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In re J.G.

July 17, 2001

IN THE MATTER OF REGISTRANT J.G.


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

Argued January 30, 2001

On certification to the Superior Court, Appellate Division.

This appeal concerns the application of the Registration and Community Notification Law, N.J.S.A. 2C:7-1 to -5 (Registration Law) and N.J.S.A. 2C:7-6 to -11 (Community Notification Law), collectively known as Megan's Law, to a juvenile who pled guilty in 1996 to conduct that, if committed by an adult, would constitute the crime of second-degree sexual assault in violation of N.J.S.A. 2C:14-2c(1). The juvenile was ten years old when the incident occurred, and the victim was the juvenile's eight-year- old female cousin. In June 1999 the Law Division classified J.G. as a Tier 2 offender and ordered notification of various elementary and middle schools in the vicinity of J.G.'s residence. The Appellate Division affirmed the Tier 2 classification, but limited notification only to the specific school that J.G. is or will be attending. We granted J.G.'s Petition for Certification, ___ N.J. ___ (2000), challenging J.G.'s classification, the application of Megan's Law to J.G., and the constitutionality of Megan's Law as applied to J.G.

I.

The relevant facts are substantially undisputed. In October 1995 two juvenile delinquency complaints were filed against J.G., charging him on two counts with conduct that if committed by an adult would constitute first-degree aggravated sexual assault based on the commission of acts of sexual penetration with two victims under the age of thirteen. See N.J.S.A. 2C:14-2a(1). The conduct allegedly occurred on September 13, 1995 when J.G. was ten years old. One of the alleged victims was P.D., J.G.'s eight-year-old cousin, and the other was B.G., his five-year-old sister.

In May 1996, J.G. appeared before the Chancery Division, Family Part, in connection with a negotiated plea proceeding involving those charges. The Assistant Prosecutor informed the court that the charge involving J.G.'s sister was to be dismissed, and that the charge involving J.G.'s cousin would be amended to allege conduct that, if committed by an adult, would constitute second-degree sexual assault in violation of N.J.S.A. 2C:14-2c(1), which provides: "An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury."

The hearing transcript discloses that the state recommended the imposition of a suspended sentence subject to two conditions: first, that J.G. continue attendance and treatment at a counseling program known as Family Growth; and second, that he not be permitted to baby-sit for or be left alone with any young children. The Public Defender represented to the court that J.G., who was present with his mother, was prepared to accept the State's plea offer. The Public Defender then conducted an interrogation of J.G. to establish a factual basis for the plea that in its entirety consisted of the following testimony:

Q: J.G. . . . it indicates that on September 13, 1995, you engaged in sexual conduct or sexual assault with a P.D. I'm not going to tell you her name but you know who P.D. is, correct?

A: Yes.

Q: And on this particular day, do you remember the incident? Do you remember what happened?

A: Yes.

Q: And is it true that on that day, you and P.D. did engage in sexual behavior?

A: Yes.

Q: And you had P.D. clothes taken off?

A: Yes.

Q: And you had your clothes taken off?

A: Yes.

Q: And you rubbed yourself up against P.D.?

A: Yes.

Q: And you also tried to insert your privates into P.D.'s privates, correct?

A: Yes.

Q: And P.D. was less than 13 years of age at the time, right?

A: Yes.

Q: Okay. At the time this occurred, did you know what you were doing?

A: Yes.

Q: And did you know what you were doing was wrong?

A: Yes.

The Deputy Public Defender then asked the following questions of J.G.:

Q: J.G., at the time you indicated that you did try to penetrate P.D., correct?

A: Yeah.

Q: And you did — although you didn't actually get full penetration, there was some penetration, correct?

A: Yes.

THE COURT: And there was no severe personal injury?

MR. BAULDOCK: None, Judge.

THE COURT: Okay. It was you that was trying to do this, right, J.G.?

J.G.: Yes.

The court then asked the following questions:

Q: Do you understand, J.G., that by admitting to a charge of this type, a sex assault offense, that there's a law in New Jersey and many other states now that says that you would have to register as a sex offender anywhere that you live in this state with the local police department. Do you know that?

A: No, not really.

Q: Okay.

A: Or, yes.

Q: All right. You do know that? You had a chance to talk to Mr. Bauldock about that?

A: Yes.

Q: Okay. And there's another part of that law that says that that status as a sex offender be communicated more widely than just with the police department. It could let the community know also. That depends on a lot of things though. It depends on how seriously involved they felt that you are, how serious the offense was, how many offenses of this nature. I think that your age, you know, probably also is one of the factors looked into. I just want you to know that that possibility exists and do you know that?

A: Yes.

Q: Okay. And knowing that, you wish to stand by your plea here today, your admission to this charge?

A: Yes.

In October 1996 J.G. was sentenced, consistent with the plea agreement, to an indeterminate custodial term not to exceed three years but the court suspended the sentence, placing J.G. on probation for two years on condition that he attend and complete the Family Growth counseling program and comply with any aftercare recommendations of Family Growth. The court also requested the Division of Youth and Family Service (DYFS) to consider the possibility of an out-of-home placement for J.G.

In December 1996 the Family Part conducted a sentencing review hearing. The court was informed that J.G. was "doing very well" in the Family Growth program. Although DYFS did not recommend an out-of-state home placement, it referred J.G.'s family to a family counseling program. Because J.G.'s therapy at Family Growth might extend for a longer period than the original two-year probationary term, the court increased the probationary term to three years subject to the same conditions that had been imposed in October. In addition, the court ordered that J.G. not be placed in a caretaker role with younger children and also ordered that there be no unnecessary contact with the victims of the alleged sexual assaults.

Approximately sixteen months after the sentencing review hearing, the Mercer County Prosecutor served J.G. with notice that, pursuant to Megan's Law, he had been classified in Tier 2 as a moderate risk offender, with a Registrant Risk Assessment Scale (RRAS) score of fifty-five. The Attorney General Guidelines for Law Enforcement for the Implementation of Sex Offender Registration and Community Notification Laws (March 2000) (Attorney General Guidelines or Guidelines) state that an RRAS score of 0 to 36 denotes a low risk or Tier 1 offender, a score of 37 to 73 denotes a moderate risk or Tier 2 offender, and a score of 74 or higher denotes a high risk or Tier 3 offender. Based on J.G.'s RRAS score of fifty-five, the Prosecutor sought to notify two local police departments and numerous schools, preschools, and childcare programs including: Busy-Bee Nursery- Kindergarten, Happy World Day Care Center, Maple Stream Road Pre- School, Roger's Elementary School, East Windsor Alternative Program, Hightstown High School, Kreps Middle School, Back Elementary School, Community Adult High School, C.I.F.A. (Dorchester Drive), C.I.F.A. (Springcrest Road), Eden Institute (Old York Road), Community Options, Inc. (Dutcheneck Road), Cox Pre-School, Little Beaver Nursery School, Hightstown East Windsor YMCA Childcare, The Learning Tree, Loving Care Pre-School, Better Beginnings Child Development, and Hightstown East Windsor Head Start. J.G., through counsel, filed a timely notice of an objection to the tier classification.

The Law Division conducted an initial Megan's Law conference in May 1998 at which the Assistant Prosecutor informed the court that the issue whether penetration had occurred during the sexual assault of J.G.'s cousin had been "called into question" by defense counsel, and that that issue affected J.G.'s RRAS score. The Assistant Prosecutor specifically referred to a letter from the Director and a staff clinician at the Juvenile Intervention Program operated by Catholic Charities of the Trenton Diocese, of which the Family Growth counseling program was a division, and which stated in part: "Throughout [J.G.'s] assessment period and course of treatment, it has been determined with a recognized degree of certainty . . . that he did not commit an act of penetration as he admitted to the court [at] which he was consequently adjudicated delinquent." The Assistant Prosecutor suggested that the penetration issue be resolved in a post- conviction relief proceeding to be initiated by counsel for J.G., and that in the interim Tier 1 Megan's Law notification would proceed immediately, a proposal that was accepted by both defense counsel and the court.

In October 1998, during a Law Division proceeding in which counsel for J.G. unsuccessfully sought fees and costs relating to an application to compel the Public Defender's office to turn over J.G.'s Family Part files, J.G.'s counsel informed the court that J.G. preferred to proceed to a Megan's Law hearing to establish tier classification rather than challenge J.G.'s plea through a post-conviction relief proceeding. Counsel for J.G. thereafter submitted written requests for a hearing to the Mercer County Prosecutor in December 1998, January 1999, and March 1999, and then moved in April 1999 to compel a hearing or dismiss the Prosecutor's request for Tier 2 notification. In response, the Prosecutor served J.G. with a new Tier 2 classification notice, accompanied by a revised RRAS score of forty-seven and a request for Megan's Law notification limited to the Melvin Kreps Middle School, Hightstown High School, Hightstown Police Department and the East Windsor Police Department. At a hearing in May 1999, the Prosecutor informed the court that the State intended to call no witnesses and would rely on the prior Family Part proceedings and the documents produced in the course of Megan's Law discovery proceedings. The court then referred to a May 26, 1999 letter from the Catholic Charities Juvenile Intervention Program to J.G.'s counsel which stated in part:

In conclusion, J.G. is an adolescent who pled guilty to a sexual assault approximately four years ago when he was eleven years of age. At that time, he clearly did not have an understanding of what a sexual assault constituted, what was involved in a sexual act, the impact that this type of behavior could have on children, nor was he able to relate, in words, what had occurred between he and his victims. It has also been determined, with a recognized degree of certainty within my field of counseling, that he did not commit an act of penetration as he admitted to in court and to which he was subsequently adjudicated. J.G. has demonstrated significant improvement over the past three years in treatment despite his learning problems. He has been motivated to change and his family has supported him in the process.

Taking into account the clinical evaluation, his progress in treatment and the results of the three risk assessment scales, J.G. appears to be a low risk of re-offending within the community at this point in time. There seems to be no need to notify schools in the area to protect the community.

The court requested that J.G.'s counsel produce one of the two signatories to that Catholic Charities' letter at the next hearing.

At a hearing in June 1999, Linda Pangalos, J.G.'s treating therapist and the assistant program director of the Catholic Charities' Family Growth program testified on J.G.'s behalf. Pangalos, the founder of the Catholic Charities' Family Growth Program in 1992, had worked as a counselor with sexually abused and sexually aggressive children since 1979. She testified that she previously has provided evaluations of juvenile sex offenders to the Mercer County Prosecutor's Office and performs a majority of the juvenile evaluations required by the Family Part of the Mercer County Chancery Division.

Ms. Pangalos testified that she began treating J.G. in September 1995, using individual, family, and group counseling sessions. She soon terminated the group counseling sessions because J.G. lacked the necessary communication skills, noting that his primary language is Spanish, that school child-study teams had classified him as multiple-handicapped and perceptually impaired, that he lacked the basic ability to read and spell simple words and had difficulty reasoning on an abstract level. She testified that J.G. has been participating in counseling for about three years and nine months, that his attendance has been fairly good and that he has been extremely cooperative in his participation. She noted that although she has seen J.G. weekly since September 1995, she had not been contacted by the deputy Public Defender representing J.G. at any time prior to his testifying at the plea hearing in Family Part on May 9, 1996.

She testified that although J.G. had admitted in his plea hearing to an act of penetration, she did not believe he understood the meaning of the word. She testified that J.G. equated rape with sex, and that he understood sex to mean the act of "rubbing against someone." She testified that his limited ability to speak English impaired his ability to communicate accurately about sexually related conduct. She also stated that J.G., through the use of anatomically correct dolls, had told her that when the incidents occurred involving alleged sexual assaults of his cousin and sister during which he laid down on top of each of them, all of them were wearing underwear.

Ms. Pangalos testified that in her opinion J.G. had not penetrated either his cousin or his sister on the occasion in question. She based her opinion on the September 18, 1995 medical examination of J.G.'s sister that had resulted in a finding of an intact hymen and "no signs of sexual abuse," as well as on her experience and extensive opportunities to interview and interrogate J.G. about those incidents and related maters during the past forty-five months. On cross-examination, Ms. Pangalos was questioned about a statement to the police made by J.G.'s older sister to the effect that when she entered the room J.G.'s cousin was unclothed and J.G. was on top of her with his penis exposed out of his underwear. Mrs. Pangalos responded that based on her impressions J.G.'s version of the event was more reliable because he displayed to her no intent or desire to minimize the extent of his fault or responsibility for what had occurred.

In response to the court's question, Ms. Pangalos testified that because of J.G.'s significant progress through counseling, and his increased awareness of the harm caused to victims by inappropriate sexual behavior, he presented a low ...


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