Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. MORTON RESNICOFF

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-1217-15T3



STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MORTON RESNICOFF,

     Defendant-Appellant.
___________________________

              Argued March 29, 2017 - Decided September 19, 2017

              Before Judges Fuentes, Simonelli and Carroll.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              09-02-0314.

              James H. Maynard argued the cause for
              appellant (Maynard & Sumner, LLC, attorneys;
              Mr. Maynard, on the briefs).

              Elizabeth R. Rebein, Assistant Prosecutor,
              argued the cause for respondent (Gurbir S.
              Grewal, Bergen County Prosecutor, attorney;
              Catherine A. Foddai, Assistant Prosecutor, of
              counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.
     A Bergen County grand jury returned Indictment No. 09-02-

00314, charging defendant Morton Resnicoff with three counts of

second degree attempted sexual assault, 
N.J.S.A. 2C:14-2c(4), and


N.J.S.A. 2C:5-1, third degree attempted endangering of a child,


N.J.S.A. 2C:24-4a and 
N.J.S.A. 2C:5-1, second degree dissemination

or distribution of child pornography, 
N.J.S.A. 2C:24-4b(5)(a), and

second degree possession of child pornography, 
N.J.S.A. 2C:24-

4b(5)(b).     Pursuant to a negotiated agreement with the State,

defendant pled guilty on August 31, 2009 to one count of fourth

degree attempted criminal sexual contact, 
N.J.S.A. 2C:14-3b.                The

State agreed to dismiss the remaining counts in the indictment and

recommended the court sentence defendant to a term of probation,

conditioned on serving 364 days in the county jail.

     On     October    23,    2009,   the   court     sentenced   defendant,

consistent    with    the    plea   agreement,   to   a   two-year   term    of

probation, conditioned upon serving 364 days in the county jail.

As part of his sentence, the court ordered defendant to register

as a convicted sex offender under 
N.J.S.A. 2C:7-2, commonly known

as Megan's Law.       Defendant did not appeal his sentence.

     
N.J.S.A. 2C:7-2f provides:

            Except as provided in subsection g. of this
            section, a person required to register under
            this act may make application to the Superior
            Court of this State to        terminate the
            obligation upon proof that the person has not

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            committed an offense within 15 years following
            conviction or release from a correctional
            facility for any term of imprisonment imposed,
            whichever is later, and is not likely to pose
            a threat to the safety of others.

            [Emphasis added.]

Defendant was sixty-seven years old when he committed this crime.

He claims he will be eighty-four years old by the time he is

eligible to apply for relief under 
N.J.S.A. 2C:7-2f.

      On October 17, 2014, defendant filed a post-conviction relief

(PCR)   petition    arguing    that    the    fifteen-year       offense-based

procedural bar to termination unconstitutionally discriminates

against a class of convicted defendants who are at least sixty

years old at the time of conviction.          According to defendant, the

application of this fifteen-year procedural bar under 
N.J.S.A.

2C:7-2f to this class of elderly registrants is the functional

equivalent of a lifetime registration requirement.               The court will

lose jurisdiction to provide any relief because the registrant

will likely be dead or unable to reap any meaningful benefit due

to poor health.

      The matter came for oral argument before the PCR judge on

September 24, 2015. In support of his petition, defendant cited

studies that "suggest" that individuals released from prison after

the   age   of   sixty   present   a   mere   3.8%   risk   of    reoffending.

Defendant also noted that the Legislature recognized "advanced age

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or debilitating illness" as among the factors relevant to the risk

of re-offense.   
N.J.S.A. 2C:7-8b(2).

     The PCR judge explained the reasons for rejecting defendant's

argument and denying his PCR petition in a written opinion dated

October   6,   2015.   Before   addressing   defendant's   arguments

directly, the judge provided the following brief recitation of the

circumstances that led to defendant's conviction.

          On January 9, 2008, an undercover agent of the
          Bergen County Prosecutor's Office assumed the
          online identity of a thirteen-year-old girl
          named "Danielle DeJoseph" in an internet chat
          room on Yahoo.com, entitled "New Jersey 4,"
          using the screen name "danigurl1017."      The
          same day, at approximately 3:32 p.m., another
          user    with    a   screen    name    entitled
          mike_reese2002," later identified to be
          [defendant], contacted the agent online.

          [Defendant] then sixty-seven years old, texted
          he was seventeen years of age, and the agent
          responded that she was thirteen-years old. He
          asked the agent if she had ever seen male
          genitalia and subsequently transmitted those
          images to her.     [Defendant] also sent the
          agent an invitation to view a webcam feed,
          depicting a male masturbating. He invited the
          agent to join him after school one day for
          sexual activity.

          On January 28, 2008, [defendant] and the
          undercover agent, purporting to be a thirteen-
          year old child, exchanged internet chat
          communications     in    which     [defendant]
          transmitted a webcam feed, depicting him
          masturbating.    In the same chat session,
          [defendant] sent twenty-four pornographic
          images to the purported thirteen-year old
          girl.

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          On February 27, 2008, [defendant] again sent
          the agent a webcam showing him masturbating.
          Finally, on March 3, 2008, [defendant]
          provided his cellular phone number to the
          presumed thirteen-year old child. A recorded
          phone call subsequently took place between
          [defendant] and "danigurl107," voiced by BCPO
          [D]etective Kristen Mecionis. During the call
          [defendant] arranged to meet the child at the
          Old Navy store in the Paramus Park Mall.
          [Defendant] expressed an interest in going to
          a nearby hotel after meeting at the mall where
          he suggested that he and the child could look
          at pictures and videos.

          The day the meeting was to take place,
          [defendant] was sighted at the Crowne Plaza
          Hotel adjacent to the mall where the meeting
          was to occur. He was arrested, having in his
          possession a duffle bag containing condoms,
          lubricant, a portable DVD player and two DVDs.

     The PCR judge noted that defendant was, at the time of the

hearing, seventy-five years old.    He had successfully completed

his two-year term of probation. The judge also considered a report

of a psychological evaluation of defendant submitted by Sean

Hiscox, Ph.D., who concluded:

          [It] is my opinion to a reasonable degree of
          professional certainty that in [defendant's]
          case specifically and with offenders at an
          advanced age generally, a comprehensive,
          individualized,    risk   and    needs   based
          assessment informed by the empirical research
          is superior to a charge-based assessment of
          risk. Such an approach is best practice in
          the field and it is also my opinion that such
          an approach sufficiently protects the public
          from sex offenders who are at an advanced age.
          It is also my opinion that [defendant] is not

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           likely to pose a threat to the safety of others
           and therefore could be safely removed from the
           requirements   of   New   Jersey's    community
           notification and registration law.

      The PCR judge began his legal analysis by reaffirming our

Supreme Court's admonition in State v. Preciose, 
129 N.J. 451, 459

(1992): "Post-conviction relief is neither a substitute for direct

appeal, R. 3:22-3, nor an opportunity to relitigate cases already

decided on the merits, R. 3:22-5."             The judge also noted that the

constitutionality       of   the    statutory      notification     scheme      of

convicted sex offenders known as Megan's Law was settled by the

Supreme Court in Doe v. Poritz, 
142 N.J. 1, 90-91 (1995).

      The judge also rejected defendant's attempt to apply the

Court's holding in In re Registrant J.G., 
169 N.J. 304 (2001),

which concerned the application of the registration and community

notification requirements of Megan's Law to a juvenile who pled

guilty to conduct that, if committed by an adult, would constitute

the crime of second degree sexual assault as defined in 
N.J.S.A.

2C:14-2c(1).      J.G "was ten years old when the incident occurred,

and the victim was the juvenile's eight-year-old female cousin."

Id.   at   309.        Applying    the       registration   and   notification

requirements      of   Megan's    Law,   "the    trial   court    Law   Division

classified J.G. as a Tier 2 offender and ordered notification of




                                         6                               A-1217-15T3
various elementary and middle schools in the vicinity of J.G.'s

residence."    Ibid.

     In   holding     that   Megan's    Law   registration      and   community

notification orders for juvenile delinquents under the age of

fourteen will terminate at age eighteen, the Court took "careful

cognizance    of    the   philosophy    underlying   the      creation   of   our

separate juvenile justice system, as well as of the specific

provisions    of    our   Juvenile     Code   intended   to    implement      that

philosophy."       Id. at 321.   The Court also emphasized that:

           The Juvenile Code also limits the duration of
           dispositions imposed on juveniles by providing
           that all orders of disposition other than for
           incarceration in delinquency cases shall
           terminate at age eighteen, or three years from
           the date of the order, whichever is later.
           Moreover, as noted, ante at 324, 
777 A.2d 904,
           the Code states that no disposition "shall
           operate   to   impose   any   of   the   civil
           disabilities ordinarily imposed by virtue of
           a criminal conviction. . . ." 
N.J.S.A. 2A:4A-
           48.

           [Id. at 335-36.]

     Of particular relevance here, the Court in J.G. made clear

that it had previously "generally upheld the constitutionality of

Megan's Law."       Id. at 338 (citing Doe v. Poritz, supra, 
142 N.J.

at 12, 110-11). The PCR judge addressed and rejected the remaining

arguments raised by defendant, concluding that "Megan's Law, as




                                        7                                A-1217-15T3
it is presently written, does not authorize special exceptions for

any alleged class of sex offenders."

     Defendant now appeals raising the following arguments:

          POINT I

          THE PURPOSE OF MEGAN'S LAW IS TO DEFEND
          AGAINST INDIVIDUALS LIKELY TO POSE A THREAT
          OF SEX OFFENSE RECIDIVISM; ADVANCED AGE
          REGISTRANTS ARE EMPIRICALLY LESS LIKELY TO
          PRESENT   A   RISK    THAN   THEIR  YOUNGER
          COUNTERPARTS.

          POINT II

          OFFENSE-BASED BARS TO TERMINATION OF MEGAN'S
          LAW, WHEN APPLIED TO ADVANCED AGE REGISTRANTS,
          CREATE AN IRREBUTTABLE PRESUMPTION OF RISK AND
          ARE UNCONSTITUTIONAL UNDER PROCEDURAL DUE
          PROCESS AND FUNDAMENTAL FAIRNESS ANALYSIS.

          POINT III

          OFFENSE-BASED BARS TO TERMINATION OF MEGAN'S
          LAW, WHEN APPLIED TO ADVANCED AGE REGISTRANTS,
          VIOLATE SUBSTANTIVE DUE PROCESS.

     Defendant's    arguments   lack   sufficient   merit   to   warrant

discussion in a written opinion.        R. 2:11-3(e)(2).     We affirm

substantially for the reasons expressed by the PCR judge.

     Affirmed.




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