Criminal Expert Witnesses, Child Pornography Distribution, and the Doctrine of Merger

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.
14-2-2945 State v. Michael D. Miller, N.J. Super. App. Div. (Carroll, J.A.D.) (21pp)
New Jersey’s Appellate Division has recently decided a case in which defendant was charged and convicted of 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). Defendant was sentenced to a seven-year jail term on Count Two, and a consecutive one-year jail term on Count One. Defendant appealed on three arguments.
The first argument was 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.
During Defendant’s bench trial, Detective Richard Bruccoliere performed the forensic analysis of the Acer laptop computer and other seized items. Bruccoliere was assigned to the Monmouth County 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. The Trial Judge ruled that Bruccoliere testified credibly from his operation and viewing of the computer that peer-to-peer file sharing programs were used to download pornography during the relevant times.
Defense counsel objected to Bruccoliere’s testimony since he was not recognized as an expert witness by the court prior to him testifying. In addition, the state did not attempt to qualify the detective as an expert in this specific field prior to him testifying about the results of his search on the defendant’s computer. However, the trial judge ruled and the Appellate Court agreed that Bruccoliere did not testify as an expert, rather he testified as a fact witness about his forensic investigation. But even if Bruccoliere’s testimony fell within the scope of an expert opinion, the Court found no error in its admission to be harmless because where a witness possesses sufficient qualifications to have testified as an expert, any error in allowing the lay opinion may be deemed harmless.
Defendant next argued that his conviction on Count Two charging endangering the welfare of a child by distributing child pornography was against the weight of the evidence. 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. 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 Appellate Court agreed with the trial judge. The key to this Ruling is the argument that the defendant had not in fact “shared” any files. All of these “peer-to-peer” file sharing programs allow the user so users of the program to click a button that allows for ‘automatic’ or ‘manual’ sharing of files. Under the 2014 change in the law, the distinction of whether that option has been used or not does not matter. The judge here and the appellate court ruled that because the files were in the shared folder then the defendant had the requisite intent and ‘knew’ or ‘should have known’ of the desire to share the files!
Defendant’s final arguments relate to his sentence. He contended 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.
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.” “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.”
At defendant’s sentencing hearing, the court found aggravating factors one, the nature and circumstances of the offense 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.
Defendant’s convictions for fourth-degree possession of child pornography and second-degree distribution of child pornography merge. Here, the Court ruled 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.