In re Registrant J.B.
| Decision Date | 23 February 2023 |
| Docket Number | A-2140-20,A-2598-20 |
| Parties | IN THE MATTER OF REGISTRANT J.B. IN THE MATTER OF REGISTRANT D.T. |
| Court | New Jersey Superior Court — Appellate Division |
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 18, 2021
On appeal from the Superior Court of New Jersey, Law Division Essex County, Docket Nos. ML-14-07-0104 and ML-12-07-0085.
Michael C. Woyce, Assistant Deputy Public Defender, argued the cause for appellants J.B. and D.T. (Joseph E. Krakora Public Defender, attorney; Michael C. Woyce, on the briefs).
Matthew E. Hanley, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Theodore N.
Stephens II, Acting Essex County Prosecutor, attorney; Matthew E. Hanley, of counsel and on the briefs).
Before Judges Messano, Accurso and Rose.
ACCURSO, J.A.D.
These two Megan's Law tiering cases, which were argued back-to-back by the same lawyers, and which we now consolidate for purposes of the opinion, raise the same issue in different factual circumstances. Both J.B. and D.T. became subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, and its registration and notification requirements after each pleaded guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and was sentenced to State prison. Both were initially tiered as Tier II, moderate-risk offenders in 2015 on their release from prison, and the trial court ordered both excluded from the internet registry at the State's request based on its overreading of In re N.B., 222 N.J. 87 (2015). Specifically, the State focused on both registrants having committed a "sole sex offense" against a child to whom they stood in loco parentis within the household, ignoring that endangering the welfare of a child is not one of the two enumerated offenses in the household/incest exception in N.J.S.A. 2C:7-13(d)(2). N.B., 222 N.J. at 97 ().
The issue in these cases is whether that mistake of law permitted the trial court to order J.B. and D.T. included on the internet registry under Rule 4:50- 1(e) or (f) in 2021, six years after their initial classifications.[1] We hold relief under Rule 4:50-1(f), the "catch-all" category, was not available to the State in either case. But because changed circumstances in J.B.'s case rendered it no longer equitable that the prior order excluding him from the internet registry should have prospective application, including J.B. on the internet registry was permissible under Rule 4:50-1(e). Because there were no similarly changed circumstances in D.T.'s case, relief to the State under Rule 4:50-1(e) in his case was unwarranted.
Given the legal issue in the cases, we need only sketch the facts of each matter, which are not disputed. We begin with J.B.
J.B. was alleged to have sexually assaulted the daughter of his live-in girlfriend anywhere from fifty to one hundred times over a four-year period beginning when she was thirteen years old, reportedly threatening "that her mother would get in trouble for child endangerment and it would ruin her family and they would be disappointed in her" if she told anyone. He was charged with first-degree aggravated sexual assault of a minor and other sexual offenses and, as noted, entered a negotiated plea to child endangerment. He was sentenced to six years in State prison with three years of parole ineligibility, parole supervision for life and made subject to Megan's Law.
The Adult Diagnostic and Treatment Center report provided to the court at the time of sentencing noted the The evaluator found "evidence of repetition" based on the victim's disclosures but found it "[l]ess clear" whether J.B.'s conduct "could be described as compulsive" as opposed to "opportunistic and exploitative." In "the absence of a clear finding of compulsive sexual behavior," J.B. was determined to be ineligible for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-3. See In re D.F.S., 446 N.J.Super. 203, 213 (App. Div. 2016) ().
In 2015, following J.B.'s release from prison, the State moved to classify him as a Tier II registrant with inclusion on the internet registry, N.J.S.A. 2C:7-12 to -18, based on his Registrant Risk Assessment Scale (RRAS) score of 45. At the hearing, however, which took place a few weeks after the Court issued N.B., the assistant prosecutor advised the court that after reviewing the decision, his office determined J.B. fell within the household/incest exception and accordingly requested he be excluded from the internet registry. The court entered an order on August 13, 2015, designating J.B. as a Tier II, moderate- risk offender, but directing his personal identifiers not be included in the internet registry.
The State moved in December 2016 to amend the order to include J.B. in the internet registry but withdrew the motion in February 2017. At a hearing the following May on the State's motion for renotification based on the registrant having moved to a new apartment, the assistant prosecutor addressed the withdrawn motion. He represented there'd been a question "at the time" as to whether J.B. was appropriately excluded from the registry, adding, "[b]ut there is a prior court ruling, so we're not going to move to change that."
In February 2018, J.B.'s parole officer conducted an early morning visit at J.B.'s approved residence in Newark and found him not at home. A subsequent investigation revealed he'd been staying with his girlfriend in East Orange after having been denied permission to do so, and he was arrested on a parole warrant. Testimony at his parole revocation hearing established J.B., while maintaining stable employment, refraining from drug and alcohol use and staying up to date with his registration requirements since becoming subject to parole supervision for life, had "also exhibited an alarming disregard for other conditions," namely successful participation in sex offender treatment.
Indeed, except for his guilty plea to endangering the child of his exgirlfriend, J.B. had otherwise "persistently denied" having sexual contact with the girl. A "Living with Child Assessment" in June 2015, undertaken because J.B. wished to live with his new girlfriend and her two minor daughters, reflected he suffered a "compulsive and repetitive sexual arousal to underage girls." Parole accordingly denied him permission to have any unsupervised contact or to reside with his girlfriend's underaged daughters. A polygraph exam administered in June 2016 indicated J.B. was not candid in his answers, resulting in a recommendation that J.B. be required to address the facts leading to his conviction and resume sex offender counseling.
When J.B. again asked to be allowed to reside with his girlfriend in April 2017, this time in a second-floor apartment of a multi-family house in East Orange - where his girlfriend was then living in the first-floor apartment with her two daughters and her mother - Parole sent a referral to the Division of Child Protection and Permanency to review it, given J.B.'s prior conviction "and the close proximity to the children's residence." The Division opposed the address change and Parole subsequently denied it.
After J.B. was advised of the denial in May 2017, he nevertheless cosigned a lease for the apartment with his girlfriend for a term beginning July 1, 2017. J.B.'s girlfriend testified she and her sister lived in the second-floor apartment, her mother and children lived in the first-floor apartment, and J.B.'s brother and his family previously lived in the third-floor apartment. She claimed J.B. only "co-signed the lease because her credit was not good enough to get the apartment." Although acknowledging she knew J.B.'s request to live in the apartment with her was denied, she claimed he did not sleep over, and she only saw him about "five times a week," usually between the hours of 10:00 p.m. and 2:00 to 3:00 a.m., either in the apartment or in his car.
In May 2018, a Parole Board Panel found clear and convincing evidence J.B. had violated two conditions of his parole - residing at a residence approved by his assigned parole officer and obtaining the permission of his parole officer prior to any change of address or residence.[2] Although J.B.'s parole officer had recommended his parole be revoked, the Panel found revocation was not warranted as the violations were "not serious or persistent" and ordered J.B. to submit to electronic monitoring for 90 to 180 days.
In November 2020, more than two years after the Parole Board's action, the State filed the motion for renotification at issue in this appeal based on J.B.'s move to East Orange and sought to correct its initial tiering error by adding him to the internet registry.
Turning to D.T., he was charged with second-degree sexual assault and child endangerment, among other offenses, after his live-in girlfriend reported to police he had sexually assaulted her fourteen-year-old daughter on four occasions. He pleaded guilty to endangerment and was sentenced in 2010 to three years in prison. His judgment of conviction was amended in 2011 to add parole supervision for life.
D.T was released from prison in 2012. He was deemed not eligible for treatment at the New Jersey Adult Diagnostic and Treatment Center at sentencing, N.J.S.A. 2C:47-1 to -10, and to be at "low risk for committing another sex offense" based on his risk assessment scores on leaving prison. The State moved in...
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