STATE OF NEW JERSEY VS. H.C. (18-09-0829, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2763-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
H.C.,
Defendant-Appellant.
_______________________
Submitted February 24, 2021 – Decided April 30, 2021
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 18-09-0829.
Joel S. Silberman, attorney for appellant.
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Angela K. Halverson, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant H.C.1 pled guilty to an amended count of criminal sexual
contact. He appeals the trial court's order classifying him as a Tier II offender
under the registration and community notification provisions of Megan's Law,
N.J.S.A. 2C:7-1 to -23, which subjected him to community notification and
inclusion on the Sex Offender Internet Registry (Internet Registry), N.J.S.A.
2C:7-12 to -19. Defendant contends he qualified for the "household/incest"
exception under N.J.S.A. 2C:7-13(d)(2), thus circumventing community
notification and inclusion on the Internet Registry, and that the calculation of
his Registrant Risk Assessment Scale (RRAS) as a Tier II offender was not
supported by the record. We disagree and affirm.
I
In April 2018, A.S. (Anita), who was twenty-four years old at the time,
informed the Jersey City Police that approximately twelve to eighteen years
earlier, when she was between six to twelve years old, defendant sexually
assaulted her while he was taking care of her after school. Defendant, Anita's
maternal uncle, was approximately fifteen to twenty-one years old when the
abuse occurred, and he was not living with her and her family.
1
We use initials and pseudonyms to protect the privacy of the victim and
preserve the confidentiality of these proceedings. N.J.S.A. 2A:82-46(a); R.
1:38-3(c)(9).
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An investigation by the Hudson County Prosecutor's Office ensued,
leading to a consensual telephone intercept between Anita and defendant.
During the conversation, they discussed their sexual activities as well as
defendant's sexual conduct with Anita's brother, A.M., three years her senior,
and her sister, L.R., eight years her senior and approximately the same age as
defendant.
Defendant was later indicted for first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault, N.J.S.A. 2C:14-2(b), and
second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). He
reached a plea agreement leading to his guilty plea to an amended count of
fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and a three-year
non-custodial probationary sentence together with restraining orders, and
reporting and registration requirements under Megan's Law, N.J.S.A. 2C:7-1 to
-11, and Nicole's Law, N.J.S.A. 2C:14-12 and N.J.S.A. 2C:44-8.
About two months after defendant's sentencing, the State served defendant
with a notice of proposed Tier II moderate risk of re-offense based on an RRAS
score of sixty-nine, which subjected him to community notification and
placement on the Internet Registry. Defendant challenged the classification,
contending the RRAS scoring was inaccurate and that he qualified for the
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"household/incest" exception to circumvent community notification and the
Internet Registry.
Following argument, the trial court issued an order and written decision
giving defendant a fifty-six RRAS score. The court reduced the State's proposed
RRAS score by thirteen points based on the following: "Criterion Seven (length
of time since last offense) is changed from HIGH RISK (9 pts.) to LOW RISK
(0 pts.)"; "Criterion Twelve: (Residential Support) is changed from HIGH RISK
(3 pts.) to LOW RISK (0 pts.)"; and "Criterion [Thirteen]: (Employment
Stability) is changed from MODERATE RISK (1 pt.) to LOW RISK (0 pts.)
. . . ." However, the court rejected defendant's contention that he should qualify
for the "household/incest" exception that would bar him from community
notification and inclusion on the Internet Registry and upheld the State's Tier II
Moderate level of risk of re-offense with a final score of fifty-six. The court
stayed defendant's community notification and inclusion on the Internet Registry
pending appeal.
II
Depending on the type and time of offense, Megan's Law requires certain
sex offenders to register with local law enforcement agencies and notify the
community. In re T.T., 188 N.J. 321, 327 (2006) (citing N.J.S.A. 2C:7-2 and
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N.J.S.A. 2C:7-5 to -11; In re Registrant M.F., 169 N.J. 45, 52 (2001)). A
registrant's risk of re-offense can fall into one of three levels: Tier I (low), Tier
II (moderate), or Tier III (high). State v. C.W., 449 N.J. Super. 231, 260 (App.
Div. 2017) (citation omitted). Under a Tier I risk of re-offense, only law
enforcement must be notified of his presence in the community. N.J.S.A. 2C:7-
8(c)(1). Under a Tier II risk of re-offense, "organizations in the community
including schools, religious and youth organizations" must be notified in
addition to the notice to law enforcement agencies. N.J.S.A. 2C:7-8(c)(2).
N.J.S.A. 2C:7-13(d) enumerates exceptions from Internet registration of
an offender's record when
the sole sex offense committed by the offender which
renders him subject to the requirements of [Megan's
Law] is one of the following:
....
(2) A conviction or acquittal by reason of insanity for a
violation of N.J.S.[A.] 2C:14-2 or N.J.S.[A.] 2C:14-3
under circumstances in which the offender was related
to the victim by blood or affinity to the third degree or
was a resource family parent, a guardian, or stood in
loco parentis within the household.
....
For purposes of this subsection, "sole sex offense"
means a single conviction, adjudication of guilty or
acquittal by reason of insanity, as the case may be, for
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a sex offense which involved no more than one victim,
no more than one occurrence or, in the case of an
offense which meets the criteria of paragraph (2) of this
subsection, members of no more than a single
household.
Subsection (d)(2) is known as the "household/incest" exception. The issue here
is whether H.C. qualifies under the exception because he was convicted of only
one charge against Anita but arguably admitted to repeated sexual abuse acts
against her younger brother and older sister, all of whom he did not live with.
We find instructive our Supreme Court's interpretation of N.J.S.A. 2C:7-
13(d)(2) in In re N.B., 222 N.J. 87, 102 (2015). In N.B., the registrant, charged
with multiple acts of unlawful sexual conduct with a blood-related minor, pled
guilty to one count of second-degree sexual assault. Id. at 90-91. In determining
whether he had committed a "sole sex offense" within the scope of the
household/incest exception, the Court noted :
N.J.S.A. 2C:7-13(d)(2) applies if three requirements are met. First,
the offender must present a "moderate" risk of re-offense. Ibid.
Second, the offender's "sole sex offense" must be "[a] conviction or
acquittal by reason of insanity for a violation of [N.J.S.A. 2C:14-2
(sexual assault) ] or [N.J.S.A. 2C:14–3 (criminal sexual contact) ]."
Ibid. Third, the offender must be “related to the victim by blood or
affinity to the third degree . . . ."
[Id. at 97 (first, second, and third alterations in original).]
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The Court recognized that "an offender in the household/incest category
governed by N.J.S.A. 2C:7–13(d)(2) may qualify for the exception in a broader
category of cases: those which involve 'no more than one victim, no more than
one occurrence or . . . members of no more than a single household.' N.J.S.A.
2C:7–13(d)." Id. at 100 (alteration in original). After a detailed analysis of the
statute's legislative history to resolve ambiguity because there is not an "and" or
an "or" between "no more than one victim" and "no more than one occurrence,"
the Court "conclude[d] that the Legislature intended the household/incest
exception to apply to a registrant whose single conviction otherwise meets the
requirements of N.J.S.A. 2C:7-13(d)(2) and involves more than one instance of
sexual contact with a single victim who is within his or her household." Id. at
102 (emphasis added).
Like the registrant in N.B., defendant pled guilty to one count of a sexual
offense but admitted to multiple acts. The N.B. Court determined that the
household/incest exception applied as the victim and the defendant were
members of the same household. Id. at 90-91. We accordingly disagree with
the trial court that defendant's alleged sexual abuse of Anita's siblings serves as
a basis for more than a "sole sex offense" under N.J.S.A. 2C:7-13 to disqualify
him for the household/incest exception. Defendant was not convicted of those
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offenses thus he only had a sole sex offense and would be eligible for the
exception. However, defendant was not a member of the household of the victim
as the registrant in N.B., therefore the household/incest exception does not apply
here. See Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (applying the "well-
settled [principle] that appeals are taken from orders and . . . not . . . opinions,"
and that orders may be affirmed for reasons different from those set forth by the
trial court).
III
Defendant's also claims that the trial erred in calculating his RRAS. We
disagree.
The RRAS was developed by a committee of mental health experts and
members of the law enforcement community convened by the Attorney General.
See In re V.L., 441 N.J. Super. 429 (App. Div. 2015). It was created in response
to the Legislature's directive in Megan's Law for the Attorney General to
"promulgate guidelines and procedures for the notification" of a sex offender's
whereabouts, depending on the offender's degree of risk of re-offense. N.J.S.A.
2C:7-8.
"The RRAS is divided into four categories corresponding to the
individual's seriousness of offense, offense history, personal characteristics, and
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community support." C.W., 449 N.J. Super. at 260. (citation omitted). Each
category contains criteria which are assigned scores corresponding to a low-,
moderate-, or high-risk assessment. In re Registrant J.M., 167 N.J. 490, 499
(2001). The criteria, numbered one to thirteen respectively, are degree of force,
degree of contact, age of victim, victim selection, number of offenses/victims,
duration of offensive behavior, length of time since last offense, history of anti -
social acts, response to treatment, substance abuse, therapeutic support,
residential support, and employment stability. Att'y Gen., Guidelines for L.
Enforcement for the Implementation of Sex Offender Registration and
Community Notification Laws, ex. F (rev'd Feb. 2007). The factors are then all
assigned weights with a multiplier, producing an overall score that numerically
classifies the offender in either Tier I, low risk of re-offense; Tier II, moderate
risk of re-offense; or Tier III, high risk of re-offense. See J.M. 167 N.J. at 499.
The RRAS is, however, "only one possible consideration" of many in
determining a registrant's risk of re-offense. In re G.B., 147 N.J. 62, 78 (1996).
Although the RRAS is a "useful tool to help prosecutors and courts determine
whether a registrant's risk of re-offense is low, high, or moderate," it is "not a
scientific device." In re C.A., 146 N.J. 71, 108 (1996).
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"[I]t is impossible to create an all-inclusive scale," and thus, "any
classification based on the [RRAS] should not be viewed as absolute." Id. at
109. Judicial determinations regarding tier classification and community
notification should be made "on a case-by-case basis within the discretion of the
court" and "based on all the evidence available," not simply by following the
"numerical calculation provided by the [RRAS]. . . . " G.B., 147 N.J. at 78-79(quoting C.A., 146 N.J. at 109). Ultimately, "a value judgment" is required. Id.
at 78 (quoting C.A., 146 N.J. at 109).
To dispute a proposed tier designation, a defendant can, for example:
introduce evidence at the hearing that the [RRAS]
calculations do not properly encapsulate his specific
case; or phrased differently, a registrant may maintain
that his case falls outside the "heartland" of cases and,
therefore, that he deserves to be placed in a tier other
than that called for by the prosecutor's [RRAS] score.
[G.B., 147 N.J. at 85.]
While the defendant bears the burden of producing evidence that the case falls
out of the heartland of cases, it is ultimately the State's burden of proof and
persuasion to establish by clear and convincing evidence that the proposed tier
classification is warranted. E.B. v. Verniero, 119 F.3d 1077, 1108-11 (3d Cir.
1997).
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In this case, the court's written decision thoroughly expressed its
reasoning in determining that defendant's RRAS score totaled fifty-six, resulting
in Tier II, moderate level of risk of re-offense. As noted above, the court
reduced the State's scores for criteria seven, twelve, and thirteen. In addition,
the judge cogently explained why he rejected defendant's arguments to reduce
the State's high-risk scores for the following criteria: three–age of the victim,
five–number of offenses/victims, and six–duration of offensive behavior. The
court's determinations were based on clear and convincing evidence in the
record. See G.H. v. Twp. of Galloway, 401 N.J. Super. 392, 403 (App. Div.
2008) (citation omitted); In re Registrant J.G., 169 N.J. 304, 330-31 (2001)
(describing clear and convincing "as evidence on which the trier of fact can rest
'a firm belief or conviction as to the truth of the allegations sought to be
established.'") (quoting In re Purrazzella, 134 N.J. 228, 240 (1993)). Because
we see no abuse of the court's discretion, see G.B., 147 N.J. at 78-79 (citation
omitted), defendant is subject to community notification and inclusion on the
Internet Registry as a Tier II sex offender.
Affirmed.
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