In the Matter of Registrant V.L. , 441 N.J. Super. 425 ( 2015 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0816-14T1
APPROVED FOR PUBLICATION
July 20, 2015
IN THE MATTER OF REGISTRANT V.L.
APPELLATE DIVISION
__________________________________
Argued May 27, 2015 – Decided July 20, 2015
Before Judges Nugent, Accurso and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No.
ML# 03010049.
Seth R. Belson, Assistant Deputy Public
Defender, argued the cause for appellant
V.L. (Joseph E. Krakora, Public Defender,
attorney; Mr. Belson, on the brief).
Erin M. Bisirri, Assistant Prosecutor,
argued the cause for respondent State of New
Jersey (James P. McClain, Atlantic County
Prosecutor, attorney; Ms. Bisirri, of
counsel and on the brief).
The opinion of the court was delivered by
NUGENT, J.A.D.
V.L. is a registered sex offender. He appeals from a
September 16, 2014 Law Division order reclassifying his risk of
reoffense or Tier, previously designated as low or Tier 1, to
moderate or Tier 2, the latter requiring notification of his
presence in the community not only to certain law enforcement
agencies but also to certain community institutions and
organizations. V.L. contends the trial court erred in scoring
the Registrant Risk Assessment Scale (RRAS), the instrument used
by prosecutors and courts to determine whether a sex offender
presents a low (Tier 1), moderate (Tier 2), or high (Tier 3)
risk of reoffense. Specifically, V.L. argues that RRAS
criterion seven – length of time since last offense – applies to
sex offenses only, and the trial judge erred by ruling to the
contrary. Our review of the Att'y Gen. Guidelines for Law
Enforcement for the Implementation of Sex Offender Registration
and Cmty. Notification Laws (June 1998, rev'd Feb. 2007) (the
Guidelines) leads us to agree with V.L. Accordingly, we reverse
and remand for a new tier hearing.
The facts are undisputed. In 2003 V.L. pled guilty to
fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), a
sex offense as defined in Megan's Law.1 The court sentenced him
to 364 days in jail and three years' probation. The court also
ordered V.L. to comply with Megan's Law's registration
provisions, N.J.S.A. 2C:7-1 to -5. These provisions require an
incarcerated sex offender to register with the chief law
enforcement officer of the municipality in which the offender
proposes to reside upon release from jail or prison,
1
Megan's Law refers to a group of bills concerning sex offenders
that became law on October 31, 1994. L. 1994, c. 127-34. The
term "sex offense" is defined in L. 1994, c. 133, §2 (N.J.S.A.
2C:7-2(b)).
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periodically verify the address, and re-register upon a change
of address.
Megan's Law's community notification provisions, N.J.S.A.
2C:7-6 to -10, require the chief law enforcement officer of the
municipality where a sex offender resides to notify certain
agencies and organizations of the sex offender's presence in the
community. The extent of the notification depends upon the
registrant's risk of reoffense. If a registrant's reoffense
risk is low, law enforcement agencies likely to encounter the
registrant must be notified. N.J.S.A. 2C:7-8(c)(1). If the
reoffense risk is moderate, community organizations "including
schools, religious and youth organizations shall be notified[.]"
N.J.S.A. 2C:7-8(c)(2). If the reoffense risk is high, "the
public shall be notified[.]" N.J.S.A. 2C:7-8(c)(3). A
registrant's "tier" is determined in large part by the
registrant's score on the RRAS.
In 2003, following V.L.'s release from his jail term for
the sex offense, he was classified as a Tier 1 offender.
Between 2003 and 2014, V.L. was convicted of crimes that
included employing a juvenile in the commission of a crime,
N.J.S.A. 2C:24-9, conspiracy, N.J.S.A. 2C:5-2, and shoplifting,
N.J.S.A. 2C:20-11(b); possession of a controlled dangerous
substance, cocaine, N.J.S.A. 2C:35-10(a)(1); failing to verify
his address, N.J.S.A. 2C:7-2(e); and burglary, N.J.S.A. 2C:18-2.
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In 2014, following V.L.'s release from his prison term for
burglary and his notifying authorities of his intent to change
his address, the county prosecutor sought to reclassify him as a
Tier 2 offender. At the tier hearing, the court determined that
V.L. fell within Tier 2. In reaching that determination, the
court rejected V.L.'s argument that RRAS criteria seven, "Length
of Time Since Last Offense," referred to sex offenses only. The
court applied criterion seven to V.L.'s burglary conviction. As
a consequence, V.L.'s overall score on the RRAS exceeded the
maximum score for a low range or Tier 1 classification, and fell
within the score for a moderate range or Tier 2 classification.
V.L. appealed from the implementing order.
We begin our review with some fundamental observations
about Megan's Law. The Legislature determined that the danger
of recidivism posed by sex offenders and other designated
predators "require[d] a system of registration that will permit
law enforcement officials to identify and alert the public when
necessary for the public safety." N.J.S.A. 2C:7-1a. Megan's
Law's registration and notification provisions are intended to
"provide law enforcement with additional information critical to
preventing and promptly resolving incidents involving sexual
abuse and missing persons." N.J.S.A. 2C:7-1b.
The Legislature directed the Attorney General to
"promulgate guidelines and procedures" for providing
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notification to either law enforcement, community organizations,
or the public, depending upon a sex offender's degree of risk of
reoffense. N.J.S.A. 2C:7-8. In so directing the Attorney
General, the Legislature noted explicitly that
Factors relevant to risk of re-offense shall
include, but not be limited to, the
following:
(1) Conditions of release that minimize risk
of reoffense, including but not limited to
whether the offender is under supervision of
probation or parole; receiving counseling,
therapy or treatment; or residing in a home
situation that provides guidance and
supervision;
(2) Physical conditions that minimize risk
of reoffense, including but not limited to
advanced age or debilitating illness;
(3) Criminal history factors indicative of
high risk of reoffense, including:
(a) Whether the offender's conduct was found
to be characterized by repetitive and
compulsive behavior;
(b) Whether the offender served the maximum
term;
(c) Whether the offender committed the sex
offense against a child;
(4) Other criminal history factors to be
considered in determining risk, including:
(a) The relationship between the offender
and the victim;
(b) Whether the offense involved the use of
a weapon, violence, or infliction of serious
bodily injury;
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(c) The number, date and nature of prior
offenses;
(5) Whether psychological or psychiatric
profiles indicate a risk of recidivism;
(6) The offender's response to treatment;
(7) Recent behavior, including behavior
while confined or while under supervision in
the community as well as behavior in the
community following service of sentence; and
(8) Recent threats against persons or
expressions of intent to commit additional
crimes.
[N.J.S.A. 2C:7-8b].
In response to the Legislative Directive, the Attorney
General "convened a committee composed of mental health experts
as well as members of the Law Enforcement Committee, which
drafted the [RRAS] and the accompanying Registrant Risk
Assessment Scale Manual (RRA Manual),2 which explains the
[RRAS]." In re Registrant C.A., 146 N.J. 71, 82 (1996). The
RRAS, a copy of which is attached to this opinion as Appendix A,
is divided into four categories: "Seriousness of Offense,"
"Offense History," "Characteristics of Offender," and "Community
Support." Each category contains at least two of a total of
thirteen criteria and each criterion is given a score of zero,
one, or three, depending on whether the criteria as applied to
the offender create a low, moderate, or high risk assessment
2
The RRA Manual is included as "Exhibit E" in the Guidelines.
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correlating to a tier. The factors are then weighted by means
of a multiplier. An overall score of 0 to 36 places an offender
in Tier 1; 37 to 73, in Tier 2; and 74 to 111, Tier 3.
This appeal requires us to interpret the Guidelines and the
RRA Manual. Because such an interpretation presents a purely
legal question, we owe no deference to the trial court and our
review is plenary. State v. Pomianek, 221 N.J. 66, 80 (2015);
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
The current RRA Manual explains:
The purpose of this assessment is to provide
a method of notification to the public so as
to address the concerns of the community
regarding the location of convicted sex
offenders who may be a risk of committing
further offenses. The assessment process
required by the statute is not intended to
determine the actual probability of any one
registrant reoffending. Rather, as the
Court's opinion in Doe v. Poritz makes
clear, the Legislature has already concluded
that the nature of the offense, i.e., a sex
offense, warrants notification at some
level. "Therefore the probability of
reoffense on the part of moderate- or high-
risk offenders is not the issue before the
court, but rather the relatively greater
risk of reoffense compared either to the
low-risk offender class or the moderate-risk
offender class." Doe v. Poritz, 142 N.J. 1,
34 (1995). Instead, using well recognized
criteria, the panel has formulated a method
of objectively placing registrants in tiers
designed to provide the public with notice
of the whereabouts of convicted sex
offenders, such that the community will be
better informed and prepared.
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[Guidelines, supra, Exhibit E at 1.]
Under the heading, "The likelihood that the defendant will
recidivate," the RRA Manual states:
The expert panel reviewed existing risk
assessment scales commonly used with sex
offenders. In addition, the panel reviewed
considerable research regarding predicting
sex offender recidivism. These reviews of
existing instruments and empirical
literature led the panel to select risk
assessment criteria that have demonstrated
empirical support and common usage by sex
offender experts. Other criteria which
lacked such well-recognized empirical
support were not included. These criteria
can be divided into a few broad areas:
1.2.1. Intensity, duration, and frequency
of illegal sexual behavior: Victim
selection, number of offenses/victims,
duration of offensive behavior, and length
of time since last offense fall into this
category.
1.2.2. Antisocial lifestyle: History of
antisocial acts (other than sex offenses),
substance abuse, and employment/educational
stability fall into this category.
1.2.3. Involvement in treatment:
Response to treatment and therapeutic
support fall into this category.
1.2.4. Social support: Residential support
falls in this category.
For ease of use, on the scale itself, these
criteria were grouped as follows:
1. Seriousness of Offense
2. Offense History
3. Characteristics of Offender
4. Community Support
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The latter three groups of criteria relate
to the likelihood that the offender will
recidivate. The first group are criteria
that relate to the consequences to the
community should the offender recidivate.
[Id. at 3-4.]
Section 1.2.1 contains an explicit statement that the
"length of time since last offense fall[s] into this
category[,]" namely, "[i]ntensity, duration, and frequency of
illegal sexual behavior[.]"
In explaining how criterion seven – length of time since
last offense – is used on the RRAS, the RRA Manual states:
7. Length of time since last offense
(while at risk) is related to likelihood of
reoffense. The time counted in this
criterion is only time at risk — that is,
when the offender is in a situation in which
he or she has ready, unsupervised access to
potential victims. Time incarcerated or
civilly committed does not count, given that
most offenders do not commit offenses under
those circumstances. If, however, evidence
exists (such as documented institutional
disciplinary charge) that the offender did
commit a sexual offense while incarcerated,
then this offense should be included in the
time calculation. For juveniles, time spent
in residential placement without furloughs
should be treated similarly to incarceration
for adults.
[Id. at 7.]
The RRA Manual's reference to a sex offense committed in
prison is further evidence the expert panel and Attorney General
intended that criterion seven apply only to sex offenses.
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Significantly, the "offense history" category on the RRAS
includes criteria eight, "History of Anti-Social Acts." In
explaining that category, the RRA Manual states:
8. History of antisocial acts is a good
predictor of future antisocial acts, sexual
and otherwise. The more extensive the
antisocial history, the worse the prognosis
for the offender. Antisocial acts include
crimes against persons, crimes against
property, and status offenses (for
juveniles). Acts which are not the subject
of criminal charges but that are credibly
represented in the available records may be
counted. For example, sexual deviancy not
the subject of criminal prosecution may be
counted in this category as long as it has
not already been included in Factor 5 above.
In this way, any "double-counting" will be
avoided. Available documentation which can
be considered may include evidence of
truancy, behavior problems in school or in a
work situation, school suspensions, work
suspensions, prior diagnoses of conduct
disorder or oppositional defiant disorder.
Acts perpetrated while incarcerated or
committed may be included.
[Id. at 8.]
The explicit inclusion in antisocial acts of crimes against
persons and crimes against property, coupled with the cautionary
note against double-counting, suggests that non-sex offenses
should be included in criterion eight, but not in criterion
seven.
The foregoing sections of the RRA Manual lead to a single
conclusion concerning criterion seven: it refers to sex offenses
only, not to non-sex offenses. The quoted sections also lead to
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the conclusion that non-sex offenses are included in category
eight.
The State has offered no persuasive argument to the
contrary.3 Although the State accurately summarizes the purpose
of Megan's Law's notification requirements and correctly asserts
that V.L.'s changing circumstances warranted recalculating his
risk assessment, those considerations are not relevant to
whether non-sex offenses should be included in RRAS criterion
seven.
The State also points to the definition of offense in
N.J.S.A. 2C:1-14k, namely, "a crime, a disorderly persons
offense or a petty disorderly persons offense unless a
particular section in this code is intended to apply to less
than all three[.]" Neither the Guidelines nor the RRA Manual,
however, refer to or incorporate the definitional section of the
New Jersey Code of Criminal Justice.4 Were we to consider the
definition of offense in N.J.S.A. 2C:1-14k in a document that
neither references it nor suggests in any way that it should be
3
The State is not represented in this case by the Attorney
General. The Attorney General has taken no position on the
issue.
4
This appeal was argued back-to-back with In re A.D., ___ N.J.
Super. ___ (App. Div. 2015), which concerns the definition of
the term offense in N.J.S.A. 2C:1-14k and the use of the term in
N.J.S.A. 2C:7-2f, the Megan's Law provision that permits
registrants to apply for termination of their registration
obligations.
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followed, we would also consider the prefatory language in
N.J.S.A. 2C:1-14 that the definitions mean what they say
throughout the Code "unless a different meaning plainly is
required[.]" The context of the word offense in the RRA
Manual's explanatory sections make plain that the term offense
in criterion seven refers to a sex offense.
For the foregoing reasons, we reverse the order classifying
V.L. as a Tier 2 offender and remand for a Tier hearing. We do
not suggest that V.L. should be classified or not classified in
any Tier. Rather, we hold only that non-sex offenses are not to
be included in criterion seven of the RRAS.
Reversed and remanded.
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