IN THE MATTER OF REGISTRANT A.R. (ML-1491, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0561-19
IN THE MATTER OF
REGISTRANT A.R.
___________________
Argued September 16, 2021 – Decided September 29, 2021
Before Judges Mawla and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. ML-1491.
Michael C. Woyce, Assistant Deputy Public Defender,
argued the cause for appellant A.R. (Joseph E. Krakora,
Public Defender, attorney; Michael C. Woyce, on the
brief).
David M. Liston, Assistant Prosecutor, argued the
cause for respondent State of New Jersey (Yolanda
Ciccone, Middlesex County Prosecutor, attorney;
David M. Liston, on the brief).
PER CURIAM
A.R. appeals from a September 26, 2019 order denying his request to
terminate his 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, obligations. A.R. argues he submitted
sufficient evidence to support the conclusion that he would not pose a risk of
harm to the community and contends that the judge improperly relied on the
Registrant Risk Assessment Scale (RRAS) in denying his request. We affirm,
substantially for the reasons set forth in Judge Colleen M. Flynn's well-reasoned
written opinion. We add only the following brief remarks.
We discern the following facts from the record. In 1995, A.R. was living
with seven-year-old T.C. 1 and her family. On January 9, 1997, T.C. and her
mother reported to the police that A.R., then thirty-two years old, had sexually
abused T.C. multiple times between January and June 1995. The next day, T.C.
told the prosecutor's office that A.R. used to babysit her two years prior. She
stated that A.R. "touched her vagina with his hand underneath her clothes[,]
stuck his pee-pee in [her] butt[, and] while she was sleeping on the couch, he
pulled down her pants, got on top of her and 'stuck his pee-pee in [her] butt.'"
She stated "[h]e also asked her to 'suck on his pee-pee'" and A.R. touched her
vagina on approximately thirty occasions. T.C. also stated A.R. threatened to
kill her family if she told anyone and provided her "with a lot of stuff" so she
would keep the assaults a secret.
1
Initials are used to protect the identity of the victim. R. 1.38-3(c)(12).
2 A-0561-19
In March 1997, a Passaic County grand jury returned an indictment
against A.R. charging him with first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b)
(count two); and third-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a) (count three). He later pled guilty to second-degree sexual assault
and was sentenced to a six-year term at the Adult Diagnostic and Treatment
Center (ADTC). A.R. was also ordered to register under Megan's Law and
sentenced to CSL. 2
Dr. Mark Frank initially evaluated A.R. in 1997. Dr. Frank noted that
A.R. was previously diagnosed with schizoaffective disorder, 3 was unable to
control his anger, and had a lengthy history of suicide attempts. Dr. Frank also
noted A.R. "reported a long history of poly-drug and alcohol use." During the
interview, A.R. admitted to worrying "about engaging in similar inappropriate
sexual behavior in the future." Dr. Frank also identified signs of an "underlying
psychotic disorder, currently in apparent remission with psychopharmacological
treatment." He recommended "sex offender specific psychotherapy, intense
2
While at ADTC, A.R. was convicted of third-degree aggravated assault for which
he received a concurrent three-year sentence.
3
Although Dr. Frank noted that there were no florid psychotic symptomatology
during the evaluation, A.R. was taking Navane, an antipsychotic medication.
3 A-0561-19
substance abuse treatment and continued psychiatric/psychopharmacological
treatment . . ."
In 2002, Dr. Lawrence Allen Siegel evaluated A.R. Dr. Siegel noted A.R.
had "homicidal thoughts when he was drinking in the past" and a history of
alcohol and substance abuse. Dr. Siegel's diagnostic impression was pedophilia
as well as alcohol and cocaine abuse in institutional remission. Actuarially, A.R.
fell into "groups with a less than [fifty percent] risk of sexual re-offense." Dr.
Siegel acknowledged his treatment team's observation that A.R. minimizes his
"deviant arousal, alcohol problem and psychological problems," but noted that
it "does not necessarily equate with a high risk of sexual recidivism." Dr. Siegel
recommended that A.R. receive sex offender treatment, substance abuse
treatment, and mental health counseling. In doing so, he highlighted that A.R.'s
"impulsive nature . . . can be magnified if and when he abuses drugs or alcohol."
In 2003, A.R. was released from ADTC. In 2004, Thomas Calabrese
drafted a report recommending A.R. be placed in "[l]ow [t]ier [t]wo and possibly
[t]ier [o]ne" due to "low actuarial scores and current progression in treatment. .
. ." A.R. initially minimized his behavior, but later acknowledged and described
his sexual arousal to T.C. Indeed, A.R. admitted to "periodic sexual arousal to
pre-pubescent, pubescent, [and] adolescent females." Like Dr. Frank and Dr.
4 A-0561-19
Siegel, Calabrese noted A.R.'s substance abuse problem and his history with
suicidal ideations. Calabrese indicated that one of the precursors to A.R.'s sex-
offending behavior was his alcohol and substance abuse. Based on Calabrese's
report and A.R.'s RRAS score of forty-one, A.R. was classified into tier two
with a moderate risk of re-offense.
A.R. married a woman in 2010 and has an eight-year-old daughter from
that marriage. Pursuant to his parole obligations, A.R. was prohibited from
having unsupervised contact with children, including his daughter.
In 2017, Calabrese submitted a subsequent letter indicating A.R.'s
STATIC-99 score placed him in the low range of recidivism and noted his
"current significant medical issues have help[ed] mitigated his risk to re-offend
sexually." Calabrese highlighted that A.R. completed his mandated treatment;
but, if he "uses alcohol/substances it is recommended that he enter a program
that deals with those issues."
In 2018, Dr. James Reynolds conducted a psychosexual evaluation and
risk assessment. Dr. Reynolds' indicated A.R. self-reported he "does not have a
sexual attraction to underage persons." He also found A.R. "has not experienced
harmful thoughts or intentions" and had no "history of self-mutilating or self-
harmful behavior." Dr. Reynolds' gave A.R. an RRAS score total of thirty-seven
5 A-0561-19
points, placing "him at the low end of the moderate risk range." Based on
STATIC-99-R, ACUTE-2007, and STABLE-2007 assessments, he concluded
A.R. presented a "very low recidivism risk." Dr. Reynolds therefore
recommended A.R. be relieved of his Megan's Law obligations and removed
from CSL.
A.R. moved to terminate his obligation to register under Megan's Law,
N.J.S.A. 2C:7-2(f), and terminate his CSL, N.J.S.A. 2C:43-6.4(c). On
September 26, 2019, following oral argument, Judge Flynn issued a thirteen-
page written opinion denying defendant's request. She concluded Dr. Reynolds'
report contained "inaccuracies" and "inconsistencies," and that his conclusions
were "general, rather than individualized." The judge noted that, contrary to the
other experts' reports, Reynolds found A.R. was not sexually attracted to
underage persons and had no history of self-harmful behavior. She determined
A.R.'s mental health issues were "relatively overlooked in Dr. Reynolds' report."
With respect to the RRAS score, Judge Flynn found:
. . . Dr. Reynolds['] zero points under factor eight
regarding history of anti-social behavior is not accepted
by the court; rather, the initial score of three, for
moderate risk based upon limited history of anti-social
behavior should be included. This would bring the
current RRAS score to at least [forty].
6 A-0561-19
With further regard to the RRAS score, Dr.
Reynolds states that his calculation of [thirty-seven]
points puts the registrant on the cusp of low to moderate
risk. However, the scale is clear: [thirty-seven] is in
the moderate range, albeit the bottom of that range.
Judge Flynn held A.R. did not prove by a preponderance of the evidence
that he was unlikely to threaten others' safety if released from his Megan's Law
obligations. Likewise, she concluded A.R. did not prove by clear and
convincing evidence that he is unlikely to threaten others' safety if released from
CSL. The judge noted "[t]here is no evidence that [A.R.] is in continued
treatment or takes medication in connection with his significant mental health
issues, which should be considered in the risk determination." She also found
A.R.'s alcohol and substance abuse history aggravated his unaddressed mental
health issues. Citing Calabrese's report, the judge recognized A.R.' s substance
abuse history and mental health issues acted as triggers to his sex-offending
behaviors. In other words, "[i]f alcohol/substance abuse might trigger sexual
re-offense, and a concern remains that he might relapse regarding
alcohol/substances, then concern remains that such a relapse could trigger sexual
re-offense."
Because the State conceded below that it has been more than fifteen years
since A.R.'s release and that he remained offense-free during that period, the
7 A-0561-19
sole issue on appeal is whether A.R. met his burden in proving he was "not likely
to pose a threat to the safety of others . . . ." We agree with Judge Flynn that
A.R. failed to do so.
We review the judge's determination on a motion to terminate CSL for
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 Megan's Law registration
obligations "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 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).
Likewise, a defendant may be relieved of CSL where "the person has not
committed a crime for [fifteen] years since the last conviction or release from
8 A-0561-19
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.
The RRAS was "designed to provide prosecutors with an objective
standard on which to base the community notification decision mandated by
[Megan's Law] and to assure that the notification law is applied in a uniform
manner throughout the State." In re C.A., 146 N.J. 71, 100-01 (1996). The
RRAS "is used to assess whether a registrant's risk of reoffending is low,
moderate or high." In re A.D., 441 N.J. Super. 403, 407 (App. Div. 2015); see
also In re V.L., 441 N.J. Super. 425, 429 (App. Div. 2015) ("An overall score of
[zero] to [thirty-six] places an offender in Tier [one]; [thirty-seven] to [seventy-
three], in Tier [two]; and [seventy-four] to 111, Tier [three]."). "Although the
Scale has not been empirically validated through scientific field studies, the
factors that comprise the Scale have been shown to be the best indicators of risk
of re-offense." In re C.A., 146 N.J. at 107. 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).
9 A-0561-19
Judge Flynn's reasons for discounting Dr. Reynolds' report are supported
by the record. Furthermore, the trial judge may accept or reject an expert report
and weight it appropriately. Maison v. N.J. Transit Corp., 460 N.J. Super. 222,
232 (App. Div. 2019); see also State v. S.N., 231 N.J. 497, 514-15 (2018)
("[R]egardless 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." (citing State v. S.S., 229 N.J. 360, 379
(2017))). Accordingly, we defer to the judge's credibility determination.
Based on this record, we conclude Judge Flynn's well-supported denial of
A.R.'s request to terminate his registration requirements under Megan's Law and
CSL was not an abuse of discretion. Although the RRAS may be helpful as an
indicator of "risk of re-offense," judges should take a more holistic approach to
evaluating a defendant's risk to the community under N.J.S.A. 2C:43-6.4(c) and
N.J.S.A. 2C:7-2(f), In re C.A., 146 N.J. at 107. Judge Flynn did exactly that.
After fully considering the record, she concluded A.R. failed to prove he was
not likely to commit another sexual offense. The judge cited A.R.'s long history
of substance and alcohol abuse, his seemingly unaddressed mental health issues,
10 A-0561-19
his proclivity for violence and angry outbursts, and his RRAS score. 4 We
discern no basis to overturn that decision.
We have carefully considered A.R.'s remaining arguments and conclude
they lack sufficient merit to warrant discussion in a written opinion. See R.
2:11-3(e)(2).
Affirmed.
4
Dr. Reynold's RRAS score of thirty-seven, which the judge rejected, still put
A.R. within the moderate risk of re-offense.
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