STATE OF NEW JERSEY v. JASON S. KOKINDA

NOT FOR PUBLICATION WITHOUT THE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-2440-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JASON S. KOKINDA,

     Defendant-Appellant.
_________________________________

              Submitted January 30, 2018 – Decided February 13, 2018

              Before Judges Leone and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              08-09-1432.

              Jason S. Kokinda, appellant pro se.

              Dennis Calo, Acting Bergen County Prosecutor,
              attorney for respondent (Annmarie Cozzi,
              Special Deputy Attorney General/Acting Senior
              Assistant Prosecutor, of counsel and on the
              Letter Brief).

PER CURIAM

        Defendant     Jason    Kokinda    was    indicted     on   second-degree

endangering the welfare of a child by transmitting a picture

depicting child exploitation or abuse, contrary to 
N.J.S.A. 2C:24-
4(b)(5)(A).     He subsequently pled guilty, and pursuant to his plea

agreement, was sentenced to three years in prison and required to

comply with Megan's law.       Defendant filed no direct appeal, but

filed a petition for post-conviction relief (PCR), which the court

dismissed without prejudice because defendant was incarcerated in

Pennsylvania on related charges.        Once defendant was released in

2016, he re-filed his PCR petition, which was denied on August 10,

2016.   Defendant appeals from this order.

      The underlying facts are as follows.       In 2007, members of the

Bergen County Prosecutor's Office and the Computer Crimes Task

Force (CCTF) were conducting undercover investigations of sexual

predators in internet chat rooms.         On January 27, 2007, a member

of the CCTF entered a chat room posing as a mother of two young

children.      A user, subsequently determined to be defendant, began

a   sexually    explicit   conversation   with   the   CCTF   investigator

regarding sexual relations with children ages fifteen and nine.

      The same day, and pursuant to the earlier online chat,

defendant emailed the investigator stating "here's some pics."

The email contained two photographs. The first photograph depicted

a naked prepubescent girl posing for the camera.               The second

photograph depicted a child less than six years old laying on her

back and exposing her vagina to the photographer.             As a result,

defendant was arrested and charged with endangering the welfare

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of a child by transmitting child pornography via the internet.

Defendant's plea and sentencing followed.

       In his PCR petition, defendant argued he was engaged in role

play    and    should    not    have    been   prosecuted     for     his      chat

communications.         However, the PCR judge correctly pointed out

defendant     was   charged    with    transmitting    two   images   of     child

exploitation     to   the   investigator,      which   met   the   elements       of


N.J.S.A. 2C:24-4(b)(5)(a), namely, "[a] person commits a crime of

the second degree if, by any means, including but not limited to

the Internet, he: (i) knowingly distributes an item depicting the

sexual exploitation or abuse of a child[.]"

       The PCR judge stated

              [defendant] was not charged for his chat
              communications.     However, when viewing the
              totality of the circumstances including the
              chat    room    that    petitioner  was    in,
              communications sent from petitioner to [the
              investigator] in that chat room, and the
              context and nature of the pictures themselves
              it is apparent that the images depict children
              under the age of [sixteen], and both images
              depicted the sexual exploitation or abuse of
              a child.     Further, as petitioner knowingly
              possessed and distributed these images, the
              elements of [N.J.S.A. 2C:24-4(b)(5)(a)] are
              clearly satisfied.

       On appeal, defendant argues he was a victim of a conspiracy

in violation of the Racketeer Influenced and Corrupt Organizations

Act (RICO), 
N.J.S.A. 2C:41-1 to -6.2, which renders his plea


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invalid. Defendant re-asserts the claim that he was merely engaged

in fantasy role play and should not have been prosecuted for the

statements he made to the investigator.

     The PCR process affords an adjudged criminal defendant a

"last chance to challenge the 'fairness and reliability of a

criminal verdict . . . .'"    State v. Nash, 
212 N.J. 518, 540 (2013)

(quoting State v. Feaster, 
184 N.J. 235, 249 (2005)); see also

Rule 3:22-1.   As to our standard of review, "where the [PCR] court

does not hold an evidentiary hearing, we may exercise de novo

review over the factual inferences the trial court has drawn from

the documentary record."     State v. O'Donnell, 
435 N.J. Super. 351,

373 (App. Div. 2014).

     A petition for PCR may be granted upon the following grounds:

          (a)   Substantial denial in the conviction
          proceedings of defendant's rights under the
          Constitution of the United States or the
          Constitution or laws of the State of New
          Jersey;

          (b)   Lack of jurisdiction of the court to
          impose the judgment rendered upon defendant's
          conviction;

          (c) Imposition of sentence in excess of or
          otherwise not in accordance with the sentence
          authorized by law if raised together with
          other grounds cognizable under paragraph (a),
          (b), or (d) of this rule. Otherwise a claim
          alleging the imposition of sentence in excess
          of or otherwise not in accordance with the
          sentence authorized by law shall be filed
          pursuant to R[ule] 3:21-10(b)(5).

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            (d)   Any    ground heretofore available as a
            basis for   collateral attack upon a conviction
            by habeas    corpus or any other common-law or
            statutory   remedy.

            [R. 3:22-2.]

       "Post-conviction relief is neither a substitute for direct

appeal, R[ule] 3:22-3, nor an opportunity to relitigate cases

already decided on the merits, R[ule] 3:22-5."        State v. Preciose,


129 N.J. 451, 459 (1992).       Rule 3:22-10(b) states a defendant is

only   entitled   to   an   evidentiary   hearing   where   the   defendant

demonstrates a prima facie case in support of post-conviction

relief by showing "a reasonable likelihood that his or her claim,

viewing the facts alleged in the light most favorable to the

defendant, will ultimately succeed on the merits."

       At the outset, we note defendant did not raise his RICO claims

before the PCR court, and has not explained why he did not do so.

Defendant also has not offered an explanation as to how barring

him from doing so would result in a fundamental injustice, or a

constitutional violation.        "[A]ppellate courts will decline to

consider questions or issues not properly presented to the trial

court when an opportunity for such a presentation is available

'unless the questions so raised on appeal go to the jurisdiction

of the trial court or concern matters of great public interest.'"

Nieder v. Royal Indem. Ins. Co., 
62 N.J. 229, 234 (1973) (quoting

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Reynolds Offset Co., Inc. v. Summer, 
58 N.J. Super. 542, 548 (App.

Div. 1959)).     For these reasons, we do not consider defendant's

RICO claim.

     Lastly, defendant cannot obtain relief by contending he was

engaged   in   "fantasy   age-oriented      role-playing"   when   he   was

communicating with the investigator as a grounds for PCR relief.

Defendant misapprehends the charges against him.        As the PCR judge

noted, defendant

           was not charged, nor did [defendant] plead
           guilty to being in a chat room or [for] any
           of his communications with the undercover
           officer [who] was pretending to be a mother
           to a young child.    Rather, [defendant] was
           prosecuted because he transmitted two images
           of child exploitation to the undercover
           officer in an email message on January 27,
           2007.

     Defendant's    transmission       of   two   photographs      to   the

investigator clearly established the elements of 
N.J.S.A. 2C:24-

4(b)(5)(a).    There is no dispute the photographs depicted sexually

explicit images of underage children.             Likewise, no credible

argument can refute that the act of transmitting the photos met

the mens rea requirement of the statute.             For these reasons,

viewing the facts in a light most favorable to defendant, he failed

to demonstrate a prima facie showing of success on the merits of

his PCR petition.

     Affirmed.

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