State of New Jersey v. Robert J. Mack

• Court: New Jersey Superior Court Appellate Division
• Decided: March 13, 2024
• Docket: A-3105-21
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3105-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT J. MACK, a/k/a ROB MACK,

Defendant-Appellant. _________________________

Argued March 5, 2024 – Decided March 13, 2024

Before Judges Haas and Puglisi.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 18-10- 1345.

Adam W. Toraya argued the cause for appellant (Bailey & Toraya, LLP, attorneys; Adam W. Toraya, on the briefs).

Ashlea De An Newman, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Ashlea De An Newman, on the brief). PER CURIAM

A Monmouth County grand jury charged defendant Robert J. Mack in a

three-count indictment with third-degree endangering the welfare of a child by

the possession of child pornography (count one), second-degree endangering the

welfare of a child by the distribution of child pornography (count two), and

third-degree invasion of privacy (count three). Prior to trial, a motion judge

rendered a comprehensive written decision denying defendant's request to sever

the first two counts from the invasion of privacy charge in count three.

Following a four-day trial, the jury convicted defendant of all three counts

of the indictment. The trial judge sentenced defendant to four years in prison

on count one and to a concurrent seven-year term on count two. The judge also

imposed a consecutive four-year term on count three. Thus, defendant's

aggregate term was eleven years in prison. The judge also placed defendant on

Parole Supervision for Life and required him to register as a sex offender.

On appeal, defendant raises the following contentions:

POINT I

DEFENDANT'S MOTION FOR SEVERANCE SHOULD HAVE BEEN GRANTED, AND AS A RESULT OF IMPROPER JOINDER OF OFFENSES HE WAS DENIED THE RIGHT TO A FAIR TRIAL.

A-3105-21 2 POINT II

DEFENDANT'S CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL WAS VIOLATED WHEN THE COURT REFUSED TO ALLOW DEFENDANT'S MOTHER TO BE PHYSICALLY PRESENT DURING JURY TRIAL.

POINT III

THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S REQUEST FOR A CLAWANS CHARGE AFTER THE STATE FAILED TO CALL [DEFENDANT'S FATHER] AS A WITNESS.

POINT IV

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

After reviewing the record in light of these contentions and the applicable

law, we affirm.

I.

Briefly stated, the salient facts are as follows. Detective Tiffany Lenart

worked in the Computer Crimes Unit of the Monmouth County Prosecutor's

Office. In early December 2017, Lenart was investigating the distribution of

digital files containing child pornography through the peer-to-peer file sharing

network known as "BitTorrent." A peer-to-peer file sharing network allows an

individual with a computer to send files to and receive files from other

A-3105-21 3 individuals' computers. Lenart was using a "law enforcement version" of

BitTorrent, which allowed her to "monitor[] the web traffic on those networks

for specific files identified either by the National Center for Missing and

Exploited Children or by other investigators as potentially containing materials

of child exploitation."

During her investigation, Lenart downloaded "a folder containing images

and videos of potential child sexual abuse materials" from a computer with a

specific IP address 1 in Monmouth County. Lenart was able to trace the IP

address to the home where defendant lived in his parents' basement. 2

Lenart obtained a search warrant and executed it at defendant's home on

January 24, 2018. Lenart seized forty-three electronic devices, including

computers and loose hard drives, from the home. While at the home, Lenart

conducted "preview examinations" of some of the devices. In a Seagate 120

gigabyte hard drive and in a Seagate 300 gigabyte hard drive found in a cabinet

in defendant's bedroom, Lenart discovered numerous photographs and videos of

1 An "IP address" is an identifying number assigned to an internet subscriber by the subscriber's service provider. State v. Reid, 194 N.J. 386, 389 (2008). 2 Lenart made a binder containing the materials and also placed them on a computer disc. Both items were entered in evidence at the trial. A-3105-21 4 children engaging in sexual activity. Upon finding the child pornography,

Lenart arrested defendant.

Lenart also recovered a Lenovo laptop computer that was next to

defendant's bed. Lenart subsequently obtained the password for the device from

defendant's attorney. Upon examining it, Lenart found that Robert Mack was

the registered owner of the computer and that the user profile and the email

address associated with the computer referenced defendant's name.

Lenart found a "qBitTorrent" icon "in the system tray which is the tray at

the bottom of the computer that shows you programs that are running or are

available and the date and time." Lenart testified that this program "is a peer-

to-peer file sharing program that implements the torrent protocol." In other

words, this program on defendant's computer was the program that enabled

Lenart to download the child pornography photographs and videos from the

computer in December 2017.

Lenart found that defendant's laptop also had a "CCleaner program,"

which enabled him to scrub the internet history of his computer and "delete some

artifacts that are on the computer." However, Lenart was able to recover

evidence from the computer indicating it had been used to search for child

pornography.

A-3105-21 5 During the search of defendant's bedroom, Lenart also found "two small

wireless cameras" that "could be used as recording devices." While examining

defendant's computer, Lenart discovered a folder containing "nude photos and

videos" of a twenty-year-old woman who was living with defendant's parents at

the time of the search. These images were taken of the woman while she was in

the bathroom and bedroom of the home.

The woman testified at trial that she did not know about the cameras and

would never have allowed defendant to photograph and film her in that manner.

The woman also testified that after defendant returned home after his arrest, he

told her "that there might be photos and videos that are found of [her], and not

to be concerned that he's always recording things."

Defendant did not testify at the trial and called no witnesses on his behalf.

II.

In Point I, defendant contends that the motion judge erred in denying his

motion to sever the child pornography counts from the invasion of privacy count

involving the twenty-year-old woman. He argues that the child pornography

charges were in no way related to his actions in secretly filming the woman in

her bedroom and bathroom. We disagree.

A-3105-21 6 Generally, in deciding a motion for severance, the trial court enjoys "a

wide range of discretion[.]" State v. Coruzzi, 189 N.J. Super. 273, 297 (App.

Div. 1983). A denial of a motion for severance should not be reversed "absent

a mistaken exercise of that discretion." Ibid.

"[W]here the evidence establishes that multiple offenses are linked as part

of the same transaction or series of transactions, a court should grant a motion

for severance only when [a] defendant has satisfied the court that prejudice

would result." State v. Moore, 113 N.J. 239, 273 (1988). The courts have

recognized that any trial involving several charges "probably will involve some

potential of [prejudice], since the multiplicity alone may suggest to the jury a

propensity to criminal conduct." Coruzzi, 189 N.J. Super. at 297. However,

"other considerations, such as economy and judicial expediency, must be

weighed" when deciding a severance motion. Ibid. These interests may require

that charges remain joined, "so long as the defendant's right to a fair trial remains

unprejudiced." Id. at 298.

The proper inquiry when deciding a motion for severance is whether, if

the crimes were tried separately, evidence of the severed offenses would be

admissible at the trial of the remaining charges. State v. Chenique-Puey, 145

N.J. 334, 341 (1996). If the evidence would be admissible at both trials, the trial

A-3105-21 7 court should not sever the charges, because the defendant "will not suffer any

more prejudice in a joint trial than he would in separate trials." Coruzzi, 189

N.J. Super. at 299. To evaluate whether evidence of each crime would be

admissible at the trial of the others, and thus whether severance should be

denied, the trial court must utilize the same standard used to determine whether

other-crime evidence is admissible under N.J.R.E. 404(b). Chenique-Puey, 145

N.J. at 341.

The Supreme Court's opinion in State v. Cofield, 127 N.J. 328, 338 (1992),

sets forth the well-established test for deciding whether evidence is admissible

under this rule:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[(quoting Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).]

A-3105-21 8 The party seeking to admit other-crime evidence bears the burden to

establish each of the four prongs. See State v. J.M., 225 N.J. 146, 158-59 (2016).

A court's determination on the admissibility of other-crime evidence is "entitled

to deference" and is "reviewed under an abuse of discretion standard." State v.

Ramseur, 106 N.J. 123, 266 (1987). "Only where there is a 'clear error of

judgment' should the 'trial court's conclusion with respect to [the] balancing test'

be disturbed." State v. Marrero, 148 N.J. 469, 483 (1997) (quoting State v.

DiFrisco, 137 N.J. 434, 496-97 (1994)).

When weighing the probative value of N.J.R.E. 404(b) evidence against

its prejudicial nature under the fourth prong of Cofield, a court must focus on

"the specific context in which the evidence is offered[.]" State v. Stevens, 115

N.J. 289, 303 (1989). The court should also consider whether the fact the other -

crime evidence is offered to prove "cannot be proved by less prejudicial

evidence." State v. Hardaway, 269 N.J. Super. 627, 630-31 (App. Div. 1994).

Further, judicial economy in some circumstances may justify denying a

severance motion where many of the same witnesses would need to testify in

each trial if the counts were separated. Moore, 113 N.J. at 276.

Here, the motion judge addressed each of the Cofield factors in his written

decision. As to Prong One, the judge found that the child pornography charges

A-3105-21 9 were relevant to the material issues regarding the invasion of privacy count

because they showed defendant's intent and state of mind. The photographs and

videos of children that Lenart was able to download came from the laptop

computer Lenart found in defendant's bedroom. That laptop contained the peer-

to-peer file sharing program that sent Lenart these materials. During her

examination of the laptop in connection with the child pornography, Lenart

found the folder containing the nude photographs and videos defendant took of

the invasion of privacy victim. Thus, the investigations of the two offenses were

inextricably intertwined and the laptop was plainly admissible in evidence

concerning all of the charges involved in this case.

Defendant argues that the laptop should not have been admissible

regarding the child pornography charges because no pornographic photo graphs

or videos of children were found on the device. However, this argument ignores

the fact that the laptop contained the peer-to-peer file sharing program used to

share the materials with Lenart's computer, a scrubbing program, and evidence

of prior searches for contraband. These materials were clearly relevant to the

child pornography charges.

The laptop was also essential to explain the origins of all three charges

against defendant. It provided the jury with the background information

A-3105-21 10 necessary to understand how and why Lenart seized the laptop. It also contained

the images and videos that defendant secretly took of the young woman who

was staying in the house, which were central to the invasion of privacy charge.

The combination of all of the materials found on the computer thus explains

defendant's common intent and motive when committing all three offenses.

Under Prong Two of Cofield, the motion judge correctly found that "[t]he

child pornography offenses [were] similar in kind and reasonably close in time

to the invasion of privacy offenses in that evidence of both was found on the

same device in . . . defendant's possession[.]" Contrary to defendant's repeated

argument, "[c]harges need not be identical to qualify as 'similar' for purposes of

joinder." State v. Sterling, 215 N.J. 65, 91 (2013). The inquiry is "whether there

is similarity or a connection between charges because one involves evidence

probative of another charge." Id. at 92. Because the evidence for the child

pornography charges was found on the same laptop as the evidence of invasion

of privacy, that evidence is connected as probative of the other offense. Id. at

91-92.

Turning to Prong Three, the evidence of child pornography possession,

the distribution of these materials, and invasion of privacy was both clear and

convincing.

A-3105-21 11 Finally, the judge properly found under Prong Four that the probative

value of the evidence did not outweigh its apparent prejudice. The inquiry is

"whether less inflammatory sources of evidence that are equally probative are

available." State v. Rose, 206 N.J. 141, 164 (2011). The evidence here is

"prejudicial in the way that all highly probative evidence is prejudicial: because

it tends to prove a material issue in dispute." Ibid. However, it is not so unfairly

prejudicial to overcome the substantial probative value of the evidence

contained on the laptop and hard drives. Ibid. Defendant would suffer no more

prejudice in a joint trial than he would in separate trials, as the evidence at issue

here would have been admissible in both. Chenique-Puey, 145 N.J. at 341.

Even if, for the sake of argument, we were able to agree with defendant

that the child pornography offenses should have been severed from the invasion

of privacy charge, we are not convinced that a new trial would be mandated.

See, e.g., Sterling, 215 N.J. at 72 (in which the Court recognized that improper

joinder of certain offenses had occurred at trial but nevertheless upheld a

defendant's multiple convictions because the error was harmless in light of the

strength of the State's proofs of guilt). Here, the State presented detailed and

compelling evidence of defendant's guilt of all of the charged crimes, including

the testimony of Lenart and the invasion of privacy victim, the photographs and

A-3105-21 12 videos seized from defendant's hard drives, the materials taken from defendant's

laptop, and the contraband Lenart downloaded from defendant's computer at the

start of her investigation. Defendant's claim of error associated with the joinder

of these offenses, even if they were analytically correct, were harmless in the

context presented.

III.

Defendant's remaining arguments lack sufficient merit to warrant

extended discussion. See R. 2:11-3(e)(2). We add the following comments.

In Point II, defendant argues that his right to a public trial was violated

because his mother was not permitted to be in the courtroom with him during

the trial. However, defendant's trial took place in December 2021, just after all

State court locations were reopened to the public following the closures made

necessary by the Covid-19 pandemic.3 Because of space limitations in the

courtroom due to social distancing requirements, there was no room for

spectators to remain in the courtroom. However, anyone who wished to observe

the proceedings could do so by watching a webcam. Due to the unprecedented

3 See Notice to the Bar and Public: Court Access – All State Court Locations To Reopen To The Public As Of Monday, August 2, 2021 (Jul. 16, 2021) (https://www.njcourts.gov/sites/default/files/notices/2021/07/n210716b.pdf). A-3105-21 13 health emergency faced by our courts during this period, we are satisfied that

this arrangement ensured defendant received a fair public trial.

In Point III, defendant argues that the trial judge erred by not granting his

request for an adverse inference charge against the State for not calling his father

as a witness at trial. This contention also lacks merit.

"Generally, failure of a party to produce before a trial tribunal proof

which, it appears, would serve to elucidate the facts in issue, raises a natural

inference that the party so failing fears exposure of those facts would be

unfavorable to him." State v. Clawans 38 N.J. 162, 170 (1962). However, in

order for an adverse inference to be applied, the court must find, among other

things,

that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give . . . .

[State v. Hill, 199 N.J. 545, 561 (2009) (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985)).]

Here, defendant's father was not "peculiarly within the control or power

of only the [State]." Ibid. Defendant, whose attorney sought during the trial to

portray defendant's father as the possible guilty party, could have called his

A-3105-21 14 father as a witness. Moreover, defendant never established that his father, who

refused to provide any statements to the State during its investigation , would

"elucidate relevant and critical facts in issue" or that his testimony would be

"superior to that already utilized" by the State to prove its case. Ibid. Thus,

defendant was not entitled to the adverse inference charge he sought. Ibid.

Finally, defendant argues in Point Four that the trial judge abused her

discretion in imposing an eleven-year aggregate sentence. We disagree.

Trial judges have broad sentencing discretion as long as the sentence is

based on competent credible evidence and fits within the statutory framework.

State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider

"any relevant aggravating and mitigating factors" that "'are called to the court's

attention[,]'" and "explain how they arrived at a particular sentence." State v.

Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297

(2010)). "Appellate review of sentencing is deferential," and we therefore avoid

substituting our judgment for the judgment of the trial court. Id. at 65; State v.

O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

We are satisfied the judge made findings of fact concerning aggravating

and mitigating factors that were based on competent and reasonably credible

evidence in the record and applied the correct sentencing guidelines enunciated

A-3105-21 15 in the Code, including the imposition of consecutive sentences. Accordingly,

there is no reason for us to second-guess the sentence the judge imposed.

Affirmed.

A-3105-21 16