                        RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-0459-15T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,
                                                APPROVED FOR PUBLICATION
v.                                                      April 4, 2017

MICHAEL D. MILLER,                                    APPELLATE DIVISION

     Defendant-Appellant.


         Submitted March 15, 2017 – Decided              April 4, 2017

         Before     Judges    Fuentes,      Carroll    and    Gooden
         Brown.

         On appeal from the Superior Court of New
         Jersey,   Law  Division,   Monmouth County,
         Indictment No. 13-05-0894.

         Rudnick,   Addonizio,   Pappa   &   Casazza,
         attorneys for appellant (Mark F. Casazza, of
         counsel and on the brief).

         Christopher J. Gramiccioni, Monmouth County
         Prosecutor, attorney for respondent (Paul H.
         Heinzel, Senior Assistant Prosecutor, of
         counsel and on the brief).

     The opinion of the court was delivered by

CARROLL, J.A.D.

     Defendant    Michael    Miller   was    charged     in   Monmouth     County

Indictment No. 13-05-0894 with fourth-degree child endangerment

by possessing child pornography, N.J.S.A. 2C:24-4b(5)(b) (Count
One),   and    second-degree         child       endangerment     for    distributing

child     pornography,         N.J.S.A.          2C:24-4b(5)(a)         (Count      Two).

Following a bench trial, he was convicted of both charges.                              On

August 14, 2015, defendant was sentenced to a seven-year jail

term on Count Two, and a consecutive one-year jail term on Count

One.    He was also required to comply with Megan's Law, N.J.S.A.

2C:7-2,    and    to     pay   the    appropriate        fines,    penalties,          and

assessments.       Defendant      appeals         from   his   conviction        and   the

sentence imposed, arguing:

              POINT I

              SINCE   [DETECTIVE]   BRUCCOLIERE WAS  NOT
              OFFERED AND QUALIFIED AS AN EXPERT WITNESS
              BY THE STATE, THE TRIAL COURT ERRED IN
              ADMITTING INADMISSIBLE TESTIMONY.

              POINT II

              [] DEFENDANT'S CONVICTION FOR DISTRIBUTING
              CHILD PORNOGRAPHY WAS AGAINST THE WEIGHT OF
              THE EVIDENCE.

              POINT III

              DEFENDANT'S SENTENCE WAS EXCESSIVE.

Having considered defendant's arguments in light of the record

and applicable legal standards, we affirm defendant's conviction

but remand for resentencing.

                                          I.

       We summarize the facts taken from the record of the non-

jury trial that was conducted on six dates between February 11,



                                             2                                   A-0459-15T4
2015, and February 25, 2015.             The State presented the testimony

of the investigating officers; a detective from the Monmouth

County     Prosecutor's     Office       (MCPO)       who     examined       defendant's

computer;     video    evidence        obtained       from    that        computer;      and

defendant's statement.            Defendant testified, and presented his

brother as a character witness.

      Freehold     Township        Police      Officer        Richard        Hudak       was

specially assigned to the MCPO Internet Crimes Against Children

(ICAC)     Task   Force.         The    ICAC    Task        Force    used     undercover

computers equipped with special software to search the internet

for persons who received or transmitted child pornography.                             That

software allowed Hudak to log onto the peer-to-peer file sharing

network,    "Gnutella,"      in    search      of    persons        who    shared     child

pornography       media     files.            Hudak     entered           search      terms

representative of child pornography and was provided with a list

of files posted and available for download by Gnutella peers.

His     search    results    contained         the     internet           protocol     (IP)

addresses identifying the device of the sharing peer, as well as

a cryptographic secure hash algorithm (SHA-1) of the file.

      On December 13, 2010, Hudak's search yielded defendant's

internet    protocol      (IP)    address      showing        files       available      for

download, which, based on the file names, Hudak believed to be

child    pornography.       Three      days    later,       Hudak     downloaded       four




                                          3                                        A-0459-15T4
video   files     containing         child    pornography.             The    videos     were

placed on a compact disc (CD) and played at trial.

       On January 18, 2011, Hudak noticed defendant's IP address

had changed, and that the shared directory contained several

file    names    that    were       indicative      of    child       pornography.          On

February 4, 2011, Hudak downloaded two files containing child

pornography       from   defendant's          second      IP    address,      which      were

placed on a CD and played at trial.

       Monmouth County Sheriff's Office Detective Timothy Baggitt

is a certified computer forensic examiner who was also assigned

to the ICAC Task Force.              On May 7, 2011, Baggitt downloaded four

video files from defendant's "global unique identifier" (GUID)

to his ICAC computer.               These videos were viewed by the court,

and defendant stipulated that the acts they depicted met the

statutory definition of child pornography.                            On June 1, 2011,

Hudak learned that defendant's IP address had changed again.                                On

that    date,    he   downloaded       three       more     files      containing        child

pornography, which were also played at trial.

       Various law enforcement officials responded to defendant's

residence    to    execute      a    search       warrant      on    February       1,   2012.

Thirty-three       CDs   and    DVDs     were       seized,         along    with    several

computers,       including      an    Acer    Aspire        4315      laptop,   and      hard

drives.         Defendant    was      taken       into    custody      and    brought       to




                                              4                                      A-0459-15T4
Keansburg    police   headquarters,       where   he   waived   his    Miranda¹

rights.     He then gave a recorded statement admitting he lived

alone in the house the past two years and that he had downloaded

child pornography onto his laptop computer.               He also admitted

using     LimeWire    and   then   FrostWire      peer-to-peer        programs.

Defendant described his knowledge of peer-to-peer file sharing

during the following questioning by MCPO Lieutenant William Wei:

            WEI:   You  have  FrostWire.      You  have
            downloaded those images.     You're running
            FrostWire, you download images, what makes
            you think other people can't download it
            from you?

            DEFENDANT: I just never . . . thought about
            it.    Obviously, they can.    [] [Y]ou're
            absolutely right.   Honestly, I just never
            thought about it.

                 . . . .

            WEI: [] So Mike, you told me that you . . .
            didn't think possession of child pornography
            is   illegal,   but   you    told    me   that
            distribution   is.     So   by    you   merely
            downloading this and saving it into your
            library, and you do see the meters of the
            green uploading, what is that telling me?

            DEFENDANT: I understand what you're saying.
            Obvious - - I - -

            WEI:   Do you dispute that you made these
            videos shareable to other people using
            FrostWire?


¹
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).



                                      5                                A-0459-15T4
              DEFENDANT:   No.   But obviously, it was in
              the . . . library, it was available.

              WEI:   Okay.   And you knew that . . . that
              library where the images or the videos were
              was shareable?

              DEFENDANT:    Yes.

              WEI:    All right.    And you knew that why?

              DEFENDANT:    []      [T]hat's        how    peer-to-peer
              works, I guess?

              WEI: That's exactly how it works, but also,
              you saw the meters, you saw the thing
              that's, you know, sharing that you were
              uploading.

              DEFENDANT:    Okay.

    MCPO Detective Richard Bruccoliere performed the forensic

analysis of the Acer laptop computer and other seized items.

Bruccoliere     was    assigned     to   the   MCPO's      Computer     Crimes      Unit

since December 2009, and previously worked for the United States

Secret Service, where he conducted computer and digital media

forensic investigations.            He was a certified forensic computer

examiner who had undergone approximately 700 hours of classroom

training      and    performed     hundreds      of       forensic    examinations.

Bruccoliere's        forensic    analysis      of     defendant's      Acer    laptop

revealed   defendant       had    downloaded     631      still   images      and    353

videos   of    child    pornography.           Additionally,         eleven   of     the

thirty-three seized CDs and DVDs contained child pornographic

images and videos.



                                          6                                   A-0459-15T4
      When Bruccoliere testified how peer-to-peer file sharing

worked, defense counsel objected on the basis that the State had

not offered or qualified him as an expert witness.                           The judge

noted     that     defendant      admitted      in     his     statement      that    he

understood        how    peer-to-peer    file        sharing    worked.        Defense

counsel    also     objected      to   Bruccoliere's         testimony       about   the

organization of the files, folders, and sub-folders found on the

Acer laptop computer, the labeling of the CDs and DVDs, and

Bruccoliere's testimony about a screen capture of defendant's

computer.        The judge cited State v. Doriguzzi, 334 N.J. Super.

530, 534 (App. Div. 2000), for the proposition that "computers

and their functioning as no longer topics that are so esoteric

as beyond the ken of the average person."                       The judge further

found that Bruccoliere testified as a fact witness concerning

the     process     by    which   he    examined       defendant's      Acer    laptop

computer, and admitted the challenged testimony.

      After the State rested, the trial court denied defendant's

motion for a judgment of acquittal.                    R. 3:18-1.         Defendant's

brother,    a     retired   police     officer,       testified    as    a   character

witness and described defendant's reputation in the community as

"upstanding, hardworking, and he has good moral character."

      Defendant testified he lacked "any in-depth knowledge of

computers."        He stated he had a "very basic knowledge" of peer-




                                          7                                    A-0459-15T4
to-peer file sharing and "knew it was possible" that downloaded

child      pornography       could   be    distributed       to     someone         else.

However, he later testified he was not aware of the possibility

of distributing child pornography through his computer, and that

it was never his intention to do so.                     He acknowledged having

told    the   police    he    "downloaded      tons    of   pornography"        on    his

laptop, and stated his purpose in doing so was to view it for

his own sexual gratification.

       At the conclusion of the trial, the judge found that Hudak,

Baggitt,      and      Bruccoliere        "were       competent     and        credible

witnesses."      He noted that defendant's "computer had peer-to-

peer    file-sharing         programs      installed"       on     it,        and    that

Bruccoliere "testified credibly from his operation and viewing

of   the    computer     that   these     were    programs       used    to    download

pornography during the relevant times."                 The judge recounted the

explicit nature of the sexual acts and the young ages of the

children depicted in the videos that were played in court and

concluded "there's no question that this is child pornography."

       In contrast to the State's witnesses, the judge determined:

"I do not find [defendant] credible.                   I find him not credible

when he testified that he didn't really consider that others

would obtain the child pornography files from him by way of the

[] peer-to-peer network, the same way that he obtained it from




                                           8                                    A-0459-15T4
others.     I think he did."        The judge found defendant "knowingly

use[d]     a     peer-to-peer       system       [to]     search[]        for        child

pornography, and he downloaded it to his computer during the

relevant times as alleged. . . .               And [] defendant maintained []

some of them[] in his computer in the peer-to-peer system."

Ultimately, the judge concluded that defendant "understood how

peer-to-peer      worked    and   that   if     [the    child    pornography]         was

available to him, it was available from him through the peer-to-

peer system and through his computer."                   Based upon the judge's

analysis of the trial proofs, he found defendant guilty of both

charges.       This appeal followed.

                                         II.

                                         A.

    Defendant       first    argues      that    the     trial    court     erred      in

allowing Detective Bruccoliere to provide expert testimony at

trial without having been offered or qualified as an expert in

computer forensics.         We disagree.

    We     begin     by    noting    that       our    standard     of    review       on

evidentiary rulings is abuse of discretion.                       We only reverse

those     that    "undermine      confidence      in     the     validity       of    the

conviction or misapply the law[.]"                    State v. Weaver, 219 N.J.

131, 149 (2014); See also State v. J.A.C., 210 N.J. 281, 295

(2012).    Simply stated, we do "not substitute [our] own judgment




                                          9                                     A-0459-15T4
for that of the trial court, unless the trial court's ruling is

so wide of the mark that a manifest denial of justice resulted."

J.A.C., supra, 210 N.J. at 295.

    Witnesses, including police officers, testify in a variety

of roles.     A fact witness is one who testifies as to what "he or

she perceived through one or more of the senses."                           State v.

McLean, 205 N.J. 438, 460 (2011).                "Fact testimony has always

consisted of a description of what the officer did and saw[.]"

Ibid.      "Testimony    of   that    type    includes    no     opinion,     lay    or

expert, and does not convey information about what the officer

'believed,' 'thought' or 'suspected,' but instead is an ordinary

fact-based recitation by a witness with first-hand knowledge."

Ibid. (citations omitted).

    Expert     witnesses,      however,      "explain     the    implications        of

observed     behaviors    that       would    otherwise       fall     outside      the

understanding of ordinary people on the jury."                    Ibid.       "Expert

testimony is admissible '[i]f scientific, technical, or other

specialized     knowledge      will     assist    the     trier        of    fact    to

understand    the   evidence     or    to    determine    a     fact   in    issue.'"

State v. Simms, 224 N.J. 393, 403 (2016) (quoting N.J.R.E. 702);

see also State v. Cain, 224 N.J. 410, 420 (2016).                           "In other

words, to be admissible, expert testimony should 'relate[] to a

relevant subject that is beyond the understanding of the average




                                        10                                    A-0459-15T4
person     of    ordinary     experience,      education,    and     knowledge.'"

State v. Sowell, 213 N.J. 89, 99 (2013) (alteration in original)

(quoting State v. Odom, 116 N.J. 65, 71 (1989)).                   If the matter

is "within the competence of the jury, expert testimony is not

needed."       Ibid.

       Lay opinion testimony is governed by N.J.R.E. 701, which

permits    a    witness     not   testifying     as   an    expert    to    provide

"testimony in the form of opinions or inferences . . . if it (a)

is rationally based on the perception of the witness and (b)

will    assist    in   understanding       the   witness'    testimony       or    in

determining a fact in issue."              Mclean, supra, 205 N.J. at 456.

"Courts in New Jersey have permitted police officers to testify

as lay witnesses, based on their personal observations and their

long experience in areas where expert testimony might otherwise

be deemed necessary."             State v. LaBrutto, 114 N.J. 187, 198

(1989).

       Here, Bruccoliere did not testify as an expert or provide

an expert opinion.          Rather, he testified as a fact witness about

his    forensic    investigation     of    defendant's     laptop,    and    merely

reported what he found, including the presence of videos and

images depicting child pornography, and peer-to-peer software

that allowed others to access the child pornography.




                                          11                                A-0459-15T4
    Even if Bruccoliere's testimony fell within the scope of

the expert opinion rule because it was specialized knowledge

based on his training and experience, we find any error in its

admission    to   be    harmless.         R.    2:10-2.        It   is        clear    from

Bruccoliere's testimony that he possessed sufficient education,

training, and experience to qualify as an expert in the field of

computer    forensics.          Where     a     witness    possesses          sufficient

qualifications to have testified as an expert, any error in

allowing    the   lay   opinion     may    be    deemed    harmless.            State    v.

Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995).                            Here, as

the trial judge aptly noted, although the State did not identify

Bruccoliere as an expert, it provided the defense with his name,

address, curriculum vitae setting forth his qualifications, and

his forensic report.            Accordingly, defendant was not surprised

or prejudiced by Bruccoliere's testimony, and the trial judge

did not abuse his discretion in admitting it.

                                          B.

    Defendant      next    argues    that       his   conviction         on    Count    Two

charging    endangering     the    welfare       of   a   child     by    distributing

child   pornography       was    against       the    weight   of    the       evidence.

Specifically, he contends that he simply possessed the child

pornography for private and personal use, and that there is




                                          12                                     A-0459-15T4
insufficient evidence in the record that he received it with the

purpose of distributing it, or that he did so knowingly.

      Our    review      of    a    judge's    verdict       in    a    non-jury     case    is

limited.      The standard is not whether the verdict was against

the   weight       of    the    evidence,        but    rather         "whether    there     is

sufficient     credible         evidence       in      the   record      to   support       the

judge's determination."               State ex rel. R.V., 280 N.J. Super.

118, 121 (App. Div. 1995).                 Moreover, we are obliged to "give

deference     to     those      findings       of      the   trial       judge    which     are

substantially influenced by [the] opportunity to hear and see

the   witnesses         and    to   have   the      'feel'    of   the     case,     which    a

reviewing court cannot enjoy."                   State v. Locurto, 157 N.J. 463,

471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

      "[T]he factual findings of the trial court are binding on

appeal      when     supported        by      adequate,       substantial,         credible

evidence."         State ex rel. W.M., 364 N.J. Super. 155, 165 (App.

Div. 2003).        "[W]e do not disturb the factual findings and legal

conclusions of the trial judge unless we are convinced that they

are   so    manifestly         unsupported         by   or   inconsistent          with     the

competent,     relevant         and    reasonably        credible         evidence     as    to

offend the interests of justice[.]"                      Rova Farms Resort, Inc. v.

Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting

Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App.




                                              13                                     A-0459-15T4
Div.), certif. denied, 40 N.J. 221 (1963)).                 Applying these

standards, we discern no basis for interfering with the judge's

well-developed findings, conclusions, and disposition on these

charges.

    At     the   time   of   the   crimes   charged   in   the   indictment,

N.J.S.A. 2C:24-4b(5)(a) provided:

            Any person who knowingly receives for the
            purpose of selling or who knowingly sells,
            procures,   manufactures,  gives,   provides,
            lends, trades, mails, delivers, transfers,
            publishes,      distributes,      circulates,
            disseminates,       presents,       exhibits,
            advertises, offers or agrees to offer,
            through any means, including the Internet,
            any photograph, film, videotape, computer
            program or file, video game or any other
            reproduction or reconstruction which depicts
            a child engaging in a prohibited sexual act
            or in the simulation of such an act, is
            guilty of a crime of the second degree.²

    In State v. Lyons, 417 N.J. Super. 251, 253 (App. Div.

2010), we examined the State's challenge to an order granting

the defendant's motion to dismiss an indictment charging him

"with possessing, offering and distributing child pornography by

use of a peer-to-peer file sharing network on the internet."

The trial judge found the State's evidence did not include proof


²
  The statute has since been amended by P.L. 2013, c. 136, to
clarify that the knowing storage or maintenance of child
pornography using a file sharing program does not require proof
that the defendant intended to share images or videos of child
pornography over the peer-to-peer network.



                                      14                            A-0459-15T4
the defendant intended to transfer or distribute the images with

peers       on    the    Gnutella       network       through   his    LimeWire     shared

folder.          Id. at 253-54.         The trial judge concluded that although

the   defendant          knew    the    shared       child   pornography    files       "were

accessible to others over the Internet by virtue of being in

such a folder, [his] passive conduct could not be sufficient to

constitute distributing or offering the materials" as used in

N.J.S.A.         2C:24-4b(5)(a).             Ibid.      We   disagreed,    id.    at     257,

stating "[i]n the context of this statute, these terms commonly

mean the act by which one person makes known to another that he

or    she    may       have     for    the    taking    an   item     possessed    by     the

offeror."          Id. at 260.         Further, we considered the terms in the

statute in light of the legislative initiatives, concluding

                 the terms should be construed very broadly.
                 The evidence of what [the] defendant did,
                 while knowing what he knew, is the kind of
                 conduct targeted by these enactments.  [The
                 d]efendant used the modern technology of
                 computers and the Internet, with a file
                 sharing network, to provide and offer child
                 pornography he possessed in his shared
                 folder.

                 [Id. at 262.]

       Lyons       makes       clear,     under      N.J.S.A.    2C:24-4b(5)(a),          the

State's burden is to prove an offer was made; it need not show

actual access to a defendant's shared files occurred.                               Id. at

260-63.           In    this    matter,      relying    on   Lyons,    supra,     417    N.J.




                                                15                                 A-0459-15T4
Super. at 267-69, the trial judge found that "placing such child

pornography in a file, [] in a searchable, accessible, shared

folder is an offer to distribute such over the file-sharing

network, and a fact finder . . . could reasonably infer that []

defendant     knew       that    he    was     sharing     his    downloaded        child

pornography files."             The judge found it "inescapable that []

defendant would have known . . . [t]hat in his files, in his

default shared folders, with his having downloaded the peer-to-

peer     system,     that       it     was     available     to     other       people."

Accordingly,       the    State's      evidence      sufficiently     supported       the

offense charged as defendant acted to "offer" his downloaded

child pornographic images and videos by making them available

through peer-to-peer file sharing, thereby allowing others on

the network to access and copy them.

                                             C.

       Defendant's final arguments relate to his sentence.                             He

contends that, because the judge failed to merge the possession

charge    with     the    distribution         charge,     failed    to     apply     the

appropriate      aggravating          and    mitigating    factors,       and   imposed

consecutive prison terms, the resulting sentence was excessive.

We agree, and remand for the court to merge the two offenses and

re-sentence      defendant        without         consideration     of    aggravating

factor one, N.J.S.A. 2C:44-1(a)(1).




                                             16                                 A-0459-15T4
    At      defendant's          sentencing      hearing,      the       court      found

aggravating factors one, the nature and circumstances of the

offense; two, the gravity of harm to the victim (N.J.S.A. 2C:44-

1(a)(2)); three, the risk defendant will commit another offense

(N.J.S.A.    2C:44-1(a)(3));         and    nine,    the    need     for   deterrence

(N.J.S.A.    2C:44-1(a)(9)).           The      court   also    found      mitigating

factor   seven,      no    prior     criminal       history     (N.J.S.A.         2C:44-

1(b)(7)).

    With      respect       to     aggravating       factor     one,       the      judge

elaborated:    "These      are     numerous,     numerous      children,     infants,

very young children in these cases who are portrayed.                        Not just

portrayed, they were photographed.                  They were caused to engage

in these sexual activities . . . .               [T]hey were all quite young,

quite, quite young."          The judge then went on to carefully, and

correctly, analyze and apply each of the remaining aggravating

and mitigating factors advanced by the parties.

    We      review        sentencing       determinations          for     abuse        of

discretion.    State v. Robinson, 217 N.J. 594, 603 (2014) (citing

State v. Roth, 95 N.J. 334, 364-65 (1984)).                    For each degree of

crime,   N.J.S.A.     2C:43-6(a)       sets     forth   "sentences         within      the

maximum and minimum range[.]"              Roth, supra, 95 N.J. at 359.                The

sentencing court must "undertake[] an examination and weighing

of the aggravating and mitigating factors listed in [N.J.S.A.]




                                           17                                    A-0459-15T4
2C:44-1(a) and (b)."            Ibid.; State v. Kruse, 105 N.J. 354, 359

(1987).     "'[W]hen the mitigating factors preponderate, sentences

will   tend     toward    the    lower    end    of     the   range,    and    when    the

aggravating factors preponderate, sentences will tend toward the

higher end of the range.'"                State v. Fuentes, 217 N.J. 57, 73

(2014) (quoting State v. Natale, 184 N.J. 458, 488 (2005)).

Furthermore,       "[e]ach      factor    found    by    the    trial   court     to    be

relevant must be supported by 'competent, reasonably credible

evidence'" in the record.                Id. at 72 (quoting Roth, supra, 95

N.J. at 363).

       We       accord     deference        to         the     sentencing        court's

determination.         Fuentes, supra, 217 N.J. at 70 (citing State v.

O'Donnell,       117     N.J.    210,     215     (1989)).        We     must     affirm

defendant's sentence unless

              (1) the 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 Roth, supra, 95 N.J. at 364-
              65).]

We will remand for resentencing if the sentencing court fails to

provide     a    qualitative      analysis        of    the    relevant       sentencing

factors, ibid. (citing Kruse, supra, 105 N.J. at 363), or if it




                                           18                                   A-0459-15T4
considers an inappropriate aggravating factor.                        Ibid. (citing

State v. Pineda, 119 N.J. 621, 628 (1990)).

       Aggravating      factor    one    requires      consideration         of    "[t]he

nature and circumstances of the offense, and the role of the

actor therein, including whether or not it was committed in an

especially      heinous,       cruel,   or    depraved     manner[.]"         N.J.S.A.

2C:44-1(a)(1).         When assessing whether this factor applies, "the

sentencing court reviews the severity of the defendant's crime,

'the single most important factor in the sentencing process,'

assessing the degree to which defendant's conduct has threatened

the safety of its direct victims and the public."                             State v.

Lawless, 214 N.J. 594, 609 (2013) (quoting State v. Hodge, 95

N.J.    369,    378-79     (1984)).           The    court    may     also    consider

"'aggravating      facts       showing       that    [a]     defendant's      behavior

extended to the extreme reaches of the prohibited behavior.'"

Fuentes, supra, 217 N.J. at 75 (quoting State v. Henry, 418 N.J.

Super. 481, 493 (Law Div. 2010)).                    In determining whether a

defendant's      conduct        was     "'especially         heinous,     cruel,         or

depraved,' a sentencing court must scrupulously avoid 'double-

counting'      facts    that    establish      the   elements    of     the   relevant

offense."      Id. at 74-75; see also State v. Yarbough, 100 N.J.

627, 645 (1985).




                                          19                                      A-0459-15T4
      We conclude that, in applying aggravating factor one, the

court engaged in impermissible double-counting.                  By its nature,

child pornography inherently is especially heinous, cruel and

depraved, and defendant's possession and distribution of it in

this case was no different.              Since the court erred in finding

aggravating      factor     one,   we     remand      for   reconsideration      of

defendant's sentence in the absence of that aggravating factor.

      Turning to the merger issue, the doctrine of merger is

based on the well-established concept that "an accused [who]

committed only one offense . . . cannot be punished as if for

two."    State v. Davis, 68 N.J. 69, 77 (1975).                  "When the same

conduct of a defendant may establish the commission of more than

one   offense,    the   defendant       may   be    prosecuted   for   each    such

offense."      N.J.S.A. 2C:1-8a.         However, merger is required when

one offense is a lesser-included offense of another and "[i]t is

established by proof of the same or less than all the facts

required to establish the commission of the offense charged."

N.J.S.A. 2C:1-8d.

      The standard for merger of offenses as required by N.J.S.A.

2C:1-8   has     been     characterized       as    "mechanical."      State     v.

Truglia, 97 N.J. 513, 520 (1984).                  Consequently, courts are to

apply the standard articulated in Davis as the "preferred and




                                         20                              A-0459-15T4
more    flexible    standard."       State   v.   Diaz,    144    N.J.    628,   637

(1996).    It requires

               analysis of the evidence in terms of, among
               other things, the time and place of each
               purported   violation;  whether  the  proof
               submitted as to one count of the indictment
               would be a necessary ingredient to a
               conviction under another count; whether one
               act was an integral part of a larger scheme
               or episode; the intent of the accused; and
               the consequences of the criminal standards
               transgressed.

               [Davis, supra, 68 N.J. at 81.]

       Applying these well-settled standards, we conclude that,

under the specific facts presented, defendant's convictions for

fourth-degree possession of child pornography and second-degree

distribution of child pornography merge.               Here, the crimes were

reasonably proximate in time and place, and defendant's use of

the     file    sharing   programs    was    a    necessary      ingredient      and

integral part of both his possession of the child pornography

and the means by which he made it accessible to others.

       Defendant's    conviction     is   affirmed.        We    remand   for    the

court     to     resentence      defendant       without    consideration         of

aggravating factor one, and to merge Count One with Count Two.




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