In re Registrant RF

• Decision Date: 28 December 1998
• Citation: 722 A.2d 538,317 N.J. Super. 379
• Parties: In the Matter of REGISTRANT R.F.
• Court: New Jersey Superior Court

722 A.2d 538

317 N.J. Super. 379

In the Matter of REGISTRANT R.F.

Superior Court of New Jersey, Appellate Division.

Argued and Decided August 25, 1998.

Remanded November 17, 1998.

Briefs Submitted on Reconsideration December 7, 1998.

Decided December 28, 1998.

Before Judges ANTELL and BILDER.

Remanded by the Supreme Court November 17, 1998.

The opinion of the court was delivered by ANTELL, P.J.A.D. (retired and temporarily assigned on recall).

By order dated July 2, 1998, pursuant to the Registration and Community Notification Law, N.J.S.A. 2C:7-1, et seq. ("Megan's Law"), the Law Division designated registrant a Tier II sex offender and directed notification of his presence in the community to twenty-five schools, agencies and community organizations in nine different municipalities. Registrant appealed therefrom, and on August 25, 1998, we summarily affirmed the Law Division's order of July 2, 1998 designating registrant as a Tier II offender, finding that determination to be supported by clear and convincing evidence. We summarily reversed the Law Division's order to the extent that it directed notification of registrant's presence to the specified schools, agencies and community organizations. We found that determination to be "unsupported by clear and convincing evidence or by any finding that children being cared for therein are likely to encounter registrant."

The State's petition for certification was granted on November 17, 1998 and the Supreme Court summarily remanded the matter to us "for reconsideration of the issue of the scope of notification in the light of respondent's history and personal circumstances detailed in the record in this matter."

Registrant is a thirty-one year old male with a history of behavior disorders going back to an early age. He was involved in alcohol and drug abuse during his teenage years, has been educationally classified as neurologically impaired and has been found to have a "significantly lower than normal intelligence."

At the age of fourteen, registrant was taken by his mother to a nearby Center for Mental Health following the discovery that registrant had been fondling the genitals of his three-year old female cousin. No formal charges were filed against registrant, but the incident led to a period of psychotherapy which resulted in only limited progress because of registrant's lack of interest and full participation.

In January, 1991, when registrant was twenty-three years old, the event occurred which led to his present classification as a sex offender. Registrant was then living with his paramour, D.Z., and her ten-year old son S.Z. On the night of January 26, D.Z. went out for the evening and left the boy in registrant's care. While S.Z. was lying on a couch watching television, registrant entered the room and reclined on another couch. Shortly after, the registrant left the room to change into his bathrobe and returned. S.Z. then left the room and also returned wearing a pair of shorts and a bathrobe. It was then that registrant took control over the youngster, masturbated him and subjected him to acts of fellatio and sodomy. According to registrant's Risk Assessment Score, the attack was carried out by "threats and minor physical force."

The matter was called to the attention of the authorities and sexual assault charges were filed against registrant. His subsequent examination by Dr. Mark Frank, a principal clinical psychologist at the Adult Diagnostic and Treatment Center, disclosed that he is not a compulsive offender. Dr. Frank found that "there is no clear indication that [R.F.] experiences a strong pedophilic sexual arousal pattern or that he struggles with irresistible urges to engage in such behavior." Based on this, he concluded that registrant's criminal behavior was not driven by a sexual compulsion. On May 8, 1992, registrant was sentenced to a term of eight years in the custody of the Department of Corrections with a parole ineligibility period of three years. He was credited with 377 days of jail time already served and served his detention at two separate correctional facilities. In connection with his application for parole in 1995 he was examined by Bruce Friedman, LCSW, Director of the Center for Mental Health, on March 21, 1996. That examiner opined that "factors that would indicate the existence of a sexual disorder were marginal."

In preparation for this Megan's Law proceeding, registrant was examined on June 22, 1998 by Dr. Paul Fulford, a licensed psychologist. Dr. Fulford's report observes that there is "no history of previous behaviors outside the family that would suggest a deviant arousal pattern or overall risk to the community. His main risk appears to be that of alcohol abuse." Dr. Fulford agreed that registrant was at moderate risk of reoffending, but that since "his risk is related to and triggered by the use of alcohol, which he is abstaining from, the need for community notification does not appear to be indicated." It is here relevant to note that according to his Risk Assessment Score, registrant's substance abuse is in remission.

His overall score of sixty-five places him in the upper range of moderate risk to reoffend.

Arguing in favor of notification, the prosecutor omits few details in acquainting us with registrant's sordid existence. It is not a pretty picture. On that canvas we see his contempt for authority, drug and alcohol abuse, sexual promiscuity, frequent arrests for fighting, for drug possession and for other forms of disorderly behavior. At the age of sixteen, he was the father of two out-of-wedlock children. After separating from the mother of those children, he married and fathered another child. The marriage was short lived and he took up thereafter with another woman, resulting in a third out-of-wedlock child. He is said to be neglectful of his duty to support these children.

Registrant's squalid life style and failure to conform to societal norms naturally excite one's punitive instincts. But the judicial process has already administered appropriate punishment to the registrant in a separate proceeding, and the constitutional justification for Megan's Law rests on the belief that it is intended as non-punitive, remedial legislation. E.B. v. Verniero, 119 F.3d 1077, 1097 (3d Cir.1997); Doe v. Poritz, 142 N.J. 1, 73, 662 A.2d 367 (1995). We work within a well-defined context in which standards of proof and procedure have been painstakingly formulated.

In this proceeding, it is the prosecutor's burden to prove by clear and convincing evidence not only the degree of risk created by registrant's presence in the community, but also the scope of notification necessary to protect the members of the community likely to encounter him.

Clear and convincing evidence is evidence upon which the trier of fact can rest "a firm belief or conviction as to the truth of the allegations sought to be established." Matter of Purrazzella, 134 N.J. 228, 240, 633 A.2d 507 (1993). It must be "so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Matter of Seaman, 133 N.J. 67, 74, 627 A.2d 106 (1993). The reasons for so high a standard of proof in Megan's Law proceedings were carefully stated in E.B. v. Verniero, supra, at 119 F.3d at 1110:

We have previously identified the private and public interests at stake in a Megan's Law proceeding. For present purposes, it is important to add that the impact of an erroneous determination on those interests is significantly dissimilar. An erroneous underestimation of an individual's dangerousness will not necessarily result in harm to protected groups. Registration alone, which Megan's Law mandates regardless of an offender's classification, allows law enforcement officials to monitor offenders and provides considerable disincentive to offenders to commit criminal acts because of the high likelihood of being apprehended. On the other hand, an overestimation of an individual's dangerousness will lead to immediate and irreparable harm to the offender: his conviction becomes public, he is officially recorded as being a danger to the community, and the veil of relative anonymity behind which he might have existed disappears.

Having noted the pertinent considerations, the court then posed the following question and answer:

We must, therefore, ask whether the preponderance of evidence standard, which "allocates the risk of error nearly equally" between an erroneous overestimation or underestimation of a registrant's future dangerousness, "reflect[s] properly the [ ] relative severity" of these erroneous outcomes. Id. [Santosky v. Kramer, 455 U.S. 745] at 766, 102 S.Ct. [1388] at 1401 [71 L.Ed.2d 599 (1982)]. Addington [v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) ] supplies the answer. Because "the possible injury to the individual [registrant] is significantly greater than any possible harm to the state," the registrant, consistent with due process, cannot "be asked to share equally with society the risk of error." 441 U.S. at 427, 99 S.Ct. at 1809. It necessarily follows that the Due Process Clause requires that the state prove its case by clear and convincing evidence in a Megan's Law proceeding.

The holding in E.B. v. Verniero, supra,

is summarized in the Attorney General Guidelines for Law Enforcement for the Implementation of Sex Offender Registration and Community Notification Laws (June 1998) (hereinafter "Guidelines") as follows:

Also upholding the constitutionality of the statute, the Third Circuit held that due process requires a standard of proof of clear and convincing evidence, with the burden of persuasion on the State for the purpose of determining the risk level of the offender, the geographic area within which notice is to occur and those to whom the notice will be provided. The Supreme Court of New Jersey incorporated

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