ANTOINE HAYES v. NEW JERSEY DEPARTMENT OF CORRECTIONS
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4025-05T54025-05T5
NEW JERSEY DEPARTMENT OF
Submitted February 15, 2007 - Decided March 28, 2007
Before Judges C.S. Fisher and Yannotti.
On appeal from a final decision of Department of Corrections.
Antoine Hayes, appellant pro se.
Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).
Appellant Antoine Hayes (Hayes) is presently in a half-way house, after having served nearly thirty years in prison. Hayes appeals from a final decision of the Department of Corrections (Department), which determined that he is required to register as a sex offender, pursuant to Megan's Law, N.J.S.A. 2C:7-2, because one of the offenses he committed in 1976, and for which he is still serving his sentence, was assault with the intent to rape, N.J.S.A. 2A:90-2.
Megan's Law defines what constitutes a "sex offense," first, by expressly referring to various Title 2C offenses, N.J.S.A. 2C:7-2(b)(1) and (2), and by also incorporating any "offense similar" to the listed Title 2C offenses, N.J.S.A. 2C:7-2(b)(3). Since Hayes did not commit a Title 2C offense, we are required to discern whether any of his offenses constitute a sex offense by considering which Title 2C offense is most similar to Hayes's Title 2A convictions. Specifically, we are required to consider whether Hayes's commission of assault with the intent to rape, N.J.S.A. 2A:90-2, should be equated with the current offense of aggravated sexual assault, N.J.S.A. 2C:14-2, and viewed as a sex offense as defined by N.J.S.A. 2C:7-2(b), or, as Hayes argues, we should equate his Title 2A convictions with the current offense of simple or aggravated assault, N.J.S.A. 2C:12-1, which is not encompassed by Megan's Law.
The record reveals that, in 1978, Hayes was convicted of breaking and entering, N.J.S.A. 2A:94-1; atrocious assault and battery, N.J.S.A. 2A:90-1; robbery, N.J.S.A. 2A:141-1; kidnapping, N.J.S.A. 2A:118-1; assault with the intent to rape, N.J.S.A. 2A:90-2; and murder, N.J.S.A. 2A:113-1. These convictions were based upon conduct that occurred in 1976. Hayes was sentenced to thirty years to life on the murder conviction; thirty years to life on the kidnapping conviction; and seven to ten years on the assault with the intent to rape conviction. All these terms were ordered to run consecutively.
Megan's Law was enacted in 1994, long after the commission of Hayes's offenses. It provides for the registration of sex offenders, and applies to an "offender [who] is serving a sentence of incarceration, probation, parole or other form of community supervision as a result of the offense." N.J.S.A. 2C:7-2(b)(2). Aggravated sexual assault, among others, is identified as an offense that triggers an offender's obligation to comply with Megan's Law. N.J.S.A. 2C:7-2(b)(1). Simple or aggravated assault is not defined by Megan's Law as a sex offense.
In considering the issues on appeal, we start by first recognizing that an individual who has committed offenses prior to the adoption of Title 2C may still be subjected to the terms of Megan's Law upon release from incarceration. Hayes does not argue to the contrary. Instead, the argument in this appeal turns on whether the Department properly ascertained the Title 2C offense that is most similar to Hayes's Title 2A conviction. Moreover, we conclude that when, as here, a comparison of the Title 2A offended with another Title 2C statute does not produce an "entirely clear" result, there must be an examination of the conduct upon which the conviction of the Title 2A offense was based. See State v. Cavanaugh, 174 N.J. Super. 90, 97 (Resentencing Panel 1979).
Here, the record reveals that Hayes was charged with and convicted of N.J.S.A. 2A:90-1 because he "brutally attacked the [victim] in a sadistic frenzy, twisted her breasts, gagged and blindfolded her, forcefully introduced a toothbrush inside the victim's vagina, dragged her up and down the stairs and, finally, left her badly hurt, although not raped, in a park in the early hours of the morning." When these acts were committed, Title 2A defined rape as "carnal knowledge of a woman forcibly against her will." N.J.S.A. 2A:138-1. This was understood as requiring that there be forcible sexual penetration of the sex organ of the male into the sex organ of a female without her free and conscious consent. See, e.g., State v. Smith, 148 N.J. Super. 219, 224 (Law Div. 1977), aff'd, 169 N.J. Super. 98 (App. Div. 1979), rev'd on other grounds, 85 N.J. 193 (1981). As a result, when committed, Hayes's conduct did not technically constitute a rape.
However, as we have observed, it is not the precise definition given to the conduct by Title 2A that governs, but whether the conduct for which the offender was convicted is most similar to a Title 2C offense that falls within Megan's Law definition of a sex offense. Title 2C broadened the definition of sexual penetration to include, among other things, forcible or non-consensual "intercourse . . . between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. . . ." N.J.S.A. 2C:14-1(c) (emphasis added). As a result, Title 2C's definition of penetration "is significantly different from prior law," and includes "digital penetration or penetration by an inanimate object," which "represents a departure from prior rape and sodomy law which required penile insertion." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:14-1(c) (2006). Without question, had Hayes's acts been committed after the adoption of Title 2C they would have constituted aggravated sexual assault, N.J.S.A. 2C:14-2.
Moreover, N.J.S.A. 2C:14-2 states that an aggravated sexual assault has been committed if any of the following circumstances exist when an actor has committed an act of sexual penetration:
(3) The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape;
(4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;
. . . .
(6) The actor uses physical force or coercion and severe personal injury is sustained by the victim.
All these circumstances were present and part of Hayes's commission of assault with the intent to rape. Since that conduct represents what Megan's Law defined as a "sex offense," N.J.S.A. 2C:7-2(b), even though it was not an offense expressly included within Megan's Law's definition of sex offense, Hayes's conduct if committed after the adoption of Title 2C would have unquestionably required his compliance with Megan's Law's registration requirements. We, thus, reject Hayes's argument that his prior offense should be viewed for Megan's Law purposes as only simple or aggravated assault.
In short, evaluating whether Hayes's Title 2A conviction constitutes a sex offense, and the concomitant obligation to register pursuant to Megan's Law, requires more than the mechanical comparison of past and current statutes. It requires an examination of the past conduct and a comparison of that conduct with the offenses incorporated by N.J.S.A. 2C:7-2(b). We find nothing arbitrary, capricious or unreasonable in the Department's conclusion that Hayes's conduct for which he was convicted under Title 2A is more akin to aggravated sexual assault, N.J.S.A. 2C:14-2, than simple or aggravated assault, N.J.S.A. 2C:12-1. See In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).
March 28, 2007