State of New Jersey v. Daniel A. Borjas

94 A.3d 319, 436 N.J. Super. 375

• Court: New Jersey Superior Court Appellate Division
• Decided: July 8, 2014
• Docket: A-6292-11
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6292-11T2

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, July 8, 2014

v. APPELLATE DIVISION

DANIEL A. BORJAS,

Defendant-Appellant. ___________________________________

Argued April 29, 2014 - Decided July 8, 2014

Before Judges Messano, Sabatino and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-02-0314.

Karen Nazaire, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Nazaire, of counsel and on the brief).

Ian C. Kennedy, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Kenneth A. Burden, Deputy Attorney General, of counsel and on the brief).

The opinion of the court was delivered by

SABATINO, J.A.D.

This appeal concerns the constitutionality of certain

provisions within N.J.S.A. 2C:21-2.1, a criminal statute that enumerates various offenses involving false governmental

documents. After a jury trial, defendant Daniel A. Borjas was

found guilty of three counts of knowingly making false

governmental documents, which are second-degree offenses

proscribed by N.J.S.A. 2C:21-2.1(b). The jury also found

defendant guilty of four counts of knowingly possessing false

governmental documents, which are fourth-degree offenses

proscribed by N.J.S.A. 2C:21-2.1(d). The false documents in

question were created or stored in hard drives of computers at

defendant's residence, and were discovered by law enforcement

officers pursuant to a search warrant.

On appeal, defendant contends that these provisions in

subsections (b) and (d) of N.J.S.A. 2C:21-2.1 are

unconstitutional, both on their face and as applied to the

circumstances in this case. Among other things, he claims that

these statutes are void for vagueness, and also overbroad in

that they allegedly disallow substantial amounts of

constitutionally-protected expression. He further argues that

he was deprived of a fair trial by the manner in which the trial

judge defined the statutory term "document" for the jurors.

Lastly, defendant claims that his flat custodial sentence of

seventy-eight months is excessive.

2 A-6292-11T2 For the reasons that follow, we sustain the trial court's

rejection of defendant's constitutional challenges. The

statutory provisions underlying his conviction are neither

overbroad nor void for vagueness, either on their face or as

applied to the facts in this case. We do not, however,

foreclose future as-applied challenges to the statute by

artists, students, or other persons who may use or store

computer documents or images for benign purposes not designed to

"falsely purport" that those documents or images are authentic

governmental records.

We further conclude that the trial judge's instruction to

the jury defining the meaning of the term "document" to

encompass electronically-stored information was appropriate. We

are also satisfied that defendant's sentence does not reflect

any abuse of discretion. We therefore affirm his convictions

and his sentence in all respects.

I.

The two portions of N.J.S.A. 2C:21-2.1 at issue in this

case, specifically subsections (b) and (d), currently read as

follows:

b. A person who knowingly makes, or possesses devices or materials to make, a document or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used

3 A-6292-11T2 as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the second degree.

. . . .

d. A person who knowingly possesses a document or other writing which falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age or any other personal identifying information is guilty of a crime of the fourth degree. . . .

[N.J.S.A. 2C:21-2.1 (emphasis added).]

The indictment against defendant charging numerous

violations of these false document provisions stemmed from a

search of his apartment on April 16, 2009. That morning,

several officers from the Bergen County Prosecutor's Office

executed a search warrant at defendant's residence, initially on

a belief that he had possessed or distributed child pornography.

Pursuant to that warrant, the officers seized various electronic

devices and other related items from the apartment. In

particular, they recovered three computers, six hard drives,

several DVDs, several CDs, a Blackberry phone, and an internet

utility bill.

The seized hard drives contained computer files that

included the following: (1) an image of a New Jersey driver's

4 A-6292-11T2 license in the name of "L.C."1 bearing a photograph of defendant;

(2) an image of a New Jersey driver's license in the name of

"M.P." bearing a photograph of defendant; (3) an image of a New

Jersey driver's license in the name of "M.P." bearing a

photograph of an unidentified individual; (4) an image of a

Social Security card in the name of "L.C."; and (5) an image of

a Social Security card in the name of "M.P." The officers also

discovered a Microsoft Word document stored on the hard drive,

which contained personal identifying information for M.P.

A Bergen County grand jury subsequently indicted defendant

and charged him with second-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(b)(5)(a) (Count One); fourth-degree

possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b)

(Count Two); second-degree knowingly making, or knowingly

possessing materials or devices2 to make, a false government

document, N.J.S.A. 2C:21-2.1(b) (Counts Three, Four, Five, and

Six); and fourth-degree knowingly possessing a false government

document, N.J.S.A. 2C:21-2.1(d) (Counts Seven, Eight, Nine, and

1 To protect the privacy of L.C. and M.P., we use initials for their names. Because L.C. was never located by the State, it is unclear whether he is an actual person. 2 The State amended the indictment before trial to omit from Counts Three through Six the allegations that defendant illegally possessed "devices or materials to make" false governmental documents.

5 A-6292-11T2 Ten). Counts One and Two concerning the child-related

allegations were dismissed before trial.

Several days prior to trial, the court denied defendant's

motion to dismiss the indictment based on claims of

unconstitutionality and insufficiency of the evidence. The

judge issued an oral opinion, concluding that the indictment was

supported by sufficient prima facie evidence, including proof

that the images and files stored on defendant's computer

comprised incriminating "documents" within the meaning of the

statute. The judge also implicitly rejected defendant's claims

of unconstitutionality.

At the two-day jury trial in February 2012, the State

presented four witnesses: Detective Kelly Krenn from the Bergen

County Prosecutor's Office, who was one of the officers who

executed the search warrant of defendant's apartment; Daniel

Andriulli, a forensic analyst; Sharon Malone, a detective

lieutenant from the Prosecutor's Office computer crimes unit;

and M.P., one of the two persons identified on the files that

the officers found in defendant's computer. Defendant did not

testify, nor did he call any witnesses on his behalf.

Detective Krenn described in her testimony the search of

defendant's apartment and the officers' seizure of the

electronic devices. The seized items were secured in Krenn's

6 A-6292-11T2 patrol car, and were then later handed over to Lieutenant

Malone. Krenn acknowledged on cross-examination that the

officers had not seized from defendant's apartment any printers,

laminating machines, driver's licenses in physical form, or

Social Security cards.

Andriulli, the State's forensic witness, described the

contents of the seized computer hardware and software. He

explained that the computer from which the files had been found

only contained one user account, which belonged to defendant.

He stated that the computer image files were found on the

computer's Windows desktop, in a file folder labeled "Adobe

Photoshop CS 8.0."3 Information retrieved from those computer

files indicated that they had been created on March 6, 2006, and

that, before the seizure, one of the files was last accessed on

December 25, 2006.

Andriulli explained that the computer files appeared to be

altered because the images contained a different color behind

the text than the color behind the spots without text. In his

experience, such color differences signified that portions of

the image were not part of the original image. On cross-

examination, Andriulli acknowledged that he had not seen any

physical printouts of the images found on defendant's computer.

3 Adobe Photoshop is a type of image editing software.

7 A-6292-11T2 Malone testified about her efforts in identifying L.C. and

M.P., the two persons who had been referred to in defendant's

computer files. Malone was able to locate M.P., but could not

find or verify the existence of an individual named L.C. Malone

also noted that defendant's driving privileges had been

suspended from March through October 2006, and again from

November through December 2006.

Finally, the State called M.P. to the stand, who verified

his current address and Social Security number. His identifying

information matched the information for him shown in defendant's

stored images.

The jury found defendant guilty on Counts Three, Five, Six,

Seven, Eight, Nine, and Ten, but not guilty on Count Four. At

sentencing, the trial judge imposed a flat seventy-eight-month

custodial term concurrently on Counts Three, Five, and Six. In

addition, the judge imposed a six-month term on each of

defendant's convictions on Counts Seven through Ten, to be

served concurrently with each other, and with the convictions on

the other counts.

In his brief on appeal, defendant mainly contends that

N.J.S.A. 2C:21.2.1(b) and (d) are unconstitutional on their

face, and as applied to him in these factual circumstances. He

specifically raises the following points for our consideration:

8 A-6292-11T2 POINT I

N.J.S.A. 2C:21-2.1 IS OVERBROAD, IMPERMISSIBLY VAGUE, AND FACIALLY UNCONSTITUTIONAL. THEREFORE, [DEFENDANT'S] CONVICTIONS MUST BE VACATED.

A. N.J.S.A. 2C:21-2.1 Is Unconstitutionally Vague Because It Fails To Provide Adequate Notice Of Prohibited Conduct And Likewise Fails To Provide The State With Guidelines For Enforcement, Leading To Arbitrary Results.

B. N.J.S.A. 2C:21-2.1 Is Unconstitutionally Overbroad Because It Unnecessarily And Impermissibly Restricts Protected Speech By Failing To Include A Specific Intent Requirement.

POINT II

THE TRIAL COURT'S INSTRUCTIONS TO THE JURY ON THE DEFINITION OF A "DOCUMENT" DIRECTED THE JURY'S VERDICT ON AN ESSENTIAL ELEMENT OF THE CRIME AND THUS DENIED DEFENDANT THE RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW. U.S. CONST., AMEND. V, VI AND XIV, N.J. CONST. (1947), ART[.] 1, PAR. 1.

POINT III

THE SENTENCE IMPOSED WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.

II.

N.J.S.A. 2C:21-2.1 was originally adopted by the

Legislature and added to the Criminal Code in 1983. The statute

has been amended several times. One of the original purposes of

9 A-6292-11T2 the statute was "to prevent the sale of identification cards to

be used by underage purchasers of alcoholic beverages." Cannel,

New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:21-

2.1 (2013). However, the statute is worded more broadly, so as

to encompass other forms of governmental documents that can be

used for identification. Ibid.

As initially enacted, N.J.S.A. 2C:21-2.1 contained only one

section, which made the sale of a false government document a

disorderly persons offense:

A person who "knowingly" sells, offers or exposes for sale a document, printed form or other writing which simulates a driver['s] license or other document issued by a governmental agency and which could be used as a means of verifying a person's identity or age is guilty of a disorderly persons offense.

[L. 1983, c. 565.]

The statute was amended in 1999, around the same time that

driver's licenses were revamped in New Jersey to include new

personal identifying information in the form of, among other

things, a digitized photograph and signature, a bar code, and a

magnetic strip.4 The Legislature strengthened N.J.S.A. 2C:21-2.1

in response to public concerns that the more detailed personal

4 See News Release, Office of the Governor (Feb. 25, 1999), available at http://www.state.nj.us/transportation/about/press/ 1999/022699.shtm.

10 A-6292-11T2 information stored on the new driver's licenses posed a greater

risk for identity fraud and might greatly compromise privacy.

See Statement to Assembly Bill No. 2623 (Nov. 9, 1998).

The 1999 amendment was aimed at prohibiting, "to the

greatest extent possible," materials that are commonly used for,

or in, the manufacturing of such licenses from "any alteration,

delamination, duplication, counterfeiting, photographing,

forging, or other modification." Ibid. The 1999 amendment also

enhanced the severity of certain violations of N.J.S.A. 2C:21-

2.1, upgrading them from a disorderly persons offense to a

third-degree offense. It further added three new subsections,

including subsections (b) and (d) that are now at issue in this

case.

The statute was amended again in 2002 to broaden the scope

of its privacy protections, by inserting and broadly defining

the term "personal identifying information." L. 2002, c. 85. A

year later in 2003, the Legislature further stiffened the

penalties under the statute, by elevating violations of

subsections (a) and (b) to second-degree offenses, violations of

subsection (c) from fourth-degree to third-degree offenses, and

violations of subsection (d) from disorderly persons offenses to

fourth-degree offenses. L. 2003, c. 184.

11 A-6292-11T2 Through its most recent amendment of N.J.S.A. 2C:21-2.1 in

2005, the Legislature expanded the class of documents covered by

the statute to specifically include birth certificates, in

addition to driver's licenses. L. 2005, c. 224.

Only two published cases have construed N.J.S.A. 2C:21-2.1,

neither of which addressed the statute's constitutionality.5 The

arguments of unconstitutionality raised here by defendant are

questions of first impression. We review those questions de

novo because they concern issues of law. State v. Robinson, ___

N.J. ___, ___ (2014) (slip op. at 11); State v. Galicia, 210

N.J. 364, 381 (2012).

A.

Our analysis begins by addressing defendant's claim that

the criminal prohibitions in N.J.S.A. 2C:21-2.1(b) and (d) are

unacceptably overbroad because they unduly restrict

constitutionally-protected speech. We reject this contention,

5 See State v. V.D., 401 N.J. Super. 527, 531 (App. Div. 2008) (reversing the trial court's imposition of certain probationary terms following the defendant's guilty plea of possessing a false governmental document, N.J.S.A. 2C:21-2.1(d)); State v. Liviaz, 389 N.J. Super. 401, 404, 407 (App. Div.) (reversing the Law Division's decision to overturn the prosecutor's denial of the defendants' admission into the pretrial intervention program, following their indictments that included charges of exhibiting false governmental documents, N.J.S.A. 2C:21-2.1(c), and possessing false governmental documents, N.J.S.A. 2C:21- 2.1(d)), certif. denied, 190 N.J. 392 (2007).

12 A-6292-11T2 both on its face and as applied to defendant's particular

circumstances.

When the constitutionality of a statute is challenged, as

it is here, on both the basis of vagueness and overbreadth,

ordinarily the first step of judicial review is to determine if

the statute is overbroad. State v. Lee, 96 N.J. 156, 164-65

(1984) (citing Vill. of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494, 102 S. Ct. 1186, 1191, 71 L.

Ed. 2d 362, 369 (1982)). If the statute is held not to be

overbroad, then the next step is to consider the statute for

vagueness concerns. State v. Walker, 385 N.J. Super. 388, 402-

03 (App. Div.), certif. denied, 187 N.J. 83 (2006).

The question of whether a statute is unconstitutionally

overbroad "rests on principles of substantive due process."

Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n.21 (1983); see

also Karins v. Atl. City, 152 N.J. 532, 544 (1998); State v.

Badr, 415 N.J. Super. 455, 468 (App. Div. 2010). As contrasted

with a vagueness challenge, the question of overbreadth "is not

whether the law's meaning is sufficiently clear, but whether the

reach of the law extends too far." Town Tobacconist, supra, 94

N.J. at 125 n.21. "The evil of an overbroad law is that in

proscribing constitutionally protected activity, it may reach

farther than is permitted or necessary to fulfill the [S]tate's

13 A-6292-11T2 interests." Ibid.; see also In re Hinds, 90 N.J. 604, 617

(1982); Badr, supra, 415 N.J. Super. at 466.

Here, the constitutionally-protected interests invoked by

defendant are a citizen's rights of free expression under the

First Amendment of the United States Constitution and under

Article I, paragraph 6 of the New Jersey Constitution. See

State v. Schmid, 84 N.J. 535, 560 (1980) (delineating the free-

speech interests of New Jersey citizens under our State

Constitution which, in certain respects, may be more expansive

than those recognized federally under the First Amendment). Our

federal and state constitutional heritage "serves to thwart

inhibitory actions which unreasonably frustrate, infringe, or

obstruct the expressional and associational rights of

individuals." Ibid.; see also J.B. v. N.J. State Parole Bd.,

433 N.J. Super. 327 (App. Div. 2013) (rejecting a claim of

facial invalidity of the Parole Board's restrictions on Internet

access and the expressive rights of persons who have committed

sex offenses who are under parole supervision), certif. denied,

217 N.J. 296 (2014).

Defendant contends that subsections (b) and (d) of N.J.S.A.

2C:21-2.1 are overbroad because they unduly chill protected

speech by persons who may create, alter, or possess mock

governmental documents or personal identity materials for benign

14 A-6292-11T2 reasons. For example, defendant posits that a person might

create or alter a government document for artistic purposes, as

is sometimes done in films, plays, or illustrated fiction.

Alternatively, an individual might alter a birth certificate or

driver's license of a famous person as a form of political

satire. Or a student might create or store an image of a false

government document for educational purposes, perhaps as an

exercise in a course on criminology or in studying the ethical

issues relating to information technology.

Defendant also posits that a person might simply possess

such a false document or computer image by mistake. At the very

least, he argues, the statute is overbroad because it lacks an

explicit element requiring the State to prove the accused's

specific intent to store or use such computer images or

documents for an illicit purpose.

None of the hypothetical situations posed by defendant or

that emerged during oral argument demonstrates that the statute

is unconstitutionally overbroad. For one thing, the

hypothetical situations do not pertain to the actual

circumstances of this case. There is no indication whatsoever

in the record that defendant possessed the computer images of

driver's licenses and Social Security cards of other people, and

had altered those images, in the pursuit of art, literature,

15 A-6292-11T2 political satire, education, or protected expression. The

closing argument delivered by his trial attorney did not portray

him as an artist, author, political commentator, or student.

Hence, the hypothetical scenarios imagined by his defense

counsel have little or no relevance here. To the extent that

the statute might be misused in a future prosecution against an

artist, student or some other person truly engaged in protected

expressive activity, that individual is free to pursue an as-

applied constitutional challenge.

We reject defendant's contention that the statute fatally

lacks a specific intent requirement, and thus penalizes

individuals with an innocent state of mind who may possess false

documents inadvertently or for benign reasons. Subsections (b)

and (d) each explicitly require the State to prove that a

defendant "knowingly" violated the terms of the statute. Under

the Criminal Code's general state-of-mind definitions, "[a]

person acts knowingly with respect to the nature of his conduct

or the attendant circumstances if he is aware that his conduct

is of that nature, or that such circumstances exist, or he is

aware of a high probability of their existence." N.J.S.A. 2C:2-

2(b)(2). The definition further clarifies that a person acts

"knowingly" as to a result of his conduct "if he is aware that

it is practically certain that his conduct will cause such a

16 A-6292-11T2 result." Ibid.; see also State v. Cruz, 163 N.J. 403, 418

(2000).

Moreover, N.J.S.A. 2C:21-2.1 amplifies its knowing state-

of-mind requirement by requiring proof that the document or

writing possessed or made by the defendant is of a kind "which

falsely purports" to be a driver's license, birth certificate,

or some other document issued by a governmental agency that

could be used for identification purposes. N.J.S.A. 2C:21-

2.1(b) and (d) (emphasis added). Inanimate objects do not

"purport" to do anything; people do. The statute thus clearly

is targeted at defendants who "knowingly" possess or make forms

of identification that are of a kind deliberately fashioned by a

person  whether it be defendant himself or a third party  in

a manner designed to "falsely purport" that those items are

legitimate, government-issued forms of identification.

This manifest design of N.J.S.A. 2C:21-2.1 to steer clear

of the benign possession of government identification documents

was aptly confirmed by a question posed to counsel by the trial

judge. The judge asked whether it would violate the statute if

a parent had photocopied the Social Security card of his child

at the child's request, in connection with the child's

application for insurance coverage or college enrollment. The

prosecutor agreed that such a situation is not to be

17 A-6292-11T2 criminalized by the statute. That is so because the parent in

that situation would not be attempting to "falsely purport" his

child's identification by making or possessing a copy of the

child's Social Security card.6

Similarly, the same conclusion of inapplicability would

also be likely if the falsified document used the name "John

Doe," or "Kermit the Frog," or the address, "123 Main Street,

Blackacre, NJ," or the image of Abraham Lincoln. Such documents

would probably be deemed so fanciful as to fall outside the

scope of the language in N.J.S.A. 2C:21-2.1 requiring that the

falsified document be such that it "could be used" to verify a

person's identity. N.J.S.A. 2C:21-2.1(b) and (d). Cf. United

States v. Gomes, 969 F.2d 1290, 1293 (1st Cir. 1992)

(explaining, in an analogous context under 42 U.S.C.A. §

408(g)(3), that counterfeit governmental documents, though they

6 Although the prosecutor voluntarily dismissed the portion of the indictment alleging in Counts Three through Six that defendant illegally "possesse[d] devices or materials to make" false governmental documents, we take this opportunity to express our agreement with the State's concession that the statute should not be read to ban a person from possessing an ordinary household printer where such a person has not used that printer to create an item that "falsely purports" to be governmental identification documents. See N.J.S.A. 2C:21- 2.1(b). The same would be true of the mere benign possession of computer ink or paper. The "falsely purports" ingredient of the statute plays a critical role in making the possession of such common items illegal.

18 A-6292-11T2 need not be "masterpieces," must still have "enough

verisimilitude to deceive an ordinary person").

In cases such as this one in which a defendant has been

charged, among other things, with the illegal possession of

false governmental documents under N.J.S.A. 2C:21-2.1(d), the

mens rea required to show the defendant's culpability is further

constrained by the Criminal Code's general concepts of

possession and by case law. N.J.S.A. 2C:2-1(a) specifies that

"[a] person is not guilty of an offense unless his liability is

based on conduct which includes a voluntary act or the omission

to perform an act of which he is physically capable." (Emphasis

added). In keeping with that predicate of voluntariness in

possession cases, the Code further instructs that "[p]ossession

is an act, [that qualifies for culpability], if the possessor

knowingly procured or received the thing possessed or was aware

of his control thereof for a sufficient period to have been able

to terminate his possession." N.J.S.A. 2C:2-1(c).

Our courts have long recognized the term "possession" must

be "'given a strict construction in statutes defining criminal

and penal offenses.'" State v. McCoy, 116 N.J. 293, 299 (1989)

(quoting State v. Labato, 7 N.J. 137, 148 (1951)). Pursuant to

that strict construction, the concept of possession "signifies a

knowing, intentional control of a designated thing, accompanied

19 A-6292-11T2 by a knowledge of its character." State v. Pena, 178 N.J. 297,

305 (2004) (emphasis in original) (internal quotations marks and

citations omitted). "Intentional control and dominion, in turn,

means that the defendant was aware of his or her possession."

McCoy, supra, 116 N.J. at 299 (citing State v. DiRienzo, 53 N.J.

360, 370 (1969)). Such possession may be actual or

constructive. Ibid. A jury "may draw an inference of

possession from all of the surrounding circumstances when it is

more likely than not that the proven facts point to the inferred

fact of possession." Id. at 300.

We applied these principles in an analogous computer-file

context in State v. Lyons, 417 N.J. Super. 251, 264-69 (App.

Div. 2010), in rejecting a defendant's claim that his conduct in

placing child pornography images on a file-sharing program he

had installed on his computer was merely passive behavior that

could not provide a basis for criminal liability. We noted that

the defendant had "acted with complete awareness of the relevant

attendant circumstances," i.e., that the shared folder materials

stored on his computer "were available to all other users of the

network." Id. at 263. The State's proofs in Lyons also showed

that the defendant had "also acted with awareness of the

practical certainty that his conduct would result in another

user viewing and downloading the materials." Ibid. We

20 A-6292-11T2 consequently reversed the trial court's dismissal of indictment

counts charging Lyons with violations of the child pornography

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

The statute now before us, N.J.S.A. 2C:21-2.1, likewise

should be construed in a manner that examines a defendant's

awareness of "the attendant circumstances" and the "nature" of

his or her conduct as an alleged possessor of false governmental

documents stored on a computer. N.J.S.A. 2C:2-2(b)(2). For

example, if another family member shared a computer with a

relative who created or stored the illegal documents or images

in a file or folder on that device  without knowing that those

files were on the computer or without any awareness that they

are of a kind that may be used to "falsely purport" another

person's identity  the family member would not be culpable

under N.J.S.A. 2C:21-2.1. See Pena, supra, 178 N.J. at 304-05

(recognizing that a person who possesses a thing unknowingly,

either stemming from a failure to appreciate not just the act of

possessing, but also a failure to appreciate what is possessed,

is not criminally liable for such possession).

On the other hand, a defendant's ignorance of the law

making his or her possession of something illegal is not, in and

of itself, a basis to immunize a criminal defendant. State v.

Rowland, 396 N.J. Super. 126, 129 (App. Div. 2007), certif.

21 A-6292-11T2 denied, 193 N.J. 587 (2008). Also, a possession offense under

subsection (d) could occur where the defendant himself created

the phony documents or, alternatively, if he had obtained them

from the black market and downloaded them onto his own computer.

In either situation, the defendant's knowing possession of the

illicit creations would make him culpable.

The statutory scheme of N.J.S.A. 2C:21-2.1 as a whole, when

construed in a manner consistent with other portions of the

Criminal Code and other well-established limiting principles in

case law, sufficiently constricts the scope of criminal

liability under subsections (b) and (d) to pass muster under

constitutional principles of overbreadth. The power of a court

to declare a statute unconstitutional must be "delicately

exercised." Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254,

285 (1998), cert. denied, 527 U.S. 1021, 119 S. Ct. 2365, 144 L.

Ed. 2d 770 (1999). Defendant's conjectural claims of

overbreadth fail to overcome the "strong presumption of

constitutionality that attaches to a statute." Ibid. In

reaching that conclusion, however, we leave open the possibility

of future "as-applied" challenges to the statute by defendants

who are in factually distinguishable circumstances. See J.B.,

supra, 433 N.J. Super. at 344-46 (rejecting the appellants'

claims that certain statutes and regulations, on their face,

22 A-6292-11T2 violated their constitutional rights, without precluding future

"as-applied" challenges).

In sum, defendant's overbreadth argument must be rejected

because subsections (b) and (d) of N.J.S.A. 2C:21-2.1, both on

their face and as applied to his own circumstances, do not

prohibit a "'substantial amount of constitutionally protected

conduct.'" Lee, supra, 96 N.J. at 164-65 (quoting Hoffman

Estates, supra, 455 U.S. at 494, 102 S. Ct. at 1191, 71 L. Ed.

2d at 369).

B.

Defendant next argues that subsections (b) and (d) of

N.J.S.A. 2C:21-2.1 are unconstitutionally void for vagueness

because those provisions allegedly fail to give adequate notice

of the conduct they prohibit and to provide guidelines for

enforcement, leading to arbitrary results. We disagree.

The constitutional doctrine of vagueness "is essentially a

procedural due process concept grounded in notions of fair

play." State v. Emmons, 397 N.J. Super. 112, 124 (App. Div.

2007) (internal quotation marks and citations omitted), certif.

denied, 195 N.J. 421 (2008). Our State Supreme Court has

summarized the fair-notice concerns that underlie the vagueness

doctrine as follows:

Clear and comprehensible legislation is a fundamental prerequisite of due process of

23 A-6292-11T2 law, especially where criminal responsibility is involved. Vague laws are unconstitutional even if they fail to touch constitutionally protected conduct, because unclear or incomprehensible legislation places both citizens and law enforcement officials in an untenable position. Vague laws deprive citizens of adequate notice of proscribed conduct, . . . and fail to provide officials with guidelines sufficient to prevent arbitrary and erratic enforcement.

[Town Tobacconist, supra, 94 N.J. at 118 (citations omitted).]

A theoretical ambiguity or lack of clarity in a criminal

statute is not enough, however, to render that law void for

vagueness. It is well settled that "[a] criminal statute is not

impermissibly vague so long as a person of ordinary intelligence

may reasonably determine what conduct is prohibited so that he

or she may act in conformity with the law." State v. Saunders,

302 N.J. Super. 509, 520-21 (App. Div.), certif. denied, 151

N.J. 470 (1997). The test for vagueness therefore hinges on

whether "persons 'of common intelligence must necessarily guess

at [the statute's] meaning and differ as to its application.'"

State v. Mortimer, 135 N.J. 517, 532 (1994) (quoting Connally v.

Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L.

Ed. 322, 328 (1926)); see also Town Tobbacconist, supra, 94 N.J.

at 118.

24 A-6292-11T2 Judicial review of a vagueness challenge is not "'a

linguistic analysis conducted in a vacuum.'" Saunders, supra,

302 N.J. Super. at 521 (quoting In re DeMarco, 83 N.J. 25, 37

(1980)). Instead, our review "requires consideration of the

questioned provision itself, related provisions, and the reality

in which the provision is to be applied." Ibid.

2C:21-2.1 are unconstitutionally vague on their face because the

wording of those provisions does not place a person of ordinary

intelligence on reasonable notice of what activities are

prohibited. To prevail on such a facial challenge, defendant

"must establish that no set of circumstances exists under which

the [statute] would be valid," United States v. Salerno, 481

U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697, 707

(1987) (emphasis added), or that the statute lacks any "plainly

legitimate sweep," Broadrick v. Oklahoma, 413 U.S. 601, 615, 93

S. Ct. 2908, 2918, 37 L. Ed. 2d 830, 842 (1973). A reviewing

court should uphold a vagueness challenge "'only if the

enactment is impermissibly vague in all of its applications.'"

Town Tobacconist, supra, 94 N.J. at 98 (emphasis added) (quoting

Hoffman Estates, supra, 455 U.S. at 494-95, 102 S. Ct. at 1191,

71 L. Ed. 2d at 369). Defendant has not met this considerable

burden.

25 A-6292-11T2 Defendant maintains that the phrase "a document or other

writing," which appears in both subsections (b) and (d) of

N.J.S.A. 2C:21-2.1, is too unclear and does not alert a person

of ordinary intelligence of the illegal nature of the items that

he may create or possess. In particular, he complains that the

statutory terms "document" or "writing" do not convey that they

are meant to encompass electronically-stored computer files. In

a related argument, which we address in Part II(C), infra,

defendant contends that the trial judge erred in the manner in

which he defined the term "document" for the jurors.

Although the statute perhaps could have been drafted more

precisely in defining these terms, we are not persuaded that the

degree of imprecision is constitutionally intolerable. Nor are

we convinced that the statute is too unclear in "all of its

applications." Ibid.

"[T]he words used in a statute carry their ordinary and

well-understood meanings," unless the codified framework

suggests otherwise. Mortimer, supra, 135 N.J. at 532 (citing

State v. Afanador, 134 N.J. 162, 171 (1993)); see also State v.

Lashinsky, 81 N.J. 1, 18 (1979) (explaining that notions of

common intelligence, coupled with "ordinary human experience,"

bear upon the judicial assessment of vagueness). Those

"ordinary and well-understood meanings" support the State's

26 A-6292-11T2 position concerning the term "document," as it is used in

subsections (b) and (d).

Under ordinary modern usage, the term "document"7 is

commonly understood to include items containing words or images

that are stored in computer files. Although we could take

judicial notice of that common understanding, we need not do so

because such everyday usage is confirmed by the definitions of a

"document" set forth in several (if not all) dictionaries, and

also by other sources.

The definitions of words published in dictionaries,

although they might not always be dispositive in judicial

analysis, have frequently been consulted by courts on evaluating

whether those words, when used in statutes, are

unconstitutionally vague. For example, in Mortimer, supra, 135

N.J. at 532, the Supreme Court cited dictionary definitions of

various terms that were used in another criminal statute in

evaluating whether those terms were unconstitutionally vague.

Similarly, we have referenced editions of Webster's Dictionary

7 We need not address whether a computer-stored file can also constitute a "writing" under N.J.S.A. 2C:21-2.1(b) and (d), since the statute is written in the disjunctive.

27 A-6292-11T2 in ascertaining the ordinary meanings of certain words used in

other statutes.8

Webster's Dictionary defines the term "document" to include

"a computer file containing information input by a computer user

and usually created with an application (as a word processor)." 9

Likewise, the Oxford Dictionary defines the term, "document," as

"a piece of written, printed, or electronic matter that provides

information or evidence or that serves as an official record."10

Macmillan Dictionary defines the term "document" as including "a

8 See, e.g., State v. Allen, 334 N.J. Super. 133, 139 (App. Div. 2000) (considering the defendants' void for vagueness argument and explaining that "[i]t is permissible to adopt the simplicity and brevity of Webster's Dictionary" to determine the definition of a term (citing Betts v. Rector, 191 F.3d 447 (4th Cir. 1999))); see also State v. Cullen, 424 N.J. Super. 566, 581 (App. Div. 2012) (turning to Webster's Third New International Dictionary to ascertain the definition of "harass," in response to the defendants' contention that the term, as used in the statute at issue, was impermissibly vague), certif. denied, 213 N.J. 397 (2013); State v. Dixon, 396 N.J. Super. 329, 338 (App. Div. 2007) (using Webster's Dictionary to determine the definition of "handicapped," in considering whether certain provisions of the Law Against Discrimination were unconstitutionally vague). 9 Document, Merriam-Webster Dictionary, http://www.merriam- webster.com/dictionary/document (last visited June 24, 2014) (emphasis added). 10 Document, Oxford Dictionaries Online, http://www.oxford dictionaries.com/us/definition/american_english/document?q=docum ent (last visited June 24, 2014) (emphasis added).

28 A-6292-11T2 computer file that you can write in."11 Furthermore, Cambridge

Dictionary defines "document" to also encompass, along with more

traditional meanings, "a file on a computer in which text is

stored."12

These definitions, contained in several widely-used and

authoritative dictionaries, do not confine the meaning of the

term "document" to papers or other tangible forms of expression.

Instead, they reflect that the term "document" is now commonly

understood in modern usage to encompass forms of expression or

images when they are stored in electronic form, whether or not

they are ever printed out.

This prevalent modern usage concerning the term "document"

in our digital age is also borne out in other contexts. For

example, Rule 4:18-1(a) concerning the production of documents

in civil cases provides for an opposing party's access to

"designated documents," which include, among other things,

"electronically stored information, and any other data or data

compilations stored in any medium from which information can be

11 Document, Macmillan Dictionary, http://www.macmillan dictionary.com/dictionary/american/document (last visited June 25, 2014) (emphasis added). 12 Document, Cambridge Dictionary, http://www.dictionary. cambridge.org/us/dictionary/american-english/document_1?q= document (last visited June 25, 2014) (emphasis added). But see Black's Law Dictionary 555 (9 ed. 2013) ("Something tangible on which words, symbols, or marks are recorded.").

29 A-6292-11T2 obtained and translated, if necessary, . . . into reasonable

usable form."

Likewise, in criminal practice, the Rules of Court

authorize post-indictment discovery by a defendant of "books,

tangible objects, papers or documents obtained from or belonging

to the defendant, including, but not limited to, writings, . . .

images, electronically stored information, and any other data or

data compilations stored in any medium from which information

can be obtained and translated, if necessary, into reasonably

usable form." R. 3:13-3(b)(1)(A) (emphasis added).

Reciprocally, Rule 3:13-3(b)(2)(B) similarly authorizes the

State to obtain discovery of relevant "books, papers, documents

or tangible objects, . . . or copies thereof, . . . including,

but not limited to, writings, . . . images, electronically

stored information, and any other data or data compilations

stored in any medium from which information can be obtained and

translated, if necessary, into reasonably usable form."

(Emphasis added). Presumably, the discovery exchanged in this

very case was guided by these broad modern concepts of a

"document."

We also recognize that computer software manufacturers

routinely identify files containing words or images as

30 A-6292-11T2 "documents."13 The term surely has evolved with technology since

the days of the quill pen and the inkwell.

Given these common modern usages, we reject defendant's

contention that N.J.S.A. 2C:21-2.1(b) and (d) do not place

persons of ordinary intelligence on sufficient notice that items

electronically stored in their computers can qualify as

"documents" under those criminal provisions. The fact that

people sometimes do not print out such electronically stored

documents on paper does not mean that the statute is

unconstitutionally ambiguous. Indeed, it is incontrovertible

that people frequently transmit electronically-stored documents

as e-mail attachments to one another without converting those

items to tangible form.

13 A few examples readily illustrate that the term "document" is now used in the marketplace and in the public domain to refer to electronic data files, accessible through computer software. See, e.g., The Apache OpenOffice Project Announce The Release Of Apache OpenOffice 4.1, Apache Software Found. (Apr. 29, 2014), https://blogs.apache.org/OOo/entry/the_apache_openoffice_project _announce (describing the open-source software platform that can edit and manipulate "documents" and spreadsheets); Google Docs, http://www.google.com/docs/about (last visited June 19, 2014) ("Google Docs brings your documents to life with smart editing and styling tools to help you easily format text and paragraphs." (Emphasis added)); Press Release, Microsoft Corp., Microsoft Unveils The New Office (July 16, 2012), available at http://www.microsoft.com/en-us/news/press/2012/jul12/07- 16officepr.aspx (announcing the ability to access, save, and share "documents" in the updated software platform).

31 A-6292-11T2 We therefore conclude that the statute is sufficiently

worded to pass constitutional muster on its face. Moreover, the

State is not acting in an arbitrary fashion by prosecuting a

person such as defendant, despite the absence of any tangible

printouts of the offending electronically-stored material found

in his possession.

To the extent that defendant is also advancing an "as-

applied" vagueness challenge, we reject that claim as well. The

altered driver's licenses, Social Security cards, and

photographic images stored on his computer all can be logically

and fairly treated as "documents" under the statute. The items

contain identification-related wording, which fortifies the

notion that they were created or possessed in order to serve as

false portrayals of authentic governmental documents of

identification. The record before us contains no reasonable

basis for defendant to contend that a person of ordinary

intelligence in his circumstances would have the right to

presume that the statute is inapplicable.

We therefore reject defendant's claims that the statute is

unconstitutionally void for vagueness.

C.

Defendant next argues that the trial judge erroneously

included in the jury charge a definition of the term "document,"

32 A-6292-11T2 and therefore improperly "directed" the jury to return a guilty

verdict against him as to that element of the case. We

disagree.

During the judge's instructions to the jury, he defined

several of the elements within N.J.S.A. 2C:21-2.1(b) and (d).

Those elements included the mental state of "knowingly" required

for the offenses, as well as definitions for the terms "to make"

and "document."14 When defining the term "document" in

particular, the judge instructed the jury as follows:

A document is defined as an original or official paper relied upon as the basis, proof or support of something; something, such as a photograph or a recording; a writing conveying information; or computer files containing information inputted by a computer user and usually created with an application such as a word processor or image processor.

This definition supplied by the court, defendant argues,

improperly abrogated the jury's role in rendering a factual

finding about whether he made or possessed "documents" in

violation of the statute. He argues that the jury should have

determined on its own whether images or items electronically

stored on a computer may qualify as documents, as that term is

14 Defendant does not challenge the court's instructions concerning the meanings of "knowingly" and "to make," but we mention them to provide a context of the judge's conscientious endeavor to define material terms in the statute for the jurors.

33 A-6292-11T2 used in N.J.S.A. 2C:21-2.1. Accordingly, defendant maintains

that the court's instruction amounted to a directed verdict, and

his conviction must be reversed on this basis.

In a supplemental letter, defendant advised us that the new

Model Criminal Jury Charges for N.J.S.A. 2C:21-2.1(b) and (d),

which were issued earlier this year while his appeal was

pending, support his position. He contends that the new model

charges implicitly call for the jury, rather than the trial

court, to determine whether items in a defendant's possession

are "documents" or "writings."

In considering defendant's criticisms of the trial court's

charge, we are guided by well-settled principles concerning the

State's burden of proof in a criminal case and the impropriety

of directed verdicts that relieve the State of its important

evidential obligations. Fundamentally, the prosecution bears

the constitutional burden of proving each element of a crime

beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90

S. Ct. 1068, 1072-73, 25 L. Ed. 2d 368, 375 (1970); State v.

Hill, 199 N.J. 545, 558 (2009). Equally fundamental is a

criminal defendant's constitutional right to a trial by jury.

State v. Harris, 141 N.J. 525, 578 (1995); State v. Collier, 90

N.J. 117, 122 (1982). "Integral to [the right of trial by jury]

34 A-6292-11T2 is a jury verdict free from untoward interference from any

source, including the court." Collier, supra, 90 N.J. at 122.

"A directed verdict results when the court instructs the

jury to find the defendant guilty of a particular charge[.]"

State v. Ragland, 105 N.J. 189, 202 (1986). "[N]o matter how

compelling the evidence, a trial court may not direct a verdict

against a defendant in a criminal case." Collier, supra, 90

N.J. at 122 (citations omitted); see also State v. Vick, 117

N.J. 288 (1989) (reversing the jury's verdict because the trial

court's incorrect instruction amounted to a directed verdict on

an essential element of the gun charge); Ragland, supra, 105

N.J. at 202 ("[T]he New Jersey cases require [] that there be no

directed verdict in a criminal case.").

We are unpersuaded that the trial judge's instruction in

this case explaining the meaning of the statutory term

"document" to the jurors ran afoul of these principles. The

instruction was appropriate and fair, and it did not infringe

upon the jurors' fact-finding role.

A trial judge is empowered to define legal terms so as to

aid the jury in reaching its verdict. See State v. Saunders, 75

N.J. 200, 205 (1977); State v. Wilbely, 63 N.J. 420, 421 (1973);

State v. Clark, 58 N.J. 72, 82 (1971). Indeed, the trial court

has "a mandatory duty . . . to instruct the jury as to the

35 A-6292-11T2 fundamental principles of law which control the case." State v.

Butler, 27 N.J. 560, 595 (1958). "Among such principles is the

definition of a crime[.]" Ibid.

The legal definitions that the trial judge provided to the

jurors here were for material terms in the statute, such as what

it means for a person to act "knowingly," as both N.J.S.A.

2C:21-2.1(b) and (d) require. The judge also supplied a

definition to the jury that fairly explained how the term "to

make," as used in subsection (b), should be understood in the

overall context of the statute. Likewise, the judge

appropriately defined the term "document" under N.J.S.A. 2C:21-

2.1 to include computer files and electronically stored

information. As we have shown in Part II(B), supra, the judge's

definition of that term is consistent with many dictionary

definitions and with common modern usage.

We do not regard the court's charge providing a definition

for the term "document" to be, as defendant claims, a

judicially-directed verdict on an essential element of the

charged offenses. The jury was free to consider all of the

evidence, including the items seized from defendant's apartment

and the lay and expert testimony of the State's witnesses, and

to evaluate whether or not that proof met the statutory

criteria.

36 A-6292-11T2 Counsel at trial hotly disputed whether the computer-

related items seized from defendant were sufficient to establish

his guilt beyond a reasonable doubt. Based upon a flawed

interpretation of the statute, the defense argued that the items

needed to be in tangible form in order for the State to

establish a violation of the statute. The trial judge

appropriately dispelled that misconception for the jurors. In

doing so, the court justifiably prevented a verdict from being

reached based upon an incorrect understanding of the law, or

upon speculation or confusion.

The recently-adopted model jury charges for subsections (b)

and (d) do not invalidate the instruction that the judge

provided in this case at a time when there was no such model

language to guide him. In pertinent part, the new charge for

N.J.S.A. 2C:21-2.1(b) defines a "writing" as follows:15

"Writing" includes printing or . . . any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, access devices, and other symbols of value, right, privilege, or identification, including retail sales receipts, universal product code (UPC) labels and checks.[]

The second element that the State must prove beyond a reasonable doubt is that the . . .

15 For stylistic reasons, we eliminate from our quotation the portions of the published model charge appearing in bold font.

37 A-6292-11T2 [document] [or] [other writing][]16 was falsely purported to be a . . . [driver's license] [birth certificate] [or] [other document][] issued by a governmental agency. . . . The second element also requires that the State prove beyond a reasonable doubt (or it has been stipulated) that the . . . [document] [printed form] [or] [other writing][], purported to be issued by a governmental agency, could be used as a means of verifying a person's identity or age or other personal identifying information.

[Model Jury Charge (Criminal), "Making False Governmental Documents" (2014) (emphasis added) (footnote omitted).]

Likewise, the new model charge for subsection (d) contains

similar language that broadly encompasses "any other method of

recording information":

"Writing" includes printing or . . . any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, access devices, and other symbols of value, right, privilege, or identification, including retail sales receipts, universal product code (UPC) labels and checks.[]

16 Although there is no separate definition of a "document," the model charge for subsection (b) appears to treat, in two places, a "document" as a subset of a "writing" (i.e., "other writing") but, in other places, a "writing" as a subset of a "document" (i.e., "other document"). We need not resolve that apparent internal inconsistency here, or how it relates to the statute's disjunctive use of the two terms.

38 A-6292-11T2 The State must also prove beyond a reasonable [doubt] that the defendant possessed a document or other writing.17

[Model Jury Charge (Criminal), "Possession of False Governmental Documents" (2014) (emphasis added) (footnote omitted).]

The trial judge's instruction in this case similarly endeavored

to clarify for the jurors the scope of the statute, and the

words used within it. The instruction provided was both fair

and consistent with the law. The verdict was not improperly

directed.

III.

[At the direction of the court, the published version of this opinion omits Part III discussing defendant's claim of an excessive sentence. See R. 1:36-3.]

Affirmed.

17 Here, the charge for subsection (d) appears to treat a "document" as a subset of a "writing."

39 A-6292-11T2