In re J.S.
| Docket Number | A-0992-22 |
| Decision Date | 30 October 2023 |
| Parties | IN THE MATTER OF REGISTRANT J.S. |
| Court | New Jersey Superior Court – Appellate Division |
1
IN THE MATTER OF REGISTRANT J.S.
No. A-0992-22
Superior Court of New Jersey, Appellate Division
October 30, 2023
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued October 11, 2023
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. ML-21-03-0041.
Samuel C. Carrigan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Michael Denny, Assistant Deputy Public Defender, of counsel and on the brief).
Tara Carlin, Assistant Prosecutor, argued the cause for respondent (Lachia L. Bradshaw, Burlington County Prosecutor, attorney; Tara Carlin, of counsel and on the brief).
Before Judges Whipple, Mayer and Enright.
PER CURIAM.
Registrant J.S.[1] appeals from an October 31, 2022 order classifying him as a Tier Two sex offender, with Tier Three notification requirements pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23. We affirm, substantially for the reasons expressed by Judge Richard J. Nocella in his thoughtful oral opinion.
I.
We glean the following facts from the motion record. In June 2015, J.S. pled guilty to an amended count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was sentenced to counseling and a one-year term of juvenile probation. A few months later, he pled guilty to one count of disorderly persons theft, N.J.S.A. 2C:20-3(a), which resulted in a violation of his probation.
J.S. incurred additional charges, and in March 2016, pled guilty to the probation violation, as well as second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and second-degree luring/enticing a child, N.J.S.A. 2C:13-6(a). He was sentenced to a two-year term for the probation violation, two consecutive three-year terms for his remaining charges, and Megan's Law registration requirements. The judge ordered J.S. to serve his aggregate eight-year sentence
at the New Jersey Training School for Boys (Training School) in Jamesburg.
In June 2021, when J.S. was twenty-years old, the Training School conducted his pre-release evaluation. The evaluation reflected that J.S. "incurred a total of [sixty] institutional infractions" while detained, including infractions for lewd conduct, indecent exposure, and sexual assault. His last sexual infraction was in January 2020. The evaluator concluded it was "very concerning that nine of [J.S.'s] infractions [were] sexual in nature," and that it was "imperative . . . [J.S.] be subjected to mandatory supervision upon his release[,] given his physically and sexually aggressive behavior in the community and in this correctional setting."
Upon his release from the Training School, J.S. complied with his Megan's Law registration requirements. In February 2022, the State notified him that it would formally move to classify him as a Megan's Law Tier Three registrant, based on its determination that he scored an eighty-three on the Registration Risk Assessment Scale (RRAS).[2] J.S. objected to the proposed classification,
and a hearing was scheduled before Judge Nocella to address the dispute.
During argument before Judge Nocella on October 7, 2022, J.S.'s attorney argued the State incorrectly scored J.S. on two of the thirteen risk factors[3] under the RRAS, specifically, factor two-degree of contact used during the offense, and factor eleven-therapeutic support, and that J.S. should be classified as a Tier Two offender. Regarding factor two, J.S.'s counsel claimed there was no evidence that J.S.'s sexual offenses involved penetration, so his high-risk score of fifteen on this factor should be reduced to five. Additionally, counsel contended J.S.'s score under factor eleven should be reduced from three to zero because he was in therapy. J.S.'s attorney also represented that J.S. was "working on getting a psychosexual therapist[,] besides the therapist he currently ha[d,]" due to a recommendation that J.S. should attend psychosexual therapy sessions in person.
The State conceded J.S. was entitled to an adjustment on his score for
factor eleven, and that his overall RRAS score should be reduced by three points. However, the State disputed J.S. was entitled to any further reduction on factor two, considering his degree of contact during his offenses. The assistant prosecutor explained that in 2014, before J.S. pled guilty to an amended endangering charge, law enforcement officers took statements from two of his minor victims, and as a result, "[t]here was probable cause found for the charge of endangering that . . . include[d] the fact[] of fellatio being performed" on J.S.
On October 31, 2022, Judge Nocella issued an oral opinion, finding J.S. should be "designated a Tier [Two] offender with Tier [Three] notification" requirements, based on his "moderate risk . . . score of [seventy] points." Judge Nocella initially concluded that J.S.'s RRAS score should be adjusted from a high to a moderate-risk range because the State failed to establish by "clear and convincing evidence," under factor two, that any of J.S.'s sexual offenses involved penetration. Accordingly, the judge reduced J.S.'s factor two score by ten points, from fifteen to five. Judge Nocella also lowered J.S.'s factor eleven score from three to zero, due to the State's prior concession that J.S. was receiving therapeutic support. These adjustments reduced J.S.'s overall RRAS score to seventy points, placing him in the Tier Two range.
Having recalculated J.S.'s RRAS score, Judge Nocella explained he still
needed to "make a value judgment in determining the proper tier classification and scope of community notification based on all of the evidence available." Such evidence included the fact that J.S. reoffended "many times" before he pled guilty and was sentenced to serve an eight-year term at the Training School. The judge also pointed to the fact that while detained, J.S. incurred sixty infractions, "which included . . . lewd conduct, indecent exposure, and sexual assault."
Next, the judge observed that Dr. Zachary Yeoman evaluated J.S. on June 30, 2022, and recommended J.S. be classified as a Tier Two offender. The judge also noted Dr. Yeoman opined that J.S. could manage his risk of re-offense "effectively" if he followed the six conditions outlined in the doctor's treatment plan. The judge referenced each of the conditions, including that J.S.: be monitored by a psychosexual therapist; engage in "family psychotherapy "; have his medication monitored by a psychiatrist if he "continued[d] to take psychotropic medication"; and "maintain consistent employment."
Judge Nocella found that as of the October 7 hearing, J.S. admittedly was not fully compliant with Dr. Yeoman's treatment plan, and, in fact, met only one of the six conditions-employment-and was "working on getting a psychosexual therapist." Therefore, the judge concluded:
a [T]ier [T]wo supervision . . . would not be appropriate unless these six items were happening and they're not.
The only one that is happening is [J.S. is] working. So[,] the court does believe . . . a deviation from the [RRAS] is appropriate[,] . . . and the court does make that finding by clear and convincing evidence.
After reiterating J.S. accrued sixty infractions while detained at the Training School, "which included the . . . sexual . . . offenses [of] . . . lewd conduct, indecent exposure, and sexual assault[,]" and again citing J.S.'s failure to abide by Dr. Yeoman's treatment plan, Judge Nocella determined "by clear and convincing evidence an upward . . . modification" was "appropriate" and J.S. should be "place[d] . . . on a Tier Three notification" level. J.S.'s counsel then interjected that following the October 7 hearing, J.S. found a psychosexual therapist and commenced seeing that therapist in person. The judge stated this was a "step in the right direction" and he was "happy to hear" about this development, but "it [did not] change the [c]ourt's decision. "Judge Nocella entered a conforming order that...
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