Before Judges Antell, Bilder and Landau.
On appeal from the Superior Court of New
Jersey, Law Division.
The opinion of the court was delivered by: Antell, P.J.A.D. (retired and temporarily assigned on recall).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The question before us is whether or not under present state and federal legislation Megan's Law registrants who committed certain sex offenses when they were under the age of fourteen years are eligible for termination of their registration obligation when they become eighteen. The pertinent legislative expressions are found in the New Jersey Registration and Community Notification Law (Megan's Law), N.J.S.A. 2C:7-1 to 11, and the federal Jacob Wetterling Act, 42 U.S.C.A. §14071.
L.E. was adjudicated delinquent in 1998 for an offense which, if committed by an adult, would constitute the crime of sexual assault, N.J.S.A. 2C:14-2c(1). He was sentenced to three years probation and is now classified under Megan's Law as a Tier I low risk offender with a registrant risk assessment score (RRAS) of 35. He was twelve years old at the time of his offense.
R.O. was adjudicated delinquent in 1997 also of an offense which, if committed by an adult, would constitute the crime of sexual assault, N.J.S.A. 2C:14-2c.(1). He was thirteen years old at the time of the offense and was sentenced to two years probation. He too is classified as a Tier I low risk seX offender with an RRAS of 29.
Both registrants have reached the age of eighteen years. They appeal from orders of the Law Division dated June 19, 2003, denying their motions to be relieved entirely of their obligations under Megan's Law.
Registrants argue that pursuant to In The Matter of Registrant J.G., 169 N.J. 304 (2001), they are entitled to have their Megan's Law status terminated because they were under the age of fourteen when their sex offenses were committed and are now over eighteen.
Under Megan's Law, as originally enacted,"a person required to register under this act" could apply to the Superior Court for termination of his or her obligation"upon proof that the person has not committed an offense within fifteen years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others." [N.J.S.A. 2C:7-2f.]
However, in J.G., the Supreme Court considered the effect of this long-term registration obligation on juveniles and undertook to"harmonize Megan's Law and the Juvenile Code in the manner that in our view best reflects the legislative objective underlying both statutes." J.G., supra, 169 N.J. at 337. It concluded in the following language that the long-term registration requirements of Megan's Law did not apply to registrants whose acts of juvenile delinquency took place when they were less than fourteen years of age and that they could apply for termination at age eighteen:
Although we acknowledge that registration and community notification do not constitute dispositions pursuant to the Juvenile Code, we hold, consistent with the purpose underlying N.J.S.A. 2A:4A-47(a), that with respect to juveniles adjudicated delinquent for sexual offenses committed when they were under age fourteen Megan's Law registration and community notification orders shall terminate at age eighteen if the Law Division, after a hearing held on motion of the adjudicated delinquent, determines on the basis of clear and convincing evidence that the delinquent is not likely to pose a threat to the safety of others. We import that standard, but with a higher burden of proof, from N.J.S.A. 2C:7-2, the provision of Megan's Law that authorizes the termination of registration obligations of persons who have not committed a sex offense within fifteen years of conviction or release from a correctional facility, whichever is later. Eligible delinquents unable to satisfy that high standard of proof will continue to be subject to the registration and notification provisions of Megan's Law. But with respect to those adjudicated delinquents whose proofs meet that standard, and whose youthfulness at the time of the offense rendered uncertain his or her criminal capacity and future dangerousness, we believe our holding is faithful to the rehabilitative goals of the Juvenile Code without undermining the salutary objectives of Megan's Law. [169 N.J. at 337].
The trial court, in both matters, stated it was satisfied by clear and convincing evidence that the registrants had satisfied all the J.G. criteria and would have granted the requested relief were it not for recent amendments to Megan's Law. Approximately six months after publication of J.G., N.J.S.A. 2C:7-2f. was amended to condition a registrant's right to apply for termination after fifteen years only if the application was compatible with the simultaneously enacted"subsection g." to N.J.S.A. 2C:7-2. Subsection g. states the following:
A person required to register under this section who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for more than one seX offense as defined in subsection b. of this section or who has been convicted of, adjudicated delinquent or acquitted by reason of insanity for aggravated sexual assault pursuant to subsection a. of N.J.S. 2C:14-2 or sexual assault pursuant to paragraph (1) of subsection c. of N.J.S. 2C:14-2 is not eligible under subsection f. of this section to make application to the Superior Court of this State to terminate the registration obligation. [Emphasis added] Because both registrants had been adjudicated delinquent for commission of the crimes specified by subsection g. the trial court decided that the legislative will overrode the decision of the Supreme Court in J.G. We disagree with that conclusion.
Subsection g. was not intended to alter the import of J.G. In deciding that registrants who committed sex offenses when they were less than fourteen could apply for termination when they reached eighteen the Supreme Court carved out from the class of"person[s] required to register under this section who à[have] à been à adjudicated delinquent à", etc., a clearly defined group, i.e.,"juveniles adjudicated delinquent for sexual offenses committed when they were under age fourteen," supra. By using in subsection g. the very same statutory language thus interpreted by the Supreme Court, the Legislature presumably ratified J.G. and affirmed that the amendment did not extend to offenders ...