On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FJ-18-0722-03.
Before Judges Lintner, Lisa and Reisner.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal requires reconciliation of the apparent conflict between the non-disclosure requirement of the Code of Juvenile Justice (Juvenile Code or Code), N.J.S.A. 2A:4A-20 to -48, and the disclosure required by the Community Registration and Notification Laws (Megan's Law), N.J.S.A. 2C:7-1 to -19. J.P.F., a seventeen-year-old juvenile, was adjudicated delinquent for an offense which, if committed by an adult, would constitute fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. For this offense, the offender is subject to Megan's Law only if the victim is a minor. N.J.S.A. 2C:7-2b(2). The victim in this case was seventeen years old. The Family Part judge did not order Megan's Law registration and notification as part of the disposition. The State appeals, contending the disposition is illegal. We agree and hold that Megan's Law trumps the Juvenile Code's non-disclosure provision. We therefore reverse on the State's appeal.
J.P.F. cross-appeals, contending
THE ADJUDICATION OF DELINQUENCY FOR THE LESSER INCLUDED OFFENSE OF FOURTH DEGREE SEXUAL CONTACT WAS AGAINST THE WEIGHT OF THE EVIDENCE, AND FATALLY INCONSISTENT WITH THE COURT'S ACQUITTAL ON THE ORIGINAL CHARGE OF SECOND DEGREE SEXUAL ASSAULT (Not Raised Below by Formal Post Judgment Motion).
THE AGE OF THE VICTIM AT THE TIME OF THE OFFENSE WAS NEVER ESTABLISHED AND, ACCORDINGLY, THE REGISTRATION REQUIREMENTS OF MEGAN'S LAW ARE INAPPLICABLE.
THE CODE OF JUVENILE JUSTICE PRECLUDES THE APPLICABILITY OF MEGAN'S LAW TO AN ADJUDICATION OF JUVENILE DELINQUENCY FOR FOURTH DEGREE SEXUAL CONTACT IF COMMITTED BY AN ADULT, PARTICULARLY WHEN THE ACTOR IS OF THE SAME OR OF SIMILAR AGE.
We reject these contentions and affirm on J.P.F's cross-appeal.
The offense occurred on January 14, 2003. J.P.F. was born on May 3, 1985. The victim, V.K., was born on February 14, 1985.*fn1 Thus, at the time of the offense, both were seventeen years old. The juvenile and the victim were, respectively, three-and-one-half months and one month shy of their eighteenth birthdays.
J.P.F. and V.K. became acquainted with each other about three weeks before January 14, 2003. According to V.K, J.P.F. called her daily, seeking to establish a romantic relationship. She resisted his efforts, reminding him that she had a boyfriend and he had a girlfriend. On the evening of January 14, 2003, J.P.F., V.K., and several mutual friends were in each other's company. At some point they were at a bowling alley. V.K. was expecting her boyfriend to arrive, and she believed he had her car keys. When the boyfriend failed to arrive, J.P.F. agreed to take V.K. and another girl home.
V.K. told the other girl that she did not want to be left alone in the car with J.P.F. Nevertheless, J.P.F. dropped the other girl off first. At J.P.F.'s request, V.K. then moved from the back seat to the front seat. As J.P.F. drove, he began rubbing V.K.'s legs with his right hand. V.K. told him she did not approve and leaned away from J.P.F., who persisted in his conduct, rubbing his hand up and down between V.K.'s knee and crotch.
J.P.F. drove to the location where V.K.'s car was parked. He then disclosed that he, not V.K.'s boyfriend, had V.K.'s car keys. According to V.K., J.P.F. placed the keys in his crotch area, over his clothing, and invited her to retrieve them. She refused, and he handed her the keys. This provided the basis for a harassment count, N.J.S.A. 2C:33-4c.
V.K. exited J.P.F.'s vehicle, entered her own, and started the engine. Then, with the engine running, V.K. got out of her vehicle and returned to J.P.F.'s to retrieve some personal items. While she was doing so, J.P.F. got out and stood in front of the driver's-side door of V.K.'s car. V.K. attempted to run to the passenger-side door to enter her car, but J.P.F. removed her key from the ignition and locked the door before she could enter. According to V.K., when she returned to the driver's side, J.P.F.'s penis was exposed and he demanded that she perform oral sex before she would be allowed to leave. This provided the basis for a lewdness count, N.J.S.A. 2C:14-4a.
J.P.F. then moved behind V.K. and began caressing her buttocks and chest over her clothing. She tried to get away, elbowing him while he was groping her. J.P.F. then grabbed V.K. and lifted her off of the ground. V.K. continued to protest. J.P.F. forced his hand into the back of V.K.'s jeans, touching her buttocks and vaginal area under the clothing. V.K. contends J.P.F. digitally penetrated her, which provided the basis for a sexual assault by force or coercion count, N.J.S.A. 2C:14-2c(1). V.K.'s cell phone rang. She told J.P.F. that was probably her mother and if she did not answer her mother would be worried and would likely call the police. The incident then ended and V.K. left the scene.
V.K. reported the incident to the police the next day. In her report to the police and in her trial testimony, V.K. steadfastly denied that she gave J.P.F. any indication, through verbal or non-verbal communications, that she authorized his conduct towards her. J.P.F. did not testify. His defense was consent. He produced a witness, S.S., a girl who was a friend of his for about five years and who had become acquainted about one month before the incident with V.K. through J.P.F. and his friends.
S.S. testified that she spoke on the telephone to V.K. the night of the incident after it occurred. S.S. had already spoken to J.P.F. and to V.K.'s boyfriend and knew that V.K. was upset about the incident. S.S. testified that V.K. told her that J.P.F. grabbed or hugged her, put his hands underneath her pants and digitally penetrated her. S.S. stated that V.K."told him to stop and that, you know, oh, I have a boyfriend, don't do that." S.S. continued that V.K."said that -- that at first he didn't stop and then when she really looked at him and got serious about it, when she stopped giggling I guess you would say, then he stopped." S.S. further stated that the version of events told to her by V.K. was similar to the version told to her earlier by J.P.F.
J.P.F. also produced M.R., one of J.P.F.'s best friends for about the last four or five years. M.R. had only recently met V.K. He testified that during the three weeks before the incident he observed J.P.F. and V.K. together on a number of occasions. He described V.K.'s demeanor towards J.P.F. as very friendly and flirtatious, the same as her demeanor towards other male friends. M.R. also testified that on the night of the incident V.K. had a disagreement with her boyfriend. This testimony was apparently offered to suggest that because of a falling out with her boyfriend V.K. might have been receptive to J.P.F.'s advances that night.
At the conclusion of the adjudicatory hearing, the judge found that the State failed to prove beyond a reasonable doubt the three counts charged in the complaint, i.e., harassment, lewdness and sexual assault. He found, however, that the State did prove beyond a reasonable doubt that J.P.F. committed the offense of criminal sexual contact by force or coercion, N.J.S.A. 2C:14-3b and N.J.S.A. 2C:14-2c(1), as a lesser-included offense of sexual assault. The judge concluded"there was clearly sexual contact and I do find that there was force used against the victim's will." Although acknowledging there may have ...