C.A., Matter of

• Decision Date: 31 July 1996
• Citation: 146 N.J. 71,679 A.2d 1153
• Parties: In the Matter of the Registrant, C.A.: Application for Judicial Review of Notification and Tier Designation, Registrant-Appellant.
• Court: New Jersey Supreme Court

Page 71

146 N.J. 71

679 A.2d 1153

In the Matter of the Registrant, C.A.: Application for Judicial Review of Notification and Tier Designation, Registrant-Appellant.

Supreme Court of New Jersey.

Argued March 26, 1996.

Decided July 31, 1996.

Bruce H. Stern, Lawrenceville, for appellant, C.A. (Stark & Stark, attorneys; Mr. Stern, Glen D. Gilmore, Princeton, and Jonathan D. Zimet, Lawrenceville, on the briefs).

The opinion of the Court was delivered by

GARIBALDI, J.

In October 1994, the Legislature enacted a group of eleven bills, collectively known as "Megan's Law," in memory of a seven-year-old girl allegedly killed by a convicted sexual offender. In Doe v. Poritz, 142 N.J. 1, 109, 662 A.2d 367 (1995), we upheld the constitutionality of two of those bills, the Registration Law that requires certain sexual offenders to register with law enforcement, N.J.S.A. 2C:7-1 to -5, and the Community Notification Law, N.J.S.A. 2C:7-6 to -11 (collectively referred to as RCNL). In this appeal, we further interpret and apply those laws. Specifically, we consider whether a nonconviction offense may be considered in determining a convicted sex offender's tier classification under the RCNL, and whether the prosecutor's use of documentary hearsay evidence to prove that alleged offense offends procedural due process and the doctrine of fundamental fairness. We also address issues, not directly raised in this appeal, that relate to the validity of the Registrant Risk Assessment Scale that the Court sua sponte requested the parties and amici curiae to address.

I

We explained the purpose behind Megan's Law in detail in Doe v. Poritz, supra, 142 N.J. at 12-20, 662 A.2d 367. The Legislature enacted Megan's Law to protect the community from the dangers of recidivism by sexual offenders. N.J.S.A. 2C:7-1a. The Legislature also wanted to provide law enforcement agencies with additional information about sex offenders in their community because that information is "critical to preventing and promptly resolving incidents involving sexual abuse and missing persons." N.J.S.A. 2C:7-1b. The statute provides that sex offenders shall register with local authorities. N.J.S.A. 2C:7-2a. The sex offenses that trigger required registration are set forth in N.J.S.A. 2C:7-2b.

After registration by the offender, the chief law enforcement officer in the municipality where a registrant intends to reside is required to provide notification in accordance with N.J.S.A. 2C:7-8. That statute contemplates three levels of notification "depending upon the degree of the risk of re-offense." N.J.S.A. 2C:7-8a.

(1) If risk of re-offense is low, law enforcement agencies likely to encounter the person registered shall be notified 2) If risk of re-offense is moderate, organizations in the community including schools, religious and youth organizations shall be notified in accordance with the Attorney General's guidelines, in addition to the notice required by paragraph (1) of this subsection;

(3) If risk of re-offense is high, the public shall be notified through means in accordance with the Attorney General's guidelines designed to reach members of the public likely to encounter the person registered, in addition to the notice required by paragraphs (1) and (2) of this subsection.

[ N.J.S.A. 2C:7-8c.]

All registrants are subjected to at least Tier One notification, which requires registration with law enforcement agencies. Doe v. Poritz, supra, 142 N.J. at 22, 662 A.2d 367.

N.J.S.A. 2C:7-8a requires the Attorney General, after consultations with members of the advisory council, to "promulgate guidelines and procedures for the notification required pursuant to the provisions of this act. The guidelines shall identify factors relevant to risk of re-offense and shall provide for three levels of notification depending upon the degree of the risk of re-offense." The Legislature instructed the Attorney General that

Factors relevant to risk of re-offense shall include, but not be limited to, the following:

(1) Conditions of release that minimize risk of re-offense, including but not limited to whether the offender is under supervision of probation or parole; receiving counseling, therapy or treatment; or residing in a home situation that provides guidance and supervision;

(2) Physical conditions that minimize risk of re-offense, including but not limited to advanced age or debilitating illness;

(3) Criminal history factors indicative of high risk of re-offense, including:

(a) Whether the offender's conduct was found to be characterized by repetitive and compulsive behavior;

(b) Whether the offender served the maximum term;

(c) Whether the offender committed the sex offense against a child.

(4) Other criminal history factors to be considered in determining risk, including:

(a) The relationship between the offender and the victim (b) Whether the offense involved the use of a weapon, violence, or infliction of serious bodily injury;

(c) The number, date and nature of prior offenses;

(5) Whether psychological or psychiatric profiles indicate a risk of recidivism;

(6) The offender's response to treatment;

(7) Recent behavior, including behavior while confined or while under supervision in the community as well as behavior in the community following service of sentence; and

(8) Recent threats against persons or expressions of intent to commit additional crimes.

[ N.J.S.A. 2C:7-8b.]

Pursuant to that delegation of power, the Attorney General issued guidelines to determine the risk of re-offense and appropriate tier level of notification. The Attorney General's guidelines currently provide that a registrant is rated by the local county prosecutor pursuant to the guidelines and the "Registrant Risk Assessment Scale" (Scale). To develop that Scale, the Attorney General convened a committee composed of mental health experts as well as members of the Law Enforcement Committee, which drafted the Scale and the accompanying Registrant Risk Assessment Manual (RRA Manual), ¹ which explains the Scale. The Scale focuses on two factors, "the seriousness of the offense should the offender recidivate," and "the likelihood that the offender will recidivate." Registrant Risk Assessment Manual at 2.

The Scale, attached hereto as Appendix A, identifies thirteen factors, including the statutory factors as well as other factors deemed relevant to the risk of re-offense. Those factors are assigned to one of four larger categories: "Seriousness of Offense," "Offense History," "Characteristics of Offender," and "Community Support." Each registrant is assigned a score for each of the thirteen factors depending on an objective appraisal of that registrant, with a zero for low risk, one for moderate risk, and three for high risk.

The Attorney General determined that "the historical factors--particularly those related to extensiveness of antisocial behavior--tend to be the most powerful predictors of future offenses." Id. at 4, 662 A.2d 367. As a result, the Scale gives greater weight to the "Seriousness of Offense" and "Offense History" factors than to the "Characteristics of Offender" and "Community Support" factors. After adding up the total (adjusted) score for a registrant on every factor, a registrant who receives a score of at least 74 (out of a maximum of 111) is considered Tier Three, while one who scores at least 37 is considered Tier Two, and below 37 is Tier One.

II

In Doe v. Poritz, supra, 142 N.J. at 107, 662 A.2d 367, we concluded that a hearing is required prior to notification under Tiers Two and Three. The Court, recognizing that the RCNL impinges upon interests that trigger the protections of procedural due process and the State's own fairness doctrine, required judicial review of those decisions to "assure that the risk of reoffense and the extent of notification are fairly evaluated before Tier Two [moderate risk] or Tier Three [high risk] is implemented." Id. at 30, 662 A.2d 367. The RCNL judicial hearing process under Doe v. Poritz, supra, is not governed by the rules of evidence. The reviewing court may rely exclusively on documentary evidence "on all issues." Id. at 31, 662 A.2d 367. The court has the authority to determine (1) the extent of witness production; (2) the extent of cross-examination; and (3) the use of expert testimony. Ibid. Those determinations are to be based on the "apparent complexity of the matter [and] the extent of doubt concerning the correctness of the level and manner of notification selected by the prosecutor." Ibid. At the same time, Doe v. Poritz further prescribed a two-step procedure for evidence production. In the first step, the prosecutor has the burden of going forward with prima facie evidence that "justifies the proposed level and manner of notification." Id. at 32, 662 A.2d 367. In the second step, assuming the prosecutor's burden is met, the registrant then has the burden of producing evidence challenging the prosecutor's determinations on both issues. Ibid. Once the State has satisfied its burden of going forward, the court "shall affirm the prosecutor's determination unless it is persuaded by a preponderance of the evidence that it does not conform to the laws and Guidelines." Ibid. The court's determination is independent and based on its own review of the case on the merits.

III

On July 22, 1988, C.A. ² entered the room of his sleeping victim, a friend's girlfriend whom he had known for several months; when she awoke, he was digitally penetrating her and fondling her breasts. He pled guilty to fourth degree sexual assault and burglary and was sentenced on June 14, 1991 to a two year probationary term.

Two days later, on June 16, A.Z., "a middle class resident of the suburbs ... driving in a drug area late at night," called the police from a telephone booth to report that she had been raped by C.A. In re Registrant C.A., 285 N.J.Super. 343, 350, 666 A.2d 1375 (App.Div.1995). When the police arrived, they searched the area...