On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FJ-02-2873-05 and Law Division, Criminal Part, Bergen County, PG #5020050.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Newman.
In these consolidated appeals, B.A. appeals from an order denying his motion to withdraw his guilty plea and an order denying his motion to be relieved of registration requirements under Megan's Law. See N.J.S.A. 2C:7-2 to -5.
Factually, B.A., who was fifteen years old and a high school student, was baby-sitting a friend's six-year old daughter on April 19, 2005. He asked her to touch his penis by hand and by mouth, and he also rubbed his penis against her buttocks over her pants. He was charged with first-degree sexual assault and second-degree endangering the welfare of a child. Under a plea agreement, he pled guilty on August 23, 2005, to the second-degree crime in exchange for dismissal of the first-degree crime and was sentenced on September 20, 2005, to two years probation. He successfully completed probation.
During his plea hearing, he admitted his guilt and was advised of the requirements of Megan's Law. He was specifically informed of the requirements of Megan's Law that called for registration for fifteen years, that it would constitute a fourth degree crime if he moved and did not notify the county prosecutor, and that he had to provide a DNA sample which would be kept by the State Police in a DNA database. He was also advised that the extent of community notification would depend on the tier classification to which he would be assigned. He acknowledged that he understood each of these requirements and tier classification. He was told that he would be exposed to Megan's Law for fifteen years.
Following the State's questioning regarding Megan's Law conditions, defense counsel addressed the court regarding B.A.'s eligibility to be relieved of Megan's Law registration when he turned eighteen years of age. The trial court stated that B.A. could seek relief at age eighteen, believing there was case law to that effect. The court did not indicate that he would automatically be granted relief from the requirements of Megan's Law. The State expressed no view on the subject during this colloquy.
Following this, defense counsel noted that the family was planning to relocate to Florida because they were not able to afford to live in this area. The move to Florida was also elaborated upon at the time of sentencing to ascertain if it would pose any problem to the court in terms of probation supervision. The court responded that it would not be a barrier to probation supervision.
The court, the defense attorney, and by silence, the assistant prosecutor, were unaware of the fact that B.A. was not eligible to apply for relief from Megan's Law registration requirements when he turned eighteen unless he was under fourteen years of age at the time of the commission of the offense. B.A. asserts that he relied upon this mistaken impression of what was required under Megan's Law in seeking to withdraw his guilty plea, arguing that it materially influenced him to enter a guilty plea.
In denying B.A.'s motion to withdraw his guilty plea, the trial court, based on the transcript of the plea, indicated that B.A. had knowledge of the consequences of his plea and voluntarily entered into the agreement. In the colloquy with defense counsel, the judge rejected the notion that the inaccuracy on the judge's part, which was "my mistake," had nothing to do with the plea withdrawal and would not consider the argument.
In denying B.A. any relief from the Megan's Law registration requirement, Judge Harry G. Carroll, who did not take defendant's plea, determined that the Supreme Court in In re Registrant J.G., 169 N.J. 304 (2001), held that juveniles adjudicated delinquent for sexual offenses committed under the age of fourteen were eligible to terminate Megan's Law registration and community notification orders if the Law Division, following a hearing, determines by clear and convincing evidence that the delinquent is not likely to pose a threat to the safety of others. Id. at 337. Without discussing whether B.A. made a showing to be relieved from Megan's Law registration requirements, the court held that B.A. was not qualified to seek ...