The 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NOT FOR PUBLICATION WITHOUT THE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.
Defendant contends that subsections (b) and (d) of N.J.S.A.
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