In the Matter of Registrant T.H.: Application For judicial Review of Notification and Tier Classification

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3642-12T1
IN THE MATTER OF REGISTRANT APPROVED FOR PUBLICATION
T.H.: APPLICATION FOR JUDICIAL
July 30, 2013
REVIEW OF NOTIFICATION AND TIER
CLASSIFICATION APPELLATE DIVISION
__________________________________________
Argued Telephonically May 29, 2013 – Decided July 30, 2013
Before Judges Messano,1 Kestin, and Newman.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Docket No. 12010013.
Seth Russell Belson, Assistant Deputy Public
Defender, argued the cause for appellant
T.H. (Joseph E. Krakora, Public Defender,
attorney).
Mario C. Formica, Chief Assistant County
Prosecutor, argued the cause for respondent
State of New Jersey (James P. McClain, Acting
Atlantic County Prosecutor, attorney).
The opinion of the court was delivered by
NEWMAN, J.A.D. (retired and temporarily assigned on recall).
Registrant, T.H., appeals from the order of April 11, 2013,
denying his motion to be classified as a Tier One registrant,
representing a low risk to reoffend, as opposed to a Tier Two
1
Judge Messano did not participate in oral argument. However, the parties
consented to his participation in the decision. R. 2:13-2(b).
classification, representing a moderate risk to reoffend. The
focus of the application before the trial court was on criterion
seven of the Registrant Risk Assessment Scale (RRAS), length of
time since last offense. Registrant was scored "one year or
less" when he was initially tiered as reflected in the order of
February 13, 2013. Registrant had been released from prison on
February 29, 2012, which was approximately two weeks short of
one year. Because the matter was on appeal to this court, we
permitted the registrant to withdraw his appeal and return to
the trial court since by then more than one year had passed
since his prison release. The sought-for result was that
registrant would be recognized as having been out of prison more
than one year but less than five years, resulting in the
reduction of six points under the RRAS and, correspondingly,
placing him in Tier One.
In rejecting registrant's position in a written letter
opinion of March 28, 2013, the trial court held that criterion
seven is a static factor, that this factor was determined at the
original classification hearing, and that the "passage of time
after that is not a changed circumstance that allows
reconsideration of the tier assigned." In reaching this
conclusion, the trial court relied upon In re N.N., 407 N.J.
Super. 30, 36-37 (Law Div. 2009), where the court held that the
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registrant's circumstances had not changed significantly.
Further, the N.N. court noted that the time since the last
offense was considered a static factor and could not be
revisited. Id. at 37. The trial court also followed N.N.'s
approach regarding when a tier classification could be
challenged where there is "evidence of a change in circumstance,
indicating that the circumstances" appeared to be change of the
resident's location or place of employment. Ibid. According to
the trial court, registrant's tier hearing had been delayed
because of a motion to withdraw his guilty plea and an appellate
remand on a motion to withdraw his guilty plea. Otherwise,
registrant would have been tiered within two months of his
release.
Registrant asserts that criterion seven has a built-in
change of circumstances and the trial court should have
recognized this dynamism in scoring. Since registrant was
offense free for more than one year, but less than five years,
his scoring should have been reduced by six points, representing
a moderate risk to reoffend.
By way of background, the underlying offense involved the
registrant luring young girls, friends of his daughter, into his
home. He then provided them with alcohol and marijuana to the
point of nausea and intoxication. While these charges were
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pending, he attempted to have his daughter lie about the matter
to the police. Registrant has compiled an extensive criminal
history, which includes seven prior convictions including a
state prison sentence. He was sentenced to offenses related to
luring, child endangerment, distribution of CDS in a school zone
and witness tampering. His aggregate sentence was five years
with a mandatory minimum term of two years, six months without
parole eligibility.
Prior to his release, registrant underwent a psychological
evaluation for Sexually Violent Predator (SVP) risk assessment.
In concluding that he did not warrant further review for civil
psychiatric commitment consideration, the report indicated that
the "MnSOST-R" and "STATIC-99R" were not scored because there is
no evidence that the instant offense was sexual in nature. The
report also found there was insufficient evidence that
registrant "is at a high risk for sexual recidivism." The
report went on to note that there was "insufficient evidence to
diagnose a paraphilia or other condition that predisposes him to
sexually offend."
On appeal, registrant makes arguments similar to those
presented to the trial court. After a review of registrant's
arguments, those of the prosecutor, and the written decision of
the trial court, we are persuaded that criterion seven, by its
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very terms, was subject to review. We need not dwell on whether
the trial court had the authority to consider registrant's
argument that criterion 7 should be reconsidered since the
matter had already been resolved in the initial hearing. Nor do
we think it mattered that the delay in initially tiering
registrant was due to other litigation pursued by registrant
related to his conviction. The matter was reviewable because
there was evidence of change in circumstances.
Moreover, we disagree with the underlying premise of N.N.
that the time from the last offense does not constitute a
significant change of circumstances. Under the RRAS, scoring on
criterion seven is divided into three separate categories:
"high risk" is defined as "year or less" since last offense;
"moderate risk" is defined as "more than one but less than five
years"; and "low risk" is defined as "five or more years." The
criterion, itself, has a built-in change of circumstances to
reflect the likelihood of reoffense.
Further, the RRAS Manual explains that criterion seven "is
related to likelihood of re-offense [and] [t]he 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." Manual (June 1998), p.6.
Accordingly, "[t]ime incarcerated or civilly committed
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[generally] does not count…." Ibid. It is obvious to us that
the passage of time after initial assessment without reoffending
is as relevant to a reduced likelihood of re-offense as those
dynamic criteria which measure progress over time regarding
circumstances such as maintaining employment, response to
treatment, and residential support. The longer the time within
which the registrant remains incident free, the less likely is
the incidence of reoffending. To maintain that this criterion
is not reviewable after the passage of time is to ignore the
risk categories as defined in criterion seven. Labeling
criterion seven as "static" under the Supreme Court decision in
In re C.A., 146 N.J. 71, 103 (1996), masks the very substance
contained within this criterion.
Our court recognized as much in In re H.M., 343 N.J. Super,
219, 223-24 (App. Div. 2001). There we reduced criterion seven,
by necessity, because of the passage of time without
reoffending. The same result is warranted here. With the
passage of more than one year without reoffense, the scoring is
correspondingly reduced from six points to three points. As a
result, registrant's RRAS score is thirty-three, placing him in
Tier One.
One of the concerns of the trial court, echoed by the
State, was that registrants would routinely file for a reduction
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in points under criterion 7 of the RRAS when the passage of time
made a difference in scoring. That may well be, but, as pointed
out, the likelihood of reoffending is less likely with the
passage of time when registrant has remained incident-free.
Thus, the risk to the community is diminished, which,
correspondingly, may be reflected in the extent of community
notification.
We would be remiss if we did not emphasize that the
psychological examination of registrant by the State in
assessing his risk assessment for SVP commitment questioned
whether the underlying offense was "sexual in nature," found
insufficient evidence that registrant "is at high risk for
sexual recidivism," and was unable "to diagnose a paraphilia or
other condition that predisposes him to sexually offend."
Registrant's incident-free conduct since his release from prison
buttresses the evaluation conducted by the State authority,
further supporting the point reduction under the RRAS scale.
Reversed and remanded to the trial court for such further
proceedings as may be appropriate in light of the point
reduction we have ordered.
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