State v. G.N.W.
| Decision Date | 28 January 2020 |
| Docket Number | DOCKET NO. A-0496-17T1 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. G.N.W., Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Messano, Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-07-1248.
Cody Tyler Mason, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Cody Tyler Mason, of counsel and on the brief).
Mary Rebecca Juliano, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Mary Rebecca Juliano, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
This case involves the sexual predation of children while in the sanctuary of their own bedrooms, highlighting the dangers children face today when they use the internet and internet-connected gaming devices. Defendant, G.N.W., appeals from his trial convictions for first-degree aggravated sexual assault and related charges of manufacturing and distributing child pornography. Defendant insisted upon representing himself at trial, took the witness stand, and freely admitted that he used the video chat and photo messaging features of his Xbox videogame console to encourage boys between the ages of ten and fifteen to send him sexually explicit videos. Defendant also admitted, among other things, that he sent the children videos of himself masturbating. The State's trial proofs, which included electronic evidence seized from defendant's home and the live testimony of four1 underage victims, established that defendant induced the children to perform and video record sexual acts, including anal penetration.
Defendant has been steadfast in his contentions that pedophiles are a persecuted minority and that the New Jersey Code of Criminal Justicewrongfully makes this conduct a crime. These tenets are the foundation of his defense strategy. He also argued that his conduct was not unlawful because the children consented to every request he made. The jury rejected this defense and convicted defendant of twenty-one crimes involving the four underage victims. He was sentenced to an aggregate term of forty-six years of imprisonment during which he must serve thirty-eight years before becoming eligible for parole.
On appeal defendant raises a number of contentions challenging both his trial convictions and sentence. After reviewing the record in light of the applicable legal standards, we reject all but one of defendant's arguments on appeal. Specifically, we cannot determine whether the seven-year delay between defendant's arrest in 2009 and his trial in 2016 violated his constitutional right to a speedy trial.
It appears that much of the delay was attributed to (1) the high volume of defense motions; (2) the nature of an investigation involving forensic analysis of digital evidence used to identify out-of-state victims; and (3) additional charges being lodged as a result of new information provided by child witnesses who had been reluctant initially to reveal certain sexual acts. However, as the State acknowledges, the trial court did not make specific findings with respect to the four factors set forth in Barker v. Wingo. 407 U.S. 514 (1972). Ittherefore is necessary to remand the case to the Law Division to undertake the fact-sensitive analysis required by Barker.
This case, which four different Law Division judges presided over, has a long and tortuous procedural history. We summarize the most significant events to provide context for defendant's speedy trial claim.
In October 2009, defendant was arrested the day after the Monmouth County Prosecutor's Office executed a search warrant and seized electronic devices and storage media from defendant's home. The ensuing forensic examination revealed the Xbox usernames of children with whom defendant communicated and shared pornographic photographs and videos.
On January 7, 2011, a Monmouth County grand jury charged defendant in a nineteen-count indictment.
On February 6, 2012, defendant filed motions to dismiss the indictment and to suppress evidence seized pursuant to the search warrant. He also moved for a bill of particulars and requested a Michaels2 taint hearing. On January 9,2013, defendant's attorney withdrew the motion for a bill of particulars, and the first judge assigned to the case denied defendant's motion to dismiss the indictment. The judge denied the Michaels motion without an evidentiary hearing on October 29, 2013, and the motion to suppress was denied on December 13, 2013.
On February 3, 2014, defendant appeared at a plea cutoff hearing pursuant to R. 3:9-3(g). At the hearing he acknowledged the maximum sentence that could be imposed for each count of the nineteen-count indictment. A trial date was scheduled for May 6, 2014.
At some point in the course of the preparation for trial, the State became aware that defendant encouraged two of the victims to penetrate themselves anally, conduct constituting first-degree crimes that the grand jury had not charged in the initial indictment. Defendant did not agree to allow the State to proceed with these additional charges by accusation. Accordingly, the State scheduled a grand jury hearing for June 20, 2014.
On July 16, 2014, a Monmouth County grand jury returned a superseding indictment charging defendant with twenty-seven counts. The supersedingindictment charged five counts of third-degree child endangerment, N.J.S.A. 2C:24-4(a) (); four counts of second-degree manufacturing child pornography, N.J.S.A. 2C:24-4(b)(4) (); four counts of second-degree causing a child to engage in child pornography, N.J.S.A. 2C:24-4(b)(3) (); four counts of third-degree distribution of obscene material to a person under eighteen, N.J.S.A. 2C:34-3(b)(1) and (2) (); three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (); two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (); and one count of fourth-degree possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b) (count twenty-seven).
On August 18, 2014, defendant filed a motion to dismiss the superseding indictment. A second judge heard and denied that motion on October 10, 2014. Two weeks later, a third judge assigned to the case was preparing to decide another motion to suppress when the judge received a pro se submission fromdefendant seeking to represent himself at trial. This submission led to the postponement of the re-scheduled trial date of January 5, 2015. Defendant later entered a formal request to proceed pro se and underwent a competency evaluation on February 24, 2015. The third judge found defendant to be competent on September 24, 2015. On October 20, 2015, the court found that defendant knowingly and voluntarily waived his right to counsel, whereupon the court granted defendant's application to represent himself.
The case was reassigned to a fourth judge, who on March 9, 2016, denied defendant's motions to dismiss the superseding indictment for vagueness and violations of the First Amendment; to dismiss for a violation of speedy trial; to suppress evidence; and to recuse both the third and fourth judges who had heard aspects of the case.
On March 10, 2016, the trial court held a new plea cutoff hearing for the superseding indictment at which time defendant was apprised that if convicted on all counts, he faced a maximum sentence of 239.5 years imprisonment with a 59.5-year period of parole ineligibility. A trial date was set for October 12, 2016. In the interim, defendant filed motions on June 20, August 5, September 8, and September 27, 2016.
Trial commenced on October 20, 2016. At the close of the State's case, defendant moved to dismiss several counts, in part because one of the child witnesses did not testify. The trial judge granted that motion and entered judgments of acquittal on those counts.
On November 18, 2016, the jury convicted defendant of the remaining twenty-one counts. Defendant moved for a mistrial, which the trial court denied on April 28, 2017.
The sentencing hearing was held on April 28, 2017. After appropriate mergers, the court imposed an aggregate forty-six-year sentence with a thirty-eight-year term of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed multiple terms of Parole Supervision for Life (PSL), Megan's Law restrictions, and fees, penalties, and assessments totaling $33,080.
We next summarize the facts elicited at trial. Law enforcement authorities were alerted that defendant had posted a YouTube video in which he professed to be attracted to young boys and advocated for pedophilia. Defendant, who was nineteen years old at the time, admitted to detectives during a noncustodial interview that he found ten-year old boys "just so hot." Defendant discussed hisXbox video game console and its attached camera and microphone, which he used to communicate with "many people, including children" under his username, TEENTECH.
Five months later, S.S. went into the bedroom of her twelve-year-old son, Z.M., and saw that the user profile for TEENTECH was displayed on...
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