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In re Registrant A.A.

Superior Court of New Jersey, Appellate Division

November 15, 2019

IN THE MATTER OF REGISTRANT A.A.

          Argued October 7, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ML-09-07-0111.

          James H. Maynard argued the cause for appellant A.A. (Maynard Law Office, LLC, attorneys; James H. Maynard, on the briefs).

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

          Before Judges Fasciale, Rothstadt and Moynihan.

          OPINION

          FASCIALE, P.J.A.D.

         This appeal requires us to address the general procedure and related due process protections afforded to individuals who committed crimes outside New Jersey when law enforcement allege that those crimes are "similar to" Megan's Law offenses under N.J.S.A. 2C:7-1 to -23, and therefore require registration in this State.

         We hold that a county assistant prosecutor (AP) must first make the "similar to" determination. If the AP imposes a registration obligation, the offender is entitled to notice and an opportunity to challenge that obligation by filing a motion with the judge. The motion triggers a summary hearing, wherein the judge addresses the legal question of whether the out-of-state conviction was "similar to" a qualifying conviction under Megan's Law. In accordance with R.B., [1] the judge should (1) undertake an element-by-element legal comparison of the criminal codes of New Jersey and the other state; and (2) compare the elements of the crimes with the purposes of the underlying criminal statutes. Consistent with R.B., and to avoid reviewing the elements of the offense in a vacuum, the judge may also examine trustworthy, relevant evidence as to the underlying factual predicate for the out-of-state conviction.

         In this case, an AP performed the "similar to" analysis and determined A.A. had a duty to register in New Jersey as a sex offender. A.A. filed a motion to terminate that obligation ab initio, which the judge denied. A.A. appeals from that order.

         We conclude the AP correctly performed the "similar to" analysis and determined A.A. had a duty to register. A.A. received notice of that obligation, registered, and challenged the determination in the Law Division. Applying R.B., the judge here properly concluded the New York conviction was "similar to" an enumerated offense under Megan's Law. We therefore affirm.

         I.

         At all relevant times, A.A. resided in New Jersey. According to a New York pre-sentence investigation report and charging documents, in March 2008, A.A. engaged in sexual communications with an undercover police officer in an internet chatroom, believing the officer to be a fourteen-year-old girl. He then emailed three pictures of his genitals to the undercover police officer. In April 2008, A.A. traveled to a New York mall, intending to meet the underage girl from the chatroom. The police met A.A. there, arrested him, and seized a box of condoms from him.

         The New York police charged A.A. with second-degree disseminating indecent material to a minor, New York Penal Law § 235.21(3) (Consol. 2019). In September 2008, he pled guilty to that charge, and in December 2008, the judge entered judgment and sentenced him to five years' probation. A.A.'s pre-sentence investigation report addressed the transfer of probation from one state to another:

This offender may be eligible for an interstate [t]ransfer at the discretion of the receiving state. Interstate Compact Rules require that persons sentenced to probation on a sex offense that requires them to register in either the sending or receiving state are NOT entitled to proceed to the receiving state until that state investigates and reporting instructions are issued. The [offender] must remain in [New York] until this process is completed. If the transfer request is rejected, regardless of the [offender's] current residence[, ] [the offender] must remain in [New York]. If [the offender] [is] allowed to travel by the receiving state and then that state later rejects the transfer, the offender must return to New York within [fifteen] days.

         The same report further stated that, although A.A.'s offense in New York "does not require SORA[2] registration, sex offender conditions of [p]robation are recommended."

         New York requested the transfer of A.A.'s probation supervision to New Jersey. In March 2009, a New Jersey County Senior Probation Officer (SPO) provided documentation of A.A.'s New York conviction to a New Jersey AP and requested a determination as to whether A.A. "will be required to register under Megan's Law in our state[.]" The SPO indicated to the AP that he would provide the AP's determination to New York when the SPO responded to the transfer request. The AP advised the SPO:

It appears his [New York] conviction is Megan's Law in [New Jersey] . . . . [The New York] statute resembles . . . our Luring Statute[, ] [N.J.S.A.] 2C:13-6[, ] which makes him Megan's Law. He's already living in [New Jersey and] should already be registered. Technically, he's in violation. If you agree to the supervision, make him register [with the local police department] ASAP. We will need copies of his entire file in order to tier him once he registers.

         The SPO then responded:

He is not currently in [New Jersey], as per [i]nterstate guidelines for transfers he is required to stay in New York . . . for [five] days until we send reporting instructions that his case has been approved. I will refer him to [the local New Jersey police department] once the case has been accepted. The information on the offense that I faxed was all that New York provided[;] if there is any other paperwork[, ] I will mail it to you.

         Thereafter, New Jersey Probation Services accepted supervision of A.A. from New York. In April 2009, the SPO advised the AP of the transfer and enclosed A.A.'s paperwork. The SPO noted:

As per our previous correspondence, your office determined that [A.A.'s] offense would require him to register under Megan's Law in New Jersey, and I confirmed with [a] [d]etective [of the local New Jersey police department] that he registered his address [in New Jersey] with their department[.]

         Therefore, A.A. had notice of his obligation to register.

         In April 2018, nine years after the AP performed the "similar to" analysis, A.A. filed a motion to terminate ab initio his Megan's Law registration requirement. The judge heard oral argument in July 2018. On September 5, 2018, the judge issued the order and written decision denying his motion, which led to this appeal.

         II.

         On appeal, A.A. argues:

POINT I
MEGAN'S LAW WAS UNCONSTITUTIONALLY IMPOSED ON A.A. ABSENT DUE PROCESS PROTECTIONS UNDER THE STATE AND FEDERAL CONSTITUTIONS.
POINT II
THE COURT BELOW UNCONSTITUTIONALLY SHIFTED THE BURDEN OF PROOF AS TO THE "SIMILAR TO ANALYSIS" UNDER MEGAN'S LAW TO A.A.
POINT III
THE FAILURE OF THE COURT TO RESTRICT ITS ANALYSIS OF A.A.'S NEW YORK CONVICTION TO AN ELEMENTS ONLY TEST VIOLATES THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV
THE NEW JERSEY CRIMINAL STATUTE THAT IS "SIMILAR TO" THE NEW YORK CRIMINAL
STATUTE OF WHICH A.A. WAS CONVICTED IS N.J.S.A. ...

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