In re T.T.

• Citation: 188 N.J. 321,907 A.2d 416
• Parties: In the Matter of Registrant T.T.: Application for Judicial Review of Notification and Tier.
• Decision Date: 03 October 2006
• Court: United States State Supreme Court (New Jersey)

Page 416

907 A.2d 416

188 N.J. 321

In the Matter of Registrant T.T.: Application for Judicial Review of Notification and Tier.

Supreme Court of New Jersey.

Argued April 4, 2006.

Reargued September 11, 2006.

Decided October 3, 2006.

Howard A. McGinn, Assistant Prosecutor, argued the cause for appellant State of New Jersey (Thomas S. Ferguson, Warren County Prosecutor, attorney).

Carol J. Sands, Assistant Deputy Public Defender, argued the cause for respondent T.T. (Yvonne Smith Segars, Public Defender, attorney; Ms. Sands and Michael Z. Buncher, Deputy Public Defender, of counsel and on the briefs).

Jessica S. Oppenheim, Assistant Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Zulima V. Farber, Attorney General, attorney; Ms. Oppenheim and Annmarie Taggart, Deputy Attorney General, of counsel and on the brief).

PER CURIAM.

On January 15, 2000, T.T., then twelve years old, was at the Phillipsburg home of L.B., his father's girlfriend. At that time, T.T. was living with his mother but frequently visited his father on the weekends. He had slept over at L.B.'s house the night before. Shortly before 8:00 a.m., R.B., L.B.'s six-year-old son,¹ brought two boxes of douches to his mother. He told her that T.T. had stuck one in his "heiney," pushed it hard, and continued to do it even though R.B. said that it hurt.

According to R.B., T.T. woke him up in the early morning while it was still dark outside, told him to turn around, and "then he threw me on the couch and took off my pants and put it up in my butt." T.T. told R.B. not to tell and that if R.B. did tell, T.T. would punch R.B. and do it again.

T.T. admitted that he put something into R.B.'s anus, but said he did not know what the thing was. T.T. explained that he took the item, an already-open douche, out of a box that had been on the dresser; that R.B. had taken off his own clothes and was kneeling on the couch while T.T. was standing beside him on the floor; that T.T. said nothing as he put the douche in R.B.'s anus, squeezing liquid from it; and that R.B. said nothing, did not complain, and made no noise. According to T.T., he put about two to three inches of the douche into R.B. and kept it there for two seconds. Seconds later, while R.B. was still on the couch, T.T. put the same douche in his own anus, squeezed it, put it back in its box, and replaced it on the dresser.

According to both T.T. and R.B., neither child touched any part of the other's body and nothing similar had ever occurred before. When asked twice why he did it, T.T. responded, "I don't know." T.T. was charged in a juvenile delinquency complaint with "aggravated sexual assault by committing an act of sexual penetration upon R.B. when R.B. was less than thirteen years old, by sticking a foreign object in R.B.['s] anus."

In a February 15, 2000 psychosexual evaluation by Dr. W. Michael Shea, T.T. was unable to state a motive for what he did to R.B., but indicated that it was "stupid" and that he should not have done it. Dr. Shea concluded that:

[T.T.] presents as a young adolescent who requires intensive services and supervision. It is likely that without significant intervention, risk for ongoing behavioral problems and antisocial acts are likely. Consequently, it is strongly recommended that those involved with [T.T.] and his family consider treatment programs that will address his needs. Specifically, [T.T.] requires intensive individual and group counseling, including sex offender specific interventions. It is unlikely that he could be maintained at home at this time.

On March 27, 2000, at a proceeding before a Warren County Superior Court judge, T.T. pled guilty to aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). On July 24, 2000, the trial judge adjudicated T.T. delinquent and sentenced him to time served, placed him on probation for three years, and required him to register under Megan's Law. On August 7, 2000, T.T., then thirteen years old, registered as a sex offender.

In November 2000, while T.T. was attending the Hunterdon Learning Center, the Hunterdon County Prosecutor gave notice of T.T.'s moderate risk, Tier Two classification, based on a Registrant Risk Assessment Score² (RRAS) of 57. T.T. sought review, but moved back to Warren County before the pre-conference hearing. The case was then transferred back to Warren County.

On September 12, 2001, T.T. entered the Bonnie Brae School, a residential treatment center in Somerset County, where he received various services including sex offender treatment. In December 2003, while T.T. was a resident at the Bonnie Brae School, the Somerset County Prosecutor issued a Notice of Proposed Tier Two Classification, based on an RRAS of 47, and Tier One community notification, based on the intra-familial nature of the offense. T.T. was discharged from Bonnie Brae on January 5, 2004 after successfully completing the program. T.T.'s file was then transferred back to Warren County.

On May 4, 2004, T.T. was interviewed by the Warren County Prosecutor's Office. At that time, he stated that at first, he did not feel guilty about the incident with R.B. but later felt a "little" guilt. He apologized to R.B. after his release from Bonnie Brae and stated that the two "get along pretty good." He was not in therapy at that time, and said that his mother was his external support system.

On October 4, 2004, the Warren County Prosecutor served T.T. with a Notice of Proposed Tier Two Classification and community notification, based on a RRAS score of 54. In February 2005, Dr. Timothy Foley evaluated T.T. and concluded that T.T.'s offense was a "boundary violation involving a young child;" that there was "no strong suggestion that his behavior was sexually motivated;" and "[m]ore importantly, there is no report of prior or subsequent sexual misconduct." Dr. Foley considered T.T.'s risk of a similar offense low, if the index offense was sexually motivated. T.T. sought review of his Tier Two classification and community notification.

At an April 27, 2005 hearing, T.T. presented the expert testimony of Dr. Foley, who reiterated the "large question mark about whether or not there was any sexual motive" underlying the crime. The State did not present expert testimony. The judge concluded that regardless of his possible lack of sexual motivation, T.T. was subject to Megan's Law based upon his adjudication for the predicate offense of aggravated sexual assault:

I do not find that the lack of sexual motivation to be dispositive of the issue before the court or the applicability of the registrant risk assessment scale. The registrant has been adjudicated delinquent based on an act of aggravated sexual assault, i.e., anal penetration. By definition that offense is subject to the registration requirements of Megan's Law. If a sexual assault, which is not motivated by sexual deviance or by sexual gratification or sexual debasement of the victim is to be carved out as an exception to the Megan's Law registration requirements, it is not for this court to carve that exception out. I am bound by the law as I find it, and that is that having been adjudicated of an act of aggravated sexual assault, the registration requirements of Megan's Law apply 2C:7-1.

Noting that expert testimony assisted but did not bind the fact-finder, the judge determined that the State's proposed scope of notification³ and Tier Two risk assessment were proper.

T.T. appealed, and the Appellate Division reversed by order:

When he was 13, TT inserted a "douche" bottle in his 6-year old half brother's anus on one occasion; inserting it in his own anus thereafter. In effect TT gave an enema to his half brother and then to himself.

The fundamental issue is whether TT's act was a sexual one. TT contends it was not. His expert, Dr. Foley, testified that he could find no sexual motivation. It is a question which requires expert assistance and is not resolved by TT's plea or adjudication. TT lacked an understanding of the sophisticated question as to whether his act was sexual in nature. The act is not denied — its significance for purposes of the RRAS must be established — and by clear and convincing evidence. See In re Registrant J[.G.], 169 N.J. 304, 331-32 (2001).

The 54 point RRAS score is derived from the treatment of the offense as sexual in nature. If it was not, the score fails — moreover, there is no sexual offense to bring TT within the ambit of Megan's Law.

We are satisfied the State has not proven by clear and convincing evidence that the act was sexual in nature. Dr. Foley could find no sexual motivation. The State offered no evidence to the contrary. The report of Dr. Shea did not deal with TT's motivation. His finding that TT needed sex offender specific interventions appears based on his conclusion that TT masturbates excessively.

The order is reversed and the matter is remanded for entry of an order dismissing the State's petition.

We granted the petition for certification filed by the Warren County Prosecutor, 185 N.J. 297, 884 A.2d 1267 (2005), along with the Attorney General's application for amicus curiae status.

I

Both the State and the Attorney General argue that T.T. is subject to the registration requirement of Megan's Law, and that we should reject the Appellate Division's engrafting of a new "sexual motivation" element onto the predicate offense for the applicability of the statute.

T.T. counters that he should not be subject to Megan's Law because his offense was not sexual in nature and lacked a sexual purpose or intent. Further, T.T. argues that the use of the RRAS is inappropriate in this case because, without an underlying sexual offense, any score that it delivers is meaningless. Alternatively, T.T. claims that even if we find that he is subject to Megan's Law, he should be granted Tier One notification status because he is a low risk for re-offense based upon the intra-familial nature of his offense and...