STATE OF NEW JERSEY v. CLEMENT BILSKI JR (2011)

Defendant Clement Bilski, Jr. appeals his conviction and sentence.   A jury found defendant guilty of 143 crimes he committed against the child Jane Doe from July 22, 1998 through February 28, 2003.   At the time of the first offense, Jane was two years old and defendant was thirty-five.   The evidence supporting defendant's convictions was seized from his home pursuant to a warrant:  video and audio recordings made by him that memorialize his sexual penetration and sexual contact with Jane and him showing pornographic material to her;  the handheld and fixed cameras he used;  and CDs on which he had compiled and titled the recordings.¹

Prior to sentencing, defendant was examined as required by N.J.S.A. 2C:47-1;  it was determined that his conduct was characterized by a pattern of repetitive and compulsive behavior and that he is amenable to treatment.   Although the judge accepted the finding, he imposed a sentence that he recognized makes such treatment unlikely.   See N.J.S.A. 2C:47-3h-k.

The judge sentenced defendant to an aggregate term of eighty years with sixty-one years of parole ineligibility.   That sentence consists of consecutive twenty-year terms for four of defendant's fifty-two convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1).   Three of those terms are subject to periods of parole ineligibility and supervision mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and one is subject to a ten-year period of parole ineligibility imposed by the judge pursuant to N.J.S.A. 2C:43-6b.

The remainder of defendant's sentences are concurrent with one another and the eighty-year term.   The judge merged one conviction for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, with the aggravated sexual assault convictions and imposed concurrent sentences for the remaining convictions:  forty-eight counts of first-degree aggravated sexual assault;  fifteen counts of second-degree sexual assault based on sexual contact with Jane, N.J.S.A. 2C:14-2b;  seventy-four counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a;  and one count of promoting obscene material, N.J.S.A. 2C:34-3b(2).   The judge also imposed a $3750 VCCB assessment, a $5265 SNSF penalty, a $30 LEOTEF penalty, a $70,400 SANE assessment, and a $3800 surcharge.

On appeal, defendant challenges three pretrial rulings:  a protective order governing defense access to the evidential recordings, the denial of a motion to suppress evidence obtained by grand jury subpoena issued to the providers of his internet service without notice to him and the denial of a motion for change of venue.   He also contends that his sentence is manifestly excessive and contrary to governing legal principles.   Finding no legal error or abuse of the judge's discretion, we affirm.

The Maryland State Police provided the information that brought defendant to the attention of New Jersey law enforcement.   A Maryland trooper had traced a video image of child pornography displayed on a peer-to-peer file sharing network to the Internet Protocol address of a computer with service provided by Comcast Cable in Monmouth County, New Jersey.   Through grand jury subpoenas issued to Comcast and another provider, the Monmouth County Prosecutor acquired defendant's name and address and then obtained a warrant authorizing the search of his home.   During their search, they recovered defendant's video recordings, films and CDs, and the equipment used to produce CDs.

One video segment recovered from defendant's home showed the license plate number of the Does' car.   Subsequently, the police showed Jane's father two photographs produced from videos they had seized.   He identified the pictures as depicting Jane and the second-floor bathroom of his house.

Jane was about nine years old when her father identified the pictures.   Defendant is a home-improvement contractor.   Jane's parents first hired him on the recommendation of friends when Jane was under the age of two.   Between 1997 and February 2003, he worked on multiple projects in the Does' home.   Over the years, defendant constructed a bedroom and closet in their basement and remodeled a second-floor bathroom used by Jane, the kitchen, the dining room, den and living room.   Although the Does were not fully satisfied with the time it took defendant to complete the jobs, they were pleased with the quality of his work.   All of the Does' children seemed interested in his work, and the parents trusted him.   While defendant worked for the Does, he “pretty much had a run of the house.”

The vantage point in several recordings of defendant and Jane suggested that the video had been shot with a fixed camera.   The police therefore inspected the Does' home for hidden cameras.   They did not find any, but discovered a hole in the sheetrock ceiling of the bathroom defendant remodeled, a wire leading to the attic from a vent in Jane's bedroom and a hole in the casing on the door to the bedroom that defendant built in the basement.   These findings were consistent with a hidden camera having been present in the past.   That conclusion was supported by invoices showing that the defendant had two “pinhole board” cameras shipped to the Does' house while he was working there.

Each crime charged in the indictment was depicted on the videos found in defendant's home.   The indictment and a joint exhibit introduced at trial identify the State's exhibit and the section of the exhibit that supports each crime.

The videos depict Jane with defendant at ages two through six.   The conduct shown includes fellatio;  cunnilingus;  vaginal penetration by defendant's penis, sexual devices and a toilet plunger;  anal penetration by defendant's penis and tongue;  sexual contact;  and display of pornographic material.   The acts took place at the Does' home in the living and family rooms, Jane's bedroom, her second-floor bathroom, the basement bedroom, and the driveway in defendant's van.

Defendant did not testify or present expert testimony.   His defense was that he did not possess the requisite state of mind at the time he committed the offenses.   The jury by its verdict rejected that claim.

On appeal, defendant argues:

I.  THE COURT ERRED IN RULING THAT THE

DEFENSE WOULD NOT BE PERMITTED TO OBTAIN ITS OWN COPIES OF DISCOVERY MATERIALS.

II. THE MOTION TO SUPPRESS SHOULD HAVE BEEN

GRANTED AS A MATTER OF PUBLIC POLICY BECAUSE THE INTERESTS OF THE THIRD PARTY TO WHOM THE GRAND JURY SUBPOENA WAS ISSUED WERE ADVERSED [sic] TO THOSE OF DEFENDANT.

III. BECAUSE IT WOULD HAVE BEEN IMPOSSIBLE

FOR DEFENDANT TO HAVE HAD A FAIR TRIAL IN HIS HOME COUNTY, THE COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFNENDANT'S MOTION FOR CHANGE OF VENUE.

IV. THE AGGREGATE EIGHTY-YEAR TERM IMPOSED

ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES, AND VIOLATED LEGAL PRINCIPLES REGARDING THE IMPOSITION OF CONSECUTIVE SENTENCES.

I

Although defendant obtained opinions on his mental state at the time of these crimes from two experts and elected not to present them, he argues that a protective order requiring members of the defense team to view the images of the crime on the State's computers deprived him of the opportunity to present an expert defense.   We cannot conclude that the entry of that protective order warrants reversal of defendant's convictions.

On the State's motion, the trial judge entered a protective order providing that defendant's attorney could not be given possession or make a duplicate or copy of the images or videos.   The order directs the prosecutor to make the videos available to defense counsel, defense experts, defense investigators and defendant on request and forty-eight-hours notice.   Under the terms of the order, no representative of the State, other than one needed for security if defendant participated, could attend.

Defendant and his attorney viewed the videos on two occasions - once in a vacant jury room at the Monmouth County Court House about two months prior to trial and once two weeks before trial at a work station in an otherwise unoccupied classroom at the Monmouth County Jail. There is no indication that the prosecutor denied any defense request for access or that the defense moved for modification of the protective order after reviewing the materials.

In general, the defense has the right “to inspect and copy or photograph” relevant material, including “tangible

objects ․ obtained from or belonging to the defendant.”

R. 3:13-3(c).  But “[u]pon motion and for good cause shown the court may at any time order that the discovery or inspection sought pursuant to [Rule 3:13-3] be denied, restricted, or deferred or make such other order as is appropriate.”  R. 3:13-3(f).

When deciding a motion for a protective order, the court may consider “protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation;  maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity;  protection of confidential relationships and privileges recognized by law;  [and] any other relevant considerations.”  Ibid. (emphasis added).   The determination is committed to the discretion of the trial judge, and the discretion must be exercised in a manner that does not deprive a defendant in a criminal case of rights that are critical to a fair trial.  State v. Garcia, 131 N.J. 67, 79-80, 83 (1993).

In this case, the State claimed “good cause” based on the need to protect the privacy of Jane and the other children depicted in the materials and minimizing the risk of additional harm to them from further, albeit inadvertent, dissemination of their images.   The State also argued that these images of the children being sexually abused constituted child pornography that is contraband.   The State stressed the practices it has in place to prevent inadvertent dissemination - storing the materials in vaults and “wiping” the discs clean of electronic images that can be retrieved even after files are deleted from a computer.²

Defense counsel opposed the protective order because of the impact it would have on the preparation of a defense based on defendant's mental state.   According to counsel, the limitation would add to the time and expense of having an expert sift through the voluminous materials.   Counsel did not claim that defendant needed copies for forensic testing relevant to authenticity or integrity.

The judge found that the State had shown good cause for a restriction that would not foreclose access by the defense.   The judge considered defendant's right to adequately prepare a defense but concluded that the restrictions would not unduly interfere with that “paramount” right.

The protective order is not an obvious abuse of the judge's discretion.   Restrictions on discovery imposed in the interests of protecting children who are victims of sexual crimes have been approved in other contexts.   In State v. R.W., 104 N.J. 14, 28 (1986), the Supreme Court held that a court cannot order the psychiatric evaluation of a child sexual-assault victim without “balanc[ing] the possible emotional trauma, embarrassment, and intimidation to the complainant, particularly an extremely young child, against the likelihood that the examination will produce material, as distinguished from speculative, evidence.”   Similarly, in State v. D.R.H., 127 N.J. 249, 258-59 (1992), the Court reiterated its holding in R.W. and found that the trial court “clearly erred in determining that with respect to a child sex-abuse victim, a physical examination relating to the alleged abuse does not constitute an invasion of privacy and does not create a substantial risk of serious harm to the child in the form of emotional trauma and mental distress.”   And in State v. Gilchrist, 381 N.J.Super. 138, 147 (App.Div.2005), we held that the trial court “failed to properly evaluate all of the relevant considerations” when it did not balance the defendant's interest in obtaining a picture of the victim with her “right to privacy;  her right to be treated with fairness, compassion, and respect;  her right to be free from intimidation;  and the need to encourage crime victims to cooperate and participate in the criminal justice system.”

Equally important, this protective order did not deny access to any evidence.   The order does not permit the State to prohibit access or grant access for only a limited period of time.   It prevents removal of the evidence from the State's possession but permits the defense to review it without additional oversight.   Defense counsel never explained how the restriction would add to the time an expert would need to formulate an opinion.   We suppose it could add to travel time and require planning to give the State the notice required, but beyond that we cannot discern how the expert's task would be any different.

Even if we were to conclude that the State's showing of “good cause” was inadequate to warrant a protective order as broad as the one issued, it is apparent that the restrictions imposed were not “clearly capable of producing an unjust result.”  R. 2:10-2.   The claim that the protective order interfered with a defense based on defendant's mental state at the time of the crimes is belied by the record.

During a colloquy prior to trial, defense counsel addressed expert reports:

I came into this case, I reviewed the file and it did appear to me that the only direction to go was with a psychiatric defense.   I went over to the Public Defender's Office.   It was approved to get a doctor to come in and do an evaluation.   That doctor did an evaluation.   The doctor never said to me, ‘I needed more time, needed any more information.’

The doctor rendered an opinion.   It was not an opinion that satisfied what I believe our needs to be.   At that time I went back to the Public Defender's office and was unable to get another doctor.   Went a third time to the Public Defender's Office.   Told them it was absolutely essential that we have a doctor of my choice, a doctor I worked with before and have had success with that person doing good evaluations and giving me a way to go.   That is that there's something there, that person would find it.   Nothing there, they'll let me know there's nothing there.

That person came in, did the evaluation.   I spoke to ․ the doctor after the evaluation.   The doctor said nothing about didn't need to complete.   I did ask the doctor about my client's concern that he didn't come back to complete.   He said, ‘There was no reason, I had all the information I needed,’ and he rendered an opinion.

That opinion was not helpful to us. We

were unable to formulate that opinion into

a defense․

[ (Emphasis added).]

The foregoing statements are significant because they undercut defendant's claim of prejudice based on the restrictions imposed by the protective order.   The prospective experts had the material they needed to formulate opinions.

We have considered that the evidence subject to the protective order was critical to the State's case, but that does not change our analysis.   Because the indictment identified the segments of the exhibits the State would use to establish each crime, preparation of the defense did not require a review of the defendant's entire video collection for pertinent images.   There is a joint exhibit that correlates the counts of the indictment with the State's exhibits establishing each crime.   After considering the arguments presented in light of the record, we have no doubt that the result would have been no different if defense counsel had been permitted to duplicate the recordings.

We have not followed the State's suggestion to rely on the federal Adam Walsh Act, 18 U.S.C.A. § 3509(m), which is only applicable in federal prosecutions.   The Act provides that “[n]otwithstanding [the federal rules governing discovery], a court shall deny, in any criminal proceeding, any request by the defendant to copy ․ or otherwise reproduce any ․ material that constitutes child pornography ․ so long as the Government makes the property or material reasonably available to the defendant.”   Id. at § 3509(m)(2)(A).   Under the Act, material is “reasonably available to the defendant” if the prosecution “provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.”   Id. at § 3509(m)(2)(B).  In our view, the flexible standard of Rule 3:13-3(f), applied in conformity with the decisions addressing privacy and harm to victims, is quite adequate and preferable to a bright-line rule that does not, at least on its face, call for consideration of a defendant's right to prepare and present a defense.

II

Defendant also argues that his sentence is excessive.   He contends that it was inappropriate for the trial judge to sentence him to maximum terms on four of his fifty-two convictions for first-degree sexual assault and to run those four sentences consecutive to one another.³  His argument implicates the factors elucidated by the Supreme Court in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104, 106 S.Ct. 1193, 89 L. Ed.2d 308 (1986), that “bring rationality to the process and ․ further the goal of sentencing uniformity.”  State v. Abdullah, 184 N.J. 497, 513 (2005).  “The Yarbough factors [that guide discretion in imposition of consecutive sentences] serve much the same purpose that aggravating and mitigating factors do in guiding the court toward a sentence within the statutory range.”  Id. at 514.   The Yarbough factors are:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.

[Yarbough, supra, 100 N.J. at 643-44].4

Defendant does not argue that the trial court gave insufficient reasons for the imposition of consecutive sentences.   He contends instead that his conduct did not warrant four consecutive maximum sentences.

Defendant relies on State v. Miller, 108 N.J. 112, 122 (1987), which states that ordinarily the “factors relied on to sentence a defendant to the maximum term for each offense should not be used again to justify imposing those sentences consecutively” and “[w]here the offenses are closely related it would ordinarily be inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively, especially where the second offense did not pose an additional risk to the victim.”   See also State v. Ghertler, 114 N.J. 383, 392 (1989) (noting that Miller disapproves reliance on the same aggravating factors to impose a maximum sentence and make it consecutive to another sentence).

Although the judge did not provide a separate statement of reasons addressing aggravating factors and the Yarbough factors, we are satisfied that the judge's statement of reasons reflects “ ‘an overall evaluation of the punishment for the several offenses,’ Yarbough, supra, 100 N.J. at 646;  ‘focus[es] on the fairness of the overall sentence,’ Miller, supra, 108 N.J. at 122;  and t[akes] into account all the circumstances of the offenses, State v. Sainz, 107 N.J. 283, 293 (1987).”  Ghertler, supra, 114 N.J. 383, 392 (1989).

The following are among the findings the judge made:  “defendant committed these crimes between July 22, 1998 and February 2003”;  he “sexually violated Jane Doe at least 67 times and recorded each incident”;  “his victimization started when she was two years old and ended when she was six”;  and “he recorded these events so that he could watch them again.”   The judge concluded:

For over four years, defendant made a sex slave out of a beautiful innocent child.   For the multiple times he violated her body in the most degrading of ways, he deserves consecutive sentences that will prevent him from ever being released back into society.   To not impose meaningful consecutive sentences in this case would minimize the separate nature of each separate assault on this child.

Recasting the judge's statement in terms of the Yarbough factors, we find no abuse of discretion.   These four aggravated sexual assaults involved separate acts of violence.   The evidence presented included depictions of a vaginal penetration during the period commencing in July 1998 (count 47);  an anal penetration by defendant's penis during the period commencing on September 18, 2002 (count 33);  a vaginal penetration with a sexual device during the period commencing on September 18, 2002 (count 16);  and a vaginal penetration by defendant's penis during the period commencing on September 18, 2002 (count 3).   In each case, the State relied on a different segment of video or film.   Thus, there were separate acts of violence, and the acts were not so proximate in time as to indicate a single period of aberrant behavior.   Defendant accepted multiple jobs at the Does' home;  each of his departures and returns can reasonably be viewed as marking a new period.   Moreover, it is an understatement to say that defendant was being sentenced for “numerous” convictions.   As noted above, defendant's fifty-two convictions for aggravated sexual assault were not the only convictions for which he was being sentenced.

While the structure of the judge's statement of reasons makes it difficult to conclude with absolute certainty that he did not consider the victim's vulnerability and the harm inflicted when fixing the individual and aggregate sentence, the sentence is supportable, without any reliance on those factors, solely on the basis of the numerous convictions involving separate acts of violence.   To run defendant's sentences concurrently would make him indistinguishable from an offender who assaulted his victim only once or only over a short span of time, such as a weekend.   Cf. Miller, supra, 108 N.J. at 114, 122 (defendant's two sexual assaults may have constituted only a “single period of aberrant behavior” as they occurred over the course of one weekend).

We recognize that Yarbough clearly states the “successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.”  100 N.J. at 644.   We cannot conclude that the judge erred in finding that this case involving a sentencing for fifty-two counts of first-degree sexual assault was sufficiently extraordinary to fall outside the “ordinarily” applicable rule.

In the end, as the Court emphasized in Miller, “the focus should be on the fairness of the overall sentence.”  Id. at 122.   We are satisfied that defendant's sentence, while harsh, is fair overall and does not shock the judicial conscience.  State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

III

Defendant's remaining arguments - that the trial court improperly denied his motions to suppress evidence and change venue - are without sufficient merit to warrant extended discussion in a written opinion.  R. 2:11-3(e)(2).   We simply note:  defendant's argument that he was entitled to notice of issuance of the grand jury subpoenas to his Internet Service Providers was rejected in State v. Reid, 194 N.J. 386, 403-04 (2008);  and in considering defendant's motion for change of venue, the trial judge properly identified and applied the controlling criteria and did not abuse his discretion.  State v. Nelson, 173 N.J. 417, 475-76 (2002).

Affirmed.

FOOTNOTES

FN1. The indictment included a total of 429 counts.   Counts 152 through 429 were severed.   Those counts charged crimes involving ten other victims that were depicted with defendant in videos..  FN1. The indictment included a total of 429 counts.   Counts 152 through 429 were severed.   Those counts charged crimes involving ten other victims that were depicted with defendant in videos.

FN2. Normally, “[w]hen a user deletes a file, it is not erased completely from the computer.   Instead, the deleted file is moved to ‘unallocated space’ ” where it can be recovered.  United States v. McArthur, 573 F.3d 608, 612 n.4 (8th Cir.2009).   The State's practice of periodically wiping its computers ensures that the pornography cannot be recovered from the unallocated spaces..  FN2. Normally, “[w]hen a user deletes a file, it is not erased completely from the computer.   Instead, the deleted file is moved to ‘unallocated space’ ” where it can be recovered.  United States v. McArthur, 573 F.3d 608, 612 n.4 (8th Cir.2009).   The State's practice of periodically wiping its computers ensures that the pornography cannot be recovered from the unallocated spaces.

FN3. Defendant does not address merger or object to the concurrent sentences..  FN3. Defendant does not address merger or object to the concurrent sentences.

FN4. Yarbough factor six, that “there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms ․ that could be imposed for the two most serious offenses,” 100 N.J. at 644, was abrogated by N.J.S.A. 2C:44-5(a)..  FN4. Yarbough factor six, that “there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms ․ that could be imposed for the two most serious offenses,” 100 N.J. at 644, was abrogated by N.J.S.A. 2C:44-5(a).

PER CURIAM