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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0240-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD F. BROGAN,
Defendant-Appellant. _______________________
Argued March 17, 2021 – Decided May 17, 2021
Before Judges Fuentes, Whipple and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 18-05- 1055.
Jill R. Cohen argued the cause for appellant.
Maura M. Sullivan, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Jill S. Mayer, Acting Camden County Prosecutor, attorney; Maura M. Sullivan, of counsel and on the brief).
PER CURIAM Defendant, Edward Brogan, appeals from an August 6, 2019 judgment of
conviction after a jury found him guilty of second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a)(iii); and third-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(b). We affirm.
Defendant raises the following issues on appeal:
POINT I: THE COURT ERRED IN AMENDING THE DATE OF THE OFFENSE CHARGED IN COUNT ONE OF THE INDICTMENT AFTER TRIAL STARTED.
POINT II: IT WAS PLAIN ERROR TO ALLOW EVIDENCE OF BAD ACTS COMMITTED AFTER THE AMENDED DATE OF COUNT ONE OF THE INDICTMENT (not raised below).
POINT III: THE PROSECUTOR'S CONDUCT DURING TRIAL AND HIS REMARKS DURING CLOSING WERE IMPROPER (not raised below).
POINT IV: THE COURT'S SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO GIVE CONSIDERATION TO THE APPROPRIATE MITIGATING FACTORS AND GAVE EXCESSIVE WEIGHT TO THE AGGRAVATING FACTORS.
POINT V: TRIAL COURT ERRED IN IMPOSING A SENTENCE THAT THE COURT ERRONEOUSLY BELIEVED MADE . . . DEFENDANT ELIGIBLE FOR [Intensive Supervision Program (ISP)] WHEN THE DEFENDANT'S CONVICTION MADE HIM INELIGIBLE FOR ISP (not raised below).
A-0240-19 2 POINT VI: THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO SENTENCE . . . DEFENDANT TO A TERM IN THE THIRD- DEGREE RANGE.
POINT VII: THE COURT ORDERED PAROLE SUPERVISION FOR LIFE WITHOUT FINDINGS.
I.
We draw the following facts from the trial record. In June 2017,
Sergeant Christopher Robinson of the Camden County Prosecutor's Office
High Tech Crimes Unit (the Unit) began an investigation utilizing a "torrent
program," 1 which he knew was often used to obtain and disseminate child
pornography files. A torrent program is also known as a peer-to-peer (P2P)
file-sharing program. Once a user accesses a pedestrian search engine, such as
Google, to find a torrent directory site that lists hyperlinks for specific files,
the program will take over when the user selects a link to the file they wish to
download, and begin obtaining the file from another computer that has
possession of it. Robinson testified as to prominent keywords a user seeking
child pornography can search, in order to find links. One such term known to
Robinson was "Siberian Mouse."
1 As gleaned from the record, a torrent program allows for users to download a file from another computer, host the file on their computer, and then allow other users to download their "copy" of the file. A-0240-19 3 The Unit's specific torrent program will continuously search the torrent
networks for images and videos, which it will compare to libraries, or
repositories of known child pornography, such as the National Center for
Missing and Exploited Children and Project Vick. When a match is found, the
torrent program will download the file on the listing website from a single
user, who has a copy of the file.
Although torrent programs typically source the file from multiple users
and machines to streamline the download, when performing an investigation,
the Unit will make sure each file is downloaded from a single, discrete
machine. After the Unit fully downloads the material, its torrent program will
block the files from being shared by its own computers. And once the Unit
confirms the material is child pornography, it will track the Internet Protocol
(IP) address of the source machine, which is in possession of the illicit harmful
material. Finally, the Unit will subpoena the Internet Service Provider
(provider) for information related to the location and human owner of the IP
address.
Robinson downloaded one eighteen-minute video titled "Siberian
Mouse" from defendant's IP address on June 28, 2017. This video showed two
young females, approximately twelve or thirteen years old, "kissing and
A-0240-19 4 performing various sex acts on each other." Robinson put the video, along
with the incriminating digital artifacts and information, onto a disc showing it
came from defendant's IP address as a "single-source download." 2
After Robinson determined defendant's internet provider, he sent the
company a subpoena for information related to defendant's IP address. When
the provider responded, Robinson went to defendant's house with officers from
the Camden County Sheriff's Office and members of the Unit. The team
photographed the home, secured any electronic devices, such as USB3 drives,
recorded the evidence, and interviewed defendant.
When Robinson secured defendant's laptop, the team performed a
forensic preview, a precursor to a more in-depth subsequent scan, and found
archived evidence of a file with the same title of the video Robinson had
downloaded, along with numerous images of child pornography. Robinson
and a detective spoke with defendant, read him his Miranda 4 rights, and
witnessed defendant voluntarily signed a card waiving his rights.
2 A single-source download refers to a file that was wholly downloaded from a specific computer. 3 Universal Serial Bus drive, also known as a "thumb drive." 4 Miranda v. Arizona, 384 U.S. 436 (1966). A-0240-19 5 During his first interview, defendant admitted using a torrent program
and acknowledged how young some of the subjects appeared. Defendant also
admitted he purposely searched for "Siberian Mouse," a clear marker of child
pornography. He further admitted gratifying himself to the media. Defendant
acknowledged the females looked twelve or thirteen years old and admitted
searching for child pornography more than a dozen times. Defendant stated he
did not know he was sharing the files once he downloaded them. At the end of
this interview, defendant admitted the "Siberian Mouse" video "could have"
been downloaded from his house, and he may have struggled with deleting and
redownloading the material.
At this point, defendant was arrested and taken to the Pennsauken Police
Department, where he made similar statements and maintained he did not
know the torrent program meant he would be sharing files. During this
interview, defendant stated that he assumed the websites were for downloading
adult pornography.
Defendant acknowledged he was coming across "hundreds" of images of
underage females during his activities, and there was a video with one young
female who "was looking very cute." He did "go through some of it," but said
he deleted it, and most of the media was not "hard core stuff." Defendant had
A-0240-19 6 last looked at that video a couple days prior, after reinstalling the torrent
program once again. Defendant denied being aroused by the child
pornography at first, but later confirmed he did gratify himself to one
particular person he thought looked older, and that he has a "problem."
Defendant admitted downloading between three to four movies, but had
many pictures, because they would download as albums as. opposed to
individual images. Defendant continued to deny knowing the videos were
transmitted across the P2P network.
A Camden County Grand Jury indicted defendant on count one, second-
degree endangering the welfare of a child (maintaining child pornography) on
July 27 or 28 or both, 2017, N.J.S.A. 2C:24-4(b)(5)(a)(iii); and count two,
committing third-degree endangering the welfare of a child (possession of
child pornography) on or about July 28, 2017, N.J.S.A. 2C:24-4(b)(5)(b). On
March 7, 2019, defendant's jury trial began, and on March 13, 2019, the trial
court granted the State's motion to amend the indictment. In count one, the
date of the offense was changed from July 27 or 28 or both, 2017 , to June 27
or 28 or both, 2017.
At trial, Robinson was the only State witness; he catalogued the forensic
information from defendant's computer, noting the sixty-six search queries that
A-0240-19 7 were found on defendant's laptop. These included "Siberian Mouse," "[M]
titles" and "LS Magazine," a "known child pornography image set." They also
included terms for explicit sexual acts, with the words "young teen" attached.
"[M.B.]" is one of the young women in the pictures and videos, who defendant
also specifically searched for.
Robinson testified defendant used a "cleaner" for his computer 170
times, although some cleanings may be reported twice. Robinson then went
through the pictures individually, noting the "hash value," or unique electronic
identifier, and any defining characteristics, such as a "LS Magazine" logo. In
his defense, defendant had six character witnesses testify, noting he had put
together golf outings, had a peaceful demeanor, and took good care of his
mother and sister.
The jury found defendant guilty on both counts. The court sentenced
defendant to an aggregate term of seven years, to be served concurrently,
parole supervision for life, a required blood draw for DNA profiling pursuant
to N.J.S.A. 53:1-20.22, and he was ordered to comply with Megan's law,
N.J.S.A. 2C:7-2.
A-0240-19 8 II.
On appeal, defendant first argues the court erred by granting the State's
motion to amend count one of the indictment, during trial to correct a clerical
error under Rule 3:7-4. Defendant argues he was deprived of an opportunity to
mount a defense for the amended date. The court granted the State's
application, finding the time of the offense was not essential for this particular
offense and that there would be no prejudice to the defendant given that the
expert reports all indicate that June 28, rather than July 28, was the actual date
of the first offense.
Rule 3:7-4 provides:
The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.
The New Jersey Supreme Court has interpreted this rule to prohibit
courts from amending the indictment if the error to be corrected relates to the
substance or "essence" of an offense. State v. Dorn, 233 N.J. 81, 94 (2018)
(first quoting State v. Middleton, 299 N.J. Super. 22, 34 (App. Div. 1997); and
A-0240-19 9 then citing Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 3:7-4
(2018)). Furthermore, a court cannot amend an indictment where it would
prejudice a defendant. Ibid. Defendant argues the amendment denied him the
opportunity to put on a meritorious defense. Having reviewed the trial court's
decision to amend the indictment under the abuse of discretion standard, State
v. Reid, 148 N.J. Super. 263, 266 (App. Div. 1997), we discern no error in
failing to accept defendant's bald assertion in order to disallow the amendment.
Defendant asserts his situation is similar to that of the defendant in
Middleton, 299 N.J. Super. at 22. There, Middleton was indicted for certain
offenses occurring on July 23, at 12:30 p.m., when in reality, the offenses
occurred at 12:30 a.m. Id. at 28. Middleton had prepared alibi witnesses and
built a trial strategy around the witnesses he intended to call. Ibid. In that
light, we held:
The burdens placed on the defense were then grievously exacerbated when the State's first witness testified to a time of the crime completely contrary to the time for which, to the prior knowledge of the court and the prosecutor, the defendant, defense counsel, and defense investigator were all scurrying around during trial attempting to establish the alibi. At that point, and in view of defendant's assertion that he could also establish an alibi for the "new" time, the interests of justice demanded that he be afforded a reasonable opportunity to do so. That opportunity was not afforded. The interests at stake are too significant
A-0240-19 10 to require a defendant accused of serious crime to prove his defense on the fly while the State keeps changing the ground rules. Consequently, a continuance or even the declaration of a mistrial with defendant's consent was then appropriate.
[Id. at 34-35.]
Here, defendant's position is not similar to the material facts in
Middleton. Defendant did not argue a date-specific defense and took no
exception to Robinson's testimony that he downloaded the video from
defendant's computer on June 28. Indeed, defendant simply argued he never
intended to download the material at all. Additionally, defendant's six
character witnesses' testimony had no temporal link to his charges, only to his
general reputation and their experiences with him.
III.
Defendant's arguments under Points II, III and V, require us to utilize a
plain error standard of review, as "[w]hen a defendant fails to object to an
error or raise an issue before the trial court, we review for plain error. We may
reverse on the basis of unchallenged error only if the error was 'clearly capable
of producing an unjust result.'" State v. Ross, 229 N.J. 389, 407 (2017)
(quoting R. 2:10-2). "The possibility of an unjust result must be 'sufficient to
raise a reasonable doubt as to whether the error led the jury to a result it
A-0240-19 11 otherwise might not have reached.'" Ibid. (quoting State v. Williams,
(Williams I), 168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325,
336 (1972))). We discern no such error in the record.
Defendant argues admitting evidence of his attempts to download
additional child pornography between July 13 and 22, 2017, was improper, as
was evidence related to his use of a file cleaner after the amended date. To
reach this conclusion, he relies on State v. Pickles, 46 N.J. 542 (1966), which
prevents the State from presenting evidence not referenced in the indictment.
We reject his argument. In Pickles, two parents were charged with criminal
neglect and manslaughter, when the mother, specifically, placed her four-year-
old son in hot water to punish him, but caused his death. Id. at 548-49. There,
the defendants were substantially prejudiced when the State attempted to usurp
the dates provided in the indictment by referencing the bill of particulars. Id.
at 550. The only witness who testified in the trial about incidents occurring
within the dates reflected in the indictment, referred to incidents that occurred
a year earlier, unfairly surprising defendants. Id. at 563.
Here, defendant was not surprised by the evidence. There was no
objection raised when Robinson testified outside the indictment time frame.
A-0240-19 12 Nor did defendant argue the evidence was not relevant or probative. And had
defendant objected, there remained adequate grounds to admit the evidence.
Whether uncharged conduct is "intrinsic to the charged crime, and thus
need only satisfy the evidence rules relating to relevancy, most importantly
[N.J.R.E.] 403" or whether it "relates to 'other crimes,' and thus is subject to
analysis under [N.J.R.E.] 404(b)," such may be admissible. State v. Rose, 206
N.J. 141, 179 (2011). If the evidence falls within N.J.R.E. 404(b)'s
requirements, its admissibility is determined under the four-part test
established in State v. Cofield:
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.
[127 N.J. 328, 338 (1992).]
In Rose, 206 N.J. at 180, the Court limited the scope of intrinsic
evidence to the two categories established in United States v. Green, 617 F.3d
233, 248-49 (3d Cir. 2010). "First, evidence is intrinsic if it 'directly proves'
A-0240-19 13 the charged offense." Rose, 206 N.J. at 180 (quoting Green, 617 F.3d at 248-
49). "Second, 'uncharged acts performed contemporaneously with the charged
crime may be termed intrinsic if they facilitate the commission of the charged
crime.'" Ibid. (quoting Green, 617 F.3d at 248-49).
First, the evidence of the other crime must be relevant to a material
issue. Cofield, 127 N.J. at 338. Here, defendant's searches for various child
pornography, while cleaning his computer to remove any relevant files, was
still relevant to count two, charging him with possession of the child
pornography. Under factor two, "it was similar in kind and reasonably close in
time to the offense charged." Cofield, 127 N.J. at 338. In this case, defendant
acknowledged he was aware of the P2P download date, as the interviews
discussed the timeline of events during his interview at the station:
ROBINSON: So over the course of the three or four weeks, whatever it was that you had these programs on or off your computer, about how many videos or images of child pornography, that you think was child pornography did you download? Ten, [twenty], [thirty]?
DEFENDANT: With the videos maybe a few, maybe like three of them, maybe four.
ROBINSON: Pictures?
DEFENDANT: The pictures were a lot. Like I said when they come in they come in in a big group.
A-0240-19 14 Additionally, proof of defendant's possession of child pornography on
the date of July 27 or 28 is still relevant. And the three or four weeks leading
up to defendant's arrest provided foundation for his acquisition of the one-
hundred-plus pieces of material.
The third Cofield factor requires that "[t]he evidence of the other crime
must be clear and convincing." 127 N.J. at 338. In this case, referring to
count two as the "other crime," it was clear and convincing that his use of the
torrent program and repeated searches allowed him to build his illicit
collection. And finally, "[t]he probative value of the evidence must not be
outweighed by its apparent prejudice." Ibid. The nature of how defendant
conducted his searches, and his patterns, was probative to the issue of whether
defendant had accessed and obtained the explicit material.
In sum, because defendant did not raise this objection at trial, and
because there were valid reasons for the evidence to be admitted, including to
prove the second count under N.J.R.E. 404(b) if he had objected, we discern
no error by the trial court.
IV.
Next, defendant argues the assistant prosecutor elicited highly
prejudicial testimony from Robinson and improperly focused on defendant's
A-0240-19 15 bad acts during summation. "Prosecutors are afforded considerable leeway in
closing arguments as long as their comments are reasonably related to the
scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing
State v. Harris, 141 N.J. 525, 559 (1995)); State v. Williams, (Williams II),
113 N.J. 393, 447 (1988).
When a defendant raises prosecutorial misconduct for the first time on
appeal, our concern is "whether the remarks, if improper, substantially
prejudiced the defendant['s] fundamental right to have the jury fairly evaluate
the merits of [his or her] defense, and thus had a clear capacity to bring about
an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). Even where a
prosecutor has been guilty of misconduct, reversal of a defendant's conviction
is not necessary unless the conduct was so egregious that it deprived the
defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting
State v. Smith, 167 N.J. 158, 181 (2001)).
In State v. Williams, our Supreme Court recently reaffirmed the core
factors required to find reversible error due to prosecutorial misconduct: "(1)
whether defense counsel made timely and proper objections to the improper
remarks; (2) whether the remarks were withdrawn promptly; and (3) whether
A-0240-19 16 the court ordered the remarks stricken from the record and instructed the jury
to disregard them." 244 N.J. 592, 608 (2021) (internal citations omitted).
First, defendant argues the assistant prosecutor should not have elicited
testimony from Robinson regarding how he was familiar with the particula r
girls in the video. From defendant's perspective, the child pornography
depicted in this video and the girls being abused inflamed the jury and was
irrelevant, as he notes how others have downloaded it, and that was how he
gained his familiarity. But on our review of the record, the prosecutor's
arguments were based on the facts of the case and reasonable inferences
therefrom, and thus, "afford no ground for reversal." Smith, 167 N.J. at 178
(quoting Johnson, 31 N.J. at 510) (internal citations omitted).
Next, defendant argues it was impermissible to question Robinson about
whether those who view child pornography typically gratify themselves
sexually while doing so. In this regard, the court charged the jury on what a
prohibited sexual act was: "[a] prohibited sexual act means . . . nudity, if
depicted for the purpose of sexual stimulation or gratification of any person
who may view such depiction." Indeed, Model Jury Charges (Criminal),
"Endangering the Welfare of a Child (Pornography) (N.J.S.A. 2C:24-
A-0240-19 17 4(b)(5)(a)(iii))" (approved Sept. 2014) reads: "[a] prohibited sexual act means .
. . nudity, if depicted for the purpose of sexual stimulation or gratification of
any person who may view such depiction." Therefore, defendant cannot claim
the question of whether an accused is sexually gratified while viewing child
pornography is irrelevant to the charges in the indictment. Based on the model
charge for defendant's first count, it was necessary to discuss gratification to
prove all elements of the crime to the jury.
Defendant also argues the prosecutor purposely and pointedly inflamed
the passions of the jury. He points to the State's summation, wherein the
prosecutor stated:
This is a case, and I want to emphasize at this point the victims in this case. I want to emphasize that these are . . . charges of endangering the welfare of a child, children, and that's what this case is about. It's about children and it's about children who are put in jeopardy and in danger by the actions of this defendant and others that commit crimes of this nature.
....
And again so that's another -- this defense comes back or these attempted defenses come back as, well, what about the [P2P]. I didn't understand. I had no idea. He says this over and over again. I have no idea. Again, mind you, a . . . contractor for the federal government, somebody who knows enough to find a [torrent file], who even knows what a [torrent
A-0240-19 18 program] is, has enough savvy to have a cleaning program on his computer and yet doesn't understand that the [P2P], how a [P2P] program works. Does that make any sense? I submit to you it doesn't.
He deleted the pornography so he could not be caught.
Sixty-six separate searches, searches, not search terms that -- let's be straight about this.
July 1st, 2017, one search. July 12th, 2017, eight searches. July 13th, 2017, one day later, one search. Two days later, July 15th, 2017, six searches. July 17th, 2017, one search. July 18th, 2017, eight searches. July 20th, 2017, four searches. July 22nd, 2017, three searches and then there are three additional searches that didn't have a date that was assigned or attached to it in the forensic extraction.
Sixty-six different times this defendant searched for this Siberian Mouse video or something related to the Siberian Mouse video, child pornography, and you're to believe that this was an accident, this was a mistake.
What did he download from the [t]orrent? You heard Sergeant Robinson explain this to you from the forensic extractions. Siberian Mouse Pack. Pack. It had a number of things in it. He talked about what [a] pack usually ha[s]. It's a bunch of pictures, images,
A-0240-19 19 videos, stuff like that. How many times did he download it and when? July 13th, downloaded the whole pack. July 19th, downloaded the whole pack. July 20th, downloaded the whole pack again. July 22nd, downloaded the whole pack a fourth time. And that's only [w]hat we know about because we don't have all of it because the defendant deleted it. Not a mistake.
Under Smith, a prosecutor must "confine [his or her] comments to
evidence revealed during the trial and reasonable inferences to be drawn from
that evidence," as here. 167 N.J. at 178 (citing Frost, 158 N.J. at 86; State v.
Marks, 201 N.J. Super. 514, 534 (1985)). But "if a prosecutor's arguments are
based on the facts of the case and reasonable inferences therefrom, what is said
in discussing them, 'by way of comment, denunciation or appeal, will afford no
ground for reversal.'" Ibid. (quoting Johnson, 31 N.J. at 510). Here, the
State's comments were during the closing and were made directly after
summarizing evidence. Thus, we discern no clear capacity to bring about an
unjust result.
VI.
Finally, defendant argues his sentence is excessive. Defendant contends
the six character witnesses he presented showed he was an otherwise law-
abiding and upstanding citizen. He argues the court erred finding aggravating
A-0240-19 20 factor three under N.J.S.A. 2C:44-1(a)(3) and giving moderate weight to the
risk of defendant committing another offense.
We review a judge's sentencing decision under an abuse of discretion
standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court,
we must determine whether:
(1) [T]he sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127
(2011). Our basic responsibility is to assure that the aggravating and
mitigating factors found by the judge are supported by "competent, credible
evidence in the record." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608
(2010) (quoting Roth, 95 N.J. at 364-65)). Defendant's arguments are belied
by the record, which supports the court's finding that it is likely that defendant
would commit a similar offense. State v. O'Donnell, 117 N.J. 210, 215 (1989).
Defendant conceded he has a "problem" viewing children as sexual objects.
A-0240-19 21 We disagree with defendant's assertion that the court impermissibly
double counted by using the elements of the offense to find aggravating factor
nine, which focuses on a need to deter offenders and the general public from
committing the same offenses. N.J.S.A. 2C:44-1(a)(9). Although "[e]lements
of a crime, including those that establish its grade, may not be used as
aggravating factors for sentencing of that particular crime," State v. Lawless,
214 N.J. 594, 608 (2013) (citations omitted), a court "does not eng age in
double-counting when it considers facts showing defendant did more than the
minimum the State is required to prove to establish the elements of an
offense," State v. A.T.C., 454 N.J. Super. 235, 254-55 (App. Div. 2018) (citing
Fuentes, 217 N.J. at 75). Here, the judge properly found aggravating factor
nine based on a "pragmatic assessment of the totality of the harm inflicted by
the offender on the victim." State v. Kromphold, 162 N.J. 345, 358 (2000).
The known child victim in this case presents compelling evidence of the
harm defendant inflicted. Robinson noted "[M.] is also known as [M.B.].
She's one of the girls that's featured in a lot of these Siberian Mouse videos."
And even more:
PROSECUTOR: Are there specific names of individuals or that are searched in the queries?
ROBINSON: Yes.
A-0240-19 22 PROSECUTOR: What, if any, names, specific names are searched in the queries?
ROBINSON: [M] is one in particular.
ROBINSON: "[t]hat's an image of [M.B.] who's present in the Siberian Mouse video that we downloaded [from defendant] on June 27th, 2017.
This form of physical, emotional, and psychological harm is not an
element of the offenses for which defendant was convicted. The sentencing
court's careful attention to this type of harm does not constitute double-
counting. A.T.C., 454 N.J. Super. at 254-55
Defendant also argues the court erred when it failed to find mitigating
factors eight, nine, ten, and eleven. N.J.S.A. 2C:44-1(b)(8) to (11). For
factors eight to ten, defendant asserts his age, caring for his family and clean
criminal record militate a finding of those factors.
Defendant also contends it was an abuse of the trial court's discretion to
find that mitigating factor eleven did not apply. He argues "[t]here was ample
evidence that the defendant's elderly, cognitively impaired mother and
institutionalized, mentally ill sister would suffer excessive hardship if the
appellant were imprisoned." The judge placed adequate reasons to reject the
A-0240-19 23 application of those mitigating factors on the record, finding defendant's
situation no different than any other defendant who has familial obligations.
Defendant's remaining arguments attacking the legal viability of the
sentence imposed by the trial court lack sufficient merit to warrant further
discussion in a written opinion. Rule 2:11-3(e)(1)(E).
Affirmed.
A-0240-19 24