February 4, 2019
appeal from an interlocutory order of the Superior Court of
New Jersey, Law Division, Middlesex County, Indictment No.
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).
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).
Judges Messano, Fasciale and Gooden Brown.
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).
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.
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).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
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.
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.
State now contends:
THERE IS NO EX POST FACTO VIOLATION WHEN A SEX OFFENDER WHO
FAILS TO REGISTER AFTER MARCH 1, 2007 IS CHARGED WITH A
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 . . . ...