IN THE MATTER OF REGISTRANT J.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

REGISTRANT J.K.

_______________________________

October 21, 2016

Argued April 13, 2016 - Decided

Before Judges Lihotz, Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 85-06-1408.

John S. Furlong argued the cause for appellant J.K. (Furlong and Krasny, attorneys; Mr. Furlong and Andrew Mark Ferencevych, on the brief).

Matthew T. Spence, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Spence, of counsel and on the brief).

Jesse M. DeBrosse, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender State of New Jersey (Joseph E. Krakora, Public Defender, attorney; Mr. DeBrosse, on the brief).

PER CURIAM

Appellant J.K. appeals from a November 6, 2014 order denying his petition to be released from further compliance with the registration requirements imposed by the Community Notification Law, N.J.S.A.2C:7-1 to -23, known as Megan's Law. SeeIn re Registrant N.B., 222 N.J. 87, 89 (2015) ("Megan's Law" requires "prescribed categories of sex offenders register with law enforcement agencies through a central registry maintained by the Superintendent of State Police." (citing N.J.S.A.2C:7-2(a)(1), N.J.S.A.4(d))).

On appeal, appellant argues

POINT I

REGISTRANT SHOULD BE RELEASED FROM THE REGISTRATION REQUIREMENTS BECAUSE THE APPLICATION OF [N.J.S.A.] 2C:7-2g TO REGISTRANT VIOLATES THE EX POST FACTO CLAUSE.

A. Registrant satisfied both elements for release from registration because he has not committed an offense in over fifteen years and is not likely to pose a threat to the community.

B. [N.J.S.A.] 2C:7-2g should not be applied retroactively to registrant because it was enacted after the initial RCNL statute and it violates the Ex Post Facto Clause as applied to registrant.

1. [N.J.S.A.] 2C:7-2g should only be applied prospectively and its application to registrant violates the Ex Post Facto Clause.

2. [N.J.S.A.] 2C:7-2g violates the Ex Post Facto Clause as applied to registrant because it enhances punishment and its negative effect is excessive in relationship to any non-punitive purpose.

A. New Jersey case law demonstrates the application of [N.J.S.A.] 2C:7-2g to registrant violates the Ex Post Facto Clause because it is additional punishment.

B. The [C]ourt should adopt the rationale from other states that have concluded the extension of time that a sex offender is required to register violates the Ex Post Facto Clause.

C. The Mendoza-Martinez factors demonstrate by clearest proof that the application of [N.J.S.A.] 2C:7-2g to registrant has a punitive effect that outweighs any non-punitive purpose.

D. The trial court erred when it denied registrant's argument that [N.J.S.A.] 2C:7-2g is an ex post facto violation as applied to him.

We affirm.

On February 7, 1986, appellant voluntarily confessed and pled guilty to three counts of sexual assault, as now defined under N.J.S.A. 2C:14-2(c)(4),1 and criminal sexual contact, N.J.S.A. 2C:14-3(b), involving four victims. He was sentenced to ten years imprisonment, subject to a three-year period of parole ineligibility, which he served at the Adult Diagnostic and Treatment Center (ADTC) in Avenel.

Appellant was released on parole in 1992. On December 22, 1997, he was classified as a Tier I offender under Megan's Law and required to comply with applicable registration requirements set forth in N.J.S.A. 2C:7-2.

3 On April 30, 2014, appellant, who was then age sixty-three, petitioned to be relieved from mandatory Megan's Law registration. More than fifteen years had elapsed since his convictions and he remained offense free, had no history of substance abuse, and was steadily employed with the same employer for more than twenty years.

In a psychological evaluation submitted in support of his petition, appellant asserted he registered with police every three months as mandated and for several years participated in monthly outpatient aftercare at the ADTC. Testing suggested he was a low risk for re-offense.

The State objected to removing the Megan's Law registration requirements, arguing appellant's convictions for multiple offenses, which occurred over a period of five years and included many victims as young as ten years old, precluded release, pursuant to N.J.S.A.2C:7-2(f). Following an in camerahearing held on August 14, 2014, the judge denied the appellant's petition on November 6, 2014. This appeal ensued.

We granted the motion of the New Jersey Public Defender's Office to file as an amicus, its brief submitted to the trial court, which supported appellant's position.

"Megan's Law registrants are required to appear at a local police station for fingerprinting, photographing, and providing specific personal information pertaining to their physical description, residence, employment or school address, and vehicles." In re J.M., 440 N.J. Super. 107, 111-12 (Law Div. 2014). "All information is centrally collected by law enforcement, and the registrant is required to appear periodically or any time there is a change of residence address." Ibid.

The registration requirement of Megan's Law

was enacted to "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:7-2. Registration with law enforcement is required if an individual "has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of" certain enumerated sex offenses.

[In re Registrant N.B., 222 N.J. 87, 94 (2015) (quoting N.J.S.A. 2C:7-2(a)(1).]

A person may petition the Superior Court to be removed from Megan's Law requirements if: (1) "the person has not committed an offense within [fifteen] years following conviction or release from a correctional facility"; and (2) the person "is not likely to pose a threat to the safety of others." N.J.S.A.2C:7-2(f). However, in 2001 the statute was amended to comply with the federal Jacob Wetterling Act, 42 U.S.C.A. 14071, which

directs the federal Attorney General to establish guidelines for state programs such as Megan's Law that require the registration of persons guilty of offenses of the kind committed by the registrants herein and prescribes the length of time for which offenders must remain registered. 42 U.S.C.A. 14071(a)(1). For the offenses of which registrants were found guilty, they would be obliged to remain registered for the rest of their lives. Id. at 14071 (b)(6)(B)(ii). States that fail to implement the Jacob Wetterling Program are to be denied, under 42 U.S.C.A. 14071(g)(2), ten percent of certain funding that would otherwise be allocated to the States under 42 U.S.C.A. 3756.

[In re L.E., 366 N.J. Super. 61, 66 (App. Div. 2003).]

The new section, N.J.S.A.2C:7-2(g), see L.2001, c. 392, provides, in pertinent part

A person required to register under this section who has been convicted of . . . more than one sex offense as defined in subsection b. of this section or who has been convicted of . . . sexual assault pursuant to paragraph (1) of subsection c. of N.J.S.[A.] 2C:14-2 is not eligible under subsection f. of this section to make application to the Superior Court of this State to terminate the registration obligation.

It is undisputed appellant met both prongs of N.J.S.A. 2C:7-2(f). Further, he agrees he was convicted of more than one sex offense, triggering subsection (g).2 On appeal, appellant argues the retroactive application of N.J.S.A.2C:7-2(g), which was added after he was placed on Megan's Law, violates the Ex Post Facto Clause of the federal and state Constitutions. SeeU.S. Const. art. I, 10; N.J. Const. art. IV, 7, 3. This question is a legal one and our review is de novo. State v. Rev.e, 220 N.J. 126, 132 (2014).

The Ex Post Facto Clause of the U.S. Constitution prohibits "any statute which punishes . . . an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available . . . at the time when the act was committed." Beazell v. Ohio, 269 U.S. 167, 169, 46 S. Ct. 68, 68, 70 L. Ed. 216, 217 (1925). The Ex Post Facto Clause is "aimed at laws that 'retroactively alter the definition of crimes or increase the punishment for criminal acts.'" Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S. Ct. 1597, 1601, 131 L. Ed. 2d 588, 594 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715, 2719, 111 L. Ed. 2d 30, 39 (1990)). To constitute an ex post facto penal law, a change in the law "'must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.'" State v. Natale, 184 N.J. 458, 491 (2005) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23 (1981)). "There is 'no ex post facto violation . . . if the change in the law is merely procedural and does not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.'" Ibid. (alteration in original) (internal quotation marks and citations omitted) (quoting Miller v. Florida, 482 U.S. 423, 433, 107 S. Ct. 2446, 2452-53, 96 L. Ed. 2d 351, 362 (1987)). New Jersey's ex post facto jurisprudence follows the federal jurisprudence. State v. Fortin, 178 N.J. 540, 608 n.8 (2004).

[State v. Perez, 220 N.J. 423, 438-439 (2015).]

See also In re Civil Commitment of W.X.C., 204 N.J.179, 188 (2010).

Importantly, when considering whether a newly enacted law imposes penal consequences, we understand "at least some negative effect on the defendant does not convert a measure into 'punishment.'" Artway v. Attorney Gen., 81 F.3d 1235, 1260 (3d Cir. 1996). "We note[], however, that whether a sanction constitutes punishment is not determined from the defendant's perspective, as even remedial sanctions carry the 'sting of punishment.'" Ibid. (quoting Dep't of Revenue v. Kurth Ranch, 511 U.S. 767, 777, 7114 S. Ct. 1937, 1945 n.14, 128 L. Ed. 2d 767, 777 n.14 (1994) (citation omitted)).

The reasoned examination requires review of the statute's purpose and effect. "If the Legislature had a punitive intent in the statute's enactment, "that ends the inquiry." Riley v. N.J. State Parole Bd., 219 N.J.270, 285 (2014) (quoting Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1147, 1145, 155 L. Ed. 2d 164, 176 (2003)). A statute which the legislature intended to be remedial may nevertheless violate the Ex Post Facto Clause if the "party challenging the statute provides 'the clearest proof' that 'the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention to deem it civil.'" Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 2082, 138 L. Ed. 2d 501, 515 (1997) (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 2641, 65 L. Ed. 2d 742, 750 (1980)).

In addition to these principles, we are guided by the Supreme Court's opinion in Doe v. Poritz, 142 N.J.1 (1995), which considered whether registration and notification provisions set forth in N.J.S.A.2C:7-1 to -23, constituted punishment. Following its painstaking examination of these principles, the Court concluded

the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose, and not designed to punish; that the community notification provided for in these laws, given its remedial purpose, rationality, and limited scope, further assured by our opinion and judicial review, is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders' loss of anonymity is no constitutional bar to society's attempt at self-defense. The Registration and Notification Laws are not retributive laws, but laws designed to give people a chance to protect themselves and their children. They do not represent the slightest departure from our State's or our country's fundamental belief that criminals, convicted and punished, have paid their debt to society and are not to be punished further. They represent only the conclusion that society has the right to know of their presence not in order to punish them, but in order to protect itself. The laws represent a conclusion by the Legislature that those convicted sex offenders who have successfully, or apparently successfully, been integrated into their communities, adjusted their lives so as to appear no more threatening than anyone else in the neighborhood, are entitled not to be disturbed simply because of that prior offense and conviction; but a conclusion as well, that the characteristics of some of them, and the statistical information concerning them, make it clear that despite such integration, reoffense is a realistic risk, and knowledge of their presence a realistic protection against it.

[Id. at 12-13.]

In reaching this conclusion, the Court rejected a suggestion that "the slightest degree of deterrent effect, renders them punitive under United State Supreme Court cases," id.at 50, instructing "[i]n the ex post facto area, careful reading of some of the cases is necessary to avoid misunderstanding the rule that a law solely remedial does not violate this constitutional provision simply because it may have inevitable deterrent consequences." Id.at 44. See also State v. Jones, 443 N.J. Super. 515, 522 (App. Div. 2016). Thus, the Court's exhaustive review of federal and state jurisprudence left "no doubt" Megan's Law's registration provisions were "remedial."3 Doe, supra, 142 N.J. at 73. "They were designed simply and solely to enable the public to protect itself from the dangers posed by sex offenders, such offenders widely regarded as having the highest risk of recidivism." Ibid.

We turn to appellant's similar challenge when attacking the application of subsection (g). He argues N.J.S.A.2C:7-2(g) should "only be applied prospectively" because it constitutes an added punitive measure of lifetime registration, which was not in effect when he was convicted or placed on Megan's Law. Because registrant can never have his Megan's Law requirements removed, he maintains this constitutes "increased . . . punishment" urging the effect of the "inflexible" life-time registration requirement "is so punitive that it violates the Ex Post Facto Clause . . . and is excessive to the underlying purpose of protecting the public from recidivism." We are not persuaded.

In Doe, the Court made clear Megan's Law's registration requirements were generally "lifetime requirements." Doe, supra, 142 N.J.at 21. Further, the Court's consideration of various ex post facto challenges to the provisions of Megan's Law were rejected because the statute's regulatory aim sought to prevent danger to the community and the statute was designed for the purpose of deterring "repetitive and compulsive offenders who were not previously deterred by the threat of long-term incarceration." Id.at 73. Therefore, the life-time registration aspect of subsection (g) can hardly be said to alter the remedial nature of the law or strip away its purpose of protecting the public. "It is not intended as punishment but rather is a consequence that is simply unavoidable." Ibid.

Nor are we persuaded by the claim stating a "registrant could be charged with several different crimes if he or she failed to comply with any of the provisions." SeeN.J.S.A. 2C:7-2(d)(1) (providing the failure to abide by the registration requirements constitutes a crime of the fourth degree). The Court was aware of the consequences of ignoring the registration requirements and noted: "Here government has done all it can to confine that impact, allowing it only where clearly necessary to effect public safety." Doe, supra, 142 N.J. at 110. In this regard, we agree with our Law Division colleague who concluded the Court has "closed the door on any argument that the registration requirements of Megan's Law are penal, since the legislative intent was not punishment but a proper exercise of public protection." J.M., supra, 440 N.J. Super. at 112.

Following our measured review of defendant's arguments, we cannot agree the addition of subsection (g) interposes a punitive measure precluding its retroactive application. The requirements of registration are unlike the twenty-four-hour electronic monitoring imposed by SOMA, discussed in Rileyand the parole supervision for life analyzed in Perez. We do not agree requiring violent sex offenders, or those who commit multiple sex offenses, to continue registration for life, even when an individual offender can demonstrate his or her risk of offense has lessened by the passage of time and the benefits of therapy, is punitive and constitutionally infirm. We conclude N.J.S.A.2C:7-2(g) does not violate the ex post facto clauses of the federal and state Constitutions as it is not "so punitive either in purpose or effect as to negate the State's intent to deem it only civil and regulatory." Riley, supra, 219 N.J.at 293 (quoting Smith, supra, 538 U.S.at 92, 123 S. Ct. at 1147, 155 L. Ed. 2d at 176).

Affirmed.

1 Appellant was charged in an Indictment issued in 1985. At that time the offense was under N.J.S.A. 2C:14-2(c)(5), charging an act of fellatio where "[t]he victim is at least 13 but less than 16 years old and the actor is at least 4 years older than the victim." Subsequent statutory amendments consolidated and moved certain provisions, such that this offense is now set forth in N.J.S.A. 2C:14-2(c)(4).

2 Amicus, the New Jersey Public Defender's Office, argues "multiple counts in a single judgment of conviction do not constitute more than one sex offense," urging subsection (g) is aimed at curbing recidivism after conviction. We reject this argument simply reviewing the unambiguous language of the statute. Defendant pled guilty to multiple offenses against separate victims, occurring at different times, and conceded his crimes fall within subsection (g).

3 This analysis should be compared with the Court's recent opinions concluding the restrictive electronic supervision requirements of the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.89 to -123.95, see Riley, supra, 219 N.J. at 297, and the 2003 and subsequent amendments to N.J.S.A. 2C:43-6, by which the special sentence of parole supervision for life were introduced to the sentencing scheme for some sexual offenders and which substitutes parole supervision for life for community supervision for life, see Perez, supra, 220 N.J. at 442, were found to be penal in nature and violated the Ex Post Facto Clauses of the federal and state Constitutions.