                  NOT FOR PUBLICATION WITHOUT THE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."



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