In re B.B.
| Decision Date | 22 March 2022 |
| Docket Number | DOCKET NO. A-1496-20 |
| Citation | 472 N.J.Super. 612,277 A.3d 1078 |
| Parties | In the MATTER OF Registrant B.B. |
| Court | New Jersey Superior Court — Appellate Division |
Cary Shill, Acting Atlantic County Prosecutor, attorney for appellant/cross-respondent State of New Jersey (Mario C. Formica, Special Deputy Attorney General/Acting Deputy First Assistant Prosecutor, of counsel and on the briefs).
Joseph E. Krakora, Public Defender, attorney for respondent/cross-appellant B.B. (Jonathan Edward Ingram, Assistant Deputy Public Defender, of counsel and on the brief).
Before Judges Fisher, DeAlmeida and Smith.
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
On appeal is the January 29, 2021 order of the Law Division designating B.B. as a Tier II registrant under the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -23, commonly known as Megan's Law. The State appeals a provision of the order directing that B.B.'s personal identifiers not be included on the Sex Offender Internet Registry, pursuant to N.J.S.A. 2C:7-12 to -18. B.B. cross-appeals the trial court's finding under factor six of the Registrant Risk Assessment Scale (RRAS) that B.B.'s offensive behavior took place over two years. Although we agree with B.B.'s argument that his score under factor six must be reduced, we affirm the trial court's designation of B.B. as a Tier II registrant. We also vacate the provision of the order excluding his personal identifiers from the Internet Registry.
In December 2009, B.B. was convicted in Pennsylvania of indecent assault against a person less than thirteen years old, contrary to 18 Pa. Cons. Stat. Ann. § 3126(a)(1). The conviction was based on B.B.'s 2005 sexual assault of his five-year-old brother. B.B. was sixteen at the time of the offense. The court sentenced B.B. to a term of incarceration of ten months and twenty-seven days, followed by probation.
In October 2015, B.B. was convicted of indecent assault against a person less than thirteen years old, contrary to 18 Pa. Cons. Stat. Ann. § 3126(a)(7). According to an affidavit of probable cause associated with his arrest, the offense took place in 2007, when B.B. was eighteen. He sexually assaulted a five-year-old girl who lived next door to him. The victim's brother, with whom she lived, was B.B.'s friend. The sexual assault occurred when B.B. was spending the night at their house. For this conviction, the court sentenced B.B. to a term of incarceration of fifteen to thirty months.
Both offenses came to light many years after the sexual assaults. Pennsylvania officials categorized B.B. as a low-risk offender with a ten-year registration period and no community notification.1
In 2019, B.B., then thirty-one and married, moved to Atlantic County. He is employed full-time and has no children. Shortly after he relocated, B.B. registered as a sex offender with local police. His registration triggered the Megan's Law tier classification process.
The county prosecutor informed B.B. in writing of the State's intention to: (1) classify B.B. as a Tier II registrant at moderate risk to re-offend; (2) notify schools and community organizations in his neighborhood of his presence; and (3) include his personal identifiers on the Internet Registry. The notice included an RRAS score on which the proposed Tier II classification was based. B.B. objected to the proposed classification, as well as the inclusion of his personal identifiers on the Internet Registry.
At a hearing before the trial court, B.B. challenged the State's proposed scores on several of the RRAS factors. However, he appealed only the court's findings with respect to factor six, duration of offensive behavior. Because the evidence concerning B.B.'s sexual offenses referred only to the years in which the offenses took place, it was not possible for the trial court to determine with precision the length of time between the sexual assaults. The State argued that because the first offense took place in 2005 and the second took place in 2007, the trial court should give B.B. the high-risk score of nine on factor six applicable when the offensive behavior takes place over two years. Theoretically, the span between the two offenses could have been almost three years (January 1, 2005 to December 31, 2007).
B.B. argued that because the span between the 2005 and 2007 offenses could be as little as one year and one day (i.e., December 31, 2005 to January 1, 2007), the court should assign B.B. the moderate-risk score of three, applicable when the offensive behavior took place over one to two years.
The trial court agreed with the State's position, finding in an oral opinion that "I believe with the information that I have before me the State has shown that this took place over two years." As a result, the court assigned B.B. a score of nine on factor six. When added to the scores on the remaining factors not challenged in this appeal, the court assigned B.B. an RRAS total score of sixty-two, placing him in the Tier II moderate risk category (thirty-seven to seventy-three points). The trial court ordered notification of schools and community organizations in accordance with N.J.S.A. 2C:7-8(c)(2).
With respect to the Internet Registry, B.B. argued that because his sexual offenses occurred when he was a teenager, ceased fourteen years prior to the trial court hearing and prior to his offenses being revealed, and given that he is considered a low-risk offender with no community notification in Pennsylvania, inclusion of his personal identifiers on the Internet Registry was not necessary to protect the community. The trial court agreed:
A January 29, 2021 order memorializes the court's decision.
These appeals followed. The State raises the following argument.
THE LOWER COURT ABUSED ITS DISCRETION AND ENGAGED IN AN ARBITRARY ANALYSIS OF THE FACTS AND LAW IN DETERMINING THAT REGISTRANT'S IDENTIFIERS BE EXCLUDED FROM [THE] INTERNET REGISTRY.
In his cross-appeal, B.B. raises the following arguments.
Megan's Law is intended "to protect the community from the dangers of recidivism by sexual offenders." In re Registrant C.A., 146 N.J. 71, 80, 679 A.2d 1153 (1996) ; N.J.S.A. 2C:7-2(a). The statute requires certain sex offenders to register with law enforcement agencies, N.J.S.A. 2C:7-2 to -4. The registration requirement includes offenders from other states who relocate to New Jersey. N.J.S.A. 2C:7-2(c)(3). Law enforcement agencies are required "to release relevant and necessary information regarding sex offenders to the public when the release of the information is necessary for public protection ...." N.J.S.A. 2C:7-5(a) ; In re Registrant N.B., 222 N.J. 87, 95, 117 A.3d 1196 (2015).
The scope of community notification is primarily determined by a registrant's designation as a Tier I (low), Tier II (moderate), or Tier III (high) offender. N.J.S.A. 2C:7-8(a), (c)(1) to (3). Tier designations are indicative of a registrant's risk of re-offense, as determined by the trial court's consideration of the thirteen factors in the RRAS. In re Registrant J.G., 463 N.J. Super. 263, 273, 232 A.3d 411 (App. Div. 2020). If the risk of re-offense is low, only law enforcement agencies likely to encounter the registrant are notified. N.J.S.A. 2C:7-8(c)(1). If the risk of re-offense is moderate, schools and community organizations in the community are also notified. N.J.S.A. 2C:7-8(c)(2). If the risk of re-offense is high, notification is also given to members of the public who are likely to encounter the registrant. N.J.S.A. 2C:7-8(c)(3).
The burden is on the State to prove by clear and convincing evidence both a registrant's risk to the community and the scope of notification necessary to protect the community. In re Registrant R.F., 317 N.J. Super. 379, 383-84, 722 A.2d 538 (App. Div. 1998). The evidence "must be ‘so clear, direct and weighty and convincing as to enable ... a judge ... to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’ " In re Registrant J.G., 169 N.J. 304, 331, 777 A.2d 891 (2001) (quoting In re R.F., 317 N.J. Super. at 384, 722 A.2d 538 ).
We review a trial court's conclusions regarding a Megan's Law registrant's tier designation and scope of community notification for an abuse of discretion. See, e.g., In re Registrant A.I., 303 N.J. Super. 105, 114, 696 A.2d 77 (App. Div. 1997). "[A]n abuse of discretion arises when a decision is made without a rational explanation, inexplicably departed from established polices, or rested on an impermissible basis." State v. R.Y., 242 N.J. 48, 65, 230 A.3d 292 (2020) (internal quotation marks omitted) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571, 796 A.2d 182 (2002) ). The trial court's findings will be upheld so long as they are supported by sufficient evidence in the record and we find "no basis for disturbing those factual findings." In re J.G., 463 N.J. Super. at 277, 232 A.3d 411. "A trial court's...
To continue reading
Request your trial