The Court continued in relevant part: The judge considered these statutes and rejected A.A.’s argument that his New York conviction was “similar to” N.J.S.A. 2C:34-3(b), stating an “essential element” of New York Penal Law § 235.21(3) was the initiation or engagement of communication with a minor via computer, whereas that element was not found in N.J.S.A. 2C:34-3(b). The judge determined that A.A.’s New York conviction was “similar to” a conviction under N.J.S.A. 2C:24-4(a), given that both statutes criminalized exhibiting explicit materials to children for the purpose of sexual gratification. Applying our de novo review, the facts underlying the New York prosecution made it clear that A.A.’s New York conviction was “similar to” endangering the welfare of a child. N.J.S.A. 2C:24-4(a).
Considering the three criminal statutes, there are certainly similarities between New York Penal Law § 235.21(3), N.J.S.A. 2C:24-4(a), and N.J.S.A. 2C:34-3(b). However, the underlying concern of N.J.S.A. 2C:34-3(b) is the threat to public decency through the promotion of obscene material. By contrast, New York Penal Law § 235.21(3) and N.J.S.A. 2C:24-4(a) share the same essential elements and underlying concern: the harm caused to minors by engaging in sexual conduct, including communicating sexual images to children via the internet.
Eschewing only an element-by-element approach, and considering the charging documents and A.A.’s admissions to New York authorities, his New York conviction is “similar to” the conviction for endangering the welfare of a child. N.J.S.A. 2C:24-4(a).
It seems the trial court and Appellate Division were engaged in mental gymnastics in an effort to subject the defendant to Megan’s Law supervision. The focus on the use of computers being a required element in New York seems irrelevant to the harm inflicted on a child. It is no more harmful to a child to give them obscene material via e-mail that they can view on their computer or print, then it is to hand or mail them the printed material.
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