On appeal from the Superior Court of New Jersey, Law Division.
Approved for Publication January 18, 1996.
Before Judges Shebell and Wallace. The opinion of the court was delivered by Wallace, Jr., J.A.D.
The opinion of the court was delivered by: Wallace
The opinion of the court was delivered by
Registrant sought a stay pending his appeal of the trial court's affirmation of the prosecutor's classification of him as Tier Two in the implementation of the Registration and Community Notification Laws (RCNL), N.J.S.A. 2C:7-1 to -11, and the judicial review process required by Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995). We granted a stay pending further order. We now affirm in part and remand for further hearing.
Registrant contends that (1) the RCNL violates ex post facto, due process, and double jeopardy provisions of the constitution; (2) the failure to stay the proceedings to allow the public defender to handle the matter denied him equal protection of the laws; (3) he was entitled to a hearing to challenge his Tier designation; and (4) the geographical scope of notification was arbitrary because there was no showing of a fair chance to encounter the registrant.
Briefly, registrant was indicted for various sexual offenses arising out of inappropriate contact with his younger female cousin. In a statement given to police in November 1991, registrant acknowledged that on at least three occasions over a two or three year period, he had his cousin perform fellatio on him in his parents home. Registrant entered into a plea agreement with the State and pled guilty to second degree sexual assault in violation of N.J.S.A. 2C:14-2b. Pursuant to the plea bargain, the remaining counts of the indictment charging registrant with aggravated sexual assault, sexual assault, endangering the welfare of a child and child abuse were dismissed. The presentence report noted that registrant said the last incident occurred in 1988. Registrant was sentenced in 1992 to a five-year custodial term to be served at Avenel.
Registrant was released from Avenel in June 1995. As a convicted sex offender, he is subject to the provisions of the RCNL. In October 1995, registrant received a letter of notification that he would be classified in Tier Two. The notice informed the registrant that the classification was based on the Sex Offender Risk Assessment Scale (Scale) attached to the notice. The Scale score was 57 which classified the registrant as Tier Two, i.e., his presence in the community poses a moderate risk. This notice also instructed that unless he applied for judicial review, all schools within a distance of two miles of his residence would be notified. Registrant applied for judicial review and was assigned counsel.
His attorney filed motions seeking: (1) to stay the review hearing until the Public Defender could represent registrant, (2) to preclude community notification, and (3) to declare N.J.S.A. 2C:7-1 to -11 unconstitutional because, as it applied to defendant it constituted an ex post facto law, violated his rights to due process, and violated principles of double jeopardy.
A conference was held before the designated Megan's Law Judge on November 15, 1995. The registrant argued his motions and requested a hearing to challenge various ratings in the Scale. The Judge denied the motions. Registrant then noted that he was employed which would reduce criteria thirteen from a moderate risk to a low risk. The prosecutor agreed and also conceded that criteria seven, the length of time since the last offense, should be lowered from nine to three because the last incident had occurred between two to three years prior to registrant's arrest in 1991.
The registrant argued that criteria number two, degree of contact, should be reduced from fifteen for penetration, to ten for fondling under clothing, because registrant pled guilty to sexual assault. Counsel for registrant recognized that based on registrant's uncounselled admission, there was evidence in the record of penetration. However, he argued that registrant's admission was never subject to a Miranda or Jackson-Denno hearing, and therefore, he was entitled to a hearing. Similarly, with respect to criteria number six, duration of offensive behavior, he argued that registrant had pleaded guilty to only one offense, and therefore, the rating should be reduced from a three, for over two years, to a zero, for less than one year. He further argued that criteria number eight, history of anti-social acts, should be reduced from one, for a limited history, to zero, for no history. Finally, he argued that criteria number twelve, residential support, should be a zero, for stable and appropriate, rather than a one, for stable and appropriate but no external support system.
The prosecutor argued that registrant had admitted in his statement, to numerous instances of fellatio and sexual intercourse with the victim and had acknowledged that the offenses occurred over a period of two or three years. Thus, the prosecutor argued, there was sufficient evidence to support the relevant grading for criteria two and seven. Further, the prosecutor argued there was evidence that the registrant was convicted in 1987 for theft and burglary and in 1988 for a weapons offense, justifying a finding of limited history of anti-social acts in criteria twelve.
Registrant also contended that notification of schools and community organizations that have children in its care in a two mile geographic radius from the site of his home and work was arbitrary. In addition, registrant sought the appointment of three experts, a psychiatric expert to evaluate the risk of recidivism, a statistical expert to prepare an analysis on recidivism, and a human factor expert who would conduct a ...