On appeal from Superior Court of New Jersey, Law Division, Union County, 04200806.
The opinion of the court was delivered by: Landau, J.A.D. (retired and temporarily assigned on recall).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued April 17, 2007
Before Judges Landau and Newman.
Appellant R.A. is a Megan's Law registrant. He appeals from a Law Division order of March 6, 2007, entered in Union County that modified in part a prior Law Division order of classification and manner of notification entered in MiddleseX County on November 17, 2004. The Middlesex County order classified the registrant as a moderate risk for re-offense based upon a Registrant Risk Assessment Scale (RRAS) score of 44, but accepted the Prosecutor's determination that the scope and manner of notification be as for a Tier I registrant, limited to law enforcement notice only.*fn1
In July 2006, R.A. moved to Elizabeth, New Jersey, occasioning the requisite statutory notification of law enforcement authorities in Union County. Upon review of R.A.'s file, the Union County Prosecutor (Prosecutor) notified him of an intention to increase the registrant's RRAS scores under criteria No. 4 (Victim Selection) and No. 9 (Response to Treatment) from those previously set by the Middlesex County Prosecutor and determined by the Judge in Middlesex County. Further, the Prosecutor proposed to increase the Tier I level of notice previously set in Middlesex to a Tier II notice.
R.A. challenged these determinations in the proceeding below. The Prosecutor offered two reasons for modification. First, that, based upon reports from the group psychotherapist with whom R.A. has been regularly meeting, the registrant sometimes fantasizes about relationships with young girls and had also admitted experiencing similar fantasies prior to his conviction. Second, that an error was made by the Middlesex County Prosecutor in scoring R.A.'s relationship with the victim as one comparable to a family or household member, as distinct from a mere "acquaintance."
The Megan's Law Judge rejected the argument that "changed circumstances" altering the earlier Middlesex County assessments of dynamic factors were demonstrated by the registrant's admissions in therapy that he occasionally experienced a child-sexual fantasy. Recognizing that this concerned the "response to treatment" criterion, the Judge noted and adopted the expert opinion submitted by psychologist Lorri Lessin, Ph.D., that the ability to recognize and acknowledge feelings that led to a prior sexual offense is a measure of progress in treatment which can significantly reduce relapse. This view was bolstered by the recommendation of R.A.'s group social worker that the Middlesex County Tier I notification tiering should remain in place.
The Judge did, however, accept the Prosecutor's argument that a mistake was made by the Middlesex County Prosecutor respecting RRAS criterion No. 4. The Prosecutor urged that as R.A. was only a godfather and did not physically reside in the same premises, he should be regarded as merely an acquaintance, thus increasing the "offense history" score from 0 to 3. In this respect, the Judge concluded that the facts upon which the prior determination was made respecting the static factor of victim selection were "clearly erroneous" and that the court had a consequent obligation not to "rubber stamp" a prior decision based upon a mistake of fact.
The court further concluded that the difference in the victim selection aspect of the RRAS alone was sufficient to meet the requirements of R. 4:50-1(f) because of public policy reasons, and thus altered the prior Tier I notification order 3 years after that static factor was assessed in Middlesex.
Based upon that assessment, the notification requirement imposed for R.A. was increased to the presumptive Tier II notification for registrants with a moderate risk RRAS score.
In the Matter of R.D., 384 N.J. Super. 61 (App. Div. 2006), we recognized that a court does have the authority under R. 4:50-1(f) to reopen a judgment where such relief is necessary to achieve a fair and just result mandated by public policy. Id. at 66 (citing Manning Eng'g Inc. v. Hudson County Park Comm'n, 74 N.J. 113, 122 (1977)). In that case, however, we also recognized that such a motion must ordinarily be made to the judge who entered the initial judgment, R.D., supra, 384 N.J. Super. at 66. More importantly, we recognized that there are extreme limitations upon modification of the assessment of a static factor,*fn2 and distinguished ...