October 7, 2019
appeal from the Superior Court of New Jersey, Law Division,
Essex County, Docket No. ML-09-07-0111.
H. Maynard argued the cause for appellant A.A. (Maynard Law
Office, LLC, attorneys; James H. Maynard, on the briefs).
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).
Judges Fasciale, Rothstadt and Moynihan.
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.
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.,  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.
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.
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.
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.
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
same report further stated that, although A.A.'s offense
in New York "does not require SORA registration, sex
offender conditions of [p]robation are recommended."
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.
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.
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
A.A. had notice of his obligation to register.
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.
appeal, A.A. argues:
MEGAN'S LAW WAS UNCONSTITUTIONALLY IMPOSED ON A.A. ABSENT
DUE PROCESS PROTECTIONS UNDER THE STATE AND FEDERAL
THE COURT BELOW UNCONSTITUTIONALLY SHIFTED THE BURDEN OF
PROOF AS TO THE "SIMILAR TO ANALYSIS" UNDER
MEGAN'S LAW TO A.A.
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
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. ...