In re J.G.
| Citation | 232 A.3d 411,463 N.J.Super. 263 |
| Decision Date | 13 April 2020 |
| Docket Number | DOCKET NOS. A-4807-17T1,A-5512-18T1 |
| Parties | In the MATTER OF Registrant J.G. In the Matter of Registrant C.C. |
| Court | New Jersey Superior Court – Appellate Division |
Glenn D. Kassman, Designated Counsel, argued the cause for appellant J.G. (Joseph E. Krakora, Public Defender, attorney; Glenn D. Kassman, of counsel and on the brief).
Ellyn Rebecca Rajfer, Assistant Prosecutor, argued the cause for respondent State of New Jersey in A-4807-17 (Christopher Gramiccioni, Monmouth County Prosector, attorney; Ellyn Rebecca Rajfer, of counsel and on the brief).
Jesse M. De Brosse, Assistant Deputy Public Defender, argued the cause for amicus curiae New Jersey Office of the Public Defender in A-4807-17 (Joseph E. Krakora, Public Defender, attorney; Jesse M. DeBrosse on the brief).
Jesse M. De Brosse, Assistant Deputy Public Defender, argued the cause for appellant C.C. (Joseph E. Krakora, Public Defender, attorney; Jesse M. De Brosse, of counsel and on the brief).
Matthew Thomas Spence, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey in A-5512-18 (Jill S. Mayer, Acting Camden County Prosecutor, attorney; Matthew Thomas Spence, of counsel on the brief).
Before Judges Accurso, Gilson and Rose.
The opinion of the court was delivered by
GILSON, J.A.D.
These two appeals raise challenges to the use of the Registrant Risk Assessment Scale (RRAS) to determine the risk of re-offense by persons who have been convicted of possessing or distributing child pornography. Defendants both pled guilty to second-degree endangering the welfare of a child by distributing child pornography in violation of N.J.S.A. 2C:24-4(b)(5)(a)(iii). Following the completion of their custodial sentences, they were both found to pose a moderate risk of re-offense and were designated as Tier Two registrants under the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -23, commonly known as Megan's Law.
Defendants appeal from the orders imposing that level of classification, contending that, as applied to them, the use of the RRAS was improper. They also argue that the use of the RRAS in tiering sex offenders who have been convicted of one offense related to possessing or distributing child pornography gives a skewed tiering result. Thus, defendants argue that the RRAS should be modified, replaced, or not used in tiering one-time child pornography offenders.
We conclude that neither defendant created the record to support his arguments. Accordingly, we affirm and issue this consolidated opinion to address the common arguments presented by defendants.
To put defendants' challenges in context, we summarize the facts giving rise to their convictions. We also summarize the procedural history concerning their Megan's Law classifications.
Defendant J.G.
In 2015, law enforcement personnel obtained and executed a warrant to search for an electronic device used to share a video of child pornography. J.G.'s computer was seized. He later admitted that he had downloaded child pornography images and videos to his computer and had shared at least one video depicting child pornography on an internet video chat site.
A forensic examination of J.G.'s computer revealed that it contained at least six images and twenty-three videos of child pornography. J.G.'s computer also contained another seventeen videos with names suggesting they depicted child pornography. Some of the child pornography had been stored on J.G.'s computer for approximately three years.
J.G. was charged with two counts of possessing child pornography and one count of distributing child pornography. In January 2016, he pled guilty to second-degree endangering the welfare of a child by distributing child pornography. In accordance with his plea agreement, J.G. was sentenced in the third-degree range to three years in prison. He was also sentenced to the registration and reporting requirements under Megan's Law.
After J.G. was released from prison, the State determined that he posed a moderate risk of re-offense based on a score of forty-six points on the RRAS. Thus, the State notified J.G. that he would be classified as a Tier Two offender, which required community and internet notification. J.G. objected, and the trial court conducted a hearing.
At J.G.'s classification hearing, the State submitted the RRAS and supporting information. J.G. disputed certain of the scores, and in particular, the scores on factors three (age of victim), four (victim selection), and five (number of offenses or victims). To support his position, J.G. called Dr. Philip Witt, a psychologist, as an expert witness.
Dr. Witt was qualified as an expert in the evaluation, treatment, and risk assessment of sex offenders. He explained that he met with and evaluated J.G. using the Child Pornography Offender Risk Tool (CPORT) and the Sexual Violence Risk-20 (SVR-20). He opined that J.G. posed a low risk of re-offending because he had only one conviction of distributing child pornography and did not have a history of anti-social behavior or convictions involving physical contact with victims.
To put his opinions in context, Dr. Witt explained that he had served on the Attorney General's task force that developed the RRAS. Dr. Witt testified that when the RRAS was developed in 1995, child pornography had not been considered. Focusing on factors three, four, and five of the RRAS, Dr. Witt opined that those factors were inaccurate in assessing the risk of one-time child pornography offenders. Thus, he offered three options: (1) not use the RRAS for such offenders and use a different instrument; (2) use the RRAS, but not score factors three, four, and five; or (3) use the RRAS, but create an exception allowing courts to classify one-time child pornography offenders as Tier One offenders.
On cross examination, Dr. Witt acknowledged the CPORT had not been validated as an instrument for assessing the risk of re-offense and that the study underlying CPORT had limits. In that regard, Dr. Witt acknowledged that none of the eighty men involved in the CPORT study had prior child pornography convictions and, therefore, the study was biased towards lower-risk offenders.
After hearing the testimony of Dr. Witt, and considering the submissions and arguments of counsel, the trial court found the State had presented clear and convincing evidence that J.G. posed a moderate risk of re-offense. The court read its findings of fact and conclusions of law into the record on June 20, 2018.
The court first considered J.G.'s specific objections to the scoring of factors three, four, five, and six of the RRAS. The court rejected Dr. Witt's opinion that J.G. posed a low risk of re-offending because the court found that Dr. Witt had not thoroughly checked J.G.'s self-reporting and the state had shown that J.G. misreported and minimized his behavior. Accordingly, the court accepted the State's score of forty-six on the RRAS and ruled that it was appropriate to put J.G. in Tier Two, warranting community notification.
The court also considered, but rejected, Dr. Witt's opinion that factors three, four, and five of the RRAS should not be used in scoring one-time child pornography offenders. The court also found that CPORT was not an appropriate alternative tool since it had not been validated as an actuarial instrument. In addition, the court rejected Dr. Witt's argument that because child pornography was not considered in developing the RRAS, that scale was not appropriate for child pornography offenders.
Defendant C.C.
C.C. was identified as someone downloading and distributing child pornography through a peer-to-peer network. Such networks allow users to download content from other users' collections. In 2016, a number of electronic devices were seized from C.C.'s home in accordance with a warrant. An examination of those devices revealed that they contained approximately 40,000 images and videos of child pornography. The children depicted in those images and videos ranged in age from nine to fifteen years old. Some of those images had been downloaded in 2000, more than fifteen years earlier.
C.C. admitted he used peer-to-peer programs and had used his laptop computer to download pornography. He was charged with four counts of endangering the welfare of children by possessing and distributing child pornography. In 2017, C.C. pled guilty to one count of second-degree endangering the welfare of a child by distributing child pornography. He was sentenced to five years in prison, parole supervision for life, and registration and reporting requirements under Megan's Law.
Following his parole in May 2018, the State determined that C.C. posed a moderate risk of re-offense based on a score of fifty-nine points on the RRAS. Accordingly, the State notified C.C. that he would be classified as a Tier Two offender, which required community and internet notification.
C.C. objected, and the trial court conducted a classification hearing on April 4, 2019. At the hearing, the State presented the RRAS and supporting information. The State and C.C. agreed to lower the scoring on factors seven (length of time since last offense) and thirteen (employment stability). They disputed the scoring of factors three, four, and five. The State sought high risk scores on each of those factors. In contrast, C.C. argued for low risk scores, that is, a zero on each of those factors. To support his position, C.C. called Dr. Witt as an expert.
Dr. Witt testified that he met with C.C. and conducted evaluations using CPORT and SVR-20. Dr. Witt explained that he had served on the Attorney General's task force that developed the RRAS and a 2005 task force that developed the Juvenile Risk Assessment Scale (JRAS), the juvenile counterpart to the RRAS. Dr. Witt again testified that when the RRAS was developed, child pornography had not been considered. He contended the JRAS considered child...
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