RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3974-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES DIGREGORIO,
Defendant-Appellant.
Submitted September 6, 2017 – Decided September 21, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Hunterdon County,
Indictment No. 12-05-0229.
Joseph E. Krakora, Public Defender, attorney
for appellant (David J. Reich, Designated
Counsel, on the briefs).
Anthony P. Kearns, III, Hunterdon County
Prosecutor, attorney for respondent (Jeffrey
L. Weinstein, Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Charles DiGregorio appeals a March 29, 2016 Law
Division Order denying his petition for Post-Conviction Relief
(PCR). He appeals, and we affirm.
Defendant entered a guilty plea to an amended charge of
Second-Degree Endangering the Welfare of a Child, N.J.S.A. 2C:24-
4(b)(4). The original indictment alleged defendant created
certain pornographic images of H.C., a child under the age of 16,
"on or about diverse dates between January 1, 2007, and December
31, 2010." The amendment, made as a result of information
volunteered by defendant and at his request, corrected the date
range in which the images were created to between 1994 and 2001.
The grand jury issued the indictment on May 24, 2012.
The images were found on October 24, 2011, when, during the
course of an unrelated investigation in another state, the Federal
Bureau of Investigation (FBI) found nude photographs of H.C. on
the suspect's computer. The pictures had been emailed from
defendant's computer. A search warrant was executed at defendant's
home on November 2, 2011.
The authorities met with H.C. on December 6, 2011. She
explained that when she was a child, defendant had taken
professional photographs of her, while she was fully clothed. The
pornographic photos were created later when defendant manipulated
the images so as to make it appear H.C. was nude or partially
nude.
The court and counsel extensively discussed the applicable
statute of limitations during the course of the entry of
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defendant's guilty plea. Eventually, counsel agreed on
defendant's behalf that the prosecution was begun within two years
of discovery of the crime. Because the indictment issued soon
after the discovery of the photographs, and of H.C. learning of
their existence, the court was satisfied that the indictment did
not violate the time limitations found in N.J.S.A. 2C:1-6(b)(4).
The statute reads that a prosecution for a N.J.S.A. 2C:24-4 offense
must be commenced, assuming the victim at the time of the offense
was below the age of 18, "within five years of the victim's
attaining the age of 18 or within two years of the discovery of
the offense by the victim, whichever is later[.]"1 On June 13,
2013, in accord with the plea, defendant was sentenced to a six-
and-a-half year term of imprisonment, with a 589-day jail credit
for time already served. The remaining he served at the Adult
Diagnostic and Treatment Center. See N.J.S.A. 2C:47-3. Megan's
Law applied to the offense. See N.J.S.A. 2C:7-11.
In his PCR petition, defendant argued that the statute of
limitations barred prosecution in his case. He contended then,
as he does now on appeal, that because H.C. learned about the
photos only when the authorities informed her of their existence,
she did not "discover" them, and thus no prosecution could proceed.
1
H.C. was born October 11, 1988. The indictment was handed down
when she was 23 years old.
3 A-3974-15T4
He claims that she cannot be considered a "victim" from the manner
in which she found out about the doctored photos. The statute of
limitations argument is defendant's only point on appeal:
THE JUDGMENT OF CONVICTION AGAINST DIGREGORIO
MUST BE DECLARED VOID AND SET ASIDE BECAUSE
THE STATE FAILED TO ESTABLISH THAT THE
INDICTMENT WAS FILED WITHIN THE STATUTE OF
LIMITATIONS.
A petition for PCR is cognizable where a defendant alleges
that the statute of limitations has run and therefore the court
lacked the legal authority to convict and sentence. See R. 3:22-
2(b) ("A petition for [PCR] is cognizable if based upon . . .
[l]ack of jurisdiction of the court to impose the judgment rendered
upon defendant's conviction[.]). In addition to the statute of
limitations argument, although not by way of separate points,
defendant contends that no "discovery" of the crime occurred, and
since the victim did not appear at sentencing or send in a written
victim impact statement, she is not interested in pursuing the
prosecution. Thus defendant urges us to find that the court lacked
jurisdiction to sentence him. The arguments lack sufficient merit
to warrant much discussion in a written opinion. See R. 2:11-
(e)(2).
That the photographs were brought to H.C.'s attention by the
authorities does not mean she did not "discover" the crime.
Whether she came upon the photographs on her own or was informed
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about them by someone else is irrelevant. She clearly first
learned of their existence in December 2011, when interviewed by
law enforcement. The statute criminalizes the photographing of a
child "in a prohibited sexual act or in the simulation of such an
act," and criminalizes the use of a device, here a computer, to
"reproduce or reconstruct the image of a child in a prohibited
sexual act or in the simulation of such an act."
The original images were innocent – they were images of a
fully-clothed child. Later defendant manipulated these images so
as to depict nudity and shared those manipulated images with at
least one other person on the internet. The discovery of the
photos by law enforcement and the victim in 2011 makes that year
the baseline for calculating the running of the statute, as opposed
to the years in which defendant claims he first engaged in the
activity. Defendant was indicted on May 24, 2012, months after
the FBI learned about the crime and the authorities met with the
victim. Therefore, the indictment fell well within the two years
of H.C.'s discovery of the crime, and the prosecution thus falls
within the two years permitted by the statute.
Affirmed.
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STATE OF NEW JERSEY VS. CHARLES DIGREGORIO(12-05-0229, HUNTERDON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion