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In re Registrant J.M.

March 28, 2001

IN THE MATTER OF REGISTRANT J.M.


The opinion of the court was delivered by: LaVECCHIA, J.

ON CERTIFICATION TO Appellate Division, Superior Court

Justice Stein PRESIDING

Argued January 30, 2001

This is yet another challenge to the Attorney General Guidelines for Law Enforcement for the Implementation of Sex Offender Registration and Community Notification Laws, specifically the Registrant Risk Assessment Scale ("RRAS") and the Registrant Risk Assessment Scale Manual ("Manual") components of those guidelines. Previous challenges to the RRAS and the Manual have been addressed by this Court. In re Registrant G.B., 147 N.J. 62, 69 (1996); In re Registrant C.A., 146 N.J. 71, 100-01 (1996); Doe v. Poritz, 142 N.J. 1, 24 n.5 (1995); see also Paul P. v. Farmer, 80 F. Supp. 2d 320, 325 (D.N.J.), judgment vacated by 92 F. Supp. 2d 410, 414 (D.N.J. 2000) (dissolving injunction and allowing amended guidelines on uniform method of distribution of community notification to proceed). We have upheld the RRAS, imbuing it with an entitlement to deference, but noting that the ultimate responsibility for determining the extent of community notification is reposed with the trial court, assisted in certain circumstances by expert testimony. In re G.B., supra, 147 N.J. at 69.

The RRAS is composed of four categories and, within each, numerous factors. (Appendix A). It is recognized as a useful tool for assessing risk of re-offense of a registrant, designating an individual's tier of risk of re-offense, and the scope of community notification pertinent to that tiered designation. Ibid. In this matter, registrant objects to the inclusion under the RRAS's "criminal history" factors one through seven of certain prior convictions for offenses of a sexual nature. Specifically, he contends that if the offense would not require his registration under the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -11 (RCNL), commonly known as Megan's Law, then it should not be included under factors one through seven of the RRAS that examine criminal offense history. Instead, he asserts that those nonregistrable sex offenses should be limited to consideration only under the "anti-social acts" factor of the RRAS, thus reducing the capacity of those offenses to inflate the assessment of his risk of re-offense. Both the trial court and the Appellate Division agreed and held that registrant's nonregistrable sex offenses could not be considered under the criminal history factors one through seven. We granted certification, 165 N.J. 489 (2000), and now reverse.

I.

Registrant J.M. has an extensive criminal background, but it is his 1966 rape conviction that brings him within the purview of the RCNL. In August 1999, the Essex County Prosecutor served J.M. with notice of intent to designate him a "Tier 3, High Risk, Sex Offender" due to his score of eighty-nine points on the RRAS. The "High Risk" designation would require notification to all public and private educational institutions, licensed day care centers, summer camps, registered community organizations, and specified residential and business addresses. J.M. objected to the proposed "High-Risk" classification and counsel was appointed to represent him at a hearing on his tier classification.

At his hearing, J.M. contended the State erroneously considered his 1987 conviction for attempted criminal restraint when evaluating the criminal history factors, numbers one through seven, on the RRAS, culminating in an incorrect score and tier designation. The facts relevant to that conviction were that registrant had been charged with attempted kidnapping in 1986 on the basis of his attempt to abduct a sixteen-year-old girl walking to school. Registrant drove alongside the girl, and while asking for directions, attempted to pull her into the car by grabbing her sleeve. She managed to elude him. The charge was amended to third-degree attempted criminal restraint, to which J.M. pled guilty and received a sentence of five years probation with a mandatory 364-day jail sentence.

J.M. disputed his point assessments for virtually all of the categories on the scale because his 1987 conviction for attempted criminal restraint was included in arriving at those point assessments. For similar reasons, J.M. also objected to his three lewdness offenses being considered under factors one through seven when assessing his risk of re-offense. Although the State argues that J.M. has three past lewdness convictions, we note that that contention is disputed. J.M.'s argument was premised on the fact that the 1987 attempted criminal restraint conviction and his lewdness offenses do not fit within the definition of a "sexual offense" requiring registration under Megan's Law. N.J.S.A. 2C:7-2(b)(2). Because those crimes are not registrable offenses, he argued, they should not be included among the criminal history factors "indicative of high risk of re-offense" under the Attorney General's guidelines for determining the appropriate level of notification for a registrant. N.J.S.A. 2C:7-8(b)(3).

The trial court agreed, reasoning that an offense that does not require registration under N.J.S.A. 2C:7-2 is not a "sex offense" for purposes of Megan's Law and could be considered only under factor eight of the RRAS, "History of Anti-Social Acts." Accordingly, the court reassessed J.M.'s RRAS score, additionally reducing J.M.'s score for reasons not pertinent to this appeal, and held that the State had proven by clear and convincing evidence only a point assessment of fifty-four. J.M. was classified as a "Tier Two" sex offender and, consistent with that moderate risk assessment, the court directed that notification be given to "all secondary public and private educational institutions, registered community organizations and summer camps within a one-half mile of the registrant's residence . . . ."

On appeal, the State argued that the trial court erred in finding that registrant's attempted criminal restraint and various lewdness offenses could not be considered when evaluating J.M.'s risk of re-offense under factors one through seven. According to the State, the Scale takes an "actuarial" or combined experience approach designed to encompass all sexual offense history so as to evaluate more accurately future risk of re-offense, the very purpose underlying the tier classification and resultant scope of notification for each registrant. The State contended that the entire statutory scheme of registration and notification of sex offenders evinces a legislative contemplation that all of an offender's sexual offenses be considered for purposes of tiering, once it is determined that a sex offender is subject to registration under the act. Thus, only by considering all prior crimes with a sexual component as part of a registrant's criminal history will the Scale serve as an accurate predictor of a registrant's risk of recidivism.

That argument was rejected by the Appellate Division in an unpublished decision. The court reasoned that N.J.S.A. 2C:7-2 specifically enumerates offenses that are deemed sex offenses "[f]or purposes of this act . . ." and found that attempted criminal restraint and lewdness were not "sex offenses" as defined in N.J.S.A. 2C:7-2. Accordingly, the court concluded that the State's contention that a registrant's nonregistrable sexual offenses could be considered under "criminal history" factors in determining the scope of notification conflicted with the express language of Megan's Law.

II.

The Legislature enacted the RCNL "to protect the community from the dangers of recidivism by sexual offenders." In re C.A., supra, 146 N.J. at 80. The Legislature declared that the danger of recidivism posed by sex offenders who commit predatory acts against women and children, and the dangers posed by persons who prey on others as a result of mental illness, require a system of registration that permits law enforcement officials to identify and alert the public when necessary for public safety. N.J.S.A. 2C:7-1a; see also Alan A. v. Verniero, 970 F. Supp. 1153, 1175 (D.N.J.) (stating that Megan's Law was enacted to provide knowledge as measure of self-defense to help protect most vulnerable community members from sex offenders), vacated, 135 F.3d 763 (3d Cir. 1997) .

The RCNL sets forth "basically simple" categories of persons subject to registration. Doe v. Poritz, supra, 142 N.J. at 20. Persons "convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of" sex offenses enumerated in the RCNL, on or after its enactment, must register. N.J.S.A. 2C:7-2b(2). The RCNL's registration requirement also reaches certain sex offenders whose offenses pre-date the RCNL if the offender's conduct was found to be "repetitive and compulsive." N.J.S.A. 2C:7-2b(1). Succinctly put,

[t]he sex offenses that trigger the laws for those previously convicted are aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to N.J.S.A. 2C:13-1(c)(2), and for those convicted after their effective date, added to the foregoing are various laws concerning endangering the welfare of a child, luring or enticing, criminal sexual contact if the victim is a minor, and kidnapping, criminal restraint, or false imprisonment if the victim is a minor and the offender not the parent; and in all cases an attempt to commit any of the foregoing. [Doe v. Poritz, supra, 142 N.J. at 20.]

The RCNL further requires notification to the community concerning sex offenders assessed to be at a moderate or high risk to re-offend. N.J.S.A. 2C:7-8c(2) and (3). That latter task, namely to establish a methodology for assessing risk of re- offense, was delegated to the Attorney General to implement, informed by the RCNL's enumeration of factors to be included as relevant to the risk of re-offense. N.J.S.A. 2C:7-8; In re C.A., supra, 146 N.J. at 88.

The Attorney General was directed to consult with an advisory council and thereupon to promulgate guidelines and procedures for community notification. N.J.S.A. 2C:7-8a; see N.J.S.A. 2C:7-8(d)(providing that "[i]n order to promote uniform application of the notification guidelines . . . the Attorney General shall develop procedures for evaluation of the risk of re-offense and implementation of community notification"); see also Doe v. Poritz, supra, 142 N.J. at 23 (stating that Attorney General is allocated broad powers under RCNL to adopt guidelines binding on law enforcement agencies).

The factors decreed by the Legislature to be relevant to risk of re-offense and therefore to be included within the guidelines the Attorney General was to develop were set forth in the statute:

Factors relevant to risk of re-offense shall include, but not be limited to, the following:

(1) Conditions of release that minimize risk of re-offense, including but not limited to whether the offender is under supervision of probation or parole; receiving counseling, therapy or treatment; or residing in a home situation that provides guidance and supervision;

(2) Physical conditions that minimize risk of re-offense, including but not limited to advanced ...


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