Aggravating Factor One (Part 1)

by | Mar 29, 2019 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On February 20, 2019, the New Jersey Supreme Court decided the Monmouth County case of State v. Michael D. Miller. Justice Fernandez-Vina wrote for a unanimous court. The principal issue was whether the trial court abused its discretion in applying aggravating factor one and in refusing to merge the offenses of possession of child pornography and distribution of child pornography.

The court held in relevant part as follows: In this appeal, the Court first considers whether it is an abuse of discretion for a trial court to apply aggravating factor one when sentencing a defendant convicted of possessing and distributing child pornography. Second, the Court considers whether defendant Michael Miller was appropriately sentenced to consecutive terms of imprisonment for his possession and distribution of child pornography.

Miller was convicted of possessing and distributing over 900 images and videos of child pornography through the use of online peer-to-peer file-sharing programs. He was also in possession of thirty-three CDs and DVDs, eleven of which contained photographs and recordings of child pornography separate from those found on his computer.

At Miller’s sentencing hearing, the trial judge applied aggravating factor one, the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1), because the pornography possessed and distributed by Miller depicted the rape, penetration, and sexual assault of extremely young children, at least one of whom was an infant. The court also applied aggravating factor two, the gravity of harm to the victim; aggravating factor three, the risk defendant will commit another offense; and aggravating factor nine, the need for deterrence.

The court applied mitigating factor seven, no prior criminal history, as the sole mitigating factor. The court then concluded that it would not merge counts one and two together, explaining that “Miller’s possession of the child pornography was not fleeting and was for a substantial period of time. And his use of the child pornography was distinct from his making the files available by way of the peer-to-peer programs.” The court ultimately sentenced Miller to seven years’ imprisonment for the distribution charge and one year of imprisonment for the possession charge. The court determined that the sentences must run consecutively, reasoning that Miller’s crimes “were independent of one another, involving separate acts committed at different times.”

State v. Natale is the case that likely prevented the trial court from sentencing the defendant to eight years in prison for the distribution charge, as opposed to seven years for distribution and a consecutive one year for possession. Natale’s holding is that a defendant with no prior record cannot ordinarily be sentenced past the middle term sentence for a given offense. The middle term for the second-degree distribution crime is seven years.