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In re Registrant R.B.

April 15, 2005

IN THE MATTER OF REGISTRANT R.B.


On appeal from the Superior Court of New Jersey, Law Division, Hudson County. 02090077.

Before Judges Conley, Lisa and Winkelstein.

The opinion of the court was delivered by: Winkelstein, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 9, 2005

In this case, the court is asked to decide whether appellant, R.B., is required by Megan's Law to register as a sex offender in New Jersey. He appeals from the Law Division's April 15, 2004 and August 27, 2004 orders requiring him to register based upon his federal conviction for sexual exploitation of children, a violation of 18 U.S.C.A. § 2251(a). We conclude that because the federal crime for which R.B. was convicted contains all of the elements of the New Jersey luring a child statute, N.J.S.A. 2C:13-6, an enumerated offense under Megan's Law, he is required to register in New Jersey as a sex offender. Accordingly, we affirm.

The material facts and procedural history are not in dispute.*fn1 In June 1993, R.B. and a co-defendant, E.F., were targeted by New Jersey law enforcement agencies. They were believed to be involved in transporting minor males from New York to New Jersey to engage in sexually explicit conduct. R.B. had been convicted in New York of second and third-degree sodomy in 1983, and second-degree sodomy in 1989. He and relatives of E.F. had purchased a home in Bayonne, where E.F. lived in the basement; his relatives lived upstairs. R.B. lived in Mt. Vernon, New York, but he frequently stayed in the Bayonne residence.

Law enforcement officials learned of a want-ad placed in a Bayonne newspaper, seeking part and full-time construction helpers, between the ages of fifteen-and-a-half and seventeen-and-a-half; applications were to be taken to the Bayonne residence. The authorities set up surveillance across the street from the home and obtained an order for a wiretap. During the surveillance, "several young males [were observed] going into the basement area" of the home. From June to September, R.B. continually brought groups of youths from the Bronx to work on the house, and to go with him to a nude beach; they often stayed overnight.

An informant working with the police introduced undercover New Jersey State Police Officer R.H. to E.F. Over time, E.F. and R.H. discussed their interests in young boys. The officer told E.F. he was having relations with two young boys, one age seventeen and the other twelve-and-a-half.

On several occasions, E.F. and R.B. shared various depictions of nude boys between the ages of twelve and seventeen with R.H., including videotapes, pictures and books. E.F. agreed to show R.H. several slides of nude boys. In September 1993, R.B. transported the slides from his home in Mt. Vernon to the Bayonne residence, where the three men viewed the slides on a projector screen - of thirty-one slides, eight were sexually explicit.

Search warrants were executed on the Bayonne and Mt. Vernon residences. The search of the Bayonne residence uncovered sexually explicit videotapes. Relevant to this appeal, a videotape of R.B. and two seventeen-year-old boys, M.S. and L.T., made in the basement of the Bayonne house, was found in R.B.'s Mt. Vernon home. The tape showed R.B., M.S. and L.T. "stripped and [taking] turns videotaping each other frolicking in various stages of sexual arousal." Also discovered in the New York residence were two tapes of a twelve-year-old boy and a fourteen-year-old boy engaging in sexually explicit conduct. No evidence existed that these latter tapes were made in New Jersey or otherwise crossed state lines.

R.B. and E.F. were arrested. R.B. was charged by the Hudson County prosecutor with: one count of conspiracy to endanger the welfare of a child and two substantive counts of endangering the welfare of a child, N.J.S.A. 2C:24-4b, and one count of possession of cocaine, N.J.S.A. 2C:35-10. In addition, E.F. was charged with a fifth count, child abuse in violation of N.J.S.A. 9:6-1 and -3. The drug count was no-billed and the remaining counts were dismissed by the State. The record does not indicate why the endangering charges were dismissed.

In late 1994, a federal indictment charged R.B. with six offenses. Count one charged conspiracy to commit five offenses, contained in counts two through six. Two counts are germane to this appeal. Count two charged R.B. with transporting "from New York to New Jersey individuals under the age of 18 years to engage in sexual activities with such minors which constituted criminal offenses set forth in a state statute, N.J.S.A. 2C:14-1 et seq.," contrary to 18 U.S.C.A. § 2423. Before trial, the judge found that count two "could not withstand a motion to dismiss." As a result, the government filed an amended indictment omitting count two.

Count three charged R.B. with inducing "individuals under 18 to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, such depictions having been thereafter transported in interstate commerce," contrary to 18 U.S.C.A. § 2251(a). The basis for that charge was: "[R.B.] engaging in sexual activities in his bedroom with 17 year olds M.S. and L.T., videotaping those activities, and then bringing those videotapes to his home in Mt. Vernon where they were found." The tapes of the twelve and fourteen-year-old boys were not used as a factual predicate for count three of the federal offense, but were, according to the federal judge, relevant to show R.B.'s "intent, knowledge and state of mind."

Following a jury trial, R.B. was convicted of all counts. The judge sentenced him to 120 months imprisonment on count three consecutive to one month on count one, and 120 months concurrent on each of the remaining counts. R.B.'s motion for reconsideration of his sentence was denied, and his appeal to the Third Circuit was rejected.

R.B. was released from prison on September 25, 2002, and registered pursuant to Megan's Law with the Union City police. Nevertheless, on June 21, 2003, he moved in the Law Division for an order declaring that his federal conviction did not come within the purview of Megan's Law because the conviction was not similar to an enumerated offense under Megan's Law. The State argued, and the Law Division agreed, that R.B. was required to register because his conviction under count three was similar to New Jersey's luring statute. On reconsideration, the judge reaffirmed his original decision, but adopted new reasoning for doing so. He found that R.B.'s federal conviction was sufficiently similar to N.J.S.A. 9:6-1(e), New Jersey's child abuse statute, to require registration.

The singular issue on appeal is whether the federal offense for which R.B. was convicted is one that is "similar to" an offense enumerated in Megan's Law so as to require R.B. to register in this State as a sex offender. While we owe deference to the trial court's fact-finding, a "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm., 140 N.J. 366, 378 (1995). As such, our review is de novo. Ibid.

Effective October 31, 1994, Megan's Law, N.J.S.A. 2C:7-1 to -19, requires certain convicted sex offenders to register with law enforcement authorities and notify them upon a change of address. N.J.S.A. 2C:7-2. The Legislature declared two reasons for the law's enactment. First, it establishes "a system of registration [to] permit law enforcement officials to identify and alert the public when necessary for the public safety"; and second, it provides "law enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and missing persons." N.J.S.A. 2C:7-1.

Megan's Law was "designed simply and solely to enable the public to protect itself from the danger posed by sex offenders, such offenders widely regarded as having the highest risk of recidivism." Doe v. Poritz, 142 N.J. 1, 73 (1995). The enactment is remedial rather than punitive. Ibid. The statutory scheme represents the Legislature's conclusion that society has the right to know of the presence of sex offenders "not in order to punish them, but in order to protect itself." Id. at 13.

The statute is to be construed "broadly to achieve its goal of protecting the public. . . ." State v. S.R., 175 N.J. 23, 36 (2002). At the same time, because it impinges on liberty interests and triggers "both procedural due process and the fairness doctrine in our state," we must balance the need for public safety with individual rights. Doe, supra, 142 N.J. at 30, 36; see also In re S.D., 855 A.2d 1100, 1105 (D.C. 2004)(statute requiring registration of sex offenders given broad construction to effectuate goals of legislation); In re Millan, 730 N.Y.S.2d 392, 398 (Sup. Ct. 2001)(sex offender registration statute, as remedial rather than penal, "should be liberally construed to accomplish the express intent of the New York Legislature"), rev. on other grounds, 743 N.Y.S.2d 872 (App. Div. 2002).

Those provisions of Megan's Law that are pertinent to this appeal state:

a. (1) A person who has been convicted . . . of a sex offense as defined in subsection

b. of this section shall register as provided in subsections c. and ...


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