In re C.J., A-1387-21

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: MARCZYK, J.S.C. (TEMPORARILY ASSIGNED)
• Parties: IN THE MATTER OF REGISTRANT C.J.
• Docket Number: A-1387-21
• Decision Date: 02 December 2022

IN THE MATTER OF REGISTRANT C.J.

No. A-1387-21

Superior Court of New Jersey, Appellate Division

December 2, 2022

Argued November 7, 2022

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. 20130055.

Cody T. Mason, Assistant Deputy Public Defender, argued the cause for appellant C.J. (Joseph E. Krakora, Public Defender, attorney; Cody T. Mason, of counsel and on the briefs).

Alecia Woodard, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Raymond S. Santiago, Acting Monmouth County Prosecutor, attorney; Alecia Woodard, of counsel and on the brief).

Before Judges Whipple, Mawla, and Marczyk.

MARCZYK, J.S.C. (TEMPORARILY ASSIGNED)

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Registrant C.J.^[1] appeals from the December 15, 2021 Law Division order classifying him as a Tier II sex offender under the registration and community notification provisions of "Megan's Law," N.J.S.A. 2C:7-1 to -23. C.J. contends the trial court improperly considered acquitted conduct at the hearing, and the court's decision was based on an inaccurate and incomplete review of the record.

This appeal raises the novel issue of whether it is appropriate for a trial court to consider acquitted conduct to determine a registrant's Megan's Law tier designation. We hold the trial court properly considered acquitted conduct because of the non-punitive, civil nature of a Megan's Law proceeding, the public safety purpose underpinning the statute, and the less demanding standard utilized to make a tier designation. Moreover, the Megan's Law tier designation process, which is remedial and not punitive, is distinguishable from imposing an enhanced criminal sentence based on acquitted conduct, which our Supreme Court recently held to be improper. State v. Melvin, 248 N.J. 321, 352 (2021). We remand, however, for the trial court to conduct a more comprehensive review of the record and to consider portions of the trial transcript and other documents identified by the registrant, which he contends

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rebuts the acquitted conduct relied upon by the court to increase his tier classification.

I.

Preliminarily, we observe 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 (1996) (quoting N.J.S.A. 2C:7-1(a)). In fact, "[t]he expressed purposes of the registration and notification procedures [under Megan's Law] are 'public safety' and 'preventing and promptly resolving incidents involving sexual abuse and missing persons.'" In re A.A., 461 N.J.Super. 385, 394 (App. Div. 2019) (quoting N.J.S.A. 2C:7-1). "The law is remedial and not intended to be punitive." Ibid. (citing Doe v. Poritz, 142 N.J. 1, 12-13 (1995)).^[2]

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In summarizing the relevant provisions of Megan's Law and the Registrant Risk Assessment Scale (RRAS) tier classification process, we note that depending on the type and time of offense, Megan's Law requires certain sex offenders to register with local law enforcement agencies and mandates community notification. In re T.T., 188 N.J. 321, 327-28 (2006) (citing N.J.S.A. 2C:7-2). The extent of community notification chiefly results from 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).^[3] Tier designations reflect a registrant's risk of re-offense, as determined by a judge assessing various information, including thirteen factors referenced in the RRAS. A.A., 461 N.J.Super. at 402.

N.J.S.A. 2C:7-8(a) authorized the Attorney General to create guidelines and procedures to evaluate a registrant's risk of re-offense. See Attorney General Guidelines for Law Enforcement for the Implementation of Sex Offender Registration and Community Notification Laws (Guidelines) (rev'd

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Feb. 2007). The Guidelines, which contain the RRAS, have been upheld by our Supreme Court. C.A., 146 N.J. at 110.

Given the need for uniformity, the RRAS was developed for the State's use "to establish its prima facie case concerning a registrant's tier classification and manner of notification." T.T., 188 N.J. at 328 (quoting C.A., 146 N.J. at 110). "[T]he [RRAS] is presumptively accurate and is to be afforded substantial weight-indeed it will even have binding effect-unless and until a registrant 'presents subjective criteria that would support a court not relying on the tier classification recommended by the Scale.'" In re G.B., 147 N.J. 62, 81 (1996) (quoting C.A., 146 N.J. at 109).

The RRAS contains four discrete categories: Seriousness of the offense; offense history; personal characteristics; and community support. See State v. C.W., 449 N.J.Super. 231, 260 (App. Div. 2017) (citing In re Registrant V.L., 441 N.J.Super. 425, 429 (App. Div. 2015)). "The first two categories, '[s]eriousness of [o]ffense' and '[o]ffense [h]istory,' are considered static categories because they relate to the registrant's prior criminal conduct." C.A., 146 N.J. at 103. The next two categories, "[c]haracteristics of '[o]ffender' and '[c]ommunity [s]upport' are considered to be dynamic categories, because they are evidenced by current conditions." Ibid. The "static factors," relating to

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past criminal conduct, are more heavily weighted under the RRAS than the dynamic factors. In re Registrant J.M., 167 N.J. 490, 500 (2001).

Within those categories is a non-exhaustive list of thirteen risk assessment criteria related to re-offense. C.A., 146 N.J. at 82. The "seriousness of offense" category takes into account: (1) degree of force; (2) degree of contact;^[4] and (3) age of the victim(s). Id. at 103. The "offense history" category covers: (4) victim selection; (5) number of offenses/victims; (6) duration of offensive behavior; (7) length of time since last offense; and (8) any history of anti-social acts. Ibid. The "personal characteristics" category accounts for the registrant's: (9) response to treatment and (10) substance abuse. Id. at 103-04. The final category, "community support" considers a registrant's: (11) therapeutic support; (12) residential support; and (13) employment/educational stability. Id. at 104.

"Each factor is assigned a risk level of low (0), moderate (1), or high (3), and '[t]he total for all levels within a category provides a score that is then weighted based on the particular category.'" A.A., 461 N.J.Super. at 402 (alteration in original) (quoting C.A., 146 N.J. at 104). "An RRAS score

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[totaling] 0 to 36 is low risk; 37 to 73 moderate risk; and 74 or more, high risk." T.T., 188 N.J. at 329 (citing Guidelines, Exhibit E at 4; Exhibit F).

Understanding the State is responsible for initiating the tier classification process, the Supreme Court has

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." 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.

[C.A., 146 N.J. at 83 (internal citations omitted).]

The State ultimately bears the burden of proving-by clear and convincing evidence-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 (App. Div. 1998). "The responsibility for . . . determining the proper scope of notification is left to the trial court after a hearing on the matter." G.B., 147 N.J. at 69. Further, the court's determination is "independent and based on its own review of the case on the merits." C.A., 146 N.J. at 83-84.

To dispute a proposed tier designation, a registrant can "introduce evidence at the hearing that the [RRAS] calculations do not properly encapsulate his [or her] specific case." G.B., 147 N.J. at 85. Or, the registrant

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may "produce[] proof, whether in the form of reliable hearsay, affidavit, or an offer of live testimony, that is sufficient to raise a 'genuine issue of material fact,' that the tier classification and the manner of notification are inappropriate . . . ." C.A., 146 N.J. at 97.

In addressing a registrant's classification, the judge is free to consider reliable evidence besides the RRAS score, even if such evidence would not be admissible under our Rules of Evidence, because the "hearing process . . . is not governed by the [R]ules of [E]vidence." Id. at 83 (internal citations omitted). Thus, a reviewing judge "may take into account any [credible] information available." Id. at 87. "This may include, but is not limited to, criminal complaints not the subject of a conviction but which are supported by credible evidence, victim statements[,] admissions by the registrant, police reports, medical, psychological or psychiatric reports, pre-sentencing reports, and Department of Corrections discharge summaries." In re C.A., 285 N.J.Super. 343, 348 (App. Div. 1995) (internal quotation omitted).

The "[j]udicial determinations regarding tier classification and community notification are within the judge's discretion and based on all of the available evidence, not simply the 'numerical calculation provided by [RRAS].'" A.A., 461 N.J.Super. at 402 (second alteration in original) (quoting G.B., 147 N.J. at 78-79). In short, "the ultimate determination of a

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registrant's risk of re[-]offense and the scope of notification is reserved to the sound discretion of the trial court." G.B., 147 N.J. at 79 (citations omitted). With these concepts in mind, we address the underlying facts of this matter.

II.

In July 2008, C.J., who was thirty-nine years old, lived in the same apartment building as K.R., who was thirteen years old. K.R. testified on July 10, 2008, registrant invited her to his apartment to play with his daughter....