Opinion
DOCKET NO. A-2232-11T1
05-28-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAUL DESANTIS, Defendant-Appellant.
Mark P. Stalford, attorney for appellant. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph Glyn, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and St. John.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-02-0336.
Mark P. Stalford, attorney for appellant.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
On February 18, 2011, Monmouth County Indictment No. 11-02-0336 was filed charging defendant Paul DeSantis with four counts of second-degree endangering the welfare of a child (distribution of child pornography), contrary to N.J.S.A. 2C:24-4(b)(5)(a); and fourth-degree endangering the welfare of a child (possession of child pornography), contrary to N.J.S.A. 2C:24- 4(b)(5)(b). Defendant contends that the trial judge erred by not granting his motion to dismiss the indictment as barred by the statute of limitations period. We disagree and affirm.
I.
The record discloses the following facts and procedural history leading to the determination under review.
Defendant filed a pretrial motion to dismiss the indictment on the grounds that the prosecution was barred by the statute of limitations. On June 22, 2011, the trial judge heard oral argument on the motion and denied defendant's motion. On August 10, 2011, defendant entered conditional pleas of guilty to each of the endangering the welfare of a child by distributing child pornography counts of the indictment. N.J.S.A. 2C:24-4(b)(5)(a). Defendant reserved the right to appeal the court's denial of his motion to dismiss the indictment. R. 3:9-3(f).
At the plea hearing, defendant stated under oath that on four separate dates he transferred photographs of children engaged in prohibited sexual acts. The four dates are: August 17, 2008; October 23, 2008; February 1, 2009; and February 8, 2009. Defendant agreed that the images depicted children less than sixteen years of age, and in some cases less than thirteen years of age, engaged in prohibited sexual acts. The images were either posted by defendant to an account he had at a social networking website to which others had access or attached to emails sent from one of his email accounts. As a result of an inconsistent statement made during the preparation of his adult presentence investigation report, on the day of sentencing defendant was again placed under oath and asked additional questions. Defendant confirmed that on August 17, 2008, and February 1, 2009, he uploaded images to an account he established at a social networking website. The images depicted children engaged in prohibited sexual acts and defendant knew that when he uploaded the images others would be able to access and download them. Defendant also confirmed that, with regard to the dates of October 23, 2008, and February 8, 2009, he forwarded emails that he had received to other persons. Those emails included attachments which were images depicting children engaging in prohibited sexual acts.
The trial court sentenced defendant to a six-year term of imprisonment for each of the four counts, to be served concurrently, followed by sex offender registration pursuant to N.J.S.A. 2C:7-1 to -11. Defendant's sentence was also to be served concurrently to an eighteen-month sentence imposed for a previous fourth-degree endangering the welfare of a child (possession of child pornography) conviction, contrary to N.J.S.A. 2C:24-4(b)(5)(b). The trial judge imposed Computer Crime Prevention Fund penalties which are a subject of this appeal. N.J.S.A. 2C:4 3-3.8. Appropriate other statutory fees, penalties, and assessments were also ordered. Pursuant to defendant's negotiated plea, count five (possession of child pornography) was dismissed.
II.
Defendant raises three points for our consideration.
POINT I
THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON THE GROUNDS THAT THE STATE HAD FAILED TO COMMENCE THE PROSECUTION WITHIN THE APPLICABLE STATUTE OF LIMITATIONS.
POINT II
THE SENTENCE IMPOSED BY THE COURT IS MANIFESTLY EXCESSIVE.
POINT III
THE IMPOSITION OF COMPUTER CRIME PREVENTION FUND PENALTIES, N.J.S.A. 2C:4 3-3.8, WAS ERRONEOUS AS THE STATUTE DOES NOT APPLY TO CONVICTIONS OF N.J.S.A. 2C:24-4B(5)(A) AND EVEN IF IT DID THE IMPOSITION OF THE PENALTIES UNDER THE CIRCUMSTANCES OF THIS CASE VIOLATES THE EX POST FACTO PROVISIONS OF BOTH THE FEDERAL AND STATE CONSTITUTIONS.
Defendant asserts that the trial judge erred by not dismissing the indictment as barred by the statute of limitations. "[A] statute of limitations in a criminal case, unlike such a statute in civil matters, is not merely a statute of repose but creates a bar to prosecution." Chaifetz v. United States, 288 F.2d 133, 135-36 (D.C. Cir. 1960), cert. denied and rev'd on other grounds, 366 U.S. 209, 81 S. Ct. 1051, 6 L. Ed. 2d 233 (1961). It is well settled in this State that there is "an absolute bar to prosecution" after the statute of limitations has run, State v. Zarinsky, 75 N.J. 101, 107 (1977); see also In re Pillo, 11 N.J. 8, 17-18 (1952); Moore v. State, 43 N.J.L. 203, 209 (E. & A. 1881), and, therefore the statute can be asserted at any time, before or after judgment.
This case involves a matter of statutory interpretation and therefore the standard of review is de novo. In re Ross, 400 N.J. Super. 117, 121 (App. Div. 2008). We first turn to the plain meaning and construction of the statute governing the time limitations in question.
N.J.S.A. 1:1-1 provides general instructions for judicial construction of statutes and laws in New Jersey:
In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language. Technical words and phrases, and words and phrases having a special or accepted meaning in the law, shall be construed in accordance with such technical or special and accepted meaning.
[N.J.S.A. 1:1-1.]
The Supreme Court has recently given us guidance on the issue of statutory interpretation which proves helpful in accomplishing the task before us. In State v. Rangel, the Court stated:
The preeminent issue in this case is one of statutory interpretation. Our charge is to construe the meaning of N.J.S.A. 2C:14-2(a)(3), first by looking at the actual contested words and then by viewing them in the setting of a larger enactment addressing sexual assaults. The primary goal of all statutory interpretation is to give effect to the Legislature's intent. In carrying out that goal, we begin by looking at the statute's plain language, giving words their ordinary meaning and significance. We do not view words and phrases in isolation but rather in their proper context and in relationship to other parts of a statute, so that meaning can be given to the whole of an enactment. We do not read one part of a statute in a way that would render another part redundant or even absurd. We presume that the Legislature acted to create a logical scheme and should not look to impute avoidable contradictions. That is, we should not give a strained interpretation so that one statutory clause is hopelessly at odds with another. If giving an enactment's words their commonsense and ordinary meaning reveals legislative intent, our mission is complete. If the statutory language is susceptible to more than one plausible interpretation, then we can turn to such extrinsic aids as legislative history.
[State v. Rangel, ___ N.J. ___, ___ (2013) (slip op. at 13-14) (internal quotations and citations omitted).]
Here, defendant was indicted on February 18, 2011, with the first criminal offense occurring on August 17, 2008. The offenses are defendant's distribution of images in 2008 and 2009 of children engaged in prohibited sexual acts. Recognizing the inherent proof issues with child pornography, the Legislature provided that "a person who is depicted as or presents the appearance of being under the age of 16 in any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 16." N.J.S.A. 2C:24-4(b)(6).
Defendant contends that the governing statute of limitations is set forth in N.J.S.A. 2C:1-6(b)(4), which states:
A prosecution for an offense set forth in N.J.S.[A.] 2C:14-3 or N.J.S.[A.] 2C:24-4, when the victim at the time of the offense is below the age of 18 years, must be commenced within five years of the victim's attaining the age of 18 or within two years of the discovery of the offense by the victim, whichever is later[.]Defendant argued before the trial judge that when, as in this case, the victims of child pornography, the children appearing in the photographs, are unknown, the two-year limitation applies. Defendant posited that the time period commences when the authorities discover the pornography since the qualifier of five years after the victim has attained the age of eighteen or within two years of the discovery of the offense by the victim, whichever is later, could not be known as there is no way of knowing the present ages of the victims or whether they discovered the offenses.
The State argued that the subsection applies to sex offenses which endanger an actual child by physical conduct and should be differentiated from the conduct of defendant, which is the possession, recording, or dissemination of the acts of child pornography. The State contended that the governing statute of limitation is set forth in N.J.S.A. 2C:1-6(b)(1), which states:
Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitations:
(1) A prosecution for a crime must be commenced within five years after it is committed
In a comprehensive oral opinion, Judge Richard W. English analyzed the distinction between the proscribed activity under N.J.S.A. 2C:24-4(b)(5) and N.J.S.A. 2C:14-3, or the other endangering the welfare of a child provisions of N.J.S.A. 2C:24-4. The judge recognized that "N.J.S.A. 2C:1-6(b)(4) provides a special statute of limitations for prosecutions under N.J.S.A. 2C:14-3, criminal sexual contact, and N.J.S.A. 2C:24-4, endangering the welfare of a child." In denying defendant's motion to dismiss, the judge drew a "distinct difference between a known victim who's reporting a sexual offense . . . as opposed to a distribution" of child pornography where the victimization of the unknown child may "go back many, many years[.]" Further, the judge contrasted the activity of endangering the welfare of a known child from the act of knowingly possessing or distributing pornographic images of unknown children.
Our responsibility is to construe the meaning of N.J.S.A. 2C:1-6, first by looking at the actual contested words and then by viewing them in the setting of a larger enactment addressing the distribution of child pornography. The primary goal of our review is to give effect to the Legislature's intent. We begin by looking at the statute's plain language, giving words "their ordinary meaning and significance." Obviously, the contention by defendant that the statute "should be construed to include discovery by law enforcement officers as also triggering the limitations period," is not supported by the actual words of the statute.
Section (b)(4) applies to all offenses under N.J.S.A. 2C:24-4, but only when the victim is below the age of eighteen at the time of the offense. Under this circumstance, the limitation period expands to either five years after the victim attains the age of eighteen or two years after the victim discovers the offense, whichever is later.
Here, the offense is the distribution of child pornography, which the defendant admitted depicted children less than sixteen years of age, and in some cases less than thirteen years of age. The photographs were many years old. We do not accept defendant's reading into the statute a limitation provision of two years after discovery by law enforcement officers of the offense. We also do not interpret the statute to measure the limitation period on the age of the actual unknown children depicted. This would lead to the absurd result that the Legislature did not prohibit the distribution of pornographic pictures of children who have died since the date they were photographed. We do not read one part of a statute in a way that would render another part redundant or even absurd. See State v. Regis, 208 N.J. 439, 449-50 (2011). Defendant's offenses occurred on the dates that he distributed the child pornography, not on the dates that the images of the children were originally created. Therefore, we determine that the five-year statute of limitations applies to the offenses committed by defendant. N.J.S.A. 2C:1-6(b)(1).
Defendant next argues that his negotiated sentence is manifestly excessive. We have considered the arguments defendant has offered to establish that his sentence is excessive and determine that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Finally, both the State and defendant accede that the offenses were committed before the effective date of the Computer Crime Prevention Fund Penalty, October 19, 2009. N.J.S.A. 2C:4 3-3.8. We agree the penalty cannot be imposed. We remand to the trial court to amend the judgment of conviction vacating the penalty.
Affirmed in part, and reversed and remanded in part. 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