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Matter of Registrant G.B.

December 11, 1996

IN THE MATTER OF REGISTRANT G.B.: APPLICATION FOR JUDICIAL REVIEW OF NOTIFICATION AND TIER DESIGNATION *FN1


On certification to the Superior Court, Appellate Division, whose opinion is reported at 286 N.J. Super. 396 (1996).

The opinion of the Court was delivered by Handler, J. Justices Pollock, O'hern, Garibaldi, and Coleman join in Justice HANDLER's opinion. Justice Stein filed a separate Concurring opinion. Chief Justice Poritz did not participate.

The opinion of the court was delivered by: Handler

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In the Matter of Registrant G.B.: Application for Judicial Review of Notification and Tier Designation

(A-27-96)

Argued September 10, 1996 -- Decided December 11, 1996

Handler, J., writing for the Court.

The issue in this case is directed to the role of expert testimony in raising challenges to a registrant's Scale score and the scope of community notification.

Registrant, G.B., was indicted for aggravated sexual assault, sexual assault, endangering the welfare of a child, and child abuse. He subsequently pleaded guilty to one count of second-degree sexual assault. G.B. was sentenced to five years at the Adult Diagnostic and Treatment Center at Avenel ("Avenel"). In 1994, during his sentence at Avenel, the Legislature enacted the Registrant Community Notification Law ("RCNL" or "Megan's Law"), the overall purpose of which is to protect the community from the dangers of recidivism by sex offenders. The RCNL requires that convicted sex offenders found to be "repetitive and compulsive" register with local authorities and that the community be notified about certain sex offenders classified as moderate or high risk. In 1995, the Supreme Court upheld the constitutionality of the RCNL.

G.B. was released from Avenel in June 1995. Invoking the RCNL, the county prosecutor undertook to classify him according to his risk of reoffense by applying the Scale promulgated by the Attorney General. Under the Scale, the prosecutor ascribed to G.B. a numerical score of fifty-eight, resulting in a Tier Two or "moderate-risk" classification, which, under the RCNL, triggers targeted or selective community notification by the State.

G.B. sought judicial review of the prosecutor's determination. At an in camera judicial hearing, he challenged the factual underpinnings of the State's calculation of his Scale score and the proposed scope of community notification. The trial court rejected his arguments. G.B. also sought to challenge the predictive value of the Scale for determining the risk of reoffense and the correctness of the Scale score as applied to the circumstances of his offense. To support his claims, G.B. sought to introduce evidence from three experts, including a psychiatric expert to evaluate his actual risk of reoffense. The trial court ruled that expert testimony was unwarranted because the material factors in the Scale did not call for expert testimony. G.B. appealed the trial court's decision.

The Appellate Division concluded that G.B. should be permitted to retain an expert and to present testimony at the hearing to show that the variable factors in the Scale calculations as related to him, should result in a lesser Tier classification. The Attorney General petitioned the Supreme Court for certification, alleging that the Appellate Division's decision was too broad in permitting expert testimony and too lenient in allowing a registrant's Scale score to be overridden. The Supreme Court granted the Attorney General's petition for certification.

HELD: In limited circumstances, a registrant may introduce expert testimony at the judicial hearing in order to establish the existence of unique aspects of his or her offense or character that render the Scale score assigned under the Registrant Community Notification Law suspect.

1. Because the RCNL implicates significant personal rights, the judiciary has an important nondelegable responsibility to ensure a proper balancing of the rights of registrants with the interests of the community. (pp. 8-10)

2. Registrants may raise objections to the notification of classification in a judicial hearing in which the State has the burden of going forward with its prima facie case, consisting of the evidence justifying the proposed risk level and manner of notification. (pp. 11-13)

3. The State's prima facie case may be built on reliable hearsay. Once the State has proven its prima facie case, the burden shifts to the registrant to prove, by a preponderance of the evidence, that the State's determination does not conform to the law. (pp.13-14)

4. Although the Scale score is an important tool that the State can utilize both in meeting its initial burden of coming forward with a prima facie case and in rebutting evidence introduced by a registrant contrary to the State's position, a court should not rely solely on a registrant's point total when it conducts a judicial review of a prosecutor's tier level classification or manner of notification decisions. Rather, tier classifications are best made on a case-by-case basis. (pp.14-18)

5. The Scale, which is sufficiently probative and reliable to fulfill the State's burden of presenting a prima facie case, is to be afforded substantial weight and will have binding effect unless and until a registrant presents subjective criteria that would support a court not relying on the tier classification recommended by the Scale. (pp. 18-19)

6. Only in the unusual case where relevant, material, and reliable facts exist for which the Scale does not account, or does not adequately account, should the Scale score be questioned. Those facts must be sufficiently unusual to establish that a particular registrant's case falls outside the "heartland" of cases. (pp.19-22)

7. Even a registrant whose Scale score was properly computed and whose case does not fall outside the "heartland" of cases in terms of his risk of reoffense may seek to narrow the scope of community notification. (pp. 22-23)

8. A registrant is entitled to lodge three distinct challenges to his tier designation, all of which must relate to the characteristics of the individual registrant and the shortcomings of the Scale in his particular case. (pp.23-24)

9. The trial court has the ultimate authority to decide what weight to attach to the Scale and what weight to attach to expert testimony, which may take the form of reports or affidavits. Trial courts, however, must ensure that tier designation hearings are not converted into prolonged battles of the experts. (pp. 24-27)

10. If a trial court determines that the proffered evidence is not relevant to the issues raised, then it shall explain on the record the decision to exclude the evidence.

11. Here, the expert evidence proffered by G.B., if believed, could tend to establish that his case includes important factors not addressed or adequately addressed by the Scale score calculation. (pp.28-30)

Judgment of the Appellate Division is AFFIRMED.

JUSTICE STEIN, Concurring, had a separate view concerning the constitutionality of the retroactive application of the Community Notification Law.

JUSTICES POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE HANDLER's opinion. JUSTICE STEIN filed a separate Concurring opinion. CHIEF JUSTICE PORITZ did not participate.

The opinion of the Court was delivered by

HANDLER, J.

This is another case concerning a set of bills collectively known as Megan's Law. The focus of the appeal is on the use of expert testimony in determining under that law the risk of reoffense posed by a paroled convicted sex offender.

We thus far have upheld the legislation requiring sex offenders to register with law enforcement, N.J.S.A. 2C:7-1 to -5, and the act requiring law enforcement, in certain circumstances, to notify community groups and individuals of the presence of sex offenders, N.J.S.A. 2C:7-6 to -11. Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995). More recently, we upheld the Attorney General's sex-offender classification guidelines, known as the Registrant Risk Assessment Scale ("RRAS" or "the Scale"). In re Registrant C.A., 146 N.J. 71, 679 A.2d 1153 (1996). Moreover, we have held that although the Scale is entitled to deference, it is not immune from challenge. Rather, it is merely a useful guide to determine the amount of notification that a community should receive. ...


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