STATE OF NEW JERSEY IN THE INTEREST OF C.K

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0292-10T4

STATE OF NEW JERSEY

IN THE INTEREST OF C.K.

____________________________

November 10, 2011

Argued November 1, 2011 - Decided

Before Judges Reisner and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FJ-02-2779-03.

James H. Maynard argued the cause for appellant C.K. (Maynard & Sumner, L.L.C., attorneys; Joseph S. Murphy, on the brief).

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent State of New Jersey (John L. Molinelli, Bergen County Prosecutor, attorney; Yomara Castro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant C.K. appeals from an August 2, 2010 order denying his petition for post-conviction relief. We affirm.

We briefly summarize the background of this appeal, the scope of which has changed considerably since the briefs were filed. C.K. was born in 1979. In April 2003, C.K., then twenty-three years old, was charged with sexually assaulting his younger adopted brother, A.K., between January 1994 and December 1997, when C.K. was a juvenile. After being taken into custody and given his Miranda1 warnings, C.K. agreed to speak to the police and admitted that, while a teenager, he had oral sex with A.K.

Following plea negotiations, the State abandoned its initial efforts to have the case waived to adult court. On November 14, 2003, C.K., then a teacher's assistant, pled guilty in the Family Part to aggravated sexual assault and was placed on probation on condition that he never again work with children. He was also required to attend therapy and comply with Megan's Law, N.J.S.A. 2C:7-2 to -5. In the plea colloquy, C.K. admitted that at the time of the sexual acts with A.K., he was between fifteen and seventeen years old, the victim was less than thirteen years old, and defendant was more than four years older than the victim.

Exactly five years after the sentencing, C.K. filed a petition for post-conviction relief, contending that he actually was only thirteen when he committed the offenses; that his attorney had rendered ineffective assistance by failing to inform him that if he was only thirteen when the offenses were committed he could avoid lifetime registration as a sex offender under Megan's Law, and instead his registration requirement could end when he turned eighteen; and that he wished to have his guilty plea vacated and proceed to trial. A.K. submitted a certification supporting C.K.'s factual contentions concerning their ages at the time of the offenses. C.K. further contended that the PCR judge should have recused himself. Defendant also argued that the lifetime registration requirements of Megan's Law, when imposed on a juvenile offender, violated substantive due process.

After this appeal was fully briefed, defendant retained new counsel and withdrew all of his appellate contentions except for the constitutional argument. Consequently, that is the only issue we address in this opinion.

Defendant asserts that Megan's Law sweeps more broadly than necessary, to the lifetime detriment of juveniles who pose no real threat of re-offense. The essence of defendant's argument is premised on the following quotation from a law review article:

New Jersey's Megan's Law legislation is extremely over-inclusive. It applies to all juvenile sex offenders, regardless of whether they pose a threat to the community. This is unacceptable, particularly in light of the vast amount of information available to prove that very few juveniles actually pose a significant threat of re-offending.

[Andrew J. Hughes, Current Issues in Public Policy: Haste Makes Waste: A Call to Revamp New Jersey's Megan's Law Legislation As Applied to Juveniles, 6 Rutgers J. L. & Pub. Policy 408, 441 (2008).]

Defendant also contends that of all juvenile offenders, incest offenders are least likely to re-offend. However, perhaps because the constitutional argument was not the main focus of his PCR application, defendant created no evidentiary record to support his arguments.

In a cogent written opinion, Judge Guida rejected defendant's constitutional arguments as foreclosed by our Supreme Court's opinions in Doe v. Poritz, 142 N.J. 1 (1995), and as specifically applied to juveniles in In the Matter of Registrant J.G., 169 N.J. 304 (2001). The judge noted that:

[T]he Court, in J.G., modified the Megan's Law requirements as they apply to juvenile offenders under the age of fourteen. Specifically, juveniles adjudicated for sexual offenses committed when they were under age fourteen will terminate at age eighteen if it is determined by clear and convincing evidence that the delinquent is not likely to pose a threat to the safety of others. [citing J.G., supra, 169 N.J. at 337.]

We agree with Judge Guida. As an intermediate appellate court, we are bound by the decisions of the Supreme Court. Further, the heavy burden of proving that a statute is unconstitutional rests on the challenger, and the record before us provides no evidentiary basis on which to assess defendant's arguments. See State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998); State v. Profaci, 56 N.J. 346, 349-50 (1970). Accordingly, we affirm the order on appeal.2

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Nothing in our opinion precludes defendant from pursuing an additional PCR application if he believes that his original PCR counsel failed to adequately present his arguments in the trial court. We intimate no view as to the merits of such an application. Defendant's concerns may also be addressed to the Legislature.