In re N.B.

• Decision Date: 07 July 2015
• Parties: In the Matter of Registrant N.B. Application for Judicial Review of Notification and Tier Classification.
• Court: New Jersey Supreme Court

222 N.J. 87

117 A.3d 1196

In the Matter of Registrant N.B. Application for Judicial Review of Notification and Tier Classification.

Supreme Court of New Jersey.

Argued Feb. 3, 2015.

Decided July 7, 2015.

James H. Maynard, Morristown, argued the cause for appellant N.B. (Maynard & Sumner, attorneys).

Colleen F. Hannon, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Anneris V. Hernandez, Assistant Prosecutor, on the brief).

Opinion

PER CURIAM.

The statutory scheme known as “Megan's Law,” N.J.S.A. 2C:7–1 to –19, requires that prescribed categories of sex offenders register with law enforcement agencies through a central registry maintained by the Superintendent of State Police. N.J.S.A. 2C:7–2(a)(1), 4(d). The public is given access to the registration record of an individual who has been convicted of certain enumerated sex offenses if the individual's risk of re-offense is either “high,” or “moderate or low” and the conduct was repetitive and compulsive. N.J.S.A. 2C:7–13(b). However, an offender's individual registration record is ordinarily excluded from the internet registry if the offender has been adjudged to have a moderate risk of re-offense and his or her “sole sex offense,” which subjects him or her to Megan's Law, is within one of three exceptions set forth in the statute. N.J.S.A. 2C:7–13(d).

One of the exceptions is the “household/incest” exception defined in N.J.S.A. 2C:7–13(d)(2). That provision exempts from public access the registration record of an individual convicted of a “sole sex offense” that is committed “under circumstances in which the offender was related to the victim by blood or affinity to the third degree or was a resource family parent, a guardian, or stood in loco parentis within the household [.]” N.J.S.A. 2C:7–13(d)(2).

This appeal requires that we determine whether an individual convicted of a sex offense enumerated in N.J.S.A. 2C:7–2(b), based on multiple acts of unlawful sexual contact with a minor to whom he is related, has committed a “sole sex offense” within the scope of the household/incest exception set forth in N.J.S.A. 2C:7–13(d)(2), and is therefore within that exception to the internet registry. Registrant N.B. pled guilty to one count of sexual assault by sexual contact with a child under the age of thirteen, admitting to several acts of sexual contact with his half-sister. The trial court determined that N.B. did not qualify for the household/incest exception set forth in N.J.S.A. 2C:7–13(d)(2) and ordered that he be included in the Megan's Law internet registry. An appellate panel affirmed the trial court's determination that N.B. was not entitled to invoke the household/incest exception.

We reverse the panel's judgment. Although we conclude that the text of N.J.S.A. 2C:7–13(d)(2) is ambiguous and no clear indication of legislative intent can be derived from that provision's plain language, a 2004 amendment to N.J.S.A. 2C:7–13(d) that defined the term “sole sex offense” provides evidence of legislative intent and clarifies the ambiguity. L. 2004, c. 151 (codified at N.J.S.A. 2C:7–13(d) ). Construed in a manner that gives meaning to all of the words chosen by the Legislature, that provision indicates that N.J.S.A. 2C:7–13(d)(2) applies to the conviction here: a single conviction for a violation of N.J.S.A. 2C:14–2(b), “under circumstances in which the offender [is] related to the victim by blood or affinity to the third degree,” notwithstanding the offender's admission to multiple acts of sexual contact against the victim. Therefore, N.B. is within the household/incest exception of N.J.S.A. 2C:7–13(d)(2).

Pursuant to N.J.S.A. 2C:7–13(e), we remand to the trial court for a determination as to whether N.B.'s registration record should be made available to the public, notwithstanding the applicability of the household/incest exception of N.J.S.A. 2C:7–13(d)(2).

I.

On June 8, 2011, N.B., then nineteen years of age, was indicted for one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14–2(a)(1) ; two counts of second-degree sexual assault, N.J.S.A. 2C:14–2(b) ; and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24–4(a). The charges arose from allegations that N.B. sexually assaulted his half-sister, a minor, when they were living in the same household.

N.B. entered into a plea agreement with the State. He agreed to plead guilty to one count of second-degree sexual assault. The State agreed to move to dismiss the remaining counts of the indictment and to recommend a sentence consisting of a three-year suspended sentence, mandatory registration with local police pursuant to N.J.S.A. 2C:7–2(a), notification to the community according to his tier ranking, N.J.S.A. 2C:7–6, and Parole Supervision for Life (PSL), N.J.S.A. 2C:43–6.4. The State and N.B. agreed that his plea would dispose of all charges in the indictment, as well as any potential charges that arose from N.B.'s contact with his half-sister before he reached the age of eighteen.

During N.B.'s plea hearing, his counsel advised the trial court that N.B. was not contesting allegations concerning incidents that occurred when he was a juvenile, in order that he would not later face charges arising from those allegations. N.B. admitted on the record that he had sexual contact with the victim on certain dates between April 14, 2010, and February 5, 2011, when he was a juvenile. N.B. did not admit to any offense involving a victim other than his half-sister. The court accepted N.B.'s plea and subsequently imposed a three-year suspended sentence, subject to the provisions of Megan's Law and PSL.

In accordance with the requirements of Megan's Law, N.J.S.A. 2C:7–8, and the Attorney General Guidelines for Law Enforcement for the Implementation of Sex Offender Registration and

Community Notification Laws

29–30 (rev'd Feb. 2007) (Attorney General Guidelines), the trial court held a hearing to determine whether N.B. would be assigned to Tier 1 (low risk of re-offense), Tier 2 (moderate risk of re-offense) or Tier 3 (high risk of re-offense). The trial court agreed with the State's assessment of N.B. under a series of criteria rankings set forth in the Registrant Risk Assessment Scale (RRAS) and that N.B. should be designated a Tier 2 offender, presenting a moderate risk of re-offense.

The trial court also heard arguments as to whether N.B. met the requirements for the household/incest exception to internet registration under N.J.S.A. 2C:7–13(d)(2). The State argued that N.B. did not satisfy that exception because he had admitted to multiple offenses over several years. It also opposed application of the exception to N.B. because, in one reported incident, N.B. allegedly made a sexual comment to a child who was a friend of his half-sister. N.B. argued that he committed a “sole sex offense,” within the meaning of N.J.S.A. 2C:7–13(d), because a single conviction for multiple incidents constituted one “offense.” The trial court ruled in favor of the State and held that N.B. did not meet the criteria for the household/incest exception under N.J.S.A. 2C:7–13(d)(2). In the wake of that holding, the trial court did not make a finding as to whether N.B.'s registration record should be made available to the public under N.J.S.A. 2C:7–13(e).

The trial court ordered that specific schools and community organizations located within one-half mile of N.B.'s residence be notified, pursuant to N.J.S.A. 2C:7–8(c) and the Attorney General Guidelines, and that N.B. be listed on the Megan's Law internet registry, as mandated by N.J.S.A. 2C:7–13(b). With the consent of the State, the trial court stayed the Megan's Law notification and internet registration provisions of its order, pending appeal.

N.B. appealed, arguing that interviews of his half-sister and her friend were improperly conducted and that the trial court had therefore incorrectly assessed one of the RRAS criteria. The trial court, on remand, reviewed videotapes of the interviews and a statement by the victim's mother, and reaffirmed its decision assigning N.B. a Tier 2 designation.

N.B. then challenged several of the trial court's RRAS findings. The Appellate Division affirmed, finding clear and convincing evidence to support the trial court's determinations with respect to the challenged RRAS criteria. It also concurred with the trial court's construction of N.J.S.A. 2C:7–13(d)(2), holding that the trial court did not abuse its discretion when it concluded that N.B.'s multiple offenses against a single victim at different points in time precluded the application of the household/incest exception.

We granted certification. 217 N.J. 623, 92 A. 3d 673 (2014).

II.

N.B. urges the Court to construe N.J.S.A. 2C:7–13(d) to create two alternative definitions of “sole sex offense”: first, an offense involving “no more than one occurrence” and “no more than one victim,” and second, an offense involving “members of no more than a single household.” He argues that even if an offender has committed more than one offense, and therefore does not meet the requirements of the first alternative, he or she can still qualify for the household/incest exception if his or her offenses involved one or more members of a single household. N.B. also advances a public policy argument, arguing that the Attorney General Guidelines reflect persuasive evidence that sex offenders who are related to their victims have a low rate of recidivism.

The State counters that N.B.'s plea allocution involved admissions that preclude application of the N.J.S.A. 2C:7–13(d)(2) exception because he conceded that he committed multiple sex offenses. In the State's view, no matter which of N.J.S.A. 2C:7–13(d)'s three exceptions is at issue, an individual does not qualify for an exception to the internet registry if he or she has committed more than one sex offense within the meaning of the statute. The State contends that the ...