State v. Howard
| Decision Date | 11 June 2021 |
| Docket Number | DOCKET NO. A-1042-19 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. RANDY A. HOWARD, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Fisher and Gummer.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. 19-07-1166.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Debra G. Simms, Deputy Attorney General, of counsel and on the brief).
Defendant pleaded guilty to failing to register under Megan's Law1 when he relocated to New Jersey after he was convicted of second-degree rape in North Carolina and ordered as part of his sentence to register as a sex offender. Defendant argues he is entitled to a vacation of the failure-to-register charge and guilty plea pursuant to In re A.A., 461 N.J. Super. 385 (App. Div. 2019). Because the determination that defendant had to register as a sex offender was made by a North Carolina judge as part of a sentence for a North Carolina conviction and not by a New Jersey prosecutor, we affirm.
In 2019, defendant was charged with third-degree failure to register under Megan's Law, contrary to N.J.S.A. 2C:7-2(c)(3), which provides that a person required to register as a sex offender who moves to New Jersey from another jurisdiction must register within ten days of residing in the State.
During a plea hearing, the State advised the court, pursuant to a negotiated plea agreement, defendant was pleading guilty to the charge and the State was seeking non-custodial probation. The State told the court defendant had been convicted of second-degree rape in 2008 in North Carolina and was required to register as a sex offender in New Jersey. Defense counsel confirmeddefendant had been convicted in 2008 and did not dispute he was required to register as a sex offender.
Before defendant testified, the court explained, with no objection or correction, its understanding that defendant was pleading guilty for a third-degree crime of failing to register "due to a conviction for a sexual assault in North Carolina in 2008." Defendant confirmed under oath (1) he had been convicted out of state in 2008 for a crime he committed in 1998; (2) his conviction obligated him to register when he relocated to New Jersey; and (3) he had not registered until five or six months after he relocated. After testifying, defendant pleaded guilty to the third-degree crime of failure to register.
Defendant's presentence report contained a description of his North Carolina criminal history, including:
According to the report, a representative of "North Carolina's Megan's Law Division" advised police officers that defendant "was still an active registrant."
At the sentencing hearing, the court reviewed the information in the presentence report. Defense counsel confirmed everything in the presentence report was accurate. Defendant declined the opportunity to speak or to ask any questions. The court again stated defendant had pleaded guilty to a third-degree crime of failing to register and had been convicted "in 2008 for sexual assault in North Carolina." Defendant did not object to that characterization. The court sentenced defendant to one-year probation, subject to seven days' imprisonment, which defendant already had served. The court subsequently entered a judgment of conviction, which defendant now appeals.
On appeal, defendant argues he was entitled, pursuant to A.A., 461 N.J. Super. 385, to notice of "the State's determination that he was required to register under Megan's Law" as a sex offender and to a judicial review of that determination.2
Defendant's reliance on A.A. is misplaced. The defendant in A.A. was a New Jersey resident who had been arrested in New York and charged in New York with second-degree disseminating indecent material to a minor, in violation of New York Penal Law § 235.21(3) (Consol. 2019). A.A., 461 N.J. Super. at 391. The defendant pleaded guilty to that charge and was sentenced to five years' probation. Id. at 392. His pre-sentence investigation report stated (1) defendant had to remain in New York until and unless an interstate transfer was approved; and (2) his offense in New York did not require registration under New York's Sex Offender Registration Act, N.Y. Corr. Law § 168 (Consol. 2019). Ibid.
New York requested transfer of A.A.'s probation to New Jersey; a New Jersey probation officer submitted documentation regarding A.A.'s conviction to an assistant prosecutor, requesting a determination as to whether A.A. would be required to register in New Jersey under Megan's Law. Ibid. In making that determination, the assistant prosecutor had to consider whether A.A.'s New York offense was "similar to" one of the sex offenses enumerated in Megan's Law. See N.J.S.A. 2C:7-2(b)(3). The assistant prosecutor advised the probation officer the crime for which A.A. had been convicted in New York would fall under Megan's Law and he was required to be registered if he was living in NewJersey. Ibid. New Jersey accepted the transfer of the defendant's probation and required him to register. Id. at 393.
Nine years later, A.A. moved to terminate ab initio his Megan's Law registration requirement. Ibid. We held, under those circumstances, the defendant was...
To continue reading
Request your trial