STATE OF NEW JERSEY v. JOHN HARCHER

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4035-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN HARCHER, a/k/a ARTHUR

HARCHAR, JOHN HARCHAR,

BUTCH HARCHAR,

Defendant-Appellant.

________________________________________________________________

October 5, 2010

 

Submitted September 14, 2010 - Decided

 

Before Judges Parrillo and Espinosa.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-0585.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, of counsel and on the brief).

 

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

As a result of his conviction in 1994 for endangering the welfare of a child, defendant was subject to Megan's Law1 registration and notification requirements. He appeals from his sentence and conviction for failure to notify the police of a change in his address as required by the Registration and Community Notification Law, N.J.S.A. 2C:7-2(a) and (d). We affirm.

At the time he was released from prison in 2003, defendant provided his mother's address in Edison as the address where he would be residing. Senior Identification Officer Frank Carini of Southwoods State Prison reviewed the address verification form with defendant before his release. The form included the following:

I understand that if I move, I must notify the Edison Police Department, and the Police Department in the town where I intend to live, at least, ten days before I move. I must then re-register in my new town.

Defendant acknowledged this responsibility by signing the address verification form. He registered his address with the Edison Police Department on December 22, 2003. However, as defendant's mother advised the police, he was actually homeless, living in the woods near her apartment, although he frequently came to her house. The police were able to serve defendant with his tier classification paperwork by coming to her apartment on a date when she said he was expected. When the police attempted to contact defendant on a later occasion by calling his mother, they discovered that the phone was disconnected and she had moved. Defendant had not provided any notice to the police of a change of address.

Defendant was convicted of failure to notify the police of a change in his address as required by the Registration and Community Notification Law, N.J.S.A. 2C:7-2(a) and (d),2 a fourth degree offense. The court denied his motion for a new trial and sentenced defendant to a term of fifteen months with jail credit for three hundred forty-eight days and appropriate fines and penalties.

In this appeal, defendant presents the following issues:

POINT I

 

THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL. IN THE ALTERNATIVE, THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A NEW TRIAL.

 

A. MOTION FOR JUDGMENT OF ACQUITTAL - R. 3:18-1.

 

B. NEW TRIAL MOTION - R. 3:20-1 & R. 2:10-1.

 

POINT II

 

THE COURT ERRED IN PERMITTING ADMISSION OF EVIDENCE THAT THE OFFICERS WERE LOOKING FOR THE DEFENDANT BECAUSE HE FAILED TO RE-REGISTER WITH THEM. THE COURT COMPOUNDED THIS ERROR BY NOT ISSUING A LIMITING INSTRUCTION ADVISING THE JURY ON HOW TO PROPERLY UTILIZE THAT EVIDENCE, IF IT WAS PROPERLY ADMISSIBLE IN THE FIRST PLACE.

 

POINT III

 

THE COURT'S CHARGE FAILED TO ADEQUATELY INSTRUCT THE JURY ON WHAT CONSTITUTES AN INTENT TO RESIDE AT A NEW ADDRESS. [NOT RAISED BELOW.]

 

POINT IV

 

THE PROSECUTOR'S SUMMATION DEPRIVED THE DEFENDANT OF A FAIR TRIAL. [NOT RAISED BELOW.]

 

POINT V

 

THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.

 

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments lack merit. Further, the arguments raised in Points II, III, IV and V are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant argues that the trial court erred in denying his motion for a judgment of acquittal pursuant to R. 3:18-1 because he never moved from the place where he actually resided, i.e., the woods near his mother's apartment. It is argued that the evidence is, therefore, insufficient to prove that he intended to reside at a new address, triggering his obligation to notify the police of the new address.

The standard for measuring the sufficiency of the evidence to support a conviction "requires the trial court to determine 'whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).

In enacting the Megan's Law requirements, the Legislature noted that a system of registration would "permit law enforcement officials to identify and alert the public when necessary for the public safety" and "provide law enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and missing persons." N.J.S.A. 2C:7-1.

N.J.S.A. 2C:7-2(d)provides:

Upon a change of address, a person shall notify the law enforcement agency with which the person is registered and shall re-register with the appropriate law enforcement agency no less than 10 days before he intends to first reside at his new address. . . . A person who fails to notify the appropriate law enforcement agency of a change of address or status in accordance with this subsection is guilty of a crime of the fourth degree.

 

[(Emphasis added).]

Therefore, a defendant's criminal liability hinges upon his failure to notify law enforcement "[u]pon a change of address."

The evidence here shows that defendant was advised of his obligation to provide an address for such purposes before his release from prison. The address he provided was his mother's address. The evidence shows that the police were able to contact him through that address and even serve him with paperwork related to his status as a sex offender at that address.3 At some point, the address provided by defendant was no longer viable for that purpose because his mother had moved. This evidence was sufficient for the jury to conclude that there had been a "change of address" that triggered defendant's obligation to notify the police. See In re T.T., 188 N.J. 321, 327 (2006) ("Within prescribed time periods, a registrant must notify appropriate law enforcement upon a change of address, job, or school.") (emphasis added). The fact that defendant did not intend to move is irrelevant to his failure to notify the Edison Police Department that there had been such a change. Pursuant to the language of the statute, such intent was only relevant to his obligation to "re-register with the appropriate law enforcement agency no less than 10 days before he intends to first reside at his new address." N.J.S.A. 2C:7-2(d). Fulfillment of the latter obligation provides the police department in the new municipality where the offender will live with notice in advance of his move, a circumstance not relevant here. We are, therefore, satisfied that the evidence was sufficient to support defendant's conviction and that the motion for judgment of acquittal was properly denied.

Defendant repeated his argument regarding the insufficiency of the evidence in making a motion for a new trial and raised a second argument in support of that relief. He argued that the trial court erred in declining to accept his offer to stipulate that he qualified under the Registration and Community Notification Law and in permitting the State to introduce evidence of his prior conviction for endangering the welfare of a child. Defendant relies upon State v. Harvey, 318 N.J. Super. 167 (App. Div. 1999) and State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999), cases in which the defendant was prohibited from possessing a firearm based upon a prior felony conviction. In those cases, we found error in the admission of a defendant's prior offense to establish a violation of N.J.S.A. 2C:39-7 when the defendant was willing to stipulate that he was subject to the statute's prohibition. Those cases are distinguishable.

First, in each of those cases the defendant offered to stipulate as to the requisite conviction before any evidence was presented regarding that element of the offense charged as part of a request to keep the details of the prior offenses from the jury. See Harvey, supra, 318 N.J. Super. at 171 (offer to stipulate made at the start of the trial); Alvarez, supra, 318 N.J. Super. at 143 (offer to stipulate made prior to the beginning of the phase two trial for possession of weapons by a convicted felon). In contrast, defendant did not make such an offer and request at the outset of the trial.

Prior to opening statements, the State asked the court to rule on the admissibility for impeachment purposes of defendant's prior convictions, which included a robbery and violation of probation in addition to the endangering conviction. Defense counsel objected to the admissibility of the robbery and violation of probation. He did not offer to stipulate that defendant was subject to the registration requirements based upon a prior conviction and appears to acknowledge the admissibility of the predicate conviction:

Let's make it clear. I think the probative value [of the robbery conviction] substantially is outweighed by the prejudicial effect. If any mention is made of the robbery, which is of no value to us, and the VOP arrest, as a result of the new charge of robbery, so, we can't deal with that. So, I think it would be fair, to allow the judgment of conviction where he is sentenced, originally on the endangering. Wherein, the Megan's Law attaches.

 

[(Emphasis added).]

 

In his opening statement, defense counsel referred to the conviction and made repeated references to defendant's Megan's Law obligations, including the following:

Mr. Harchar, back in 1994, although it has nothing to do with this particular case, the facts of which, he was placed on Megan's Law. And, as such, he was required to jump through certain hoops for pretty much the next 15 years of his life, or the rest of his life, depending on whether or not the Megan's Law Board decided to keep him on for longer than 15 years.

 

Thereafter, there were references to Megan's Law sex offenders, defendant's obligation to comply with "any and all laws governing sex offender registration procedures" and even the fact that defendant had been convicted of one count of endangering the welfare of a child, all without objection from defendant. After the State rested, as the court was reviewing the evidence to be admitted, defense counsel made the following offer:

If [the prosecutor] would like to draft up some type of stipulation, that, basically, lays out the details of why and when Mr. Harchar was placed on Megan's Law, without all the reasons without going into all the reasons to redact the JOC [Judgment of Conviction], then I won't have a problem signing it and entering it into Evidence, instead of the JOC.

 

The manner in which the stipulation offer was made in this case is therefore, procedurally and chronologically, different from Harvey and Alvarez.

Second, those cases are distinguishable because of the difference between N.J.S.A. 2C:39-7 and N.J.S.A. 2C:7-2(d). The potential for prejudice arising from proof of a prior conviction is far greater in a "certain persons" prosecution because the disqualifying convictions are far-ranging,4 and may even be totally unrelated to the possession of a weapon. In contrast, the nature of the prior conviction in a prosecution under N.J.S.A. 2C:7-2(d) is closely related to the violation being prosecuted. Only sex offenders are subject to the Megan's Law registration and notification requirements. See T.T., supra, 188 N.J. at 327 ("A person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity" for what the Legislature has denominated a "sex offense" must register under Megan's Law. N.J.S.A. 2C:7-2(a)(1)). The potential for prejudice here was minimal in light of the repeated references to defendant's Megan's Law obligations, including those by defense counsel. Further, contrary to the argument advanced by defendant for the first time on appeal, the trial court provided an appropriate limiting instruction to the jury regarding the permitted and prohibited uses of the Megan's Law conviction. We are, therefore, satisfied that the trial court's denial of defendant's motion for a new trial did not result in a miscarriage of justice under the law. R. 2:10-1.

Affirmed.

1 N.J.S.A. 2C:7-1 to -11.

2 A count charging defendant with failure to verify his address, N.J.S.A. 2C:7-2(a) and (e) was dismissed prior to trial.

3 We express no opinion as to whether a "mailing address" at which the sex offender does not actually reside is sufficient to satisfy the registration requirement as that question is not before us.

4 The range of offenses that will result in a prohibition against purchasing, owning, possessing or controlling a firearm include: aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual assault, sexual assault, bias intimidation, endangering the welfare of a child, weapons offenses, drug offenses and domestic violence. See N.J.S.A. 2C:39-7.