On appeal from Superior Court, Law Division.
Approved for Publication November 20, 1995.
Before Judges Shebell, Long and Muir, Jr. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by LONG, P.J.A.D.
Having pled guilty to the fourth degree sexual assault of an acquaintance in 1988, on March 19, 1991, the registrant was sentenced to a two-year probationary term along with community service. In 1993, the registrant entered a plea of guilty to third degree aggravated criminal sexual contact (N.J.S.A. 2C:14-3a) and was sentenced to a five-year custodial term with two and one-half years of parole ineligibility. Pursuant to the plea bargain, another indictment charged the registrant with sexual assault, robbery and several weapons offenses involving the victim A.Z., was dismissed.
The registrant was scheduled to be released from jail on October 18, 1995. On or about October 6, 1995, he was personally served with a letter of notification that stated: You will be classified in TIER 3." The notice informed the registrant that his classification was based on the Sex Offender Risk Assessment Scale attached to the notice. The scale score which was 83, placed the registrant in the high risk category. The registrant applied for judicial review of the sex offender notification tier designation. Among various claims in his application, the registrant contended that the scoring was incorrect because he never used a weapon and because he was acquainted with his victims.
A conference was scheduled before the trial Judge on November 3, 1995. The registrant argued that the sexual assault on A.Z., which was dismissed as a part of the 1993 plea bargain, should not have been considered at all in the scoring. If successful on this claim, the registrant's score would have been reduced in several particulars. Criteria number one - the degree of force score - would be lowered from 15 to 5 because A.Z.'s was the only case involving a knife. The score on criteria number five would also be reduced from 9 to 6 because the registrant would only have had two victims, not three. The registrant also argued that the score on criteria number four (victim selection) would be reduced from nine to three because A.Z. was the only stranger victim and would be eliminated. *fn2
If it was improper to consider the sexual assault on A.Z., the reduction of the degree of force score from 15 to 5 would automatically reduce the overall score to 73 and drop the registrant back to a Tier 2 classification (37-73) with which the registrant would be satisfied. A second issue emerges from the question of the propriety of considering the dismissed charges; assuming they may be considered, is there sufficient documentation that the registrant used a knife?
The trial Judge rejected the registrant's request for an evidentiary hearing which had been based on the registrant's argument that A.Z.'s statements were inconsistent and problematic from a credibility point of view. The Judge went on:
Thank you, counsel. The Court believes that upon the information presented, and based upon my ruling of not calling [A.Z.] to the stand, a decision can appropriately be made at this time. I don't think there is anything that would be accomplished at a hearing that I don't have in front of me. I am satisfied that the discovery presented by the prosecutor, specifically now in this particular area under number one, ML-70 through ML-112, provides the Court with sufficient information to make the decision. First I will note that it is not necessary, in this Court's opinion, to consider action an offense as far as section one of the Sex Offender's Risk Assessment Scale is concerned. In other words, I think that the Court can, if it finds to be appropriate, find that an offense occurred even though there is no conviction. As to whether the offense occurred here and whether or not there was a degree of force under number one of the seriousness of the offense, I have reviewed the discovery presented. I note on ML-70 at the bottom of the page, it is stated, we were detailed to [A. Street] and [B. Avenue] on a rape and stolen auto. Upon arrival, we met [A.Z.] crying hysterically that she had just been raped and that her auto was on [C. Lane] halfway down the alley. As we transported -- I can't make the word out -- to look for her auto, she stated at approximately twenty-one hundred hours, she was in her -- I can't read that word -- auto.
PROSECUTOR: I believe that is "listed".
THE COURT: Stopped at a red light on [D. Avenue] and [E. Street] facing north. At that time, [C.A.] opened her unlocked passenger's door, got in, pulled out a small hunting type knife, held it in front of him and told her she was going to take him where he wanted to go, and so forth. That is the report of [M.C.]. The report was also read into the record earlier by [Sergeant F.]. It is at Page ML-73. The writing is not that clear, but here it says, at approximately twenty-one hundred and forty hours on June 16th, 1991, responded to [C. Lane] on a report of a sexual assault. Upon arrival, I briefly interviewed the victim, [A.Z.], who advised that she had been sexually assaulted in her auto, and it was parked nearby after she was kidnaped at knife-point from [Z. Township], from a [Z. Township location.] At Page ML-78, and this was recently read by the prosecutor. I interviewed the victim, and during the interview, I observed she was extremely emotionally upset and did not exhibit any visible injuries due to her assault. She related the following information regarding the incident under investigation. She had stopped her automobile at the traffic signal at the corner of [E. Street] and [D. Avenue] when an unknown black male entered her vehicle through the unlocked front passenger door and placed a knife to her throat and directed her to ride to an unknown location where the individual forcibly had sexual intercourse with her inside her auto.
So what the Court has been presented with was three separate statements to three separate persons, the last one being [Detective L.S.], that while she was in an emotional state, she gave information each of the three times that a knife was used, so I determine that a knife was used in that incident. I acknowledge counsel's argument that it was not used. She did not say it was used, presented to her during the actual assault, sexual assault. I am satisfied, under the scenarios presented by [A.Z.] that under seriousness of the offense, number one, degree of force, that the prosecutor appropriately found it to be a three; that is use of a weapon.
We hold that the details of a sexual offense, which is not the subject of a conviction, may be considered in the risk assessment scale calculus. The Judge may rely on documentation he or she considers relevant and trustworthy in making a determination. Sex Offender Risk Assessment Scale Manual, P.5, (9/14/95). This may include, but is not limited to, criminal complaints not the subject of a conviction but which are supported by credible evidence, victim statements admissions by the registrant, police ...