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In re Registrant T.T.

October 3, 2006

IN THE MATTER OF REGISTRANT T.T.: APPLICATION FOR JUDICIAL REVIEW OF NOTIFICATION AND TIER


On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal addresses, among other issues, whether a minor's conduct must have a "sexual motivation" element for application of the Megan's Law registration requirements.

In January 2000, T.T., then twelve years old, was visiting with his father at the home of L.B., the girlfriend of T.T.'s father. Although T.T. was living with his mother at the time, he frequently spent weekends at L.B.'s home. Also living with L.B. was R.B., her six-year-old son. R.B. apparently came to L.B. with two boxes of douches, and reported that T.T. had pushed one into his "heiney." T.T. admitted putting something into R.B.'s anus, but said he did not know what it was. T.T. explained that he found the item, an already-open douche, in a box on the dresser, and put the douche in R.B.'s anus, squeezing liquid from it. According to T.T., he then put the same douche in his own anus, squeezed it, and put it back on the dresser. When asked why he did it, T.T. responded, "I don't know."

A juvenile delinquency complaint was filed charging T.T. with "aggravated sexual assault by committing an act of sexual penetration upon R.B. when R.B. was less than thirteen years old, by sticking a foreign object in R.B.'s anus." Dr. W. Michael Shea performed a psychosexual evaluation on T.T. and concluded that "T.T. requires intensive individual and group counseling, including sex offender specific interventions."

In a proceeding in Warren County Superior Court, T.T. pled guilty to aggravated sexual assault. The trial court adjudicated T.T. delinquent and sentenced him to time served, placed him on probation for three years, and required him to register under Megan's Law. In August 2000, T.T., then thirteen years old, registered as a sex offender. In September 2001, T.T. entered the Bonnie Brae School, a residential treatment center in Somerset County, where he received various services including sex offender treatment. While he was there, the Somerset County Prosecutor issued a Notice of Proposed Tier Two classification, based on a Registrant's Risk Assessment Scale (RRAS) score of 47, but determined that the less-stringent notification of a Tier One classification was appropriate based on the intra-familial nature of the offense.

T.T. was discharged from Bonnie Brae in January 2004 after successfully completing the program. He returned to Warren County and was served with a notice of proposed Tier Two classification and community notification, based on an RRAS score of 54. In February 2005, Dr. Timothy Foley evaluated T.T., and determined that T.T.'s risk of another similar sex offense was low. Dr. Foley concluded that there was "no strong suggestion" that T.T.'s behavior was sexually motivated, and noted that there was no report of any other sexual misconduct.

T.T. sought review of his Tier Two classification and community notification.

At the hearing, T.T. presented the expert testimony of Dr. Foley. Dr. Foley reiterated the "large question mark about whether or not there was any sexual motive" underlying T.T.'s crime. The State did not present any expert testimony. The judge concluded that regardless of his possible lack of sexual motivation, T.T. was subject to Megan's law based on his adjudication for the predicate offense of aggravated sexual assault. The judge determined that the State's proposed Tier Two classification and notification were proper.

T.T. appealed, and the Appellate Division entered an order reversing. The Appellate Division determined that the State had the burden of proving by clear and convincing evidence that T.T.'s conduct was sexual in nature. The Appellate Division explained that absent proof of such conduct, there is no sexual offense to bring a juvenile within the ambit of Megan's Law.

The Supreme Court granted the petition for certification filed by the Warren County Prosecutor, along with the Attorney General's application for amicus curiae status.

HELD: T.T.'s lack of sexual motivation does not alter the fact that he committed the predicate offense of aggravated sexual assault and Megan's Law therefore applies. The intra-familial nature of T.T.'s offense, however, is a circumstance that warrants the less stringent community notification of a Tier One classification.

1. A person who has been convicted or adjudicated delinquent of what the Legislature has denominated a "sex offense" must register under Megan's Law. Among the offenses enumerated by the Act is aggravated sexual assault. Within a prescribed period of time, a registrant must notify the appropriate law enforcement upon a change of address, job, or school. The second component of Megan's Law is notification to the community concerning registrants assessed to be at moderate or high risk to re-offend. The Attorney General was authorized by statute to develop procedures for evaluation of the risk of re-offense. In response, the Attorney General Guidelines for Law Enforcement for the Implementation of Sex Offender Registration and Community Notification Laws (Guidelines) were produced. The Guidelines contain the RRAS, the validity of which has been upheld by this Court. (pp. 8-12)

2. In Doe v. Poritz, 142 N.J. 1 (1995), this Court upheld the constitutionality of Megan's Law. However, the Court required judicial review of the Tier Two and Three classification and the manner of notification based upon principles of procedural due process and fairness. The Court then held that Megan's Law can constitutionally be applied to juveniles. In re Registrant J.G., 169 N.J. 304 (2001). While doing so, however, the Court encouraged the Attorney General to review and modify the Guidelines and the RRAS to reflect factors and issues unique to youthful offenders. On June 1, 2006, after oral argument had been completed, the Attorney General issued a Risk Assessment Scale for juveniles (JRAS). (pp. 12-17)

3. T.T. is now over 18 years of age and may move to terminate his registration and community notification status under J.G.. If T.T. is able to establish by clear and convincing evidence that he is not likely to pose a threat to the safety of others, that motion will be granted, effectively ending this case. However, should T.T. not be granted such relief, the issues raised will continue to have currency. (p. 17)

4. By its very terms, Megan's Law extends beyond purely sexual offenses and sweeps in other offenders who target children. And, although the Legislature used the term "sex offender" as a catchall description for all those who commit Megan's Law offenses, the statute specifically denominates certain acts that have no sexual component as "sex offenses" subject to its purview. Accordingly, it is clear that the sexual motive engrafted by the Appellate Division as a prerequisite to Megan's Law applicability does not exist. By its very terms, Megan's Law denominates T.T.'s crime - the act of sexual penetration with a victim under the age of 13 years - as a predicate offense. T.T.'s sexual motivation may be relevant to his treatment and risk of re-offense and thus to tiering, but it does not affect the fact that he committed the predicate offense of aggravated sexual assault. (pp. 17-20)

5. It is well-established that a Tier Two offender may, under certain circumstances, receive Tier One notification. T.T. argues that the intra-familial nature of his offense is one of those circumstances. The Court agrees. The RRAS characterizes intra-familial offenders as low risk under the "victim selection" criteria, specifically noting that the sexual abuse of a younger sibling indicates a low risk of re-offense. Moreover, the Guidelines provide that if the offender's victims are members of the immediate family or household, then it may be determined that the offender is not a risk to community organizations or schools that would otherwise receive notification of a Tier Two offender. Thus, under the Guidelines, T.T. may receive Tier One notification even if his Tier Two RRAS score stands. (pp. 20-21)

6. T.T. has also challenged the JRAS in several respects. Because the JRAS was released during the pendency of this appeal, no trial judge has had an opportunity to consider it. When this Court approved the RRAS, it had the benefit of a full trial record. That is not the case here. The Court therefore remands to the trial judge the issues of the adequacy of the JRAS in addressing the concerns this Court raised in J.G. In the event that T.T. does not obtain relief under J.G., a new tier hearing should be held. (pp. 21-22)

The judgment of the Appellate division is REVERSED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join in this opinion. CHIEF JUSTICE PORITZ did not participate.

Per curiam.

Argued April 4, 2006

Reargued September 11, 2006

On January 15, 2000, T.T., then twelve years old, was at the Phillipsburg home of L.B., his father's girlfriend. At that time, T.T. was living with his mother but frequently visited his father on the weekends. He had slept over at L.B.'s house the night before. Shortly before 8:00 a.m., R.B., L.B.'s six-year-old son,*fn1 brought two boxes of douches to his mother. He told her that T.T. had stuck one in his "heiney," pushed it hard, and continued to do it even though R.B. said that it hurt.

According to R.B., T.T. woke him up in the early morning while it was still dark outside, told him to turn around, and "then he threw me on the couch and took off my pants and put it up in my butt." T.T. told R.B. not to tell and that if R.B. did tell, T.T. would punch R.B. and do it again.

T.T. admitted that he put something into R.B.'s anus, but said he did not know what the thing was. T.T. explained that he took the item, an already-open douche, out of a box that had been on the dresser; that R.B. had taken off his own clothes and was kneeling on the couch while T.T. was standing beside him on the floor; that T.T. said nothing as he put the douche in R.B.'s anus, squeezing liquid from it; and that R.B. said nothing, did not complain, and made no noise. According to T.T., he put about two to three inches of the douche into R.B. and kept it there for two seconds. Seconds later, while R.B. was still on the couch, T.T. put the same douche in his own anus, squeezed it, put it back in its box, and replaced it on the dresser.

According to both T.T. and R.B., neither child touched any part of the other's body and nothing similar had ever occurred before. When asked twice why he did it, T.T. responded, "I don't know." T.T. was charged in a juvenile delinquency complaint with "aggravated sexual assault by committing an act of sexual penetration upon R.B. when R.B. was less than thirteen years old, by sticking a foreign object in R.B.['s] anus."

In a February 15, 2000 psychosexual evaluation by Dr. W. Michael Shea, T.T. was unable to state a motive for what he did to R.B., but indicated that it was "stupid" and that he should not have done it. Dr. Shea concluded that:

[T.T.] presents as a young adolescent who requires intensive services and supervision.

It is likely that without significant intervention, risk for ongoing behavioral problems and antisocial acts are likely. Consequently, it is strongly recommended that those involved with [T.T.] and his family consider treatment programs that will address his needs. Specifically, [T.T.] requires intensive individual and group counseling, including sex offender specific interventions. It is unlikely that he could be maintained at home at this time.

On March 27, 2000, at a proceeding before a Warren County Superior Court judge, T.T. pled guilty to aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). On July 24, 2000, the trial judge adjudicated T.T. delinquent and sentenced him to time served, placed him on probation for three years, and required him to register under Megan's ...


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