On appeal from Superior Court of New Jersey, Law Division, Union County, Docket Number 02200652.
Before Judges Petrella, Wefing and
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPLICATION FOR JUDICIAL REVIEW OF NOTIFICATION AND TIER DESIGNATION.
Submitted September 15, 2003
The Union County Prosecutor (Prosecutor) appeals from a decision by the trial judge which denied classification of T.S. as a sex offender under"Megan's Law" (N.J.S.A. 2C:7-2) based on a kidnapping conviction in 1983. T.S. was convicted in 1983 of two counts of armed robbery (N.J.S.A. 2C:15-1a2), two counts of possession of a weapon (N.J.S.A. 2C:39-4a and 2C:39-5b), four counts of aggravated assault (N.J.S.A. 2C:12-1b4), and two counts of kidnapping (N.J.S.A. 2C:13-1b1 and 2C:13-1a). T.S. was sentenced to an aggregate term of forty years in prison, thirteen and one-third years without parole eligibility. During the time period he was incarcerated, Megan's Law became effective on October 31, 1994. He was paroled in 1997.
On appeal, the Prosecutor argues:
I. The trial court's finding that the registrant's kidnapping offense does not fall within the registration and community notification law violates the clear and plain meaning of the statute.
II. The court's finding that the registrant risk assessment scale was invalid as applied to T.S. was in error.
III. The court's order eliminating T.S.'s kidnapping offense from the purview of Megan's Law violates the Jacob Wetterling Act.*fn1
The undisputed scenario giving rise to the kidnapping which forms the basis for the Prosecutor's position occurred on August 4, 1982, when T.S. was involved in the armed robbery of a grocery store. After the police suddenly arrived at the store while the robbery was in progress, T.S. took hostages and commandeered a car in an unsuccessful effort to facilitate his escape. One victim was a woman he used as a hostage as he left the store and the other was a thirteen-year-old female passenger in the car he hijacked. There was no hint of any sexual contact in the event.
Upon T.S.'s release from prison in 2002, he went to reside in Union County. Based on his kidnapping convictions, the Prosecutor's office notified T.S. of its intent to classify him as a"Tier Two" or moderate-risk offender, having given him a score of forty-nine on the Registrant Risk Assessment Scale (RRAS), a rating system prepared by the State. When T.S. received notice of the proposed classification completed by the Prosecutor, he contested it and sought judicial review.
At oral argument before Judge Triarsi the Prosecutor conceded that T.S. had not touched or approached the thirteen year-old girl sexually and did not assert that he had any sexual purpose to any of the crimes committed. It is clear he took the car, which happened to have the young passenger, to facilitate his escape and that was the offense for which he was convicted.
Judge Triarsi ruled against the Prosecutor and relieved T.S. from the registration and notification requirements of Megan's Law. The judge applied alternative rationales. First, he concluded that without"sexual connotations" to the kidnapping, Megan's Law does not apply based on Doe v. Poritz, 142 N.J. 1 (1995). In the alternative, he found that as applied to ...