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State v. Timmendequas

Superior Court of New Jersey, Appellate Division

July 22, 2019

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
PAUL TIMMENDEQUAS, Defendant-Respondent.

          Argued February 4, 2019

          On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 15-11-1377.

          Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Jennifer E. Kmieciak, of counsel and on the brief).

          James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; James K. Smith, Jr., of counsel and on the brief).

          Before Judges Messano, Fasciale and Gooden Brown.

          OPINION

          MESSANO, P.J.A.D.

         In 1998, defendant Paul Timmendequas pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The judge sentenced defendant in 1999 to two concurrent seven-year terms of imprisonment at the Adult Diagnostic and Treatment Center, the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23, and community supervision for life (CSL), pursuant to the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-6.4(a), a "component" of Megan's Law. State v. Schubert, 212 N.J. 295, 305 (2012).

         N.J.S.A. 2C:7-2(a) criminalizes the failure to register as required by subsections (c) and (d) of the statute. Subsection (c) governs the obligations to initially register, and subsection (d) specifically criminalizes the failure to notify the appropriate authorities and re-register upon relocation. When defendant was convicted, a person committed a fourth-degree crime if he failed to register as a sex offender or failed to notify the appropriate authorities and re-register upon relocating. N.J.S.A. 2C:7-2(a) and (d) (1999). Similarly, violating conditions of CSL was a fourth-degree crime. N.J.S.A. 2C:43-6.4(d) (1999). The Legislature increased the penalty for failing to register as a sex offender under subsection (a) to a third-degree crime in 2007. L. 2007, c. 19. It increased the penalties for failing to notify and re-register upon relocation, and for violating conditions of CSL, to third-degree crimes in 2014. L. 2013, c. 214.[1]

         In 2015, a Middlesex County grand jury indicted defendant for third-degree violation of conditions of CSL, N.J.S.A. 2C:43-6.4(d) (count one); third-degree absconding from parole, N.J.S.A. 2C:29-5(b) (count two); two counts of third-degree failure to register as a sex offender and to notify law enforcement of relocation and re-register, N.J.S.A. 2C:7-2(a) and (d) (counts three and four); and third-degree theft, N.J.S.A. 2C:20-9 (count five).[2]Defendant moved to dismiss counts one, three and four, arguing that when he was convicted of the underlying sex offenses, see N.J.S.A. 2C:7-2(b), the crimes charged in those counts were not third-degree offenses. Defendant contended that increasing his potential sentence exposure violated the Ex Post Facto Clauses.[3]

         In a thoughtful written opinion, Judge Colleen M. Flynn agreed. She entered an order dismissing counts one, three and four without prejudice to the State's ability to re-indict defendant "with appropriate grading of the charges." We granted the State leave to appeal.

         We stayed this appeal and several others because the Court had granted certification in State v. Hester, 233 N.J. 115 (2017). There, the defendant, who was convicted prior to the 2014 amendment to N.J.S.A. 2C:43-6.4(d), argued the increased penalty for violating the conditions of CSL ran afoul of the Ex Post Facto Clauses. The Court agreed. State v. Hester, 233 N.J. 381, 385 (2018) ("[T]he Federal and State Ex Post Facto Clauses bar the retroactive application of the 2014 Amendment to defendants' CSL violations."). As a result, the State withdrew its appeal of that part of Judge Flynn's order dismissing count one.

         The State now contends:

POINT I
THERE IS NO EX POST FACTO VIOLATION WHEN A SEX OFFENDER WHO FAILS TO REGISTER AFTER MARCH 1, 2007 IS CHARGED WITH A THIRD[-]DEGREE CRIME.

         The State's primary argument is that charging defendant with a third-degree offense does not violate the Ex Post Facto Clauses because "the amended statute applies only prospectively to defendant's new crimes of failing to register after March 1, 2007[, ]" and "does not retroactively increase the penalties for defendant's 1999 . . . ...


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