            NOT FOR PUBLICATION WITHOUT THE APPROVAL
                    OF THE APPELLATE DIVISION

                                SUPERIOR COURT OF NEW JERSEY
                                APPELLATE DIVISION
                                DOCKET NO. A-1262-15T1

STATE OF NEW JERSEY,

     Plaintiff-Appellant,           APPROVED FOR PUBLICATION

                                          June 28, 2017
v.
                                      APPELLATE DIVISION
RORY EDWARD TRINGALI,

     Defendant-Respondent.

______________________________


          Argued June 6, 2017 – Decided June 28, 2017

          Before Judges Reisner, Koblitz and Sumners.

          On appeal from the Superior Court of New
          Jersey, Law Division, Burlington County,
          Indictment No. 11-04-0030.1

          Joseph Daniel Remy, Deputy Attorney General,
          argued the cause for appellant (Christopher
          S. Porrino, Attorney General, attorney; Mr.
          Remy and Marie G. McGovern, Deputy Attorney
          General, of counsel and on the brief).

          Lawrence A.   Leven    argued    the   cause     for
          respondent.

     The opinion of the court was delivered by

REISNER, P.J.A.D.




1
  The orders on appeal list the wrong indictment number, 08-03-
0037. That 2008 indictment was dismissed with the State's consent.
     The State appeals from an April 23, 2015 order dismissing the

indictment, and from an October 7, 2015 order denying its motion

to supplement the record.

     The trial court dismissed, on jurisdictional grounds, an

indictment   charging   defendant       with   disrupting   or   impairing

computer services, N.J.S.A. 2C:20-25(b), impersonating another for

the purpose of obtaining a benefit for himself or injuring another,

N.J.S.A. 2C:21-17(a)(1), and conspiring to commit those offenses.

The court later denied the State's motion to supplement the record

with information concerning a civil case relating to the same

events.

     The State presents us with the following points of argument:

          POINT I

          WHILE THE TRIAL COURT INITIALLY STATED THE
          CORRECT   PRINCIPLES   OF   LAW   REGARDING
          TERRITORIAL  JURISDICTION,   IT  ERRED   IN
          REQUIRING A DIRECT NEXUS TO NEW JERSEY IN
          ISSUING ITS CONCLUSIONS OF LAW, THEREBY
          CONTRAVENING THE PLAIN WORDING OF N.J.S.A.
          2C:1-3(G)

          POINT II

          EVEN IF THE DIRECT NEXUS ANALYSIS WAS
          CORRECTLY APPLIED, THE STATE WOULD HAVE
          JURISDICTION OVER THE INDICTED OFFENSES

          POINT III

          THE COURT ERRED IN NOT ALLOWING THE STATE TO
          SUPPLEMENT THE RECORD WITH EVIDENCE OF


                                    2                              A-1262-15T1
           PERJURIOUS        AFFIDAVITS     SUBMITTED    BY    THE
           DEFENDANT

     According    to   the    State's     evidence,   defendant,     acting   in

Florida, caused a series of "spam" attacks to be made on a Utah

website that was an integral part of the victim's New Jersey-based

internet business, causing the business to incur over $100,000 in

damages.    The    State      also   produced    evidence     that   defendant

engineered the spam attacks in part to exact vengeance on the New

Jersey resident who operated the internet business.             We hold that,

as to both computer criminal activity and impersonation, the

harmful result to the victim is an "element" of the offense, within

the meaning of the territorial jurisdiction statute.                  N.J.S.A.

2C:1-3(a)(1) and -3(g).        Because the State produced some evidence

that the New Jersey resident, and the New Jersey corporation he

operated, suffered harm in this State which was an element of each

computer crime statute, New Jersey has territorial jurisdiction

to prosecute defendant for those offenses. Accordingly, we reverse

the April 23, 2015 order dismissing counts two and three of the

indictment and we remand this matter to the trial court.

     Because the parties neither briefed nor argued the section

of the territorial jurisdiction statute concerning conspiracy,

N.J.S.A. 2C:1-3(a)(3), we do not address the dismissal of count

one of the indictment.         We remand that issue to the trial court


                                        3                              A-1262-15T1
for further briefing and reconsideration in light of this opinion.

In connection with that aspect of the remand, the State may submit

to the trial court the materials which were the subject of its

motion to supplement the record.2

                               I

     Based on the following evidence, in 2011 a grand jury indicted

defendant on three counts: (1) second-degree conspiracy, N.J.S.A.

2C:5-2; (2) second-degree computer criminal activity, N.J.S.A.

2C:20-25(b)   and   N.J.S.A.   2C:2-6;   and   (3)   second-degree

impersonation, N.J.S.A. 2C:21-17(a)(1) and N.J.S.A. 2C:2-6.

     The State presented testimony from one witness, Christina

McCarthy, a detective with the Division of Criminal Justice (DCJ).

McCarthy based her testimony on information she learned during a

conference call with other detectives and two individual victims,

Michael Moreno and Justin Williams.      The State also presented

defendant's statement, made to DCJ investigators after his arrest.

     We begin by summarizing McCarthy's grand jury testimony.

Moreno is a resident of New Jersey and was an owner of a company



2
  Defendant's argument concerning the timeliness of the State's
appeal is without merit and does not warrant discussion. R. 2:11-
3(e)(2). We decline to address defendant's speedy trial argument,
because it was not raised in the trial court and was not the
subject of a cross-appeal. See State v. Robinson, 200 N.J. 1, 19-
20 (2009); State v. Eldakroury, 439 N.J. Super. 304, 307 n.2 (App.
Div.), certif. denied, 222 N.J. 16 (2015).

                                   4                        A-1262-15T1
called MedPro, Inc. (MedPro).        Williams is a resident of Utah and

owns a company called Physicians Information Services.                    The men

were in a business relationship in which Moreno sold cosmetic

lasers and Williams fulfilled the orders they received.

      Moreno and Williams told the DCJ detectives that MedPro's

email   server    received   a   large       number    of   undeliverable      email

messages concerning emails that MedPro had not sent.                   This meant

that someone was sending emails from MedPro's email address to

email addresses that did not exist.             As a result, the emails were

returned to MedPro as undeliverable.                 In some instances, MedPro

received as many as 100 undeliverable emails per minute.

      Other emails were sent to actual email addresses, and included

a link to MedPro's website.        The emails impersonated the identity

of   Moreno's    business,   in    that       they     appeared   to    come    from

"Sales@MedProOnline.com."         Because many of the recipients had no

business to conduct with MedPro and correctly viewed the emails

as spam, they complained to MedPro or its website manager that the

emails were unwelcome. One individual who received the spam emails

both complained to MedPro and sent the emails to DCJ investigators.

      Due to all of the spam messages that appeared to be coming

from MedPro, companies that monitor spam messages stopped internet

traffic from going to MedPro's website.                 In fact, MedPro's host

company,   ABI,    took   MedPro    offline       to    protect   the    company.

                                         5                                  A-1262-15T1
MedPro's email provider, Network Solutions, shut down MedPro's

email, just as ABI took the website offline.

     MedPro did not have a physical store, so all of its business

came from the website or email.     In an effort to rectify the

situation, MedPro changed its URL address, but the spam messages

continued three more times, attacking each of the new websites.

The fourth and final attack took place on February 2, 2007.       The

cost of changing URLs and other damages exceeded $100,000.

     During the conference call with McCarthy and the other DCJ

investigators, Moreno and Williams identified Rory Tringali, from

Miami Beach, Florida, as the suspected perpetrator.   Tringali was

a former business partner of Moreno and Williams, but he eventually

became their competitor in selling cosmetic lasers.

     After the execution of a search warrant at his        Florida

apartment, defendant was arrested and gave a statement to two DCJ

investigators.   Defendant's statement constituted evidence that

he had a powerful motive to harm his former partners, including

"Mike Moreno."   Defendant told the investigators that his former

partners took over websites that he believed belonged to him,

including the MedPro.com website, and then unfairly competed with

his laser sale business.   To put an end to what he believed was

the misuse of "his" websites, defendant paid the webmaster to take

down those websites, including the MedPro.com website.   Defendant

                                6                            A-1262-15T1
also   admitted      knowing     that   his     former    partners      created    new

websites, which were then the victims of "massive" spam attacks.

Defendant also made statements that could reasonably be construed

as admitting his knowledge that the attacks did "huge" damage to

the victims' business.

        Defendant initially denied that he was behind the spam

attacks.     However, later in his statement, he admitted that he

conspired with a computer-savvy neighbor, Matt Wilner, to launch

spam attacks on the MedPro.com website and several other websites

being used by his former partners.              According to McCarthy's grand

jury   testimony,     Wilner     was    later    arrested,      pled    guilty,    and

admitted that defendant paid him to attack the websites.

       In moving to dismiss the indictment, defendant submitted

evidence    that   MedPro's      website      domain     (MedPro.com)     and   email

server were actually owned by Brooke Horan, a Utah resident,

although Moreno's New Jersey business, MedPro, used that website

to   sell   lasers    to   its    customers.          Defendant    contended      that

defendant's    cyberattack       targeted       the   website     and   the   server,

rather than directly targeting MedPro.

                                        II

       In dismissing the indictment, the trial judge considered the

Supreme     Court's   recent     holding      that     territorial      jurisdiction

requires more than a connection between a defendant's New Jersey

                                          7                                   A-1262-15T1
"status" or "attendant circumstances" occurring in New Jersey.

State v. Sumulikoski, 221 N.J. 93, 102-03 (2015). "As the language

of N.J.S.A. 2C:1-3 makes clear, . . . the various methods that

allow for jurisdiction in a criminal case all require a direct

nexus to New Jersey."       Sumulikoski, supra, 221 N.J. at 102.

Relying on State v. Streater, 233 N.J. Super. 537, 543 (App. Div.),

certif. denied, 117 N.J. 667 (1989), the judge recognized that a

direct nexus would consist of evidence that either the criminal

conduct or its result occurred in New Jersey.

     The judge reasoned that, because defendant had the spam sent

from outside New Jersey and shut down a Utah-based website, "and

[because] there is no direct nexus to New Jersey regarding any

conduct or results of the offenses charged," New Jersey had no

territorial jurisdiction to prosecute defendant.   According to the

judge's analysis, the fact that a web-based New Jersey business

depended on the Utah-based website, and the New Jersey business

was harmed, did not suffice to confer jurisdiction on this State

to prosecute defendant. We conclude that the judge took too narrow

a view of the evidence and misapplied the pertinent statutes.

     A grand jury may base an indictment on the evidence the State

has produced, as well as any reasonable inferences that may be

drawn from that evidence.     State v. N.J. Trade Waste Ass'n, 96

N.J. 8, 27 (1984).      In a grand jury proceeding, hearsay is

                                 8                          A-1262-15T1
admissible.    State v. Ferrante, 111 N.J. Super. 299, 304-05 (App.

Div. 1970).   In considering a motion to dismiss an indictment, the

court should consider whether "there is some evidence establishing

each element of the crime[,]" and should view that evidence in the

light most favorable to the State.     State v. Morrison, 188 N.J.

2, 12-13 (2006).

     A trial court should only dismiss an        indictment on the

"clearest and plainest" grounds and only when it is          clearly

defective.    Trade Waste Ass'n, supra, 96 N.J. at 18-19.   We review

a trial court’s dismissal of an indictment for abuse of discretion.

State v. Gruber, 362 N.J. Super. 519, 527 (App. Div.), certif.

denied, 178 N.J. 251 (2003).      However, if the judge's decision

rests on the interpretation of a statute, our review is de novo.

Ibid.

     In this case, the legal issues can be resolved by comparing

our State's statute concerning territorial jurisdiction with the

pertinent computer-crime offenses charged in the indictment.         In

pertinent part, the jurisdiction statute provides:

               a. Except as otherwise provided in this
          section, a person may be convicted under the
          law of this State of an offense committed by
          his own conduct or the conduct of another for
          which he is legally accountable if:

                 (1) Either the conduct which is an
                 element of the offense or the result


                                  9                           A-1262-15T1
               which is such an element occurs within
               the State;

               (2) Conduct occurring outside the State
               is sufficient under the law of this State
               to constitute an attempt to commit a
               crime within the State;

               (3) Conduct occurring outside the State
               is sufficient under the law of this State
               to constitute a conspiracy to commit an
               offense within the State and an overt act
               in furtherance of such conspiracy occurs
               within the State;

               . . . .

               g. When the result which is an element
          of an offense consists of inflicting a harm
          upon a resident of this State or depriving a
          resident of this State of a benefit, the
          result occurs within this State, even if the
          conduct occurs wholly outside this State and
          any property that was affected by the offense
          was located outside this State.

          [N.J.S.A. 2C:1-3(a), (g) (emphasis added).]

     As noted in the emphasized portions, to confer jurisdiction

under subsection (a)(1), either the conduct or the harmful result

of the conduct must be "an element" of the offense with which a

defendant is charged, and under subsection (g) the harmful result

must likewise be an element.   Ibid.   In turn, "element" is defined

in the Criminal Code as:

          h. "Element of an offense" means (1) such
          conduct or (2) such attendant circumstances
          or (3) such a result of conduct as



                                10                           A-1262-15T1
                    (a) Is included in the description of
                    the forbidden conduct in the definition
                    of the offense;

                    (b) Establishes     the   required     kind    of
                    culpability;

                    (c) Negatives      an      excuse              or
                    justification for such conduct;

                    (d) Negatives a defense           under       the
                    statute of limitations; or

                    (e)   Establishes jurisdiction or venue;
                                        3
           [N.J.S.A. 2C:1-14(h).]

      For purposes of territorial jurisdiction, the State must

prove that defendant's conduct or the result of that conduct

occurred in New Jersey.         "[T]o meet the requirement of territorial

jurisdiction, the State must offer proof of 'conduct' or 'result,'

as   defined   in    N.J.S.A.    2C:1-3,    but   cannot   rely    on   relevant

attendant circumstances."          Sumulikoski, supra, 221 N.J. at 103.

Thus, for example, a teacher who engaged in sexual conduct with a

student while on a school trip to Germany, cannot be prosecuted



3
  Territorial jurisdiction is, itself, an element of an offense,
without which the State cannot prosecute a crime here. State v.
Denofa, 187 N.J. 24, 36 (2006).    However, it is a non-material
element that need not be submitted to the jury unless there is a
factual dispute about whether the crime occurred in New Jersey.
Id. at 38, 38 n.6. A "[m]aterial element" is an element "that
does not relate exclusively to . . . jurisdiction . . . or to any
other matter similarly unconnected with (1) the harm or evil,
incident to conduct, sought to be prevented by the law defining
the offense . . ." N.J.S.A. 2C:1-14(i).

                                      11                                 A-1262-15T1
for that crime in New Jersey, even though "attendant circumstances"

such as the teacher's supervisory status or the student's underage

status would be elements of the crime.   Id. at 95-96.

     Applying those principles, we first conclude that there is

jurisdiction to prosecute defendant in New Jersey as to computer

criminal activity, N.J.S.A. 2C:20-25(b). In pertinent part, that

offense consists of the following elements:

               A person is guilty of computer criminal
          activity if the person purposely or knowingly
          and without authorization, or in excess of
          authorization:

               . . . .

               b. Alters, damages or destroys any data,
          data base, computer, computer storage medium,
          computer program, computer software, computer
          system or computer network, or denies,
          disrupts   or  impairs   computer   services,
          including access to any part of the Internet,
          that are available to any other user of the
          computer services[.]

          [N.J.S.A. 2C:20-25(b) (emphasis added).]

     A "[u]ser of computer services" includes but is not limited

to a person, business, or "computer" that "makes use of any

resources of a computer, computer network, . . . data or data

base." N.J.S.A. 2C:20-23(o). "Access" is defined as "to instruct,

communicate with, store data in, retrieve data from, or otherwise

make use of any resources of a computer, computer storage medium,

computer system, or computer network."   N.J.S.A. 2C:20-23(a).

                               12                           A-1262-15T1
     We agree with the trial judge that Moreno was "a user of

computer     services"   whose   business     was   disrupted   when    the

MedPro.com website, through which MedPro conducted its online

business, was shut down by spam attacks.        However, we cannot agree

with the judge's conclusion that there was an insufficient "direct

nexus"   between   the   crime   and   New   Jersey.   As   indicated    in

Sumulikoski, we conclude that the "direct nexus" is to be found

by considering the jurisdiction statute and the elements of the

crime.

     Based on the evidence presented to the grand jury, there is

jurisdiction to prosecute defendant in New Jersey for computer

related crime, N.J.S.A. 2C:20-25, because defendant knowingly

engaged in computer activity which had the result of denying,

disrupting or impairing the victim's access to "any part of the

Internet."    N.J.S.A. 2C:20-25(b).     Defendant targeted a web domain

and email server, owned by an individual in Utah.           However, that

web domain and email server were directly connected to MedPro

because MedPro conducted all of its business through the MedPro.com

website and email.

     Although defendant's conduct occurred in Florida, and its

initial effect was to disrupt website domains and email servers

owned by an individual in Utah, one of the intended and actual end

results of the conduct was to cripple MedPro's access to internet

                                   13                             A-1262-15T1
service.   Hence,    although      his   conduct   took   place   in    Florida,

defendant both inflicted a harm on MedPro and deprived MedPro of

a benefit, in this State.        See N.J.S.A. 2C:1-3(a)(1), -3(g).

     Viewing the evidence in the light most favorable to the State,

defendant knew that Moreno operated MedPro and intended to disrupt

Moreno's business, because he believed that Moreno conspired with

Williams to steal defendant's business.            Under N.J.S.A. 2C:1-3(g),

it does not matter that the "property that was affected by the

offense" - the MedPro.com website and the servers that hosted it

- were located in Utah.         What matters is that "the result which

is an element" of the offense consisted of "inflicting a harm upon

a resident of this State or depriving a resident of this State of

a benefit."    N.J.S.A. 2C:1-3(g).

     The fact that defendant's conduct occurred in Florida does

not deprive this State of jurisdiction, where, as here, there was

a "direct nexus" between defendant's purposeful and illegal out-

of-state conduct and the intended harm his conduct caused to a New

Jersey resident.     Accordingly, we reverse the dismissal of count

2 of the indictment, charging defendant with committing computer

criminal activity, N.J.S.A. 2C:20-25(b).

     Next,    we   address   the    impersonation     charge.     The   relevant

portions of the statute provide:



                                         14                              A-1262-15T1
               a. A person is guilty of a crime if the
          person engages in one or more of the following
          actions by any means including, but not
          limited    to,   the    use   of    electronic
          communications or an Internet website:

               (1) Impersonates another or assumes a
          false identity and does an act in such assumed
          character or false identity for the purpose
          of obtaining a benefit for himself or another
          or to injure or defraud another[.]

               . . . .

               c. A person who violates subsection a.
          of this section is guilty of a crime as
          follows:

               . . . .

               (3) If the actor obtains a benefit or
          deprives another of a benefit in the amount
          of $ 75,000 or more, . . . the actor shall be
          guilty of a crime of the second degree.

          [N.J.S.A. 2C:21-17(a), (c).]

     To be guilty of any grade of impersonation, a defendant must

engage in the act of impersonation, for the purpose of obtaining

a benefit or injuring another.   N.J.S.A. 2C:21-17(a)(1).     However,

to be guilty of second-degree impersonation, the offense with

which defendant is charged, the actor's unlawful conduct must also

produce a specified result, i.e., depriving the victim of a benefit

in an amount of $75,000 or more.      N.J.S.A. 2C:21-17(c).   To secure

a conviction for second-degree impersonation, that element must

be submitted to the jury.   See State v. Federico, 103 N.J. 169,


                                 15                             A-1262-15T1
174    (1986)   (where    a    defendant      is    charged    with    first-degree

kidnapping,     failure       to   release     the    victim    unharmed,            which

determines the grading of the offense, is an element that must be

proven by the State and submitted to the jury); State v. Smith,

279 N.J. Super. 131, 141 (App. Div. 1995).

        "Statutory provisions . . . cannot be read in isolation.

They    must    be   construed      in   concert      with     other    legislative

pronouncements on the same subject matter so as to give full effect

to each constituent part of an overall legislative scheme."                          State

v. Hodde, 181 N.J. 375, 379 (2004) (citations omitted).                         Reading

the jurisdiction and impersonation statutes together in light of

the legislative purpose, we conclude that the "result," consisting

of the monetary harm to the victim, is an "element" of the crime

of     second-degree     impersonation,        within    the    meaning         of    the

jurisdiction statute, even though its function is to establish the

grade of the crime.       See State v. Lawless, 214 N.J. 594, 608 (2013)

(prohibiting     the   double      counting    of    "[e]lements       of   a    crime,

including those that establish its grade"); see also State v.

Fuentes, 217 N J. 57, 75 (2014) (noting that the Legislature has

"already considered the elements of an offense in the gradation

of a crime"     (citation omitted)).

       The clear legislative purpose of the jurisdiction statute,

N.J.S.A. 2C:1-3, is to extend this State's jurisdiction to results

                                         16                                     A-1262-15T1
as well as conduct, so long as either is an element of the offense.

N.J.S.A. 2C:1-3(g) emphasizes that the statute is aimed at harm

inflicted on residents of this State, even if the conduct is

committed elsewhere and even if it involves property located

elsewhere.     Consequently, we infer that the Legislature intended

the term "element" to have a broad meaning, consistent with the

purpose of the statute. The legislative purpose is served by

construing the jurisdiction statute as including "elements" that

quantify the harm to the victim and determine the grading of the

offense.     That    approach   is   consistent   with    Sumulikoski,   which

emphasizes the importance of results or conduct in determining

territorial jurisdiction.         Sumulikoski, supra, 221 N.J. at 103.

       In   this    case,   defendant   committed   the   impersonation,     or

arranged for it to occur, in Florida.                However, the alleged

injurious result - the infliction of over $100,000 in economic

damage to MedPro - occurred in New Jersey.           We therefore conclude

that    this   State    has     territorial   jurisdiction     to   prosecute

defendant for the impersonation offense charged in count three of

the indictment, N.J.S.A. 2C:21-17(a), (c).

       Reversed and remanded for further proceedings consistent with

this opinion.       We do not retain jurisdiction.




                                        17                            A-1262-15T1
