Before Judges Antell and Bilder.
The opinion of the court was delivered by: The opinion of the court was delivered by Antell, P.j.a.d. (retired and temporarily assigned on recall)
Argued and Decided: August 25, 1998
 Remanded by the Supreme Court November 17, 1998
Briefs submitted on reconsideration: December 7, 1998
On reconsideration of order on appeal from Superior Court, Law Division.
By order dated July 2, 1998, pursuant to the Registration and Community Notification Law, N.J.S.A. 2C:7-1, et seq. ("Megan's Law"), the Law Division designated registrant a Tier II sex offender and directed notification of his presence in the community to twenty-five schools, agencies and community organizations in nine different municipalities. Registrant appealed therefrom, and on August 25, 1998, we summarily affirmed the Law Division's order of July 2, 1998 designating registrant as a Tier II offender, finding that determination to be supported by clear and convincing evidence. We summarily reversed the Law Division's order to the extent that it directed notification of registrant's presence to the specified schools, agencies and community organizations. We found that determination to be "unsupported by clear and convincing evidence or by any finding that children being cared for therein are likely to encounter registrant."
The State's petition for certification was granted on November 17, 1998 and the Supreme Court summarily remanded the matter to us "for reconsideration of the issue of the scope of notification in the light of respondent's history and personal circumstances detailed in the record in this matter."
Registrant is a thirty-one year old male with a history of behavior disorders going back to an early age. He was involved in alcohol and drug abuse during his teenage years, has been educationally classified as neurologically impaired and has been found to have a "significantly lower than normal intelligence."
At the age of fourteen, registrant was taken by his mother to a nearby Center for Mental Health following the discovery that registrant had been fondling the genitals of his three-year old female cousin. No formal charges were filed against registrant, but the incident led to a period of psychotherapy which resulted in only limited progress because of registrant's lack of interest and full participation.
In January, 1991, when registrant was twenty-three years old, the event occurred which led to his present classification as a sex offender. Registrant was then living with his paramour, D.Z., and her ten-year old son S.Z. On the night of January 26, D.Z. went out for the evening and left the boy in registrant's care. While S.Z. was lying on a couch watching television, registrant entered the room and reclined on another couch. Shortly after, the registrant left the room to change into his bathrobe and returned. S.Z. then left the room and also returned wearing a pair of shorts and a bathrobe. It was then that registrant took control over the youngster, masturbated him and subjected him to acts of fellatio and sodomy. According to registrant's Risk Assessment Score, the attack was carried out by "threats and minor physical force."
The matter was called to the attention of the authorities and sexual assault charges were filed against registrant. His subsequent examination by Dr. Mark Frank, a principal clinical psychologist at the Adult Diagnostic and Treatment Center, disclosed that he is not a compulsive offender. Dr. Frank found that "there is no clear indication that [R.F.] experiences a strong pedophilic sexual arousal pattern or that he struggles with irresistible urges to engage in such behavior." Based on this, he concluded that registrant's criminal behavior was not driven by a sexual compulsion.
On May 8, 1992, registrant was sentenced to a term of eight years in the custody of the Department of Corrections with a parole ineligibility period of three years. He was credited with 377 days of jail time already served and served his detention at two separate correctional facilities. In connection with his application for parole in 1995 he was examined by Bruce Friedman, LCSW, Director of the Center for Mental Health, on March 21, 1996. That examiner opined that "factors that would indicate the existence of a sexual disorder were marginal."
In preparation for this Megan's Law proceeding, registrant was examined on June 22, 1998 by Dr. Paul Fulford, a licensed psychologist. Dr. Fulford's report observes that there is "no history of previous behaviors outside the family that would suggest a deviant arousal pattern or overall risk to the community. His main risk appears to be that of alcohol abuse." Dr. Fulford agreed that registrant was at moderate risk of reoffending, but that since "his risk is related to and triggered by the use of alcohol, which he is abstaining from, the need for community notification does not appear to be indicated." It is here relevant to note that according to his Risk Assessment Score, registrant's substance abuse is in remission.
His overall score of sixty-five places him in the upper range of moderate risk to reoffend.
Arguing in favor of notification, the prosecutor omits few details in acquainting us with registrant's sordid existence. It is not a pretty picture. On that canvas we see his contempt for authority, drug and alcohol abuse, sexual promiscuity, frequent arrests for fighting, for drug possession and for other forms of disorderly behavior. At the age of sixteen, he was the father of two out-of-wedlock children. After separating from the mother of those children, he married and fathered another child. The marriage was short lived and he took up thereafter with another woman, resulting in a third out-of-wedlock child. He is said to be neglectful of his duty to support these children.
Registrant's squalid life style and failure to conform to societal norms naturally excite one's punitive instincts. But the judicial process has already administered appropriate punishment to the registrant in a separate proceeding, and the constitutional justification for Megan's Law rests on the belief that it is intended as non-punitive, remedial legislation. E.B. v. Verniero, 119 F. 3d 1077, 1097 (3d Cir. 1997); Doe v. Poritz, 142 N.J. 1, 73 (1995). We work within a well-defined context in which standards of proof and procedure have been painstakingly formulated.
In this proceeding, it is the prosecutor's burden to prove by clear and convincing evidence not only the degree of risk created by registrant's presence in the community, but also the scope of notification necessary to ...