IN THE MATTER OF REGISTRANT S.G. (ML-03-13-0025, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-2560-19
IN THE MATTER OF
REGISTRANT S.G.
___________________
Argued September 29, 2021 – Decided October 28, 2021
Before Judges Fuentes and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. ML-03-13-
0025.
Michael C. Woyce, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Michael Woyce, on the
brief).
Ellyn Rajfer, Special Deputy Attorney General/Acting
Assistant Prosecutor, argued the cause for respondent
(Lori Linskey, Acting Monmouth County Prosecutor,
attorney; Ellyn Rajfer, of counsel and on the brief).
PER CURIAM
Registrant S.G. appeals from a February 19, 2020 order denying his
motion to terminate his obligations under Megan's Law, N.J.S.A. 2C:7-1 to -23,
and community supervision for life (CSL), N.J.S.A. 2C:43-6.4. He argues he
submitted evidence showing that he would not pose a risk of harm to the
community and contends that the trial court improperly rejected the conclusions
of experts and imposed a requirement not found in the statutes. We reject S.G.'s
arguments and affirm.
I.
We discern the facts and procedural history from the record. In 1997, a
fifteen-year-old girl reported that, over the past three years, S.G. had repeatedly
sexually assaulted her. The victim had been a tennis student at a club where
S.G. worked as a coach. The assaults included repeated acts of fondling, oral
sex, and sexual intercourse.
In March 1998, S.G. pled guilty to one count of first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a). He was evaluated at the Adult Diagnostic
Treatment Center at Avenel (the ADTC) and found to be eligible for sentencing
under the Sex Offender Act, N.J.S.A. 2C:47-1 to -10, because his "actions
towards [the] victim [had been] performed both repetitively and compulsively."
Accordingly, in July 1998, S.G. was sentenced to eight years to be served at the
ADTC. He was also sentenced to requirements under Megan's Law and CSL.
In April 2003, S.G. was released from ADTC. Shortly thereafter, he was
evaluated in accordance with Megan's Law as a Tier II offender with a score of
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forty-eight on the Registrant Risk Assessment Scale. In October 2003, an order
was entered memorializing his Tier II registration and directing community
notification and internet publication. The CSL was supervised by the Division
of Parole within the State Parole Board. See N.J.A.C. 10A:71-1.1 and -6.11.
Following his release from the ADTC, defendant sought permission to
resume teaching tennis to minors. That permission was granted under
restrictions that ensured parents were present during the lessons and aware of
S.G.'s conviction and Megan's Law obligations.
Since his release, S.G. has not been convicted of any new criminal
offenses. He has also not been found to have violated any of his restrictions or
requirements under Megan's Law or CSL. His CSL record, however, includes
numerous instances where S.G. failed to comply with CSL or Megan's Law, but
he was not formally charged with violations.
In October 2019, S.G. filed a motion to terminate his obligations under
CSL and Megan's Law. In support of that application, he submitted an
evaluation conducted by Timothy Foley, Ph.D., a letter from Emili Rambus, Psy.
D., stating that he had completed sex offender counseling, and several character
letters. The State opposed his motion. At the State's request, S.G. was evaluated
by Janet DiGiorgio-Miller, Ph.D., and his supervision records were produced.
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Dr. Foley's report, dated September 27, 2018, concluded that defendant
presented a negligible risk for recidivism and opined that continued community
notification was not warranted. Dr. DiGiorgio-Miller's evaluation was
performed in September 2019 and found that defendant had a low risk of re-
offense. She recommended that defendant be released from CSL and Megan's
Law reporting. Defendant's therapist, Dr. Rambus, submitted a therapy
completion letter dated July 27, 2018. She opined that defendant posed a low
risk of re-offense and that it would be appropriate to remove him from CSL and
Megan's Law.
On February 19, 2020, the motion was heard by Judge Jill Grace O'Malley,
J.S.C. Counsel presented oral arguments, but no witnesses were called. Judge
O'Malley reviewed the record, which included the expert reports, the letter from
Dr. Rambus, and the parole supervision report. Judge O'Malley gave
considerable weight to the multiple parole infractions committed by S.G.
between 2008 and 2018. She reviewed fifteen instances that included S.G.
getting his hair cut at a children's salon; S.G. admitting that he did not stay at an
approved residence on several nights; S.G. going to New York without
permission from Parole to leave the state; S.G. using tennis courts at a high
school to teach tennis lessons; S.G. attending a summer sports camp that used
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tennis courts at Monmouth University's campus; S.G. lying to Parole about his
location when he was stopped by local police after he had been at a bar with
friends; and S.G. admitting to Parole that he did not inform them about his
ongoing involvement with a sports camp that predominately catered to minors
because he knew they would not give him permission to do so.
Judge O'Malley found that those parole infractions demonstrated S.G.'s
general disregard for complying with his obligations under CSL and Megan's
Law. Judge O'Malley further considered but rejected the opinions and
recommendations of the two experts and Dr. Rambus. The Judge found that
none of those doctors appropriately considered S.G.'s supervision record, and
instead, they unduly relied on S.G.'s self-reporting. Judge O'Malley therefore
found that S.G. failed to establish that he would not pose a risk to the community
if he were released from his obligations under CSL and Megan's Law. Having
set forth detailed reasons for her findings on the record on February 19, 2020,
that same day, the Judge issued an order denying S.G.'s motion.
II.
On appeal, S.G. presents two main arguments. He contends that he (1)
established clear and convincing evidence that he would not pose a risk of harm
to the community; and (2) Judge O'Malley abused her discretion by imposing a
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requirement for termination that is not found in the relevant statutes. In that
regard, he contends that Judge O'Malley reasoned that he must be tested in the
community without parole restrictions to meet his burden under N.J.S.A. 2C:7-
2(f) and N.J.S.A. 2C:43-6.4(c).
We review a trial court's decision on a motion to terminate obligations
under CSL or Megan's Law for an abuse of discretion. See In re J.W., 410 N.J.
Super. 125, 130 (App. Div. 2009) (evaluating risk of re-offense under an abuse
of discretion standard). An abuse of discretion occurs when the trial judge's
"decision is 'made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" Jacoby v. Jacoby,
427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Flagg v. Essex Cnty.
Prosecutor, 171 N.J. 561, 571 (2002)).
A registrant may apply to terminate the obligations under Megan's Law
"upon proof that the person has not committed an offense within [fifteen] years
following conviction or release from a correctional facility . . . and is not likely
to pose a threat to the safety of others." N.J.S.A. 2C:7-2(f). "Relief from
Megan's Law registration may be granted upon proof by a preponderance of the
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evidence that a person is not likely to pose a threat to the safety of others." In
re J.M., 440 N.J. Super. 107, 116 (Law. Div. 2014). 1
Similarly, a defendant may be relieved from CSL where "the person has
not committed a crime for [fifteen] years since the last conviction or release
from incarceration, whichever is later, and that the person is not likely to pose a
threat to the safety of others if released from parole supervision." N.J.S.A.
2C:43-6.4(c). "However, a person requesting termination from CSL/PSL
obligations must demonstrate the same evidence by satisfying the court by the
higher burden of 'clear and convincing evidence.'" In re J.M., 440 N.J. Super.
at 116. 2
1
N.J.S.A. 2C:7-2(g) (subsection (g)), enacted in 2002, bars certain offenders
from ever applying for termination of their registration requirements. The
Supreme Court recently concluded that subsection (g) does not apply
retroactively. In re G.H., 240 N.J. 113, 113 (2019). Judge O'Malley
acknowledged this decision in her reasoning and did not bar S.G.'s application
under subsection (g).
2
CSL was replaced with Parole Supervision for Life (PSL) in 2004. See L.
1994, c. 130, § 2 (codified at N.J.S.A. 2C:43–6.4 (1995)); L. 2003, c. 267, § 1
(PSL effective Jan. 14, 2004). "Because PSL imposes greater punishment on an
offender than CSL does, an offender sentenced to CSL cannot later be subjected
to the harsher special sentencing provisions of the PSL statute." State v. F.W.,
443 N.J. Super. 476, 483 (App. Div. 2016) (citing State v. Perez, 220 N.J. 423,
442 (2015)).
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Having reviewed the trial court's thorough oral decision, we affirm
substantially for the reasons found by Judge O'Malley. A trial judge may accept
or reject expert reports and weigh them accordingly. See State v. S.N., 231 N.J.
497, 514-15 (2018) (noting that "regardless of whether the evidence is live
testimony, a videotaped statement, or documentary evidence, deference is owed
to the trial court's determinations of fact and credibility"). Judge O'Malley set
forth her reasons for not accepting the opinions and conclusions of the three
doctors. We defer to the judge's credibility determination. See also Maison v.
N.J. Transit Corp., 460 N.J. Super. 222, 232 (App. Div. 2019) (the need for
expert testimony is a determination left to the discretion of a trial judge).
S.G. argues that Judge O'Malley incorrectly stated that none of the doctors
considered S.G.'s supervision record while on CSL. We do not find that
argument to be a fair characterization of Judge O'Malley's review. The Judge
had clearly reviewed the materials from the three doctors. She pointed out that
none of the doctors thoroughly evaluated the parole infractions between 2008
and 2018. Consequently, Judge O'Malley had a basis for rejecting the opinions
of the two experts and the letter from the treating therapist, and we find no basis
for second-guessing that evaluation.
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S.G. also argues that Judge O'Malley imposed a requirement that he show
that he could function without parole restrictions to meet his burden that he
would not pose a risk to the community. We reject this contention because it
mischaracterizes Judge O'Malley's findings. Judge O'Malley detailed the parole
infractions and found that defendant demonstrated a pattern of not complying
with the restrictions and obligations imposed by Megan's Law and CSL. The
Judge also found that those actions demonstrated that S.G. would pose a risk to
the community if the restrictions were lifted. In doing so, she did note that
defendant has functioned only under those restrictions since his release. There
is nothing improper with noting that fact.
More to the point, Judge O'Malley did not add a new requirement to the
standard for obtaining release from Megan's Law and CSL. Instead, she
properly focused on the statutory requirement that a registrant prove that he or
she will not pose a risk of re-offense. The record contains facts supporting Judge
O'Malley's findings that S.G. failed to carry that burden. Furthermore, in
making her findings, Judge O'Malley took a holistic approach to evaluating
S.G.'s risk to the community. That approach is consistent with N.J.S.A. 2C:43-
6.4(c) and N.J.S.A. 2C:7-2(f). See In re C.A., 146 N.J. 71, 96, 107-09 (1996)
(allowing reliable hearsay evidence to be considered in judicial hearings on
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Megan's Law tier classifications); In re G.B., 147 N.J. 62, 81 (1996) (stating that
courts should follow guidelines in conjunction with "relevant and reliable
evidence" to reach "ultimate determination of the risk of reoffense posed by the
registrant").
Affirmed.
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