Opinion
DOCKET NO. A-2079-12T1
04-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AENGUS DOWNEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-06-0788. Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Tried before a jury on a two-count indictment, defendant Aengus Downey was convicted of third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4a (count one), and second-degree attempted sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2b (count two). The trial judge merged count one into count two, and sentenced defendant to seven years in prison, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, with a three-year period of parole supervision upon release. By virtue of the conviction, defendant was also subject to Megan's Law registration and reporting requirements, and parole supervision for life. The judge also assessed appropriate fines and penalties. We affirm.
I.
On December 24, 2008, Detective Passano was assigned to the internet crimes unit, which performs undercover investigations where a police officer poses as a twelve-year-old child for the purpose of apprehending individuals who are attempting "to lure kids over the internet." Using the screen name "lalilbrat12," and posing as a twelve-year-old girl, Detective Passano entered an internet chat room and waited to see if anyone would contact him.
Shortly, thereafter, an individual using the screen name "sonnyboyone7," who was later identified as defendant, began sending messages to the detective. Defendant immediately identified himself as a thirty-six-year old man, and told the detective he could provide pictures of himself. After some additional conversation, defendant asked the "girl" for her "[a]ge, sex, [and] location." The detective responded, "Sorry, I'm 12-years-old."
Although defendant responded that he was "a little old for you[,]" he continued to chat with the detective, and sent a message stating, "I got a big cock if you want to see it." Defendant then sent the detective three photographs, in which his penis was exposed. Defendant also asked "lalilbrat12" if "she" had a picture to send to him. The detective replied in the negative, but told defendant he hoped to receive a webcam for Christmas. Defendant then asked if "lalilbrat12" was "going to get naked on it"; whether "her" mother was "hot"; and whether "she" thought he had a big penis. After the detective agreed to defendant's request to "friend" "lalilbrat12," the conversation ended. On December 25, 2008, defendant sent "lalilbrat12" an off-line message that said "Merry Christmas."
Detective Passano obtained a subpoena requiring the internet chat room provider to disclose "sonnyboyone7's" subscriber information and the location of the source of his postings. The detective learned that the messages had been sent from defendant's home, and that he was using the subscriber name "Richard Ward." The detective obtained a photograph of defendant through the Division of Motor Vehicles (DMV), and also learned that defendant was thirty-six years old.
After December 25, 2008, defendant attempted to contact "lalilbrat12" five times, but the detective was not online to respond to the messages. On January 29, 2009, Detective Passano initiated contact with defendant, again using the "lalilbrat12" screen name. Defendant told the detective he would be online after 9:00 p.m. and would "do a wee dance," where he told the detective he would "[m]aybe show my ass, but not my front." After sending some more vulgar messages and asking if "she" had ever "had sex before[,]" defendant asked "what [pictures] did I show" you before, and whether "lalilbrat12" had kept them. Defendant also asked whether he had sent pictures of his penis, and "[d]id it look big, big at least[?]"
Later that night, defendant had another chat session with "lalilbrat12," which lasted for over thirty minutes. During this conversation, defendant sent the "child" some additional photographs in which his face could be seen. The photographs were sent from the "sonnyboyone7" screen name, and were taken from a webcam bearing the name "Richard Ward." The photographs matched the DMV photograph of defendant.
Based upon this information, Detective Passano obtained a search warrant for defendant's home. The background in defendant's bedroom matched that in the photographs of defendant's penis that he had sent to "lalilbrat12." The police also seized defendant's computer, which contained five more photographs of defendant in various states of undress.
In addition to Detective Passano's testimony, the State introduced transcripts of the internet chat room conversations, and the photographs defendant sent to the detective. Defendant did not call any witnesses or testify on his own behalf.
On appeal, defendant raises the following contentions:
POINT ONE
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON RELEVANT LESSER-INCLUDED OFFENSES OF [DEFENDANT]'S ATTEMPTED SEXUAL ASSAULT CHARGE. (Partially raised below).
A. Disorderly-Persons Lewdness
B. Attempted Fourth-Degree Criminal Sexual Contact
C. Conclusion
POINT TWO
THE PROSECUTOR'S REPEATED REFERENCES TO UNSUBSTANTIATED AND PREJUDICIAL N.J.R.E. 404(b) MATERIAL WITHOUT THE REQUIRED COFIELD ANALYSIS, AND THE COURT'S FAILURE TO ADEQUATELY CURE THIS MISCONDUCT, DEPRIVED [DEFENDANT] OF A FAIR TRIAL [UNDER] U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST., ART. 1 ¶¶ 1 AND 10. (Partially Raised Below).
POINT THREEHaving reviewed the record in light of the applicable law, we cannot agree with any of defendant's contentions set forth in his first three points. Except for Point Four, which asks that some errors in his judgment of conviction and presentence report be corrected, we conclude defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(3)(2). However, we make the following brief comments.
THE TRIAL COURT ERRED BY MAKING IMPROPER FINDINGS AS TO THE AGGRAVATING AND MITIGATING FACTORS APPLICABLE TO [DEFENDANT], AND BY FAILING TO EXPLAIN THE REASONS FOR THE FINDINGS, THEREBY RESULTING IN AN EXCESSIVE SENTENCE FOR [DEFENDANT].
POINT FOUR
THE JUDGMENT OF CONVICTION AND PRE-SENTENCE REPORT INCORRECTLY LIST [DEFENDANT]'S OFFENSES AND MUST BE CORRECTED.
Contrary to the arguments raised in Point One, the trial judge properly rejected defendant's request to instruct the jury on disorderly persons lewdness, N.J.S.A. 2C:14-4a, as an allegedly lesser-included offense of second-degree attempted sexual assault. Disorderly persons "lewdness is limited to exposing or displaying an actor's intimate parts rather than touching them." State v. Zeidell, 154 N.J. 417, 431 (1998). Here, defendant was touching his penis in two of the three photographs he sent to the detective. In addition, the offense of disorderly persons lewdness is for public, rather than private, conduct. State v. Ramos, 203 N.J. Super. 206, 210 (Law Div. 1985). In this case, defendant only sent the photographs to Detective Passano. Thus, there was no basis for charging the jury on disorderly persons lewdness.
The judge was also not required to provide the jury with a sua sponte instruction on fourth-degree attempted criminal sexual contact under N.J.S.A. 2C:14-3b. "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial court should consider the evidence in the light most favorable to the defendant when making this determination. State v. Mauricio, 117 N.J. 402, 412 (1990). Applying this standard, we see no error.
The offense of fourth-degree criminal sexual contact requires that the victim be at least thirteen years old. N.J.S.A. 2C:14-3b; N.J.S.A. 2C:14-2c(4). Here, Detective Passano told defendant he was a twelve-year-old girl. Thus, there was no factual basis in the record for charging the jury on an offense, which my its express terms, only applied if the victim was at least age thirteen.
The judge did charge the jury on fourth-degree attempted lewdness, N.J.S.A. 2C:14-4b(1), which applies if the victim is less than thirteen years old and the "actor is at least four years older than the child."
Defendant's arguments in Point Two also lacks merit. Defendant asserts that the prosecutor improperly asked Detective Passano on redirect examination about internet conversations defendant may have had with "other young girls[,]" and made an inappropriate reference to the detective's response in her summation. However, defense counsel opened the door to this subject during his cross-examination of the detective, when he asked Detective Passano whether he knew "by virtue of this investigation how many different people [defendant] was chatting with[.]"
On redirect, the prosecutor asked the detective whether he knew if defendant was talking to "one 12-year-old . . . or 50 12-year-old girls[,]" and Detective Passano said no. The detective answered affirmatively when the prosecutor asked whether, because defendant had to ask what photographs he had sent to "lalilbrat12," defendant was trying to determine "which little girl did I send my pictures to." When the prosecutor subsequently asked the detective whether the photographs found on defendant's computer could have been "sent to other little girls," defense counsel objected and the objection was sustained.
During her summation, the prosecutor stated, "[h]e's clearing sending pictures to other people . . . you heard that right from the officer. There's other pictures out there. You have the other pictures that were found on his computer. He's sending pictures out to random children." Defense counsel's objection to the prosecutor's use of the word "children" was sustained.
To warrant a reversal, the prosecutor's conduct "must have been clearly and unmistakably improper, and [it] must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation marks omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In assessing the impact of prosecutorial misconduct, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." Ibid.
We discern no error, harmless or otherwise, in the prosecutor's conduct in this case. As noted above, the prosecutor did not ask the detective any questions about the possibility defendant was sending photographs to other children until after defense counsel brought up the issue on cross-examination. Defense counsel's failure to promptly object to the prosecutor's brief line of questioning demonstrates he did not believe the questions were prejudicial. Id. at 576. In addition, when defense counsel objected to a subsequent question, and to another brief comment the prosecutor made during her summation, the judge sustained the objection. Under these circumstances, and given the strength of the State's proofs, the prosecutor's conduct did not prejudice defendant's right to a fair trial.
In Point Three of his brief, defendant argues that his sentence was excessive. This argument also lacks merit.
Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 65; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied that the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code. Case, supra, 220 N.J. at 65; O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.
Finally, in Point Four, defendant correctly points out errors in the judgment of conviction (JOC) and in his pre-sentence report (PSR). Defendant was charged in count one of the indictment with third-degree attempted endangering the welfare of a child under N.J.S.A. 2C:24-4a. If he had had "a legal duty for the care" of the "child" involved in this case, he would have been charged with a second-degree offense under this statute. Ibid. Because he did not, this was a third-degree offense. Ibid. The JOC mistakenly describes defendant's offense under count one as "Endanger Welfare Child-Duty[.]" Because this is potentially misleading, we remand to the trial court to correct the JOC by removing the word "Duty" from the description of defendant's offense under count one.
Defendant's PSR incorrectly lists the attempted endangering charge under count one as a second-degree offense, rather than a third-degree offense. The PSR also mistakenly states that the attempted sexual contact charge under count two was a third-degree offense, rather than a second-degree offense. Accordingly, on remand the trial court shall also correct the PSR to indicate the proper grading of both of defendant's offenses.
Defendant's convictions and sentence are affirmed. We remand solely for the correction of the JOC and PSR. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION