STATE OF NEW JERSEY v. ROBERT SISCO

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT SISCO,

Defendant-Appellant.

__________________________

January 29, 2014

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-10-1818.

Joseph P. Rem, Jr., argued the cause for appellant (Rem Zeller Law Group, attorneys; Mr. Rem, of counsel; James B. Seplowitz, on the brief).

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).

PER CURIAM

A Bergen County grand jury indicted defendant Robert Sisco on three counts of fourth-degree violating the conditions of community supervision for life (CSL), N.J.S.A. 2C:43-6.4d, by failing to refrain from: "initiating, establishing or maintaining contact with any minor" (count one); "attempting to initiate, establish or maintain contact with any minor" (count two); and "possessing and/or using any computer and/or device that permits access to the internet" (count three).1 The grand jury also indicted defendant for second-degree official misconduct for "using public resources during business hours to further his illicit contact with others including minors," N.J.S.A. 2C:30-2 (count five). Defendant entered a conditional guilty plea to count one following the denial of his motions to dismiss the indictment, change venue, and preclude certain evidence relating to the official misconduct charge. He was sentenced to an eighteen-month term of imprisonment.2

On appeal, defendant raises the following contentions:

I. THE TRIAL COURT ERRED WHEN IT DENIED [DEFENDANT'S] MOTION TO DISMISS THE FIRST, SECOND AND FIFTH COUNTS OF THE INDICTMENT BECAUSE THE STATE FAILED TO PRESENT EVIDENCE TO THE GRAND JURY THAT [DEFENDANT] HAD CONTACTED MINORS AS DEFINED IN THE CRIMINAL CODE.

II. THE TRIAL COURT ERRED WHEN IT DENIED [DEFENDANT'S] MOTION TO DISMISS THE THIRD COUNT OF THE INDICTMENT BECAUSE THE STATE FAILED TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY.

III. [DEFENDANT'S] MOTION FOR A CHANGE OF VENUE SHOULD HAVE BEEN GRANTED BECAUSE THE ALLEGED OFFENSES OCCURRED EXCLUSIVELY IN HUDSON COUNTY.

IV. THE TRIAL COURT ERRED WHEN IT DENIED [DEFENDANT'S] MOTION IN LIMINE TO PRECLUDE EVIDENCE THAT [DEFENDANT] CORRESPONDED WITH A TEENAGER FROM HIS TRIAL ON THE OFFICIAL MISCONDUCT CHARGE BECAUSE THE LIMITED PROBATIVE VALUE OF THIS EVIDENCE WAS SEVERELY OUTWEIGHED BY ITS PREJUDICE.

We reject these contentions and affirm.

We derive the following facts from the record. In 2003, defendant pled guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The charge stemmed from defendant's sexually-explicit internet communications with a fourteen-year-old girl and his attempt to meet her in person. Defendant was sentenced to a five-year probationary term, conditioned upon serving 364 days in the Bergen County jail, and CSL.

After completing his probationary term, on September 8, 2008, defendant agreed to conditions of his CSL, including refraining from: (1) "initiating, establishing or maintaining contact with any minor;" (2) "attempting to initiate, establish, or maintain contact with any minor;" and (3) "using any computer to create any social networking profile or to access any social networking service or chat room . . . in [his] own name or any other name for any reason unless expressly authorized by the District Parole Supervisor." Defendant's parole and CSL conditions were supervised by a Bergen County parole officer. Defendant repeatedly reported to the officer that he had not used any computer or violated his CSL conditions.

Defendant worked in New Jersey Transit's Hoboken office. From November 2 through 10, 2009, he used his workplace email address and computer during working hours to send thousands of emails to females ranging from age twelve to middle-age.3 Defendant engaged in "chats" with numerous minors who responded to his emails, including a girl who advised him she was sixteen years old. Despite knowing the girl's age, defendant continued communicating with her and asked her to send him photographs of herself. The girl sent him photographs, including a semi-nude photograph exposing her vaginal area.

Defendant was thereafter arrested and apprised of his Miranda4 rights. In a February 8, 2010 written statement, he admitted he was under CSL supervision, was "not allowed to use the internet", used his workplace email address to contact women, and knew some of the women he contacted were minors. Defendant agreed to additional CSL conditions, including refraining "from accessing the Internet from any computer and/or device at anytime or for any reasons."5

I.

Defendant filed a motion to dismiss counts one, two and five, contending the State failed to show he had contact with "minors". He argued that a sixteen-year-old was not a minor according to the definition of "child" contained in the version of N.J.S.A. 2C:24-4b(1) in effect in 2003.6 He also argued that sixteen is the age of consent under N.J.S.A. 2C:14-2, and neither his CSL conditions nor N.J.S.A. 2C:43-6.4 defined the word "minor." Because the Criminal Code did not specifically define "minor", the motion judge consulted non-criminal statutes and determined that the word's plain and ordinary meaning was a person under eighteen years of age. We find no fault with this decision.

The State must present the grand jury with sufficient evidence to support each charge presented. State v. Morrison, 188 N.J. 2, 12 (2006). "Once the grand jury has acted, an indictment should be disturbed only on the clearest and plainest ground and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (internal citations and quotation marks omitted).

A motion to dismiss an indictment is addressed to the sound discretion of the trial court and will be reversed only for an abuse of discretion. Id. at 229. The trial court must determine whether "viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it." Morrison, supra, 188 N.J. at 13. We owe no deference to the trial court's discretionary decision based on statutory interpretation, and review the matter de novo. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). We must ensure there is no manifest denial of justice, and decide the controversy in the proper light of the applicable law. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966).

Although defendant was convicted of endangering the welfare of a "child," his initial CSL conditions specifically prohibited him from "initiating, establishing or maintaining contact with any minor" and "attempting to initiate, establish, or maintain contact with any minor." Defendant was, therefore, on notice that the proscribed conduct was contact with a "minor," not a "child." The Criminal Code does not specifically define "minor". Thus, the judge was correct to consult other statutes to determine the word's plain and ordinary meaning. See Marino v. Marino, 200 N.J. 315, 329 (2009) (noting that "if the plain language of a statute is not clear or if it is susceptible to more than one possible meaning or interpretation, courts may look to extrinsic secondary sources to serve as their guide"). Other statutes refer to a "minor" as a person under eighteen years of age. See e.g., N.J.S.A. 2C:25-19(e) (relating to minors in domestic violence matters); N.J.S.A. 2C:34-3b(1)-(2) (relating to selling or distributing obscenities to persons under eighteen years of age); N.J.S.A. 2C:39-9.2 (relating to the sale of handcuffs to minors); N.J.S.A. 2C:40-21 (relating to minors engaging in body piercing or tattoos without parental consent); N.J.S.A. 3B:1-2 (relating to minors and intestacy); N.J.S.A. 9:6-8.21c (relating to abused and neglected minor children); N.J.S.A. 9:6-8.23 (relating to minors represented by law guardians). These statutes cumulatively demonstrate that, contrary to defendant's argument, the term "minor" is ordinarily understood to mean a person less than eighteen years old. Accordingly, the motion judge properly denied defendant's motion to dismiss counts one, two, and five of the indictment.

II.

Defendant filed a motion to dismiss count three charging him with violating the additional CSL condition by "failing to refrain from possessing and/or using any computer and/or device that permits access to the internet." He argued that the prosecutor failed to present exculpatory evidence to the grand jury, specifically that this condition was imposed post-arrest. This argument lacks merit.

The motion judge found, and we agree, that this additional CSL condition was not exculpatory evidence. The initial CSL conditions prohibited defendant from "initiating, establishing or maintaining contact with any minor" and from "using any computer to create any social networking profile or to access any social networking service or chat room . . . in [his] own name or any other name." Defendant's post-arrest written statement confirmed that he was well-aware the initial CSL conditions prohibited him from accessing the internet. In any event, the initial CSL conditions were clearly broad enough to prohibit defendant from contacting minors by any means whatsoever, including contact via the internet. Accordingly, the motion to dismiss counts one, two and five was properly denied.

III.

Defendant filed a motion to change venue to Hudson County, arguing the alleged offenses occurred in Hoboken and there was no significant nexus to Bergen County.7 The motion judge denied the motion, finding that the underlying crime for which defendant was sentenced to CSL occurred in Bergen County, defendant was placed on parole in Bergen County, and the court had statewide jurisdiction. We review this decision under an abuse-of-discretion standard. State v. Collins, 2 N.J. 406, 411 (1949). We discern no abuse of discretion here.

Rule 3:14-1 provides:

An offense shall be prosecuted in the county in which it was committed, except that

If it is uncertain in which one of 2 or more counties the offense has been committed or if an offense is committed in several counties prosecution may be had in any of such counties.

[R. 3:14-1(a).]

Questions relating to venue have generally been regarded as "a mere matter of practice and procedure." State v. Greco, 29 N.J. 94, 104 (1959) (internal citations and quotation marks omitted). Venue is neither jurisdictional nor constitutional in dimension, and thus the improper laying of venue is considered a mere technical defect required to be raised by a pretrial motion. Id. at 104-05.

Crimes are offenses against the State rather than a territorial subdivision of it, and the Superior Court has "original general jurisdiction throughout the State in all causes." N.J. Const., art. VI, III, 2. The Superior Court has original general jurisdiction throughout the State in all causes, ibid., and but for the exceptions listed in Rule 3:14-1, venue in every case can be laid in any county.

Here, defendant sent emails to females from his workplace computer located in Hudson County. These acts were not crimes in and of themselves; rather, they were violations of defendant's CSL conditions. The CSL conditions were established in Bergen County and supervised by a Bergen County parole officer. Moreover, defendant lived in Bergen County, and the original crime for which he was sentenced to CSL occurred there. Thus, there was a sufficient nexus between Bergen County and the charges in the indictment. Although the connection between Bergen County and the official misconduct charge is slightly more attenuated, this is no reason to overturn the motion judge's decision to deny a change in venue.

IV.

Defendant filed a motion to sever the official misconduct charge. The motion judge granted the motion, but ordered a separate trial before the same jury. Defendant then filed a motion to preclude the State from presenting evidence of his contact with a sixteen-year-old girl. He argued this evidence was prejudicial, and not necessary to prove the official misconduct charge because there was other non-prejudicial evidence the State could present. The motion judge denied the motion, finding the evidence had probative value to prove the charge.

We review a trial court's evidentiary determinations, including decisions to exclude otherwise admissible evidence under specified circumstances pursuant to N.J.R.E. 403, under an abuse-of-discretion standard. State v. Buda, 195 N.J. 278, 294 (2008); State v. Erazo, 126 N.J. 112, 131 (1991). It is of course well-established that "[t]raditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998).

Count five of the indictment charged defendant with official misconduct for "using public resources during business hours to further his illicit contact with others including minors." (Emphasis added.) Thus, the sixteen-year-old girl's age was probative and necessary to prove an element of the official misconduct charge. Defendant's argument to the contrary lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

1 The grand jury also indicted defendant on a fourth count of fourth-degree violating the conditions of CSL by "failing to refrain from using any computer and/or device to create any social networking profile or access any social networking or chat room in his name or any other name for any reason" (count four). The State subsequently dismissed that count.

2 The trial court granted bail and stayed defendant's sentence pending appeal.

3 Some of the emails were converted into text messages that appeared on the recipients' cellphones.

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

5 The additional CSL conditions also included monitoring defendant's computer use and prohibiting his use of email addresses and text messaging on any cellphone.

6 N.J.S.A. 2C:24-4b(1) was amended, effective July 1, 2013, to define the word "child" as "any person under [eighteen] years of age."

7 The matter was originally presented to the Hudson County prosecutor, who declined to pursue charges against defendant.