State v. Sisler

*209LaVECCHIA, J.,

dissenting.

This case presents the question whether a defendant can be charged with second-degree reproduction of child pornography in violation of N.J.S.A. 2C:24-4b(4) for printing Internet-based child pornography images at a library computer station. The Court’s role here is not to divine in the abstract the proper degree of punishment for the conduct with which defendant is charged. Our function is to interpret the language contained in the criminal statute proscribing activities associated with production, handling, and use of child pornographic materials. Upon review of that language, I would conclude that the Legislature intended that printing hard copies of Internet-based child pornography images, if proven, would support a conviction for “reproducing” images within the meaning of N.J.S.A. 2C:24-4b(4). Accordingly, I respectfully dissent from the view of my colleagues in the majority.

I.

As with all issues of statutory interpretation, the “overriding goal must be to determine the Legislature’s intent.” State, Dep’t of Law & Pub. Safety v. Gonzalez, 142 N.J. 618, 627, 667 A.2d 684 (1995). The interpretative process begins with an examination of a statute’s plain language, which is the “clearest indication of that intent.” Med. Soc’y of N.J. v. N.J. Dep’t of Law & Pub. Safety, 120 N.J. 18, 26, 575 A.2d 1348 (1990). “If the statute is clear and unambiguous on its face and admits of only one interpretation, we need delve no deeper than the act’s literal terms to divine the Legislature’s intent.” State v. Butler, 89 N.J. 220, 226, 445 A.2d 399 (1982). In that event, the statute must be implemented as written, “without resort to judicial interpretation, rules of construction, or extrinsic matters.” Bergen Commercial Bank v. Sisler, 157 N.J. 188, 202, 723 A.2d 944 (1999).

In addition to those general principles, when it comes to interpreting a penal statute, other considerations apply. A court must not extend the language of a penal act by interpretation because due process requires that citizens be placed on notice of pro*210scribed conduct. State v. Valentin, 105 N.J. 14, 17-18, 519 A.2d 322 (1987). Consistent with that prohibition, terms in a criminal statute must be accorded “their natural and reasonable meaning.” Charles E. Torcía, 1 Wharton’s Criminal Law § 12 (15th ed.1993); see also Norman J. Singer, 3 Sutherland Statutory Construction § 59.06 (5th ed.1992) (stating that “the language of ... a penal statute should be given a reasonable or common sense construction, consonant with the'objects of the legislation”). If a penal statute is subject to more than one reasonable interpretation, it must be strictly construed, lest it “be extended by tenuous interpretation beyond the fair meaning of its terms [and] applied to persons or conduct beyond the contemplation of the Legislature.” State v. Provenzano, 34 N.J. 318, 322, 169 A.2d 135 (1961). Conversely, where statutory language “is plain and clearly reveals the meaning of the statute, the court’s sole function is to enforce the statute in accordance with those terms.” State, Dep’t of Law & Pub. Safety v. Bigham, 119 N.J. 646, 651, 575 A.2d 868 (1990).

II.

In relevant part, N.J.S.A. 2C:24-4b provides:

(3) A person commits a crime of the second degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance. If the person is a parent, guardian or other person legally charged with the care or custody of the child, the person shall be guilty of a crime of the first degree.
(4) Any person who photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree.
(5) (a) Any person who knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree.
*211(b) Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree.
[N.J.S.A. 2C:2^4b (emphasis added).]

The statute thus creates four classifications of offenders: (1) those who initiate or orchestrate child pornography; (2) those who manufacture or otherwise produce child pornography; (3) those who sell or otherwise distribute child pornography, or receive such material with an intent to sell it; and (4) those who possess or view child pornography. The most egregious violation, a first-degree offense, is reserved for a parent or one legally charged with caring for a child who permits or encourages that child to engage in a prohibited sexual act knowing or intending that it will be captured to create child pornographic materials. N.J.S.A. 2C:24-4b(3). The majority of child pornography offenses, however, including creating or reproducing such images, are punishable as second-degree offenses. Second-degree offenders include those who (1) have no legal relationship with a child but play a role in having the child participate in proscribed sexual conduct for purposes of the creation of child pornography; (2) create images of child pornography; (3) reproduce or reconstruct images of child pornography; (4) receive child pornography with the intent to distribute it; or (5) disseminate child pornography. Fourth-degree offenders include those who possess or view child pornography.

This case concerns the subset of second-degree offenders who “reproduce” child pornography, as that action is criminalized in N.J.S.A. 2C:24-4b(4). That provision punishes “[a]ny person ... who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act.” N.J.S.A 2C:24-4b(4) (emphasis added). The verb “reproduce” as used in that provision is not complex, technical, or difficult to understand. The commonly understood meaning of the term is “to make an image, copy, or *212other representation of.”1 Webster’s Third New Inti Dictionary (1981); see also The American Heritage Dictionary of the English Language (4th ed.2000) (defining reproduce as “[t]o undergo copying”); Webster’s Revised Unabridged Dictionary (1996) (defining reproduce as “[t]o cause to exist again” or “[t]o make an image or other representation of; ... to make a copy of’).

A plain and unambiguous term such as “reproduce” should be accorded its fair meaning, as it would be understood by ordinary citizens. See Bigham, supra, 119 N.J. at 650-51, 575 A.2d 868; Bergen Commercial Bank, supra, 157 N.J. at 202, 723 A.2d 944. Accordingly, I construe N.J.S.A. 2C:24-4b(4) to mean that “[a]ny person who ... uses any device, including a computer, to [make a copy of] or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree.” Inasmuch as defendant allegedly used a “device” as identified in the statute—specifically, a computer printer—to reproduce or “make a copy or image of’ Internet-based child pornography, he is within the reach of N.J.S.A. 2C:24-4b(4). Accord State v. Roberts, 796 So. 2d 779, 784 (La.Ct.App.2001), writ denied, 825 So.2d 1163 (La.2002) (interpreting “reproduction” in Louisiana child pornography statute according to its ordinary meaning).

The Appellate Division reasoned that “reproduce” can be interpreted as commonly understood, or as “connot[ing] the use of a computer to disseminate ... an image as opposed to generating a copy for purposes of viewing or possessing the image in violation of N.J.S.A. 2C:24-4b(5)(b).” Sisler, supra, 353 N.J.Super. at 595-96, 803 A.2d 700 (emphasis added). Perceiving an ambiguity, the panel resolved the conflicting interpretations in favor of lenity and *213concluded that the Legislature did not intend to punish the printing of images of child pornography for purposes of viewing solely for one’s own sexual gratification more severely than simply viewing such material. Id. at 599, 803 A.2d 700. A majority of this Court concludes similarly, interpreting N.J.S.A 2C:24-4b(4) as concerning the creation of child pornography that is later possessed or distributed. Ante at 205, 827 A.2d at 278.

In my view, one’s intent to disseminate child pornography, even without pecuniary motive, becomes relevant only under N.J.S.A. 2C:24-4b(5)(a), which includes a prohibition on the knowing mailing, delivering, transferring, publishing, distributing, circulating, disseminating, presenting, exhibiting, or offering “through any means, including the Internet,” an image, including “a computer program or file,” or “any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act.” That section is not pertinent here because defendant is not charged with sending computerized child pornography. It is sufficient under N.J.S.A. 2C:24-4b(4) that by printing computerized images of child pornography, he made new copies of the images that appeared on the computer monitor. Had defendant made a duplicate of a videotape of child pornography for his own viewing, he equally would have violated N.J.S.A 2C:24-4b(4). I assume that the Legislature incorporated a distribution element precisely where it meant such an element to apply. See GE Solid State, Inc. v. Dir., Div. of Taxation, 132 N.J. 298, 308, 625 A.2d 468 (1993) (stating that “where the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded”). There is no indication from the face of this statutory scheme that the Legislature intended to punish only those individuals who reproduced copies of child pornography for the purpose of disseminating them to others. To read such a requirement into the elements of N.J.S.A 2C:24-4b(4) creates a redundancy that is abhorrent to principles of statutory construction. Courts should avoid a “ ‘construction that will render any part of a statute inoperative, superfluous, or meaningless.’ ” Sira*214senburgh v. Straubmuller, 146 N.J. 527, 539, 683 A.2d 818 (1996) (quoting State v. Reynolds, 124 N.J. 559, 564, 592 A.2d 194 (1991)).

The majority echoes the Appellate Division’s concern that the mere click of a computer mouse on a printer icon is sufficient to subject anyone to criminal charges in the second degree. That concern should not override a clearly expressed legislative judgment to the contrary. The ease with which child pornography can be reproduced, given modern technology, does not support lessening the criminal penalty that may attach for such conduct where the conduct is captured by the ordinary meaning of the language in the statute. The Legislature has chosen language that reaches broadly to punish the perpetuation of child pornography. It is not our function to sit in review of the Legislature’s judgment in respect of punishment gradations, a point we were required to emphasize recently in respect of this same legislation when we disapproved of substituting judicial will for legislative intent. State v. Evers, 175 N.J. 355, 399-400, 815 A.2d 432 (2003) (commenting that “[djeciding the wisdom of the statute is not a judicial prerogative” and “[hjowever harsh the grading ... may appear, that was the intent of the Legislature”).

For purposes of completeness, I note that the legislative history of the child pornography statute does not support a different result. Its evolution evinces a legislative resolve to eliminate the proliferation of child pornography in every conceivable market and in respect of each new technological development.

The child pornography statute, prior to 1983, prohibited (1) involving a child in the production of pornography; (2) photographing or filming a child engaged in sexually proscribed conduct (or a simulation thereof); and (3) selling child pornography. In 1983, the Legislature expanded the reach of the statute to include videotaping and “any other reproduction or reconstruction” depicting a child engaging in sexually prohibited conduct or a simulation thereof, rendering “producers” and “reproducers” equally culpable and subject to punishment. L. 1983, c. 494. The “reproduce or reconstruct” language was added to the subsection that previously *215prohibited only photographing or filming children engaged in prohibited sexual acts (that is, the prior version of N.J.S.A. 2C:24-4b(4)) at a time when VCRs, videotapes, and other home video equipment were becoming more popular and less expensive. See Senate Judiciary Committee, Statement to Senate No. 1843 (Dec. 8, 1983) (“The adopted committee amendments also include video tapes and other types of reproductions and reconstructions within the purview of the child pornography statute.”). With the widespread growth of personal computers and the Internet in the 1990s, the Legislature twice amended the child pornography law to include those technologies as prohibited means of reproducing child pornography. Senate Judiciary Committee, Statement to Assembly No. 38 (Nov. 3, 1994); Senate Law and Public Safety Committee, Statement to Senate No. 1320 (Sept. 17, 1998). In both instances, the Legislature sought to expand the statute’s reach. Although there have been numerous amendments over the years to the child pornography statute, the only additional amendment of substantive note for purposes of this appeal occurred in 1992. In response to the decision of the United States Supreme Court in Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), the Legislature amended the statute to add the fourth-degree crime of possessing or viewing child pornography, addressing for the first time the demand side of this industry. L. 1992, c. 2 (codified as N.J.S.A. 2C:24-4b(5)(b)). That the Legislature eventually chose to criminalize passively possessing or viewing child pornography is not inconsistent with the conclusion that printing computer images of child pornography amounts to reproduction under the statute. The Legislature was addressing two separate actions, possession versus creation of more of the very items the Legislature was seeking to eradicate.

The Legislature’s efforts to strengthen the statute in order to deal with new technologies that not only facilitated the attainment and dissemination of child pornography, but also made it much easier and more efficient to reproduce child pornography, support a plain language interpretation of N.J.S.A. 2C:24-4b(4). See Alison R. Gladowsky, Note, Has the Computer Placed Our Chil*216dren in Danger? A Closer Look at the Child Pornography Prevention Act of 1996, 8 Cardozo Women’s L.J. 21, 21-22 (2001) (noting how “less complex and expensive” computer technology has made child pornography more prevalent and accessible). To insist, as the majority does, that the effortless tap of a mouse button should not instantaneously transform a fourth-degree offender into a second-degree offender, is to trap the statute in its pre-Internet, pre-VCR era and to ignore the Legislature’s continuous efforts to reinforce the statute to address innovations that have made reproduction an instantaneous process. See William R. Graham, Comment, Uncovering and Eliminating Child Pornography Rings on the Internet: Issues Regarding and Avenues Facilitating Law Enforcement’s Access to Wonderland’, 2000 L.Rev. Mich. State U. Det. C.L. 457, 465 (discussing advantages Internet offers child pornography rings that did not exist before); Marty Rimm, Marketing Pornography on the Information Superhighway: A Survey of 917,MO Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in Over 2000 Cities in Forty Countries, Provinces, and Territories, 83 Geo. L.J. 1849, 1851-52 (1995) (discussing how technological advancements in computer technology have given child pornographers “unprecedented distribution channels” and allowed them to “penetrate” previously “restricted” markets).

I would conclude that printing Internet-based images of child pornography constitutes “reproduction” in violation of N.J.S.A. 2C:24-4b(4). Satisfied that the statute provides ample notice that creation of an additional image or copy of child pornography with a computer printer is punishable as a second-degree offense, I would hold that it was error to dismiss count one of the indictment against defendant.

For affirmance—Chief Justice PORITZ and Justices LONG, VERNIERO and ZAZZALI—4.

Dissent—Justices COLEMAN, LaVECCHIA and ALBIN—3.

Elsewhere in the statute, " '[rjeproduction' means, but is not limited to, computer generated images.” N.J.S.A. 2C:24-4b(l). "Reproduce” is not so defined in N.J.S.A. 2C:24-4b(4). Thus, the latter provision reasonably encompasses various means of creating additional copies of the item. Here, however, we are only confronted with a computer created copy of a picture viewed from a computer monitor.