In the Matter of Registrant D.F.S. , 446 N.J. Super. 203 ( 2016 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0816-15T1
APPROVED FOR PUBLICATION
IN THE MATTER OF REGISTRANT
D.F.S. July 1, 2016
APPELLATE DIVISION
Argued May 24, 2016 - Decided July 1, 2016
Before Judges Reisner, Hoffman and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 05-11-02091.
Michael C. Woyce argued the cause for
appellant D.F.S. (Murphy & Woyce, attorneys;
Mr. Woyce, on the brief).
Eric P. Knowles, Assistant Prosecutor,
argued the cause for respondent State of New
Jersey (Esther Suarez, Hudson County
Prosecutor, attorney; Erin M. Campbell,
Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
REISNER, P.J.A.D.
Registrant D.F.S. appeals from an August 28, 2015 order,
resulting from a Megan's Law tier hearing. Following the
hearing, the judge (Megan's Law judge or trial judge) directed
that D.F.S.'s individual registration record be included on the
sex offender Internet registry, pursuant to N.J.S.A. 2C:7-13(e),
because at the time D.F.S. was sentenced for his predicate
crime, the sentencing judge found that his sexually offending
conduct was repetitive and compulsive.1 See N.J.S.A. 2C:47-3.
The pertinent provision states:
Notwithstanding the provisions of paragraph
d. of this subsection [including an
exception for incest offenders whose risk of
re-offense is moderate], the individual
registration record of an offender to whom
an exception enumerated in paragraph (1),
(2) or (3) of subsection d. of this section
applies shall be made available to the
public on the Internet registry if the
offender's conduct was characterized by a
pattern of repetitive, compulsive behavior,
or the State establishes by clear and
convincing evidence that, given the
particular facts and circumstances of the
offense and the characteristics and
propensities of the offender, the risk to
the general public posed by the offender is
substantially similar to that posed by
offenders whose risk of re-offense is
moderate and who do not qualify under the
enumerated exceptions.
[N.J.S.A. 2C:7-13(e) (emphasis added)].
We conclude that the trial judge correctly interpreted the
statute, because N.J.S.A. 2C:7-13(e) requires that the
information of a moderate or low risk sex offender appear on the
1
The Megan's Law judge also placed defendant in Tier 2 (moderate
risk), but only the Internet notification is at issue on this
appeal. The Megan's Law judge stayed the Internet notification
pending appeal. The stay is hereby vacated, effective forty-
five days from the date of this opinion. That schedule is
intended to permit an orderly, non-emergent process should
D.F.S. intend to pursue a further appeal and seek a further
stay.
2 A-0816-15T1
registry "if the offender's conduct was characterized by a
pattern of repetitive, compulsive behavior." (emphasis added).
We conclude that the decision whether such an offender's
individual registration record "shall be made available to the
public on the Internet registry" depends on the nature of his
sexual offenses at the time he committed them, and not on his
mental condition at the time of the tier hearing. Accordingly,
we affirm the order on appeal.
I
In 2006, D.F.S. pled guilty to first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(1), for sexually molesting
his step-daughter. According to statements D.F.S. made to the
psychologist who interviewed him prior to sentencing, D.F.S.
began molesting the child when she was between the ages of
twelve and fourteen, and engaged in an escalating series of
sexual crimes against the victim, including digital penetration
and performing oral sex on her.2 The psychologist concluded
that, for purposes of classification under N.J.S.A. 2C:47-3,
D.F.S. had engaged in "a pattern of sex offending behavior
2
D.F.S. did not provide us with the transcript of his plea
hearing or the plea form. Hence, we do not know what facts he
admitted as part of his guilty plea. Nor do we know what
information he was given about the possible consequences of his
guilty plea. He also did not provide us with the transcript of
his sentencing hearing.
3 A-0816-15T1
[that] can be characterized as having been both repetitively and
compulsively performed." The sentencing judge imposed a term of
ten years in prison, subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2, to be served at the Adult Diagnostic and
Treatment Center (ADTC) for sex offenders. There is no dispute
on this record that the sentencing judge adopted the
psychologist's finding and determined that D.F.S.'s offenses
were repetitive and compulsive.3 D.F.S. did not appeal from the
ADTC sentence.
On March 24, 2015, D.F.S. was released from prison. By
virtue of his conviction, he was subject to the registration and
notification provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23.
He was afforded a hearing to challenge his proposed Tier Two
classification, N.J.S.A. 2C:7-8, and to challenge his proposed
inclusion on the Internet registry. N.J.S.A. 2C:7-13; see Doe
v. Poritz, 142 N.J. 1, 107 (1995) (mandating tier classification
hearings); Paul P. v. Verniero, 982 F. Supp. 961, 964 (D.N.J.
1997) (noting the New Jersey Supreme Court's 1997 order
mandating that the State prove a registrant's appropriate tier
classification by clear and convincing evidence), aff'd, 170
3
At the Megan's Law hearing on August 7, 2015, D.F.S.'s attorney
conceded that "we have no issue with the finding at the time of
sentencing, at that time he was found repetitive and
compulsive."
4 A-0816-15T1
F.3d 396 (3d Cir. 1999). At his hearing, D.F.S. argued that due
to his successful treatment at the ADTC, he was no longer a
"repetitive and compulsive" sex offender, and thus his
registration information should not be made public on the
Internet registry, pursuant to N.J.S.A. 2C:7-13(e).
In a written opinion dated August 28, 2015, the trial judge
interpreted the phrase "if the offender's conduct was
characterized by a pattern of repetitive, compulsive behavior,"
as evincing a legislative focus on the time when the offense was
committed. N.J.S.A. 2C:7-13(e). Therefore, the judge placed
no weight on a defense expert report opining that, at present,
D.F.S. is no longer "repetitive and compulsive." Because the
sentencing court had determined that D.F.S.'s sexually offending
conduct was repetitive and compulsive, the Megan's Law judge
held that N.J.S.A. 2C:7-13(e) required that his registration
information be placed on the Internet registry.
II
In his appellate brief, D.F.S. raises the following points
of argument:
POINT I: PLACEMENT ON THE INTERNET REGISTRY
AS A RESULT OF A FINDING THAT [D.F.S.] WAS
REPETITIVE AND COMPULSIVE AT THE TIME OF
SENTENCING, WHERE [D.F.S.] WAS NEVER
INFORMED OF THIS CONSEQUENCE, VIOLATES THE
DOCTRINE OF FUNDAMENTAL FAIRNESS
5 A-0816-15T1
POINT II: THE TRIAL COURT ERRED BECAUSE IT
FAILED TO MAKE A FINDING BY CLEAR AND
CONVICING EVIDENCE THAT [D.F.S.] WAS
"REPETITIVE AND COMPULSIVE" AT THE TIME OF
THE TIER HEARING AND INSTEAD RELIED UPON A
FINDING BY A LOWER STANDARD MADE AT
SENTENCING
POINT III: THE TRIAL COURT ERRED IN HOLDING
THAT A FINDING OF "REPETITIVE AND
COMPULSIVE" IS A STATIC FACTOR
POINT IV: THE STATUTORY LANGUAGE IS
AMBIGUOUS AND THE TRIAL COURT SHOULD HAVE
LOOKED TO THE BROADER STATUTORY ENACTMENT OF
"MEGAN'S LAW" IN DETERMINING THE MEANING OF
THE 2013 AMENDMENTS TO N.J.S.A. 2C:7-13
As discussed later in this opinion, we decline to address
several of D.F.S.'s appellate arguments because they were not
raised in the trial court, are not supported by an appropriate
evidentiary record, or are otherwise not properly presented by
this appeal.
However, the interpretation of N.J.S.A. 2C:7-13(e) is both
properly before us and central to the appeal. Hence, we begin
with that issue.4 In 2000, the New Jersey Constitution was
amended to authorize public dissemination of information about
sex offenders:
4
The general history of Megan's Law, and the procedures it
requires, have been detailed in other cases, and need not be
repeated here. See A.A. v. New Jersey, 341 F.3d 206, 208-09 (3d
Cir. 2003); A.A. v. State, 384 N.J. Super. 481, 486-91 (App.
Div.), certif. denied, 188 N.J. 346 (2006), cert. denied, 549
U.S. 1181, 127 S. Ct. 1169, 166 L. Ed. 2d 996 (2007).
6 A-0816-15T1
Notwithstanding any other provision of
this Constitution and irrespective of any
right or interest in maintaining
confidentiality, it shall be lawful for the
Legislature to authorize by law the
disclosure to the general public of
information pertaining to the identity,
specific and general whereabouts, physical
characteristics and criminal history of
persons found to have committed a sex
offense. The scope, manner and format of
the disclosure of such information shall be
determined by or pursuant to the terms of
the law authorizing the disclosure.
[N.J. Const. art. IV, § 7, ¶ 12.]
Shortly thereafter, the Legislature passed L. 2001, c. 167,
which established the Internet registry for certain sexual
offenders. N.J.S.A. 2C:7-12 to -19. The Legislature made the
following findings and declarations:
The Legislature finds and declares that
the public safety will be enhanced by making
information about certain sex offenders
contained in the sex offender central
registry established pursuant to [N.J.S.A.
2C:7-4] available to the public through the
Internet. Knowledge of whether a person is
a convicted sex offender at risk of re-
offense could be a significant factor in
protecting oneself and one's family members,
or those in care of a group or community
organization, from recidivist acts by the
offender. The technology afforded by the
Internet would make this information readily
accessible to parents and private entities,
enabling them to undertake appropriate
remedial precautions to prevent or avoid
placing potential victims at risk.
[N.J.S.A. 2C:7-12.]
7 A-0816-15T1
At that time, the Legislature indicated its policy view
that it was not necessary to include incest offenders5 on the
Internet registry, ibid., and accordingly, the statute as
originally enacted contained an exception for offenders whose
risk of re-offense was moderate and whose sole sex offense was
an incest offense. N.J.S.A. 2C:7-13(d)(2).6
However in 2013, the Legislature amended the statute to
require Internet listing of any offender "whose risk of re-
offense is moderate or low and whose conduct was found to be
characterized by a pattern of repetitive, compulsive behavior
pursuant to the provisions of [N.J.S.A.] 2C:47-3." N.J.S.A.
2C:7-13(b)(2); L. 2013, c. 214, § 2 (eff. July 1, 2014). The
amendment also specifically required Internet listing of such
offenders "[n]otwithstanding" the exceptions in subsections
(d)(1)-(3), including the exception for incest offenders set
forth in subsection (d)(2). N.J.S.A. 2C:7-13(e). The amendment
5
In this opinion, we use the terms "incest offenders" and
"incest offense" to refer to the offenders and sexual crimes
listed in N.J.S.A. 2C:7-13(d)(2).
6
At the tier hearing, the State did not contest D.F.S.'s
assertion that his prior conviction would fall within section
13(d)(2). See In re N.B., 222 N.J. 87, 90 (2015) (holding that
an offender who committed multiple acts of sexual contact
against a relative, but had only one conviction, fell within the
incest exception in N.J.S.A. 2C:7-13(d)(2)). The correctness of
that assertion is not before us on this appeal.
8 A-0816-15T1
therefore eliminated the exception for incest offenders whose
sex offenses were found to be repetitive and compulsive.7
Despite the amendment's wording, defendant argues that, at
the tier hearing, the State must prove that an offender's
current conduct is characterized by repetitive and compulsive
sexual offending. We cannot agree.
In construing the statute, we follow certain well
established principles.
"The primary goal of statutory
interpretation 'is to determine as best [as
possible] the intent of the Legislature, and
to give effect to that intent.'" "[T]he
best indicator of that intent is the plain
language chosen by the Legislature." The
Legislature has instructed that, when
construing "its statutes, 'words and phrases
shall be read and construed with their
context, and shall, unless inconsistent with
7
We find no merit in defendant's argument that the 2013
amendments must be construed in light of the Legislature's
earlier policy statement, in N.J.S.A. 2C:7-12, that some incest
offenders should be exempted from inclusion on the Internet
registry. The 2013 amendment reflects a change in that policy.
In fact the legislative history of the amendment strongly
suggests that the Legislature perceived the previous exceptions
as creating a loophole which the Legislature intended to close.
See Senate Law and Pub. Safety Comm., Statement to S. 2636 (June
6, 2013). After reviewing the current exceptions in the law,
the Statement unequivocally expressed the legislative intent:
"This bill requires an offender whose conduct was found to be
repetitive and compulsive to appear on the Internet registry."
Ibid. The Statement then explained that under the amendment,
"an offender whose conduct was found to be repetitive and
compulsive" will no longer be able to "invok[e] one of the
statutory exceptions to keep his registration information from
being published on the Internet." Ibid.
9 A-0816-15T1
the manifest intent of the Legislature or
unless another or different meaning is
expressly indicated, be given their
generally accepted meaning, according to the
approved usage of the language.'" State v.
Bolvito, 217 N.J. 221, 228 (2014) (quoting
N.J.S.A. 1:1-1).
[N.B., supra, 222 N.J. at 98 (additional
citations omitted).]
If a straightforward reading of the statute yields its
plain meaning, we need go no further. State v. Shelley, 205
N.J. 320, 323 (2011); DiProspero v. Penn, 183 N.J. 477, 492
(2005).
"When the Legislature's chosen words lead to
one clear and unambiguous result, the
interpretative process comes to a close,
without the need to consider extrinsic
aids." A court "seek[s] out extrinsic
evidence, such as legislative history, for
assistance when statutory language yields
'more than one plausible interpretation.'"
A court may also turn to extrinsic evidence
"if a literal reading of the statute would
yield an absurd result, particularly one at
odds with the overall statutory scheme."
[N.B., supra, 222 N.J. at 98-99 (citations
omitted).]
In analyzing N.J.S.A. 2C:7-13, we consider the text of
section 13, the sex offender sentencing statute to which it
refers, and the statutory scheme (Megan's Law) of which section
13 is a part.
Based upon our reading of its plain wording, we conclude
that N.J.S.A. 2C:7-13(e) is not ambiguous. The relevant
10 A-0816-15T1
provision is phrased in the past tense, applying to registrants
"whose conduct was found to be characterized by a pattern of
repetitive, compulsive behavior." Ibid. (emphasis added).
Moreover, another provision of the same section specifically
made clear that Internet listing was required for all offenders
"whose conduct was found to be characterized by a pattern of
repetitive, compulsive behavior pursuant to the provisions of
[N.J.S.A.] 2C:47-3." N.J.S.A. 2C:7-13(b)(2) (emphasis added).
We conclude that both provisions describe a static factor, which
can be found in the decision made by the sentencing court
pursuant to N.J.S.A. 2C:47-3.
Any doubt on that point is resolved by considering the
included reference to N.J.S.A. 2C:47-3, which is part of the Sex
Offender Act (Act), N.J.S.A. 2C:47-1 to -10. The Act's "central
theme" is to "address[] sex offenders" whose conduct is
clinically determined to be both repetitive and compulsive. In
re Civil Commitment of W.X.C., 204 N.J. 179, 196 (2010), cert.
denied, 562 U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635
(2011); see N.J.S.A. 2C:47-1 (sex offenders convicted of one of
the listed offenses must be clinically examined to determine if
their "conduct was characterized by a pattern of repetitive,
compulsive behavior," and if so, whether they are amenable to
sex offender treatment and willing to participate in it).
11 A-0816-15T1
N.J.S.A. 2C:47-3 sets forth the criteria the sentencing
court is to use in determining whether to sentence a convicted
sex offender to the ADTC. Subsections 3(a) and 3(b) provide
that "[i]f the report of the [clinical] examination reveals that
the offender's conduct was characterized by a pattern of
repetitive, compulsive behavior" and "[i]f the court finds that
the offender's conduct was characterized by a pattern of
repetitive, compulsive behavior," then an ADTC sentence is
appropriate so long as the offender is also amenable to
treatment and willing to engage in it. N.J.S.A. 2C:47-3(a), (b)
(emphasis added).
The 2013 amendment to N.J.S.A. 2C:7-13 rewrote subsection
13(b) entirely to include the previously-quoted language,
including the reference to N.J.S.A. 2C:47-3. That reference
signals that for purposes of section 13, the terms "repetitive"
and "compulsive" are to be based on findings made under N.J.S.A.
2C:47-3. Nothing in the wording or history of the amendment
suggests that the terms "repetitive" and "compulsive" in
subsection 13(e) should be interpreted differently than the same
phrase in subsection 13(b). Thus, the Legislature intended the
Internet registration decision to be based on the findings
originally made at the time of sentencing pursuant to N.J.S.A.
2C:47-3.
12 A-0816-15T1
Additional wording found in N.J.S.A. 2C:7-13(e) also
supports our conclusion. The section provides that Internet
listing is required if the offender's conduct was found to be
repetitive and compulsive, "or [if] the State establishes by
clear and convincing evidence" that the offender poses a current
risk by proving
that, given the particular facts and
circumstances of the offense and the
characteristics and propensities of the
offender, the risk to the general public
posed by the offender is substantially
similar to that posed by offenders whose
risk of re-offense is moderate and who do
not qualify under the enumerated exceptions.
[N.J.S.A. 2C:7-13(e).]
Thus, subsection 13(e) sets forth, in the alternative, two bases
for Internet listing: a static criterion consisting of a past
finding of repetitive and compulsive conduct; or evidence
proving that the offender poses a current risk of re-offense
even though his past sexual offenses would not otherwise require
Internet listing.
The broader statutory framework of which N.J.S.A. 2C:7-13
is a part further supports our conclusion. The Legislature's
concern with offenders whose conduct was characterized by
repetitive, compulsive behavior is reflected throughout Megan's
13 A-0816-15T1
Law.8 N.J.S.A. 2C:7-2(b)(1), which addresses the registration of
sex offenders, states that the sex offenses subject to the
registration provisions include
[a]ggravated sexual assault, sexual assault,
aggravated criminal sexual contact,
kidnapping pursuant to [N.J.S.A. 2C:13-
1(c)(2)] or an attempt to commit any of
these crimes if the court found that the
offender's conduct was characterized by a
pattern of repetitive, compulsive behavior,
regardless of the date of the commission of
the offense or the date of conviction.
Hence, Megan's Law applies retroactively to repetitive,
compulsive offenders. The conduct referred to in the above
quoted language is the conduct exhibited in committing the
offense.
Further, offenders who are required to register under
N.J.S.A. 2C:7-2(b)(1) must "verify [their] address with the
appropriate law enforcement agency every 90 days," whereas other
8
In Doe v. Poritz, the Court described the challenge the
Legislature faced in designing Megan's Law: "The recidivism of a
repetitive and compulsive sex offender is almost intractable.
The problem of this form of recidivism poses an enormous
challenge to the Legislature to devise a solution generally
designed to remedy the problem without unnecessarily penalizing
those who are its source." Doe v. Poritz, supra, 142 N.J. at
40; see also id. at 14-20. The Court noted that offenders whose
conduct was repetitive and compulsive are "those most likely,
even many years later, to reoffend." Id. at 74. In W.X.C., the
Court again acknowledged the Legislature's concern for the
particular danger posed by offenders whose sex crimes were
repetitive and compulsive. W.X.C., supra, 204 N.J. at 196-97.
14 A-0816-15T1
convicted offenders must verify their addresses annually.
N.J.S.A. 2C:7-2(e). Thus, the Legislature placed stricter
registration requirements on offenders whose crimes, when
committed, were characterized by repetitive and compulsive
behavior.
N.J.S.A. 2C:7-8, which sets forth the procedures for
notification based on the risk of re-offense, states that
"[c]riminal history factors indicative of high risk of re-
offense" include "[w]hether the offender's conduct was found to
be characterized by repetitive and compulsive behavior."
N.J.S.A. 2C:7-8(b)(3)(a). By contrast, a separate subsection
lists as another risk factor the offender's "[r]ecent behavior."
N.J.S.A. 2C:7-8(b)(7). The plain language of subsection
8(b)(3)(a), as well as the contrast with subsection 8(b)(7),
illustrates that "repetitive and compulsive" refers to an
offender's past conduct.
Nearly identical language to that used in N.J.S.A. 2C:7-
2(b)(1) and N.J.S.A. 2C:7-8(b)(3)(a) appears in the Internet
registry sections, N.J.S.A. 2C:7-13(b)(2) and -13(e).
Generally, "a word or phrase should have the same meaning
throughout the statute in the absence of a clear indication to
the contrary." Perez v. Pantasote, Inc., 95 N.J. 105, 116
(1984). Reading Megan's Law as a whole, it is apparent to us
15 A-0816-15T1
that the phrase used in N.J.S.A. 2C:7-13(e) - "was characterized
by a pattern of repetitive, compulsive behavior" - refers to the
determination that was made at sentencing.
Defendant's reliance on State v. N.G., 381 N.J. Super. 352
(App. Div. 2005), is misplaced. The decision addresses how the
sentencing court is to decide whether to sentence an offender to
the ADTC. In that case, the defendant appealed his ADTC
sentence, claiming that the phrase "repetitive, compulsive
behavior," as used in N.J.S.A. 2C:47-3, was unconstitutionally
vague, and in the alternative, that the State failed to prove
that his conduct met those criteria. Id. at 356. The defendant
was accused of molesting his nieces between 1991 and 1997.
However, he was not sentenced until 2004.
At his Horne9 hearing, the State's psychologist testified
that the defendant's conduct was both repetitive and compulsive.
The defendant's expert opined that although the defendant's
conduct was repetitive, it was not compulsive, in the sense that
it was not the product of an irresistible urge that the
defendant could not control. The defense expert opined that a
finding of compulsion required an ongoing problem that had "been
active in the last six months" and because the defendant "had
9
State v. Horne, 56 N.J. 372, 378-79 (1970), entitles a
convicted sex offender to a hearing before the court decides
whether to impose an ADTC sentence.
16 A-0816-15T1
not demonstrated evidence of recurrent pedophilic fantasies,
urges, or acts since 1995 or 1997, his behavior was not
compulsive." Id. at 358.
This court found that the terms "repetitive" and
"compulsive" were not vague, and noted that both sides' experts
ascribed essentially the same meanings to those terms. However,
the court looked at the purpose of an ADTC sentence, which was
not only to punish the offender but also "to treat [defendant's]
underlying psychological problems." Id. at 363. The court
reasoned:
It follows then, that if an individual's
conduct at the time he is sentenced is no
longer characterized by a pattern of
repetitive, compulsive behavior, he would
not benefit from rehabilitation and
consequently would not require treatment.
That being so, the purposes of the Act would
not be fostered by sentencing him to the
ADTC. In other words, to decide whether an
offender's conduct is characterized by a
pattern of repetitive, compulsive behavior
so as to warrant ADTC treatment, a court
must consider the offender's condition at
sentencing, not merely his behavior on the
dates that the criminal conduct in question
occurred.
[Ibid.]
The Panel found that the trial court reasonably credited the
State's expert's testimony that the defendant likely suffered
from "pedophilia in remission;" he "remained at risk to commit
another offense," particularly if he used alcohol; and his lack
17 A-0816-15T1
of recent offenses may have been due to lack of opportunity
rather than recovery. Id. at 365.
Since N.G. was decided, the Supreme Court decided W.X.C.,
which suggests a slightly different analysis to support the
result reached in N.G. In W.X.C., the Court observed that the
Legislature had repeatedly narrowed the ADTC sentencing statute,
to conserve the State's limited resources for the treatment of
incarcerated sex offenders. W.X.C., supra, 204 N.J. at 196-97,
199. The Court observed that, currently, in order to impose an
ADTC sentence under N.J.S.A. 2C:47-3, a finding of past
repetitive and compulsive conduct is not enough. Rather, the
sentencing court must find four factors: "[F]our qualifications
must coalesce for a Sex Offender Act sentence: repetitiveness;
compulsiveness; amenability; and willingness to participate in
treatment." Id. at 197. Had W.X.C. been decided at the time,
perhaps the court in N.G. would have reasoned that an offender
who has brought his sexual compulsions under control prior to
the date of sentencing would not be "amenable" to treatment at
ADTC, in the sense that he would no longer benefit from that
treatment, and hence should not be sentenced there.
However, for purposes of this case, we need not decide
whether N.G. should have focused on whether the defendant was
"amenable" to treatment at the time of sentencing, rather than
18 A-0816-15T1
on whether he was a "repetitive and compulsive" offender at that
point in time. Suffice to say that, under the holding of N.G.,
the determination as to whether a convicted sex offender's
conduct "was" repetitive and compulsive is made at the time of
sentencing. That is also the point in time which is relevant
for purposes of the Internet registry statute, N.J.S.A. 2C:7-
13(e).
N.G. has no further relevance to our analysis because,
rather than addressing the placement of a sex offender's
information on the Internet registry, it addressed the most
appropriate use of the State's very limited therapeutic
resources for treating incarcerated sex offenders. Those
concerns about limitations on therapeutic resources have no
application to the placement of a sex offender's registration
information on the Internet registry. Unlike the ADTC
sentencing process, the purpose of the registry is not to
rehabilitate sex offenders but solely to protect the public.
See N.J.S.A. 2C:7-1; N.J.S.A. 2C:7-12.
Accordingly, we affirm the trial court's order requiring
that D.F.S.'s registration information be placed on the Internet
registry, pursuant to N.J.S.A. 2C:7-13(e), because at the time
D.F.S. was sentenced the court found that his offenses were
repetitive and compulsive.
19 A-0816-15T1
III
Defendant's additional appellate issues are not properly
before us on this appeal.10 D.F.S. argues that he was not
informed, at his sentencing, of the possible Megan's Law-related
consequences of a finding that his conduct was repetitive and
compulsive. That issue was not raised before the Megan's Law
judge; and in any event, an application to revise D.F.S.'s
previous classification at the time of sentencing, or to
withdraw his guilty plea, must be filed as a post-conviction
application in his criminal case.
As previously noted, at the Megan's Law hearing, D.F.S.'s
counsel specifically informed the court that "we have no issue
with the finding at the time of sentencing, at that time he was
found repetitive and compulsive." D.F.S. did not argue that,
had the sentencing court applied the clear and convincing
standard of proof, instead of the preponderance of the evidence
standard, the "repetitive and compulsive" decision at sentencing
would have been different at the time he was sentenced. See
State v. Howard, 110 N.J. 113, 131 (1988) (for ADTC sentencing
purposes, repetitive and compulsive behavior need only be proven
10
To ascertain with certainty what issues were raised in the
Megan's Law hearing, we required the parties to provide us with
their trial court briefs. D.F.S. provided us with his brief.
The State advised that it did not file a brief in the trial
court.
20 A-0816-15T1
by a preponderance). Consequently, this case does not present
an appropriate vehicle for us to decide whether the "repetitive
and compulsive" decision must have been made by clear and
convincing evidence, in order for the Megan's Law judge to later
rely on it for purposes of deciding whether to place an
offender's information on the Internet registry. That issue
must await another case. See State v. J.M., Jr., __ N.J. __, __
(2016) (slip op. at 21) (disapproving the rendering of advisory
opinions).
In the trial court, D.F.S. did not challenge the
constitutionality of N.J.S.A. 2C:7-13(e). Nor did he argue that
it violated the doctrine of fundamental fairness. He did not, at
the trial level, give the Attorney General notice of a
constitutional challenge. See R. 4:28-4(a). As a result, the
record created is insufficient to permit decision of a
constitutional challenge based on a claim that the Internet
registry requirement violates due process. Nor does this case
present an appropriate vehicle for us to address what we
perceive as the implicit premise underlying D.F.S.'s arguments:
that an offender whose crimes were repetitive and compulsive can
be sufficiently rehabilitated such that, as a matter of
constitutional principle, the repetitive and compulsive nature
21 A-0816-15T1
of his past conduct can no longer justify disclosing his
personal information on the Internet registry.11
Constitutional issues are not afterthoughts to be raised
for the first time on appeal without a proper evidentiary
record. A hearing in which the opposing party has no notice of
the constitutional issue, and hence has no reason to present
opposing evidence pertinent to the issue, does not produce a
fair or satisfactory record. Consequently, we decline to
depart from the usual rule that we will not entertain arguments
raised for the first time on appeal. See State v. Robinson, 200
N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
234 (1973); see also Conn. Dep't of Pub. Safety v. Doe, 538 U.S.
1, 7-8, 123 S. Ct. 1160, 1164-65, 155 L. Ed. 2d 98, 105 (2003)
(rejecting procedural due process claim, but declining to
address substantive due process claim relating to Connecticut's
11
We note that several constitutional challenges to Megan's Law
Internet registration provisions have already been rejected. See
Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164
(2003) (upholding Alaska's Internet Registry law against ex post
facto challenge); A.A. v. New Jersey, supra, 341 F.3d at 213
(holding that "whatever privacy interest the Registrants have in
their home addresses is substantially outweighed by [New
Jersey's] interest in expanding the reach of its notification
[via the Internet Registry] to protect additional members of the
public"); A.A. v. State, supra, 384 N.J. Super. at 498-500
(rejecting a federal equal protection challenge to N.J. Const.
art. IV, § 7, ¶ 12, and noting that the language of paragraph 12
precluded a challenge based on any other provision of the New
Jersey Constitution). However, the record is inadequate for our
consideration of this particular constitutional challenge.
22 A-0816-15T1
Internet registry law, because the appeal did not properly
present the issue); cf. State v. Bueso, __ N.J. __, __ (2016)
(slip op. at 11-13).
Lastly, D.F.S. argues that the Internet registration
statute is overbroad and does not serve the Legislature's
underlying purpose of protecting the public against sex
offenders who pose a current danger. He contends that the
purpose of the tier hearings is to evaluate an offender's
current risk to reoffend, and that using one static aspect of an
offender's past conduct (whether it was repetitive and
compulsive) would, in his words "frustrate[] the purpose of the
Internet Registry." Absent a constitutional flaw in the
statute, that issue presents a policy decision for the
Legislature.
Affirmed.
23 A-0816-15T1