On appeal from the Superior Court of New Jersey, Law Division, Cape May County, 04050016.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued February 14, 2006
Before Judges Antell, Landau, and King*fn1.
By order dated January 25, 2005, the Law Division granted the State's motion to increase registrant's Risk Assessment Score ("RAS") from 36 to 45 and to re-tier him from Tier I, low risk sex offender, to Tier II, moderate risk. Registrant now appeals from that order on the ground that it violates principles of res judicata. He argues that the increased scoring from 36 to 45 results from a change in the court's previous assessment of a static, not a dynamic, factor in his RAS which, under our prior rulings, should not have been "revisited."
Registrant is a 45 year old male. His Megan's Law offenses are for endangering the welfare of a child, N.J.S.A. 2C:24-4a, and criminal sexual contact, N.J.S.A. 2C:14-2c, (2 counts). These were committed in April 1997. He pled guilty in March 2000. On May 26, 2000 he was sentenced to serve 18 months on each of the sexual contact convictions and five years on the endangering convictions. He appears to have been released from confinement in July 2004.
The events supporting registrant's immediate underlying convictions involve his having led two fifteen year old girls to his apartment where he served them marijuana and alcohol and then masturbated in their presence.
Registrant's initial RAS was 38, for which he was classified Tier II by order of January 3, 2005. Following his residential relocation the terms of his community notification were modified under order dated February 7, 2005. On July 18, 2005 his RAS was lowered to 36 and he was reclassified Tier I after the Law Division determined from Dr. George Ackley's report that registrant's scores under Registrant Risk Assessment Scale (RRAS) criteria 11, 12 and 13 should be reduced to low risk. This order was entered with the prosecutor's consent.
In bringing this motion to re-tier, the State for the first time disclosed to the court that registrant had been incorrectly scored in the earlier proceedings under criterion #6, duration of offensive behavior. It was explained that a new assistant prosecutor had entered the case for the State and in her examination of the file certain leads were followed up which had previously been missed. This resulted in the discovery of a transcript from the Court of Common Pleas of Delaware County, Pennsylvania dated March 29, 1994 in which registrant was recorded as pleading guilty to three charges of open lewdness based upon separate incidents of sexual misbehavior with six young girls on a single day in 1986. The lengthy delay between the pleas and sentencing resulted from the necessity for a bench warrant, not successfully executed until 1994. R.D. was sentenced to 12 months for each offense. The sentences were run concurrently to each other as well as concurrently with a term R.D. was then serving in a federal prison.
As we stated in I/M/O M.A.S., 344 N.J. Super. 596 (App. Div. 2001), the concept of "duration" within the meaning of criterion #6 is not limited to a single continuing criminal event but contemplates the period intervening between separate criminal events. Thus, since there was a lapse of more than two years between the offenses of 1986 and 1997 registrant should have been scored nine points, high risk under criterion #6, and not zero points, low risk, producing an overall score of 45 points, moderate risk, and not 36 points, low risk.
Registrant argues that the principle favoring finality of judgments should have governed the outcome of this proceeding. He cites our published opinion in I/M/O H.M., 343 N.J. Super. 219 (App. Div. 2001), in which we stated that under principles of res judicata the static factors listed under criteria one through eight, once adjudicated, should not be reviewed.
While the distinction between static and dynamic factors is a convenient device for grouping the analytical factors affecting risk of re-offense, it is not intended that they should be so inflexible of application in these regulatory proceedings. We intimated as much when we said in our closing dicta in I/M/O H.M. that the static factors, once ...