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In re Registrant A.D.

Superior Court of New Jersey, Appellate Division

July 20, 2015

IN THE MATTER OF REGISTRANT A.D. IN THE MATTER OF REGISTRANT J.B. IN THE MATTER OF REGISTRANT C.M

Argued May 27, 2015

Approved for Publication July 20, 2015.

On appeal from Superior Court of New Jersey, Law Division, (A-5671-13) Burlington County, RCNL No. 2000-03-0025; (A-2312-14) Ocean County, Docket No. ML # 97-15-0188; (A-2313-14) Ocean County, Docket No. ML # 02-15-0032.

Fletcher C. Duddy, Deputy Public Defender, argued the cause for appellant A.D. ( Joseph E. Krakora, Public Defender, attorney; Mr. Duddy, on the brief).

LaChia L. Bradshaw, Assistant Prosecutor, argued the cause for State of New Jersey ( Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Bradshaw, of counsel and on the brief).

Stefan J. Erwin, Assistant Deputy Public Defender, argued the cause for appellant J.B. ( Joseph E. Krakora, Public Defender, attorney; Mr. Erwin, of counsel and on the brief).

William Scharfenberg, Assistant Prosecutor, argued the cause for State of New Jersey ( Joseph D. Coronato, Ocean County Prosecutor, attorney; Mr. Scharfenberg, of counsel and on the brief).

Stefan J. Erwin, Assistant Deputy Public Defender, argued the cause for appellant C.M. ( Joseph E. Krakora, Public Defender, attorney; Mr. Erwin, of counsel and on the brief).

William Scharfenberg, Assistant Prosecutor, argued the cause for State of New Jersey ( Joseph D. Coronato, Ocean County Prosecutor, attorney; Mr. Scharfenberg, of counsel and on the brief).

Before Judges NUGENT, ACCURSO and MANAHAN. The opinion of the court was delivered by NUGENT, J.A.D.

Page 242

[441 N.J.Super. 404] OPINION

[441 N.J.Super. 405] NUGENT, J.A.D.

Appellants are registered sex offenders whose Law Division applications to terminate their obligations under Megan's Law's registration requirements, N.J.S.A. 2C:7-1 to -5 (the Registration Law), were denied. The Registration Law authorizes a court to terminate a registrant's obligations if, among other requirements, the registrant " has not committed an offense within 15 years following conviction or release . . . whichever is later, and is not likely to pose a threat to the safety of others." N.J.S.A. 2C:7-2(f). Appellants' applications were denied because each appellant had committed an offense -- though not a sex offense -- within the fifteen year period.

These appeals require us to decide whether the term " offense" in N.J.S.A. 2C:7-2(f) means " a crime, a disorderly persons offense or a petty disorderly persons offense unless a particular subsection in the code is intended to apply to less than all three[,]" the definition given in the general definitional subsection of the New Jersey Code of Criminal Justice (the Code); or a " sex offense" as defined in the Registration Law. Having considered appellants' arguments in light of the record and controlling law, and having found no ambiguity in the statutory language, we conclude the term offense means what the Code's general definitional subsection defines it to mean. Accordingly, we affirm the trial courts' orders.[1]

I.

A. A.D.'s Appeal.

The parties do not dispute the facts. On February 7, 1997, A.D. was convicted of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), an offense that triggered the requirements of the Registration Law. The court sentenced A.D. to three years' [441 N.J.Super. 406] probation and community supervision for life (CSL), N.J.S.A. 2C:43-6.4.[2] A.D. initially complied with the Registration Law.

More than fifteen years after his conviction, in 2015, A.D. filed a motion to be relieved of the Registration Law's obligations. In support of his application, he submitted a licensed psychologist's " Psychosexual Evaluation Actuarial Risk Assessment" in which the psychologist reported that A.D.'s recidivism risk level was low. The psychologist noted that A.D. had been diagnosed with Alzheimer's Disease.

During the hearing on A.D.'s application, his counsel represented that A.D. " ha[d] gone fifteen years since his date of conviction[,] . . . [and] the underlying crimes for which he was convicted do not bar him from removal pursuant to subsection G of the statute." [3] Emphasizing A.D.'s expert report, counsel argued A.D. no longer posed a threat to society. Additionally, counsel explained that because A.D. suffered from Alzheimer's Disease

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and was under the constant care and supervision of his mother, the registration requirements presented nothing more than a burden to his family. The State did not oppose A.D.'s application.

For reasons that have nothing to do with the issue on appeal and thus need not be explained, neither the court nor counsel were aware that in 2005 A.D. had pled guilty to, and been convicted of, violating a special condition of CSL, N.J.S.A. 2C:43-6.4, for failing to notify his parole officer of his change of address. Three months after the court granted A.D.'s application to terminate his [441 N.J.Super. 407] registration obligations, the State became aware of his 2005 conviction and moved for reconsideration under Rule 4:49-2.[4]

In opposition to the State's motion, A.D. produced, among other things, an addendum from A.D.'s psychologist affirming that A.D. remained at a low risk for sexually reoffending and did not present an increased risk of harm to members of the community, notwithstanding the intervening conviction. A.D. also submitted a letter written in another case by Philip H. Witt, Ph.D., one of the primary authors of the Registrant Risk Assessment Scale manual. The Registrant Risk Assessment Scale (RRAS) is used to assess whether a registrant's risk of reoffending is low, moderate or high. Dr. Witt stated in his letter:

Scoring non-sexual offenses on the RRAS is an attempt to capture a general level of " anti-sociality" . Hence, only if the non-sexual offense that occurs after the sex offense adjudication (or release from incarceration) is part of a broader, anti-social pattern of behavior, would it increase the likelihood of sex offense recidivism and therefore be of interest. This is particularly true of a " failure to register" charge. There is substantial research indicating that failure to register in and of itself does not increase likelihood of sex offense recidivism. Therefore, it is my recommendation that a failure to register charge not preclude an individual's applying for release from Megan's Law.

During the hearing on the State's motion, A.D.'s mother testified that subjecting her son to the Registration Law would impose a significant hardship upon her. She explained that A.D. did not understand the purpose of the hearing and would not be able to register because he would be unable to travel. A.D.'s mother emphasized that A.D. was under her care and goes nowhere by himself.

The court granted the State's motion and vacated its previous order terminating A.D.'s registration obligations.[5] The court rejected A.D.'s argument that his application should be granted [441 N.J.Super. 408] because he had not committed a sex offense within fifteen years. A.D. appealed.

B. J.B.'s Appeal.

J.B. pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c), and was sentenced in March 1995 to a five-year custodial term. Following his release from custody, J.B. initially complied with the Registration Law. In 2006, however, J.B. failed to register and moved from his current address without notifying authorities.

In August 2007, J.B. pled guilty to fourth-degree failure to notify law enforcement agencies of a change of address, N.J.S.A. 2C:7-2(d)(1) and was placed on

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probation.[6] Consequently, in 2014 when J.B. applied to terminate his obligation under the Registration Law, the court denied his application, concluding that the intervening conviction, though not for a sex offense, was a bar under N.J.S.A. 2C:7-2(f) to termination of his Registration Law obligations. J.B. appealed.

C. C.M.'s Appeal.

C.M. pled guilty to third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), and was sentenced in May 1999 to four years' probation. His judgment of conviction was amended in April 2002 to subject C.M. to the requirements of Megan's Law.

Fifteen years after C.M.'s sex offense conviction, he applied to the Law Division to terminate his Registration Law obligations. The court denied the application due to an intervening conviction for violating a final restraining order under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35.[7] The [441 N.J.Super. 409] court rejected C.M.'s argument that he was entitled to have his registration obligations terminated because he had not committed a sex offense within fifteen years. C.M. appealed.

On this appeal, A.D. raises these points:

I. THE NEW JERSEY SUPREME COURT HAS RECOGNIZED THAT THE WORD " OFFENSE" AS USED IN N.J.S.A. 2C:7-2(f) IS TO BE [INTERPRETED] AS A " SEX OFFENSE[.]"
II. THE STATUTE'S USE OF THE WORD " OFFENSE" IS AMBIGUOUS ON ITS FACE, AND ALL TENETS OF STATUTORY INTERPRETATION FAVOR DEFINING THE WORD AS A " SEX OFFENSE[.]"
A. The legislative history of Megan's Law demonstrates that the legislature intended the word " offense" to mean a " sex offense[.]"
B. If the statute is interpreted to preclude a registrant from being removed from Megan's Law for committing a non-sexual offense, it would lead to absurd results, as it did in this case in the Law Division.
C. The doctrine of lenity favors interpreting the statute to mean sex offense, not a non-sexual criminal offense.
III. THE REGISTRANT RISK ASSESSMENT SCALE HAS NO BEARING ON THE INTERPRETATION OF THE WORD " OFFENSE" AS USED IN N.J.S.A. 2C:7-2(f).
IV. INTERPRETING THE WORD " OFFENSE" TO INCLUDE NON-SEXUAL CRIMINAL OFFENSES WOULD NOT BE RATIONALLY RELATED TO THE GOAL OF MEGAN'S LAW, MAKING SUCH ...

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