IN THE MATTER OF THE APPLICATION OF EDWARD V. DULGEROGLU TO ASSUME THE NAME OF EDWARD VARUJAN YEZEKIAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1574-04T11574-04T1

IN THE MATTER OF THE

APPLICATION OF EDWARD V.

DULGEROGLU TO ASSUME THE

NAME OF EDWARD VARUJAN

YEZEKIAN

___________________________________________________

 

Submitted January 9, 2006 - Decided January 27, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER-L-10516-04.

Walter K. Schreyer, attorney for appellant Edward V. Dulgeroglu.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent State of New Jersey (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

By way of this appeal, plaintiff Edward V. Dulgeroglu seeks our determination as to whether -- because of his status as a convicted sex offender -- he is prohibited from obtaining a name change. Because the record raises more questions than it answers, we remand for a plenary hearing without now resolving the important legal question posed.

I

The record reveals that plaintiff is a United States citizen of Armenian descent. On October 15, 1998, he entered a plea of nolo contendere in a Florida court for possessing child pornography and sentenced to a one-year term of probation, which he successfully completed. Plaintiff moved to New Jersey in February 2003 and registered as required by Megan's Law, N.J.S.A. 2C:7-1 to -19. He has since complied with his obligation to register on an annual basis.

On July 14, 2004, plaintiff filed a complaint seeking court approval for the change of his name from Edward V. Dulgeroglu to Edward Varugan Yezekian, alleging that his family's surname "was changed from Yezekian to Dulgeroglu . . . by the Turkish Government during the persecution period against Armenians." He also asserted that his parents had changed their surname to Yezekian a year earlier and his brother ten years earlier. Plaintiff's complaint recited his Florida conviction and alleged that he has registered in New Jersey since moving here in 2003. As required by N.J.S.A. 2A:52-1, plaintiff also alleged that "[t]here are no judgments against [him] unsatisfied of record and there are no pending lawsuits against him" and that the application "is not being made with the intent to avoid creditors or criminal prosecution or for other fraudulent purposes."

The Bergen County Prosecutor objected to the application, asserting in a letter sent to the trial judge that "[a]ny change of name would obstruct the process under Megan's Law." No other person or agency opposed the request.

On the hearing date scheduled by the court, the prosecutor gave a further explanation of his position. The prosecutor recognized that plaintiff has been designated as a Tier One offender. The prosecutor asserted, however, that plaintiff scored a thirty-three on the risk assessment scale. Since the Tier One scale ranges from zero to thirty-six, the prosecutor argued that a further triggering event in plaintiff's life could cause a readjustment of his status and that he might later be designated as a Tier Two or Three sex offender eligible for inclusion on the internet registry. The prosecutor asserted that if that occurs plaintiff's adoption of a new name would cause law enforcement agencies increased difficulties in registering plaintiff or notifying agencies or others of plaintiff's whereabouts. In this regard, the prosecutor acknowledged that plaintiff's continued registration as a Tier One offender in the future would not be confused by a name change, but raised concerns about registration and notification confusion if in the future plaintiff might be designated differently:

THE COURT: [S]ee, I'm confused as to when we talk about the internet, and the other registration as to in this particular case, how does all that impact on his name change, because he's only registering with the Englewood Cliffs [Police Department].

[ASSISTANT PROSECUTOR]: At this point, that's correct, Your Honor, but he does have the potential, based on the static and non-static factors -- there's a potential for change.

THE COURT: Okay. Well, let's assume there's a change. He's registered with his new name. Okay? We make him put down his name, Dulgeroglu, now known as Yezekian, or something to that effect. We require that that's the way he notify the county, and also the Englewood Cliffs Police Department. Isn't everybody protected if that happens?

[ASSISTANT PROSECUTOR]: At this point, but our perspective is, with regards to Megan's Law, is that this is a benefit for the people so they know what type of registered sex offenders are in their area. Should he change to a Tier Two he would be put on the internet, more than likely, because that's the way the guidelines are written.

THE COURT: And he would be put on the internet under his new name.

[ASSISTANT PROSECUTOR]: Under his new name. Well, we have the old case, and all the old child pornography issues done under the old name and, therefore, if the public looks up on the internet and finds -- has access to his new name, it would be very difficult for them to then gain the information through the Freedom of Information Act to get access to what is available --

[THE COURT]: So, the Prosecutor's Office is -- it's not that [the name change] creates a problem at the present time, but should there be a change --

[ASSISTANT PROSECUTOR]: Yes, Your Honor.

THE COURT: -- in the tier status, that's what creates the problem.

[ASSISTANT PROSECUTOR]: Yes, Your Honor.

[Emphasis added.]

After hearing the argument of counsel, and without conducting an evidentiary hearing, the trial judge reserved decision.

By way of his written decision, the trial judge denied plaintiff's application for a name change, stating, in pertinent part:

The Megan's Law statute fails to provide an opportunity for a registrant to change their name because of the necessity to maintain surveillance of the individual. The over-riding social policy concern of surveillance maintenance, of those who fall under the Megan's Law registration requirements, is the legislative intent behind the statute. This intent outweighs the discretion of this court to grant a change of name in this case.

The trial judge entered an order denying plaintiff's application for a name change on October 25, 2004.

II

In ruling, the trial judge recognized that Megan's Law does not expressly preclude the right of a sex offender to obtain a name change, but concluded that the goals of Megan's Law would be frustrated if he granted plaintiff's application. The judge's decision might also arguably be interpreted as recognizing the authority of a court to deny a name change application for reasons other than those recognized in N.J.S.A. 2A:52-1 or at common law. At this time, we choose not to determine whether the goals of the name change statutes and the goals of Megan's Law are at odds, and we choose not to determine, assuming there is an irreconcilable conflict, which legislative enactment should take precedence. We also will not now determine whether the circumstances presented fall within the scope of the court's authority to deny a name change. Instead, because the record is devoid of evidence that might illuminate the parties' contentions, we remand for a plenary hearing during which all relevant questions relating to the issues raised by the complaint and the prosecutor's objection may be fully explored. Accordingly, we vacate the order denying plaintiff's application for a name change, and we direct that the trial judge conduct a plenary hearing in conformity with this opinion.

A

We have previously observed that, at common law, "any adult or emancipated person was at liberty to adopt any name as his legal name except for fraudulent or criminal purpose, without resort to any court." Egner v. Egner, 133 N.J. Super. 403, 406 (App. Div. 1975). This right was not limited when codified by legislation. Instead, we have recognized that the name change legislation in this State, N.J.S.A. 2A:52-1 to -4, has been construed "in the light of the common law and not in derogation of it." Ibid. "Consistent with the flexibility provided at common law, N.J.S.A. 2A:52-1 has been interpreted to give broad judicial discretion in favor of granting a change of name." Application for a Change of Name of Bacharach, 344 N.J. Super. 126, 131 (App. Div. 2001); see also McGarvey v. Atlantic City & Shore R.R. Co., 123 N.J.L. 281, 283 (E. & A. 1939); Egner, supra, 133 N.J. Super. at 406.

In considering the extent to which a name change may be denied, both the common law and N.J.S.A. 2A:52-1 recognized that a name change may be denied when sought for the purpose of avoiding or obstructing criminal prosecution or avoiding creditors or perpetrating a criminal or civil fraud. One trial level decision recognized another category, holding that courts have "wide discretion" to deny such an application for "[c]ircumstances of special significance." In the Matter of the Application of Joseph M., 91 N.J. Super. 296, 297 (Law Div. 1966). The court in Joseph M. outlined those special circumstances, stating that a name change may be denied when sought for "an unworthy motive," or when there is a "possibility of fraud on the public," or when the applicant seeks to adopt a name "that is bizarre, unduly lengthy, ridiculous, or offensive to common decency and good taste." Id. at 298. Although the author of that opinion indicated there was a "paucity of precedent" on the question, he cited no authority at all.

In reversing a trial judge's denial of an applicant's request to assume the name of a same-sex partner, the panel in Bacharach recognized the existence at common law of this special circumstance category, stating that "[h]istorically, judicial discretion permits rejection of a name change application for other reasons than fraudulent or criminal purpose." 344 N.J. Super. at 131. In that regard, however, the panel cited only Joseph M., and further examination of the opinion does not reveal whether the panel actually agreed with the scope of these "other reasons" outlined by the trial judge in Joseph M. Indeed, the panel observed that the application in Joseph M. was granted, thus demonstrating that the potential reasons offered by Joseph M. for a denial of a name change application constituted dictum. Indeed, since Bacharach also concluded that the name change therein sought should have been allowed, its comments about a broad "special circumstances" category also constitute dictum. We also discussed the reasons for denying a name change in Egner, making reference to a "third exception to this common law right," i.e., "that the name itself to be adopted is obscene or otherwise offensive." 133 N.J. Super. at 406 (citing only Joseph M., supra, 91 N.J. Super. at 298). Again, because we concluded in Egner that the name change there sought should have been granted, our discussion of this "third exception" therein also constituted dictum.

We need not further consider, at present, whether there should be recognition of this so-called "third exception" as a viable basis for denying a name change. And, even if we were to acknowledge this exception, we need not presently plumb the extent to which it might apply to the circumstances presented. Our examination of the scope of the name change statute should await the completion of the proceedings in the trial court and any appeal that may thereafter be filed from the trial court's judgment.

We also observe that the uncertain legal questions concerning the "third exception" are not necessarily dispositive of plaintiff's claim to the right to change his name. For example, the "fraudulent purposes" category recognized in N.J.S.A. 2A:52-1 and at common law represents a basis for the denial of a name change sought for the purpose of avoiding Megan's Law obligations. That turns, however, on whether plaintiff's application was urged in good faith -- a matter that has not yet been tested or examined in the trial court.

In addition, the parties contest whether the purposes underlying Megan's Law and the name change statutes are in conflict. That question cannot be resolved without a greater understanding of the manner in which law enforcement agencies maintain, exchange and disseminate information regarding sex offenders. If, upon consideration of evidence that would illuminate our concerns, it is determined that these legislative enactments cannot be reconciled when applied to plaintiff's application, then it remains to be determined whether Megan's Law or the name change statutes will ultimately govern plaintiff's application.

We cannot fairly resolve any of these questions on the bare record that has been presented.

B

As a result of the lack of evidence on the central questions presented, we direct that the trial judge conduct a plenary hearing. At the conclusion of this hearing, the judge shall make findings of fact on all relevant issues including, but not limited to: (1) the truth of the allegations contained in plaintiff's complaint; (2) whether plaintiff seeks to change his name for a fraudulent purpose or with an intent to frustrate or avoid his Megan's Law obligations; (3) how the granting of a name change will impact upon the registration of and notification about a Tier One offender; (4) the likelihood that plaintiff may eventually be classified in the future as other than a Tier One offender; (5) how the granting of a name change impacts upon the listing of offenders on the internet registry; and (6) whether or to what extent an order permitting plaintiff to change his name may be conditioned in ways that preserve the right pursued by plaintiff without burdening the interests which Megan's Law was enacted to vindicate. We offer the following further explanation of the scope of the hearing we now mandate.

We observe that the trial judge did not examine the bona fides of plaintiff's application. The judge did not require that plaintiff testify or submit to cross-examination. Since a trial judge, in the exercise of sound discretion, is authorized to deny a name change that is sought for fraudulent purposes, upon receipt of an objection to an application a trial judge should initially examine and determine its bona fides. Although plaintiff alleged in his complaint that he sought to change his name for legitimate, non-fraudulent purposes, and although the proffered basis for the name change -- the adoption of an ancestral surname -- suggests the legitimacy of this request, the evidentiary hearing that we mandate by way of our judgment today should encompass a thorough examination into plaintiff's purpose in seeking a name change. Indeed, should the trial judge determine, after weighing all relevant, credible evidence, that plaintiff seeks to change his name for fraudulent purposes -- and we hold that an intent to frustrate or avoid current or future Megan's Law obligations constitutes such a "fraudulent purpose" -- then the trial judge would possess the discretion to deny the application. If the facts support such a conclusion, then that finding would compel a denial of plaintiff's application. However, even if the judge should make such a finding, we direct that he also explore and make findings of fact as to all the other relevant issues we have discussed herein in order to create a full record for any future appellate proceedings.

We also note that the prosecutor's contention that Megan's Law compels the denial of a sex offender's request for a name change turned on his argument that a name change would cause confusion if the plaintiff's status should increase to a status requiring posting on the internet registry. A review of the record reveals, however, that the prosecutor neither offered nor was compelled to produce evidence to support his contention that plaintiff's status to a higher tier might occur in the future. On remand, the prosecutor should be required to produce evidence to support the claim of a likelihood of a future change in plaintiff's status that would warrant some other more extensive form of registration or notification that would be jeopardized by the confusion the prosecutor believes is likely if a name change is granted. Plaintiff, of course, must be permitted to offer evidence on this question as well. The judge shall make findings of fact as to the extent to which a change in plaintiff's tier status is likely or unlikely.

Moreover, upon remand, the trial judge should consider whether law enforcement agencies will encounter difficulties if plaintiff is authorized to assume another name regardless of his tier status. As observed earlier, the prosecutor seemed to acknowledge that insofar as plaintiff maintains a Tier One status no confusion would be generated by a name change. Instead, the prosecutor argued that confusion in registration and notification would occur if plaintiff's future status should require his posting on the internet. We have no way of considering whether the circumstances only obtusely referred to by the prosecutor are genuine because plaintiff's application was denied without being thoroughly examined at an evidentiary hearing. And, although we harbor some doubt about the accuracy of the prosecutor's concern about internet registration, we need not now decide why there would be confusion at the present or in the future if the order granting a name change required that plaintiff register under both his old and his new name. No law enforcement representative was required to testify, so we have no way of knowing what it is about the maintenance of the internet registry that would be convoluted or endangered if plaintiff were permitted to change his name. Indeed, a cursory examination of the internet registry itself reveals that numerous registrants are listed under more than one name, a fact which would suggest that those involved in maintaining these records are able to keep adequate records of sex offenders known by more than one name better than the prosecutor appears to believe.

To the extent that it may fairly be concluded that plaintiff's registration under his current tier status, or any other tier status to which he may arguably be assigned in the future, will be frustrated or unduly convoluted by the proposed name change, then it becomes relevant to know whether other conditions may be imposed in a judgment that would fairly balance plaintiff's claimed right to a name change without jeopardizing Megan's Law interests.

III

It is our intent, and we hereby mandate, that the trial judge expansively view the scope of the remand proceedings. We do not intend, by outlining some of the critical issues to be explored, to limit the admission of other relevant evidence or to foreclose the examination of other issues that may relate to the matter at hand. Also, considering the importance of the issues presented and, particularly, the prosecutor's contention that there is an irreconcilable conflict between the name change statutes and Megan's Law, we direct that the trial judge invite the Attorney General's participation in these proceedings.

The order of October 25, 2004 is vacated and the matter remanded for a plenary hearing in conformity with the letter and spirit of this opinion. We do not retain jurisdiction.

 

We also observe that the name change statutes recognize that a person either convicted or charged with the commission of a crime may obtain a name change. See N.J.S.A. 2A:52-2 ("The clerk of the court shall forward a copy of the judgment to the State Bureau of Identification in the Division of State Police if the person has been convicted of a crime or if there are criminal charges pending against him."); see also In the Matter of Application of Jackson, 177 N.J. Super. 591 (Law Div. 1981) (a prison inmate was entitled to change his name consistent with the tenets of his religion even though such a change could make it more difficult for the keepers of such records).

N.J.S.A. 2A:52-1 states:

Any person may institute an action in Superior Court, for authority to assume another name. The complaint for a change of name shall be accompanied by a sworn affidavit stating the applicant's name, date of birth, social security number, whether or not the applicant has ever been convicted of a crime, and whether any criminal charges are pending against him and, if such convictions or pending charges exist, shall provide such details in connection therewith sufficient to readily identify the matter referred to. The sworn affidavit shall also recite that the action for a change of name is not being instituted for purposes of avoiding or obstructing criminal prosecution or for avoiding creditors or perpetrating a criminal or civil fraud.

While we recognize that the prosecutor conceded that no confusion will be engendered if plaintiff remains designated as a Tier One offender, we decline to foreclose consideration on remand of the impact of a name change on the registration of a Tier One offender.

We observe that during the pendency of this appeal, the prosecutor sought to bring to our attention what he claims to be evidence of plaintiff's conviction in New York in 2003 for failing to register as a sex offender. Prior to the calendaring of this appeal, the prosecutor moved for a limited remand so that the trial judge could consider this evidence. On July 20, 2005, we denied that motion "without prejudice to the State filing a motion to supplement the appellate record to include the New York conviction." The prosecutor then moved for an order supplementing the record on appeal which we granted on September 29, 2005. The prosecutor, however, only included in his appendix a one-page document which he claims demonstrates that plaintiff pleaded guilty in a New York court in Queens County. That document, as it appears in the appendix, is partially un-reproduced so that some of the information on the document's left side is not revealed, thus frustrating our ability to understand the document's content and significance. Moreover, the document plainly states that it is "not official unless embossed with the court seal over the signature of the court official," and we detect no such seal on the poor reproduction in the appendix. In addition, we find nothing in this document that indicates the New York statute to which defendant allegedly pleaded guilty. As a result, we can draw no safe conclusions about this document or its impact upon the issues presented. The prosecutor, however, is free to further explore this alleged New York conviction in the plenary hearing which we now mandate.

We also observe that courts of other states have recognized that it may be "more advantageous to the state to have the statutory method of changing names followed," rather than, by barring or limiting access to such relief, leaving such persons to adopt aliases that would be more difficult to keep track of. In re Application of Knight, 537 P.2d 1085, 1086 (Colo. App. 1975); see also Application of McGehee, 304 P.2d 167, 168 (Cal. App. 1956); Isom v. Circuit Court of Tenth Jud. Circ., 437 So. 2d 732, 733 (Fla. App. 1983); Petition of Buyarsky, 77 N.E.2d 216, 218 (Mass. 1948); In re Cruchelow, 926 P.2d 833, 834 (Utah 1996).

See www.nj.gov/njsp/info/reg_sexoffend.html (last visited January 9, 2006).

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A-1574-04T1

RECORD IMPOUNDED

January 27, 2006