what is said

in discussing them, 'by way of comment, denunciation or appeal, will afford no

ground for reversal.'"   Ibid. (quoting 

Johnson, 31 N.J. at 510

).     Here, the

State's comments were during the closing and were made directly after

summarizing evidence. Thus, we discern no clear capacity to bring about an

unjust result.

                                      VI.

      Finally, defendant argues his sentence is excessive. Defendant contends

the six character witnesses he presented showed he was an otherwise law-

abiding and upstanding citizen. He argues the court erred finding aggravating



                                                                         A-0240-19
                                     20
factor three under N.J.S.A. 2C:44-1(a)(3) and giving moderate weight to the

risk of defendant committing another offense.

      We review a judge's sentencing decision under an abuse of discretion

standard. State v. Fuentes, 

217 N.J. 57

, 70 (2014). As directed by the Court,

we must determine whether:

            (1) [T]he sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience.

            [

Ibid. (quoting State v.

Roth, 

95 N.J. 334

, 364-65
            (1984)).]

      Our review of a sentence is limited. State v. Miller, 

205 N.J. 109

, 127

(2011).   Our basic responsibility is to assure that the aggravating and

mitigating factors found by the judge are supported by "competent, credible

evidence in the record."

Ibid. (quoting State v.

Bieniek, 

200 N.J. 601

, 608

(2010) (quoting 

Roth, 95 N.J. at 364-65

)). Defendant's arguments are belied

by the record, which supports the court's finding that it is likely that defendant

would commit a similar offense. State v. O'Donnell, 

117 N.J. 210

, 215 (1989).

Defendant conceded he has a "problem" viewing children as sexual objects.



                                                                           A-0240-19
                                      21
      We disagree with defendant's assertion that the court impermissibly

double counted by using the elements of the offense to find aggravating factor

nine, which focuses on a need to deter offenders and the general public from

committing the same offenses. N.J.S.A. 2C:44-1(a)(9). Although "[e]lements

of a crime, including those that establish its grade, may not be used as

aggravating factors for sentencing of that particular crime," State v. Lawless,

214 N.J. 594

, 608 (2013) (citations omitted), a court "does not eng age in

double-counting when it considers facts showing defendant did more than the

minimum the State is required to prove to establish the elements of an

offense," State v. A.T.C., 

454 N.J. Super. 235

, 254-55 (App. Div. 2018) (citing

Fuentes, 217 N.J. at 75

). Here, the judge properly found aggravating factor

nine based on a "pragmatic assessment of the totality of the harm inflicted by

the offender on the victim." State v. Kromphold, 

162 N.J. 345

, 358 (2000).

      The known child victim in this case presents compelling evidence of the

harm defendant inflicted.   Robinson noted "[M.] is also known as [M.B.].

She's one of the girls that's featured in a lot of these Siberian Mouse videos."

And even more:

            PROSECUTOR: Are there specific names                 of
            individuals or that are searched in the queries?

            ROBINSON: Yes.

                                                                         A-0240-19
                                     22
            PROSECUTOR: What, if any, names, specific names
            are searched in the queries?

            ROBINSON: [M] is one in particular.

                   ....

            ROBINSON: "[t]hat's an image of [M.B.] who's
            present in the Siberian Mouse video that we
            downloaded [from defendant] on June 27th, 2017.

      This form of physical, emotional, and psychological harm is not an

element of the offenses for which defendant was convicted. The sentencing

court's careful attention to this type of harm does not constitute double-

counting. 

A.T.C., 454 N.J. Super. at 254-55

      Defendant also argues the court erred when it failed to find mitigating

factors eight, nine, ten, and eleven.      N.J.S.A. 2C:44-1(b)(8) to (11).   For

factors eight to ten, defendant asserts his age, caring for his family and clean

criminal record militate a finding of those factors.

      Defendant also contends it was an abuse of the trial court's discretion to

find that mitigating factor eleven did not apply. He argues "[t]here was ample

evidence that the defendant's elderly, cognitively impaired mother and

institutionalized, mentally ill sister would suffer excessive hardship if the

appellant were imprisoned." The judge placed adequate reasons to reject the



                                                                         A-0240-19
                                      23
application of those mitigating factors on the record, finding defendant's

situation no different than any other defendant who has familial obligations.

      Defendant's remaining arguments attacking the legal viability of the

sentence imposed by the trial court lack sufficient merit to warrant further

discussion in a written opinion. Rule 2:11-3(e)(1)(E).

      Affirmed.




                                                                         A-0240-19
                                     24

Add comment

By

Recent Posts

Recent Comments