On appeal from the Superior Court of New Jersey, Law Division, Warren County, 08-21-0019.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued July 22, 2009
Before Judges Landau, King and Newman*fn1.
Registrant J.W. appeals from an order of July 8, 2009 entered by a Megan's Law judge affirming his classification as a Tier 2, moderate risk offender. It directed Internet publication of his registration information and notice to several points of child assembly and local schools.
The order includes findings that the State met its burden to establish by clear and convincing evidence a Registrant Risk Assessment Scale (RRAS) score of forty, resulting in moderate risk of recidivism and the consequent directions for scope of notification that included placement into the New Jersey Sex Offenders' Internet Registry.
J.W. had waived indictment and trial by jury in Passaic County, and pled guilty to one count of third-degree attempt to engage in sexual conduct with a child under sixteen, through communications with a person with an explicit sexual nature on the Internet, believing the person to be under the age of sixteen, in violation of N.J.S.A. 2C:24-4(a) and N.J.S.A. 2C:5-1. He also pled guilty to one count of second-degree attempt to lure or entice a child, by communicating via the Internet with a detective working in an undercover capacity as a twelve-year-old female for the purpose of committing a criminal offense with or against her, in violation of N.J.S.A. 2C:13-6.
On January 11, 2007, Registrant was sentenced to concurrent terms of three years on each count. The second-degree luring count was sentenced as a third-degree crime in accordance with the prosecutor's recommendation. Lifetime parole was ordered.
When arrested, Registrant was thirty-years old and had been unemployed for six months. He suffers from Asperger's Syndrome, an autism-related condition that, during his life, appears to have resulted in frequent job changes, some personality problems and a Section Five psychological discharge from the United States Army.
We have heard telephonic oral argument, by Registrant's private counsel and a Warren County Assistant Prosecutor, and have considered those arguments within the context of the evidence in the record placed before the hearing judge. Based upon the entirety of that record, which is unique in several significant respects, we conclude that it clearly and convincingly supports an RRAS score not less then thirty eight, and notification consistent with moderate recidivism risk. Further, our review of the present record convinces us that, based upon undisputed facts peculiar to this case, a moderate risk determination and concomitant notification are here clearly and convincingly called for, even if the RRAS score had been tallied technically at a lesser number. The circumstances in this matter go beyond the "heartland" contemplated in a typical RRAS assessment, and support our supplemental exercise of original jurisdiction to confirm the order under review.
The Supreme Court has made clear that even though the RRAS provides a useful guide for the prosecutors and court to evaluate risk of re-offense, the court must still make a value judgment in determining the proper tier classification and scope of community notification based on all of the evidence available to it. These determinations are best made on a case-by-case basis within the discretion of the court. In re Registrant C. A., 146 N.J. 71, 108-09 (1996); In re Registrant G.B., 147 N.J. 62, 78-79 (1996).
Of course, such judgments must be based on evidence that is clear and convincing. In re Registrant M.F., 169 N.J. 45, 54 (2001). While the Rules of Evidence do not apply, the court may consider all reliable information. Sexual offenses, not the subject of a conviction, may be considered in the risk calculus, and may be supported by documentation deemed reliable including, e.g. admissions by the Registrant, police reports and psychiatric reports. In re Registrant C.A., 285 N.J. Super. 343, 347-48 (App. Div. 1995), aff'd, In re Registrant C.A., supra, 146 N.J. at 71. We will address these factors further in this opinion.
Registrant offers three principal contentions in support of this appeal: (1) denial of due process; (2) incorrect scoring of RRAS criterion number nine (response to treatment) and criterion number thirteen (employment/educational stability); and (3) failure of the hearing judge adequately to make and explain his findings that clear and convincing evidence support the adoption of the prosecutor's scoring of each of the criteria, and a final RRAS score of forty.
Registrant's due process argument rests upon the refusal of the judge to grant yet another hearing postponement to allow an expert to submit a written report based upon an evaluation said to have been conducted a month earlier. That evaluation was allowed over the prosecutor's objections made only after several earlier hearing postponements had been granted to allow an expert evaluation and report.
The record establishes that after Registrant's release from custody in March 2008, he was notified by the prosecutor's office, on July 17, 2008, of his right to provide information that could be considered for Megan's Law hearing purposes. Responding letters were received shortly thereafter. Registrant's letter indicated that "this was [his] only offense ever[,]" and a letter from family therapist, Dr. Kerr, expressed a "clinical opinion" that Registrant presented a low risk for recidivism.
Registrant was served on November 26, 2008, with the prosecutor's notice of a Tier 2 classification, representing ...