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BACKGROUND: Detectives arrested Rishi Negi West Orange — who is married and used the handle “rickywithlove” on Yahoo.com — after he showed up at an undisclosed Bergen County location for what he thought was a meeting with a 13-year-old girl following “sexually explicit conversations with the purported child” online, Prosecutor John L. Molinelli said.
ISSUE: Some defense lawyers have argued that crimes cannot be committed against “virtual victims.” When the “minor” involved is “hypothetical,” one attorney contended, “victimization” is impossible.
Molinelli counters with case law. As a result, the prosecutor says, real children have been protected from would-be predators, thanks to his Computer Crimes Task Force, under the direction of Chief Steven Cucciniello, one of the most active units in the state — if not the entire Northeast.
BOTTOM LINE: New Jersey’s Appellate Division just last year unequivocally rejected the “virtual victim” defense of a man who was convicted of traveling to meet a purported child — also, coincidentally, 13.
The defendant, Edward C. Kuhn, had a series of Internet and phone conversations with investigators from the Atlantic County Prosecutor’s Office who represented themselves as “Mandi,” the judges wrote in their ruling. Detectives used the screen name “sojerzeygrl1991,” intended to suggest a child born that year. They included a photo of a female investigator that was taken when she was 10 years old and had long hair.
In the space designated for hobbies, it said: “Boys, Boys, and what else? oh Boyz!”
At one point, “Mandi” entered a chat room known as “Romance, Regional, New Jersey,” and hung out — not contacting anyone, court papers show. Kuhn showed up, with a foul screen name that won’t be repeated here, and messaged “hey” to Mandi, prosecutors said.
The court decision says Kuhn complimented Mandi’s photo and identified himself as “Ed.”
Mandi told him she lived with her father, who wasn’t home. When he asked, she said she was 13 and had shoulder-length hair, court papers show.
Kuhn said he “would love to brush her hair and asked if he could come to her room and brush it,” the appeals court wrote. “When she said not now, [he] asked when he could, questioned her about her father’s work hours and whether she wore a uniform with a skirt when she went to school.”
The conversation eventually turned to sex, with “Ed” giving graphic “step-by-step” instructions for masturbation — then sending a web cam feed of himself doing it, the ruling says.
During a second session, Kuhn requested a phone call that authorities said was placed by another investigator. While on the phone, Kuhn again went on the web cam and “repeated the performance he had given the day before,” the appeals decision says. They returned to instant messaging, where Kuhn requested a meeting, it says.
Mandi said she had cheerleading practice, but Ed offered to pick her up afterward and take her to lunch, according to the ruling. “He described his car and the bandana he would be wearing.”
The next day, investigators reported getting a message from Kuhn asking Mandi where she was. It was at that point, they said, that they learned his identity from his cell phone carrier and the type of car he was driving, courtesy of the Division of Motor Vehicles.
The investigators said they sent a message apologizing for not responding to Kuhn’s message the day before. Requested meetings were declined, and investigators “made excuses to end the on-line conversations and avoid sessions over the upcoming [Labor Day] weekend,” court papers show.
Several days later, Mandi told him she had “a plan in place”: They would meet at a bowling alley, the appeals judges wrote.
Kuhn responded, they said, by suggesting she wear a skirt and a thong, and said he would be bringing a camera to take photos and videos, if she approved.
On the day of the meet-up, the investigator who posed as Mandi on the phone called Kuhn’s cell and left a message with the number of the bowling alley, the decision says. Kuhn “called the number, told Mandi he was on his way and arrived about five or ten minutes later,” it says. “He drove to the back of the bowling alley and dialed the number he had used on the last call.”
Kuhn was wearing a bandana when detectives arrested him. A warranted search produced cameras, the ruling says. He “waived his right to remain silent,” it adds, and eventually admitted “that he knew she was thirteen years old.”
It was an intricate case, with four convictions that the appeals court later overturned. However, the judges affirmed the investigators’ tactics and found that the convictions for “attempted crimes” were appropriate.
They cited State v. Moretti, involving the attempted abortion of a woman who, it turned out, wasn’t pregnant:
“[W]hen the consequences sought by a defendant are forbidden by the law as criminal, it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him,” the state Supreme Court wrote in that one.
Another ruling, this by the appellate panel itself, upheld the conviction of a man who tried stealing from a drawer that he didn’t know was empty.
This wasn’t the first time a New Jersey high court has ruled that attempted criminal conduct applies to “virtual victims.”
As the Appellate Court judges noted, they upheld a similar conviction four years ago of a man who was arrested after first sending graphic messages and then showing up at the Bridgewater Commons Mall in Somerset County for what he apparently thought was a liaison with a 13-year-old girl who called herself “Sara Silly.”
Such conduct is “purposeful” if someone “is aware of the existence of such circumstances or [if] he believes or hopes that they exist,” the appeals court wrote.
In short, the panel concluded: “A defendant’s subjective belief that a victim is a child suffices to impose liability for attempted endangering when that person was actually an adult (law enforcement).
“Accordingly, we reject defendant’s claim that he cannot be convicted of these attempted crimes because Mandi was not a thirteen-year-old child.”
UPDATE: Negi is charged with luring, attempted sexual assault and attempted child endangerment. He was ordered held on $75,000 bail.
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