Registrant G.B., Matter of

Decision Date11 December 1996
PartiesIn the Matter of REGISTRANT G.B.: Application for Judicial Review of Notification and Tier Designation. 1
CourtNew Jersey Supreme Court

The opinion of the Court was delivered by

HANDLER, J.

This is another case concerning a set of bills collectively known as Megan's Law. The focus of the appeal is on the use of expert testimony in determining under that law the risk of reoffense posed by a paroled convicted sex offender.

We thus far have upheld the legislation requiring sex offenders to register with law enforcement, N.J.S.A. 2C:7-1 to -5, and the act requiring law enforcement, in certain circumstances, to notify community groups and individuals of the presence of sex offenders, N.J.S.A. 2C:7-6 to -11. Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995). More recently, we upheld the Attorney General's sex-offender classification guidelines, known as the Registrant Risk Assessment Scale ("RRAS" or "the Scale"). In re C.A., 146 N.J. 71, 679 A.2d 1153 (1996). Moreover, we have held that although the Scale is entitled to deference, it is not immune from challenge. Rather, it is merely a useful guide to determine the amount of notification that a community should receive. The responsibility for ultimately determining the proper scope of notification is left to the trial court after a hearing on the matter. Id. at 83, 679 A.2d 1153; Doe v. Poritz, supra, 142 N.J. at 12, 107, 662 A.2d 367.

The issue in the case presently before us is a relatively narrow one directed to the role of expert testimony in raising challenges to a registrant's Scale score and the scope of community notification. We hold that, in limited circumstances, expert testimony may be introduced at the judicial hearing in order to establish the existence of unique aspects of a registrant's offense or character that render the Scale score suspect. If believed, such evidence would lead to the conclusions that the Scale does not adequately represent the risk of recidivism for that particular registrant and that, therefore, in such circumstances the scope of notification should be more limited than that indicated by the registrant's Scale score and attendant tier classification.

I

Registrant G.B. was indicted for aggravated sexual assault, sexual assault, endangering the welfare of a child, and child abuse. The indictment stemmed from allegations that registrant had engaged in multiple sexual encounters with his minor female cousin over a seven-year period when she was between the ages of five and twelve; the encounters were alleged to have occurred in the family home. In a statement to the police in November 1991, registrant admitted to several of the alleged encounters, including instances of fellatio and one incident of intercourse. Subsequently, he pleaded guilty, pursuant to a plea agreement, to one count of second-degree sexual assault in violation of N.J.S.A. 2C:14-2b; the prosecutor agreed to dismiss the remaining charges. Registrant was sentenced to five years at the Adult Diagnostic and Treatment Center at Avenel ("Avenel").

In 1994, during registrant's sentence at Avenel, the Legislature enacted the Registration and Community Notification Laws ("RCNL" or "Megan's Law"). N.J.S.A. 2C:7-1 to -11. The overall purpose of the law was to protect the community from the dangers of recidivism by sex offenders. N.J.S.A. 2C:7-1a. The RCNL requires that convicted sex offenders found to be "repetitive and compulsive" register with local authorities. N.J.S.A. 2C:7-2. The law also specifies that the community be notified about certain sex offenders classified as moderate- or high-risk. N.J.S.A. 2C:7-8c. In 1995, this Court upheld the constitutionality of the RCNL. Doe v. Poritz, supra, 142 N.J. 1, 662 A.2d 367.

Registrant was released from Avenel in June 1995. Invoking the RCNL, the county prosecutor undertook to classify him according to his risk of reoffense. As a means of determining registrant's risk of reoffense, the prosecutor applied the Scale promulgated by the Attorney General pursuant to the RCNL. The Scale is composed of four categories: Seriousness of Offense, Offense History, Characteristics of Offender, and Community Support. Encompassed in these categories are thirteen factors deemed relevant by the Attorney General to the risk of reoffense. The Attorney General assigns a score to each registrant for each of the thirteen factors. A registrant is given a score of zero in each category if he is low risk, a one for moderate risk, and a three for high risk. The thirteen factors are then assigned varying weights, which are totalled to compute an overall Scale score. Those registrants receiving a score of at least seventy-four (out of a maximum of 111) are initially considered by the Attorney General to be "high-risk" or Tier Three. Registrants receiving scores between thirty-seven and seventy-three are considered "moderate-risk" offenders and fall within Tier Two, while those registrants scoring below thirty-seven are considered "low-risk" and are included within Tier One. See In re C.A., supra, 146 N.J. at 82-83, 679 A.2d 1153; see also id. at 111, 679 A.2d 1153 (reprinting Scale calculations sheet).

Under the Scale, the prosecutor ascribed to G.B. a numerical score of fifty-eight, resulting in a Tier Two or "moderate-risk" classification. Under the RCNL, moderate-risk offenders trigger targeted or selective community notification by the State. N.J.S.A. 2C:7-8c. Accordingly, the prosecutor determined that all schools within a two-mile radius of registrant's residence, as well as several other community organizations, would be notified of G.B.'s identity and presence.

The prosecutor based the classification on registrant's Avenel records, police reports, and witness statements. Several factors contributed to the Tier Two classification. First, the prosecutor determined that because of the nature of the contact between registrant and the victim and the victim's age, he posed a high risk to the community. Specifically, the prosecutor relied on the victim's allegation (and registrant's subsequent admission to the police) of penetration and the significant duration of the sexual relationship (approximately seven years). Second, the prosecutor cited registrant's prior convictions for burglary, theft, and illegal possession of a firearm as evidence of his "anti-social" behavior. Finally, the prosecutor pointed to registrant's poor treatment record at Avenel and his current lack of community and family support.

Registrant sought judicial review of the prosecutor's determination. At an in camera judicial hearing, he challenged the factual underpinnings of the State's calculation of his Scale score and the proposed scope of community notification. 2 First, he argued that his degree of contact with the victim should not include penetration because he had pleaded guilty only to second-degree sexual assault and because the only evidence of penetration consisted of unconfronted allegations by the victim and registrant's uncounseled admission to the police. Second, he argued that because he had pleaded guilty only to one count of sexual assault, the duration of the sexual contact should be classified as less than one year (the lowest classification). Third, he asserted that his conviction for unlawful possession of a firearm was a regulatory offense and not indicative of anti-social behavior. Fourth, he contended that his community support was strong in that he had lived in the area for years. Finally, he asserted that the State's proposed community notification was overly broad and arbitrary in its blanket inclusion of all schools within a two-mile radius of his home.

The trial court rejected these arguments. It concluded that ample evidence existed of penetration and multiple years of sexual encounters and that actual convictions were unnecessary to justify reliance on these factors. Moreover, it accepted the description of unlawful possession of a firearm as "anti-social" and the State's contention that registrant had little community support. Lastly, the court found that notification of schools and select other organizations within two miles of registrant's home was not "arbitrary, capricious, unfair or unreasonable."

Registrant also sought to challenge the predictive value of the Scale for determining the risk of reoffense and the correctness of the Scale score as applied to the circumstances of his offense. To support these claims, he sought to introduce evidence from three experts: a psychiatric expert to evaluate his actual risk of reoffense; a statistical expert to analyze reoffense by sexual offenders, to evaluate whether registrant is the type of sexual offender likely to reoffend, and to determine the proper scope of community notification; and a human factors expert to study whether a nexus exists between community notification and the harm that the RCNL seeks to prevent. After considering registrant's request, the trial court ruled that expert testimony was unwarranted. Specifically, the court found that "if we are going to place great weight on the risk assessment scale, the testimony of these experts would be irrelevant because the factors in the Scale, at least the ones that are material here, do not call for expert testimony." Registrant then appealed.

The Appellate Division concluded that "the registrant should be permitted to retain an expert and to present testimony at the hearing to show that the variable factors [in the Scale calculations] as related to him, should result in a lesser Tier classification." 286 N.J.Super. 396, 407, 669 A.2d 303 (1996). Thus, the Appellate Division held that "registrant may attempt to prove that the variable factors applicable to him, demonstrate that he is so unlikely to reoffend, that he should be classified as a Tier One offender, notwithstanding his actual Scale score." Ibid. (emphasis added).

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