STATE OF NEW JERSEY VS. MORTON RESNICOFF(09-02-0314, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1217-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MORTON RESNICOFF,
Defendant-Appellant.
___________________________
Argued March 29, 2017 - Decided September 19, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
09-02-0314.
James H. Maynard argued the cause for
appellant (Maynard & Sumner, LLC, attorneys;
Mr. Maynard, on the briefs).
Elizabeth R. Rebein, Assistant Prosecutor,
argued the cause for respondent (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Catherine A. Foddai, Assistant Prosecutor, of
counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
A Bergen County grand jury returned Indictment No. 09-02-
00314, charging defendant Morton Resnicoff with three counts of
second degree attempted sexual assault, N.J.S.A. 2C:14-2c(4), and
N.J.S.A. 2C:5-1, third degree attempted endangering of a child,
N.J.S.A. 2C:24-4a and N.J.S.A. 2C:5-1, second degree dissemination
or distribution of child pornography, N.J.S.A. 2C:24-4b(5)(a), and
second degree possession of child pornography, N.J.S.A. 2C:24-
4b(5)(b). Pursuant to a negotiated agreement with the State,
defendant pled guilty on August 31, 2009 to one count of fourth
degree attempted criminal sexual contact, N.J.S.A. 2C:14-3b. The
State agreed to dismiss the remaining counts in the indictment and
recommended the court sentence defendant to a term of probation,
conditioned on serving 364 days in the county jail.
On October 23, 2009, the court sentenced defendant,
consistent with the plea agreement, to a two-year term of
probation, conditioned upon serving 364 days in the county jail.
As part of his sentence, the court ordered defendant to register
as a convicted sex offender under N.J.S.A. 2C:7-2, commonly known
as Megan's Law. Defendant did not appeal his sentence.
N.J.S.A. 2C:7-2f provides:
Except as provided in subsection g. of this
section, a person required to register under
this act may make application to the Superior
Court of this State to terminate the
obligation upon proof that the person has not
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committed an offense within 15 years following
conviction or release from a correctional
facility for any term of imprisonment imposed,
whichever is later, and is not likely to pose
a threat to the safety of others.
[Emphasis added.]
Defendant was sixty-seven years old when he committed this crime.
He claims he will be eighty-four years old by the time he is
eligible to apply for relief under N.J.S.A. 2C:7-2f.
On October 17, 2014, defendant filed a post-conviction relief
(PCR) petition arguing that the fifteen-year offense-based
procedural bar to termination unconstitutionally discriminates
against a class of convicted defendants who are at least sixty
years old at the time of conviction. According to defendant, the
application of this fifteen-year procedural bar under N.J.S.A.
2C:7-2f to this class of elderly registrants is the functional
equivalent of a lifetime registration requirement. The court will
lose jurisdiction to provide any relief because the registrant
will likely be dead or unable to reap any meaningful benefit due
to poor health.
The matter came for oral argument before the PCR judge on
September 24, 2015. In support of his petition, defendant cited
studies that "suggest" that individuals released from prison after
the age of sixty present a mere 3.8% risk of reoffending.
Defendant also noted that the Legislature recognized "advanced age
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or debilitating illness" as among the factors relevant to the risk
of re-offense. N.J.S.A. 2C:7-8b(2).
The PCR judge explained the reasons for rejecting defendant's
argument and denying his PCR petition in a written opinion dated
October 6, 2015. Before addressing defendant's arguments
directly, the judge provided the following brief recitation of the
circumstances that led to defendant's conviction.
On January 9, 2008, an undercover agent of the
Bergen County Prosecutor's Office assumed the
online identity of a thirteen-year-old girl
named "Danielle DeJoseph" in an internet chat
room on Yahoo.com, entitled "New Jersey 4,"
using the screen name "danigurl1017." The
same day, at approximately 3:32 p.m., another
user with a screen name entitled
mike_reese2002," later identified to be
[defendant], contacted the agent online.
[Defendant] then sixty-seven years old, texted
he was seventeen years of age, and the agent
responded that she was thirteen-years old. He
asked the agent if she had ever seen male
genitalia and subsequently transmitted those
images to her. [Defendant] also sent the
agent an invitation to view a webcam feed,
depicting a male masturbating. He invited the
agent to join him after school one day for
sexual activity.
On January 28, 2008, [defendant] and the
undercover agent, purporting to be a thirteen-
year old child, exchanged internet chat
communications in which [defendant]
transmitted a webcam feed, depicting him
masturbating. In the same chat session,
[defendant] sent twenty-four pornographic
images to the purported thirteen-year old
girl.
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On February 27, 2008, [defendant] again sent
the agent a webcam showing him masturbating.
Finally, on March 3, 2008, [defendant]
provided his cellular phone number to the
presumed thirteen-year old child. A recorded
phone call subsequently took place between
[defendant] and "danigurl107," voiced by BCPO
[D]etective Kristen Mecionis. During the call
[defendant] arranged to meet the child at the
Old Navy store in the Paramus Park Mall.
[Defendant] expressed an interest in going to
a nearby hotel after meeting at the mall where
he suggested that he and the child could look
at pictures and videos.
The day the meeting was to take place,
[defendant] was sighted at the Crowne Plaza
Hotel adjacent to the mall where the meeting
was to occur. He was arrested, having in his
possession a duffle bag containing condoms,
lubricant, a portable DVD player and two DVDs.
The PCR judge noted that defendant was, at the time of the
hearing, seventy-five years old. He had successfully completed
his two-year term of probation. The judge also considered a report
of a psychological evaluation of defendant submitted by Sean
Hiscox, Ph.D., who concluded:
[It] is my opinion to a reasonable degree of
professional certainty that in [defendant's]
case specifically and with offenders at an
advanced age generally, a comprehensive,
individualized, risk and needs based
assessment informed by the empirical research
is superior to a charge-based assessment of
risk. Such an approach is best practice in
the field and it is also my opinion that such
an approach sufficiently protects the public
from sex offenders who are at an advanced age.
It is also my opinion that [defendant] is not
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likely to pose a threat to the safety of others
and therefore could be safely removed from the
requirements of New Jersey's community
notification and registration law.
The PCR judge began his legal analysis by reaffirming our
Supreme Court's admonition in State v. Preciose, 129 N.J. 451, 459
(1992): "Post-conviction relief is neither a substitute for direct
appeal, R. 3:22-3, nor an opportunity to relitigate cases already
decided on the merits, R. 3:22-5." The judge also noted that the
constitutionality of the statutory notification scheme of
convicted sex offenders known as Megan's Law was settled by the
Supreme Court in Doe v. Poritz, 142 N.J. 1, 90-91 (1995).
The judge also rejected defendant's attempt to apply the
Court's holding in In re Registrant J.G., 169 N.J. 304 (2001),
which concerned the application of the registration and community
notification requirements of Megan's Law to a juvenile who pled
guilty to conduct that, if committed by an adult, would constitute
the crime of second degree sexual assault as defined in N.J.S.A.
2C:14-2c(1). J.G "was ten years old when the incident occurred,
and the victim was the juvenile's eight-year-old female cousin."
Id. at 309. Applying the registration and notification
requirements of Megan's Law, "the trial court Law Division
classified J.G. as a Tier 2 offender and ordered notification of
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various elementary and middle schools in the vicinity of J.G.'s
residence." Ibid.In holding that Megan's Law registration and community
notification orders for juvenile delinquents under the age of
fourteen will terminate at age eighteen, the Court took "careful
cognizance of the philosophy underlying the creation of our
separate juvenile justice system, as well as of the specific
provisions of our Juvenile Code intended to implement that
philosophy." Id. at 321. The Court also emphasized that:
The Juvenile Code also limits the duration of
dispositions imposed on juveniles by providing
that all orders of disposition other than for
incarceration in delinquency cases shall
terminate at age eighteen, or three years from
the date of the order, whichever is later.
Moreover, as noted, ante at 324, 777 A.2d 904,
the Code states that no disposition "shall
operate to impose any of the civil
disabilities ordinarily imposed by virtue of
a criminal conviction. . . ." N.J.S.A. 2A:4A-
48.
[Id. at 335-36.]
Of particular relevance here, the Court in J.G. made clear
that it had previously "generally upheld the constitutionality of
Megan's Law." Id. at 338 (citing Doe v. Poritz, supra, 142 N.J.
at 12, 110-11). The PCR judge addressed and rejected the remaining
arguments raised by defendant, concluding that "Megan's Law, as
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it is presently written, does not authorize special exceptions for
any alleged class of sex offenders."
Defendant now appeals raising the following arguments:
POINT I
THE PURPOSE OF MEGAN'S LAW IS TO DEFEND
AGAINST INDIVIDUALS LIKELY TO POSE A THREAT
OF SEX OFFENSE RECIDIVISM; ADVANCED AGE
REGISTRANTS ARE EMPIRICALLY LESS LIKELY TO
PRESENT A RISK THAN THEIR YOUNGER
COUNTERPARTS.
POINT II
OFFENSE-BASED BARS TO TERMINATION OF MEGAN'S
LAW, WHEN APPLIED TO ADVANCED AGE REGISTRANTS,
CREATE AN IRREBUTTABLE PRESUMPTION OF RISK AND
ARE UNCONSTITUTIONAL UNDER PROCEDURAL DUE
PROCESS AND FUNDAMENTAL FAIRNESS ANALYSIS.
POINT III
OFFENSE-BASED BARS TO TERMINATION OF MEGAN'S
LAW, WHEN APPLIED TO ADVANCED AGE REGISTRANTS,
VIOLATE SUBSTANTIVE DUE PROCESS.
Defendant's arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We affirm
substantially for the reasons expressed by the PCR judge.
Affirmed.
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