RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0459-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION v. April 4, 2017

MICHAEL D. MILLER, APPELLATE DIVISION

Defendant-Appellant.

Submitted March 15, 2017 – Decided April 4, 2017

Before Judges Fuentes, Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-05-0894.

Rudnick, Addonizio, Pappa & Casazza, attorneys for appellant (Mark F. Casazza, of counsel and on the brief).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Senior Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

CARROLL, J.A.D.

Defendant Michael Miller was charged in Monmouth County

Indictment No. 13-05-0894 with fourth-degree child endangerment

by possessing child pornography, N.J.S.A. 2C:24-4b(5)(b) (Count One), and second-degree child endangerment for distributing

child pornography, N.J.S.A. 2C:24-4b(5)(a) (Count Two).

Following a bench trial, he was convicted of both charges. On

August 14, 2015, defendant was sentenced to a seven-year jail

term on Count Two, and a consecutive one-year jail term on Count

One. He was also required to comply with Megan's Law, N.J.S.A.

2C:7-2, and to pay the appropriate fines, penalties, and

assessments. Defendant appeals from his conviction and the

sentence imposed, arguing:

POINT I

SINCE [DETECTIVE] BRUCCOLIERE WAS NOT OFFERED AND QUALIFIED AS AN EXPERT WITNESS BY THE STATE, THE TRIAL COURT ERRED IN ADMITTING INADMISSIBLE TESTIMONY.

POINT II

[] DEFENDANT'S CONVICTION FOR DISTRIBUTING CHILD PORNOGRAPHY WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

DEFENDANT'S SENTENCE WAS EXCESSIVE.

Having considered defendant's arguments in light of the record

and applicable legal standards, we affirm defendant's conviction

but remand for resentencing.

I.

We summarize the facts taken from the record of the non-

jury trial that was conducted on six dates between February 11,

2 A-0459-15T4 2015, and February 25, 2015. The State presented the testimony

of the investigating officers; a detective from the Monmouth

County Prosecutor's Office (MCPO) who examined defendant's

computer; video evidence obtained from that computer; and

defendant's statement. Defendant testified, and presented his

brother as a character witness.

Freehold Township Police Officer Richard Hudak was

specially assigned to the MCPO Internet Crimes Against Children

(ICAC) Task Force. The ICAC Task Force used undercover

computers equipped with special software to search the internet

for persons who received or transmitted child pornography. That

software allowed Hudak to log onto the peer-to-peer file sharing

network, "Gnutella," in search of persons who shared child

pornography media files. Hudak entered search terms

representative of child pornography and was provided with a list

of files posted and available for download by Gnutella peers.

His search results contained the internet protocol (IP)

addresses identifying the device of the sharing peer, as well as

a cryptographic secure hash algorithm (SHA-1) of the file.

On December 13, 2010, Hudak's search yielded defendant's

internet protocol (IP) address showing files available for

download, which, based on the file names, Hudak believed to be

child pornography. Three days later, Hudak downloaded four

3 A-0459-15T4 video files containing child pornography. The videos were

placed on a compact disc (CD) and played at trial.

On January 18, 2011, Hudak noticed defendant's IP address

had changed, and that the shared directory contained several

file names that were indicative of child pornography. On

February 4, 2011, Hudak downloaded two files containing child

pornography from defendant's second IP address, which were

placed on a CD and played at trial.

Monmouth County Sheriff's Office Detective Timothy Baggitt

is a certified computer forensic examiner who was also assigned

to the ICAC Task Force. On May 7, 2011, Baggitt downloaded four

video files from defendant's "global unique identifier" (GUID)

to his ICAC computer. These videos were viewed by the court,

and defendant stipulated that the acts they depicted met the

statutory definition of child pornography. On June 1, 2011,

Hudak learned that defendant's IP address had changed again. On

that date, he downloaded three more files containing child

pornography, which were also played at trial.

Various law enforcement officials responded to defendant's

residence to execute a search warrant on February 1, 2012.

Thirty-three CDs and DVDs were seized, along with several

computers, including an Acer Aspire 4315 laptop, and hard

drives. Defendant was taken into custody and brought to

4 A-0459-15T4 Keansburg police headquarters, where he waived his Miranda¹

rights. He then gave a recorded statement admitting he lived

alone in the house the past two years and that he had downloaded

child pornography onto his laptop computer. He also admitted

using LimeWire and then FrostWire peer-to-peer programs.

Defendant described his knowledge of peer-to-peer file sharing

during the following questioning by MCPO Lieutenant William Wei:

WEI: You have FrostWire. You have downloaded those images. You're running FrostWire, you download images, what makes you think other people can't download it from you?

DEFENDANT: I just never . . . thought about it. Obviously, they can. [] [Y]ou're absolutely right. Honestly, I just never thought about it.

. . . .

WEI: [] So Mike, you told me that you . . . didn't think possession of child pornography is illegal, but you told me that distribution is. So by you merely downloading this and saving it into your library, and you do see the meters of the green uploading, what is that telling me?

DEFENDANT: I understand what you're saying. Obvious - - I - -

WEI: Do you dispute that you made these videos shareable to other people using FrostWire?

¹ Miranda v. Arizona,

,

,

(1966).

5 A-0459-15T4 DEFENDANT: No. But obviously, it was in the . . . library, it was available.

WEI: Okay. And you knew that . . . that library where the images or the videos were was shareable?

DEFENDANT: Yes.

WEI: All right. And you knew that why?

DEFENDANT: [] [T]hat's how peer-to-peer works, I guess?

WEI: That's exactly how it works, but also, you saw the meters, you saw the thing that's, you know, sharing that you were uploading.

DEFENDANT: Okay.

MCPO Detective Richard Bruccoliere performed the forensic

analysis of the Acer laptop computer and other seized items.

Bruccoliere was assigned to the MCPO's Computer Crimes Unit

since December 2009, and previously worked for the United States

Secret Service, where he conducted computer and digital media

forensic investigations. He was a certified forensic computer

examiner who had undergone approximately 700 hours of classroom

training and performed hundreds of forensic examinations.

Bruccoliere's forensic analysis of defendant's Acer laptop

revealed defendant had downloaded 631 still images and 353

videos of child pornography. Additionally, eleven of the

thirty-three seized CDs and DVDs contained child pornographic

images and videos.

6 A-0459-15T4 When Bruccoliere testified how peer-to-peer file sharing

worked, defense counsel objected on the basis that the State had

not offered or qualified him as an expert witness. The judge

noted that defendant admitted in his statement that he

understood how peer-to-peer file sharing worked. Defense

counsel also objected to Bruccoliere's testimony about the

organization of the files, folders, and sub-folders found on the

Acer laptop computer, the labeling of the CDs and DVDs, and

Bruccoliere's testimony about a screen capture of defendant's

computer. The judge cited State v. Doriguzzi,

(App. Div. 2000), for the proposition that "computers

and their functioning as no longer topics that are so esoteric

as beyond the ken of the average person." The judge further

found that Bruccoliere testified as a fact witness concerning

the process by which he examined defendant's Acer laptop

computer, and admitted the challenged testimony.

After the State rested, the trial court denied defendant's

motion for a judgment of acquittal. R. 3:18-1. Defendant's

brother, a retired police officer, testified as a character

witness and described defendant's reputation in the community as

"upstanding, hardworking, and he has good moral character."

Defendant testified he lacked "any in-depth knowledge of

computers." He stated he had a "very basic knowledge" of peer-

7 A-0459-15T4 to-peer file sharing and "knew it was possible" that downloaded

child pornography could be distributed to someone else.

However, he later testified he was not aware of the possibility

of distributing child pornography through his computer, and that

it was never his intention to do so. He acknowledged having

told the police he "downloaded tons of pornography" on his

laptop, and stated his purpose in doing so was to view it for

his own sexual gratification.

At the conclusion of the trial, the judge found that Hudak,

Baggitt, and Bruccoliere "were competent and credible

witnesses." He noted that defendant's "computer had peer-to-

peer file-sharing programs installed" on it, and that

Bruccoliere "testified credibly from his operation and viewing

of the computer that these were programs used to download

pornography during the relevant times." The judge recounted the

explicit nature of the sexual acts and the young ages of the

children depicted in the videos that were played in court and

concluded "there's no question that this is child pornography."

In contrast to the State's witnesses, the judge determined:

"I do not find [defendant] credible. I find him not credible

when he testified that he didn't really consider that others

would obtain the child pornography files from him by way of the

[] peer-to-peer network, the same way that he obtained it from

8 A-0459-15T4 others. I think he did." The judge found defendant "knowingly

use[d] a peer-to-peer system [to] search[] for child

pornography, and he downloaded it to his computer during the

relevant times as alleged. . . . And [] defendant maintained []

some of them[] in his computer in the peer-to-peer system."

Ultimately, the judge concluded that defendant "understood how

peer-to-peer worked and that if [the child pornography] was

available to him, it was available from him through the peer-to-

peer system and through his computer." Based upon the judge's

analysis of the trial proofs, he found defendant guilty of both

charges. This appeal followed.

II.

A.

Defendant first argues that the trial court erred in

allowing Detective Bruccoliere to provide expert testimony at

trial without having been offered or qualified as an expert in

computer forensics. We disagree.

We begin by noting that our standard of review on

evidentiary rulings is abuse of discretion. We only reverse

those that "undermine confidence in the validity of the

conviction or misapply the law[.]" State v. Weaver,

(2014); See also State v. J.A.C.,

(2012). Simply stated, we do "not substitute [our] own judgment

9 A-0459-15T4 for that of the trial court, unless the trial court's ruling is

so wide of the mark that a manifest denial of justice resulted."

.

Witnesses, including police officers, testify in a variety

of roles. A fact witness is one who testifies as to what "he or

she perceived through one or more of the senses." State v.

McLean,

(2011). "Fact testimony has always

consisted of a description of what the officer did and saw[.]"

"Testimony of that type includes no opinion, lay or

expert, and does not convey information about what the officer

'believed,' 'thought' or 'suspected,' but instead is an ordinary

fact-based recitation by a witness with first-hand knowledge."

(citations omitted).

Expert witnesses, however, "explain the implications of

observed behaviors that would otherwise fall outside the

understanding of ordinary people on the jury."

"Expert

testimony is admissible '[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue.'"

State v. Simms,

(2016) (quoting N.J.R.E. 702);

see also State v. Cain,

(2016). "In other

words, to be admissible, expert testimony should 'relate[] to a

relevant subject that is beyond the understanding of the average

10 A-0459-15T4 person of ordinary experience, education, and knowledge.'"

State v. Sowell,

(2013) (alteration in original)

(quoting State v. Odom,

(1989)). If the matter

is "within the competence of the jury, expert testimony is not

needed."

Lay opinion testimony is governed by N.J.R.E. 701, which

permits a witness not testifying as an expert to provide

"testimony in the form of opinions or inferences . . . if it (a)

is rationally based on the perception of the witness and (b)

will assist in understanding the witness' testimony or in

determining a fact in issue." Mclean, supra,

.

"Courts in New Jersey have permitted police officers to testify

as lay witnesses, based on their personal observations and their

long experience in areas where expert testimony might otherwise

be deemed necessary." State v. LaBrutto,

(1989).

Here, Bruccoliere did not testify as an expert or provide

an expert opinion. Rather, he testified as a fact witness about

his forensic investigation of defendant's laptop, and merely

reported what he found, including the presence of videos and

images depicting child pornography, and peer-to-peer software

that allowed others to access the child pornography.

11 A-0459-15T4 Even if Bruccoliere's testimony fell within the scope of

the expert opinion rule because it was specialized knowledge

based on his training and experience, we find any error in its

admission to be harmless. R. 2:10-2. It is clear from

Bruccoliere's testimony that he possessed sufficient education,

training, and experience to qualify as an expert in the field of

computer forensics. Where a witness possesses sufficient

qualifications to have testified as an expert, any error in

allowing the lay opinion may be deemed harmless. State v.

Kittrell,

(App. Div. 1995). Here, as

the trial judge aptly noted, although the State did not identify

Bruccoliere as an expert, it provided the defense with his name,

address, curriculum vitae setting forth his qualifications, and

his forensic report. Accordingly, defendant was not surprised

or prejudiced by Bruccoliere's testimony, and the trial judge

did not abuse his discretion in admitting it.

B.

Defendant next argues that his conviction on Count Two

charging endangering the welfare of a child by distributing

child pornography was against the weight of the evidence.

Specifically, he contends that he simply possessed the child

pornography for private and personal use, and that there is

12 A-0459-15T4 insufficient evidence in the record that he received it with the

purpose of distributing it, or that he did so knowingly.

Our review of a judge's verdict in a non-jury case is

limited. The standard is not whether the verdict was against

the weight of the evidence, but rather "whether there is

sufficient credible evidence in the record to support the

judge's determination." State ex rel. R.V.,

(App. Div. 1995). Moreover, we are obliged to "give

deference to those findings of the trial judge which are

substantially influenced by [the] opportunity to hear and see

the witnesses and to have the 'feel' of the case, which a

reviewing court cannot enjoy." State v. Locurto,

(1999) (quoting State v. Johnson,

(1964)).

"[T]he factual findings of the trial court are binding on

appeal when supported by adequate, substantial, credible

evidence." State ex rel. W.M.,

(App.

Div. 2003). "[W]e do not disturb the factual findings and legal

conclusions of the trial judge unless we are convinced that they

are so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to

offend the interests of justice[.]" Rova Farms Resort, Inc. v.

Investors Ins. Co. of Am.,

(1974) (quoting

Fagliarone v. Twp. of N. Bergen,

(App.

13 A-0459-15T4 Div.), certif. denied,

(1963)). Applying these

standards, we discern no basis for interfering with the judge's

well-developed findings, conclusions, and disposition on these

charges.

At the time of the crimes charged in the indictment,

N.J.S.A. 2C:24-4b(5)(a) provided:

Any person who knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree.²

In State v. Lyons,

(App. Div.

2010), we examined the State's challenge to an order granting

the defendant's motion to dismiss an indictment charging him

"with possessing, offering and distributing child pornography by

use of a peer-to-peer file sharing network on the internet."

The trial judge found the State's evidence did not include proof

² The statute has since been amended by P.L. 2013, c. 136, to clarify that the knowing storage or maintenance of child pornography using a file sharing program does not require proof that the defendant intended to share images or videos of child pornography over the peer-to-peer network.

14 A-0459-15T4 the defendant intended to transfer or distribute the images with

peers on the Gnutella network through his LimeWire shared

folder.

. The trial judge concluded that although

the defendant knew the shared child pornography files "were

accessible to others over the Internet by virtue of being in

such a folder, [his] passive conduct could not be sufficient to

constitute distributing or offering the materials" as used in

N.J.S.A. 2C:24-4b(5)(a).

We disagreed,

,

stating "[i]n the context of this statute, these terms commonly

mean the act by which one person makes known to another that he

or she may have for the taking an item possessed by the

offeror."

. Further, we considered the terms in the

statute in light of the legislative initiatives, concluding

the terms should be construed very broadly. The evidence of what [the] defendant did, while knowing what he knew, is the kind of conduct targeted by these enactments. [The d]efendant used the modern technology of computers and the Internet, with a file sharing network, to provide and offer child pornography he possessed in his shared folder.

[Id. at 262.]

Lyons makes clear, under N.J.S.A. 2C:24-4b(5)(a), the

State's burden is to prove an offer was made; it need not show

actual access to a defendant's shared files occurred.

. In this matter, relying on

A-0459-15T4 Super. at 267-69, the trial judge found that "placing such child

pornography in a file, [] in a searchable, accessible, shared

folder is an offer to distribute such over the file-sharing

network, and a fact finder . . . could reasonably infer that []

defendant knew that he was sharing his downloaded child

pornography files." The judge found it "inescapable that []

defendant would have known . . . [t]hat in his files, in his

default shared folders, with his having downloaded the peer-to-

peer system, that it was available to other people."

Accordingly, the State's evidence sufficiently supported the

offense charged as defendant acted to "offer" his downloaded

child pornographic images and videos by making them available

through peer-to-peer file sharing, thereby allowing others on

the network to access and copy them.

C.

Defendant's final arguments relate to his sentence. He

contends that, because the judge failed to merge the possession

charge with the distribution charge, failed to apply the

appropriate aggravating and mitigating factors, and imposed

consecutive prison terms, the resulting sentence was excessive.

We agree, and remand for the court to merge the two offenses and

re-sentence defendant without consideration of aggravating

factor one, N.J.S.A. 2C:44-1(a)(1).

16 A-0459-15T4 At defendant's sentencing hearing, the court found

aggravating factors one, the nature and circumstances of the

offense; two, the gravity of harm to the victim (N.J.S.A. 2C:44-

1(a)(2)); three, the risk defendant will commit another offense

(N.J.S.A. 2C:44-1(a)(3)); and nine, the need for deterrence

(N.J.S.A. 2C:44-1(a)(9)). The court also found mitigating

factor seven, no prior criminal history (N.J.S.A. 2C:44-

1(b)(7)).

With respect to aggravating factor one, the judge

elaborated: "These are numerous, numerous children, infants,

very young children in these cases who are portrayed. Not just

portrayed, they were photographed. They were caused to engage

in these sexual activities . . . . [T]hey were all quite young,

quite, quite young." The judge then went on to carefully, and

correctly, analyze and apply each of the remaining aggravating

and mitigating factors advanced by the parties.

We review sentencing determinations for abuse of

discretion. State v. Robinson,

(2014) (citing

State v. Roth,

(1984)). For each degree of

crime, N.J.S.A. 2C:43-6(a) sets forth "sentences within the

maximum and minimum range[.]"

. The

sentencing court must "undertake[] an examination and weighing

of the aggravating and mitigating factors listed in [N.J.S.A.]

17 A-0459-15T4 2C:44-1(a) and (b)." Ibid.; State v. Kruse,

(1987). "'[W]hen the mitigating factors preponderate, sentences

will tend toward the lower end of the range, and when the

aggravating factors preponderate, sentences will tend toward the

higher end of the range.'" State v. Fuentes,

(2014) (quoting State v. Natale,

(2005)).

Furthermore, "[e]ach factor found by the trial court to be

relevant must be supported by 'competent, reasonably credible

evidence'" in the record.

at 72 (quoting

).

We accord deference to the sentencing court's

determination.

(citing State v.

O'Donnell,

(1989)). We must affirm

defendant's sentence unless

(1) the 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

- 65).]

We will remand for resentencing if the sentencing court fails to

provide a qualitative analysis of the relevant sentencing

factors,

(citing

), or if it

18 A-0459-15T4 considers an inappropriate aggravating factor.

(citing

State v. Pineda,

(1990)).

Aggravating factor one requires consideration of "[t]he

nature and circumstances of the offense, and the role of the

actor therein, including whether or not it was committed in an

especially heinous, cruel, or depraved manner[.]" N.J.S.A.

2C:44-1(a)(1). When assessing whether this factor applies, "the

sentencing court reviews the severity of the defendant's crime,

'the single most important factor in the sentencing process,'

assessing the degree to which defendant's conduct has threatened

the safety of its direct victims and the public." State v.

Lawless,

(2013) (quoting State v. Hodge,

(1984)). The court may also consider

"'aggravating facts showing that [a] defendant's behavior

extended to the extreme reaches of the prohibited behavior.'"

(quoting State v. Henry,

(Law Div. 2010)). In determining whether a

defendant's conduct was "'especially heinous, cruel, or

depraved,' a sentencing court must scrupulously avoid 'double-

counting' facts that establish the elements of the relevant

offense." Id. at 74-75; see also State v. Yarbough,

(1985).

19 A-0459-15T4 We conclude that, in applying aggravating factor one, the

court engaged in impermissible double-counting. By its nature,

child pornography inherently is especially heinous, cruel and

depraved, and defendant's possession and distribution of it in

this case was no different. Since the court erred in finding

aggravating factor one, we remand for reconsideration of

defendant's sentence in the absence of that aggravating factor.

Turning to the merger issue, the doctrine of merger is

based on the well-established concept that "an accused [who]

committed only one offense . . . cannot be punished as if for

two." State v. Davis,

(1975). "When the same

conduct of a defendant may establish the commission of more than

one offense, the defendant may be prosecuted for each such

offense." N.J.S.A. 2C:1-8a. However, merger is required when

one offense is a lesser-included offense of another and "[i]t is

established by proof of the same or less than all the facts

required to establish the commission of the offense charged."

N.J.S.A. 2C:1-8d.

The standard for merger of offenses as required by N.J.S.A.

2C:1-8 has been characterized as "mechanical." State v.

Truglia,

(1984). Consequently, courts are to

apply the standard articulated in Davis as the "preferred and

20 A-0459-15T4 more flexible standard." State v. Diaz,

(1996). It requires

analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.

[Davis, supra,

.]

Applying these well-settled standards, we conclude that,

under the specific facts presented, defendant's convictions for

fourth-degree possession of child pornography and second-degree

distribution of child pornography merge. Here, the crimes were

reasonably proximate in time and place, and defendant's use of

the file sharing programs was a necessary ingredient and

integral part of both his possession of the child pornography

and the means by which he made it accessible to others.

Defendant's conviction is affirmed. We remand for the

court to resentence defendant without consideration of

aggravating factor one, and to merge Count One with Count Two.

21 A-0459-15T4