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In re Registrant H.D.

Superior Court of New Jersey, Appellate Division

December 7, 2018

IN THE MATTER OF REGISTRANT H.D. IN THE MATTER OF REGISTRANT J.M.

          Argued October 29, 2018

          On appeal from Superior Court of New Jersey, Law Division, Essex County and Salem County, Docket Nos. ML-98-07-0091 and ML-98-17-0002.

          Fletcher C. Duddy, Deputy Public Defender, argued the cause for appellant H.D. (in A-5321-16) (Joseph E. Krakora, Public Defender, attorney; Fletcher C. Duddy, of counsel and on the briefs; Stephanie A. Lutz, Assistant Deputy Public Defender, on the briefs).

          Jesse M. DeBrosse, Assistant Deputy Public Defender, argued the cause for appellant J.M. (in A-5322-16) (Joseph E. Krakora, Public Defender, attorney; Jesse M. DeBrosse, on the briefs).

          Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (in A-5321-16) (Theodore Stephens II, Acting Essex County Prosecutor, attorney; Frank J. Ducoat and Maria I. Guerrero, Special Deputy Attorneys General/Acting Assistant Prosecutors, of counsel; Frank J. Ducoat, on the brief).

          David M. Galemba, Assistant Prosecutor, argued the cause for respondent State of New Jersey (in A-5322-16) (John T. Lenahan, Salem County Prosecutor, attorney; David M. Galemba, of counsel and on the brief).

          Before Judges Messano, Gooden Brown and Rose.

          MESSANO, P.J.A.D.

         We consolidate these two appeals that were argued back-to-back to issue a single opinion because they involve only one common legal issue.

         Appellants J.M. and H.D. were convicted of sex offenses, see N.J.S.A. 2C:7-2(b), in 1994 and 1998 respectively, and sentenced to periods of probation. Pursuant to the provisions of Megan's Law, N.J.S.A. 2C:7-1 to 11, both were sentenced to community supervision for life (CSL) as required by N.J.S.A. 2C:43-6.4(a), the Violent Predator Incapacitation Act (VPIA), "enacted as a 'component' of Megan's Law at the time of its passage in 1994." In re G.H., 455 N.J.Super. 515, 524 (App. Div. 2018) (quoting State v. Schubert, 212 N.J. 295, 305 (2012)).[1] J.M. and H.D. also registered as sex offenders pursuant to N.J.S.A. 2C:7-2(a) and (c).

         In 2001, J.M. was convicted of computer-related theft, N.J.S.A. 2C:20-29, a disorderly persons offense, and sentenced to one year of probation.[2] Also in 2001, H.D. was convicted of fourth-degree failure to register as a sex offender, N.J.S.A. 2C:7-2(a)(3), and sentenced to one year of probation. Both J.M. and H.D. have remained offense free since 2001.

         Pursuant to N.J.S.A. 2C:7-2(f) (subsection (f)), any registrant may apply "to the Superior Court . . . to terminate the [registration] obligation upon proof that the person has not committed an offense within [fifteen] years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others." In 2017, J.M. moved to be relieved of his registration obligations.

         H.D. sought the same relief in 2017, and additionally moved to terminate CSL pursuant to N.J.S.A. 2C:43-6.4(c), which states:

[A] judge may grant a petition for release from a special sentence of [community] supervision for life only upon proof by clear and convincing evidence that the person has not committed a crime for [fifteen] years since the last conviction or release from incarceration, whichever is later, and that the person is not likely to pose ...

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