STATE OF NEW JERSEY v. SHANIKAH S. DANIELS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANIKAH S. DANIELS, a/k/a SHANIKA

DANIELS,

Defendant-Appellant.

____________________________________________________

December 9, 2014

Submitted October 7, 2014 Decided

Before Judges Fisher, Nugent and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-11-0749.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shanikah Daniels (defendant) was charged with, among other things, the kidnapping, robbery and aggravated assault of a seventeen-year-old female, S.P. A trial of these charges as well as the charges asserted against defendant Herne Lacoste (Lacoste)1 culminated in the jury finding defendant guilty of: second-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); and other fourth-degree weapons offenses. After merging the fourth-degree weapons convictions into the second-degree unlawful possession of a weapon conviction, the judge imposed the following concurrent terms: a seven-year prison term, subject to an eighty-five percent parole disqualifier, on the kidnapping conviction; a seven-year prison term on the weapon conviction; and a four-year prison term on the aggravated assault conviction. The judge also imposed Megan's Law2 conditions on the sentence imposed on the kidnapping conviction.

Defendant appeals, arguing

I. THE NEED FOR LESSER-INCLUDED-OFFENSE INSTRUCTIONS ON ATTEMPTED CRIMINAL RESTRAINT AND FALSE IMPRISONMENT WAS CLEARLY INDICATED BY THE RECORD (Not Raised Below).

II. THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE MOTION AT THE END OF THE STATE'S CASE TO DISMISS THE CHARGE, AMONG OTHERS, OF POSSESSION OF A WEAPON WITHOUT A PERMIT.

III. THE DEFENDANT'S SENTENCE IS EXCESSIVE.

IV. THE IMPOSITION OF A MEGAN'S LAW TERM MUST BE VACATED, AS THE KIDNAPPING FOR WHICH THE DEFENDANT WAS CONVICTED DOES NOT QUALIFY FOR SUCH A TERM, MAKING HER SENTENCE ILLEGAL.

We find insufficient merit in Points I, II and III to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We also reject Point IV for the following reasons.

Defendant argues that the kidnapping sentence should not have contained Megan's Law conditions because there was no sexual component or sexual motivation in the commission of the kidnapping offense. Defendant's argument is not without support. See In re Registrant R.B., 376 N.J. Super. 451, 469 (App. Div.) (holding that "crimes that do not encompass sexual offenses are not appropriate for Megan's Law violations"), certif. denied, 185 N.J. 29 (2005); In re Registrant T.S., 364 N.J. Super. 1, 10 (App. Div. 2003) (recognizing that "there must be a sex offense . . . to trigger applicability of Megan's Law"). The Supreme Court, however, later determined that, even in the absence of a sexual component or motivation, the application of Megan's Law turns only on whether one of the predicate offenses delineated in Megan's Law was committed. In re Registrant T.T., 188 N.J. 321, 333-34 (2006) (overruling R.B. and T.S. to the extent they "may be read as conflicting" with the Court's decision).

Defendant attempts to distinguish T.T., which concerned an aggravated sexual assault, by referring to what she believes to be an incongruity in Megan's Law. That is, defendant points out that subsection (1) of N.J.S.A. 2C:7-2(b) defines "a sex offense" as "kidnapping pursuant to [N.J.S.A. 2C:13-1(c)(2)]," for which defendant was not convicted, while subsection (2) defines "a sex offense" as including "kidnapping pursuant to N.J.S.[A.] 2C:13-1," which incorporates the offense for which defendant was convicted. Defendant contends that the kidnapping offense referred to in subsection (2) should be harmonized with and limited by the definition of kidnapping in subsection (1).

We reject the invitation to transpose the Legislature's unambiguous reference to the broader category of kidnapping in subsection (2) with its more limited reference to kidnapping in subsection (1) of N.J.S.A. 2C:7-2(b). Had the Legislature possessed the intent to limit the scope of subsection (2) in the manner defendant argues, it could have expressly stated that intention.3 By referring to "kidnapping pursuant to N.J.S.[A.] 2C:13-1" in subsection (2) of N.J.S.A. 2C:7-2(b), the Legislature meant to incorporate all the kidnapping offenses listed in N.J.S.A. 2C:13-1, and not just the specific kidnapping offense referred to in subsection (1) of N.J.S.A. 2C:7-2(b).

We find nothing incongruous in the choices the Legislature made. Megan's Law was not limited to offenders whose conduct contains sexual overtones but to offenders "who commit other predatory acts against children." N.J.S.A. 2C:7-1(a). Because the offense for which defendant was convicted fell within the parameters of N.J.S.A. 2C:7-2(b)(2) the kidnapping of a minor we find no error in the judge's imposition of Megan's Law conditions despite the absence of a sexual component or motivation for the kidnapping that occurred here.

Affirmed.

1In a separate opinion also filed today, we reversed Lacoste's conviction and remanded for a new trial. State v. Lacoste, No. A-4113-12.

2N.J.S.A. 2C:7-1 to -19.

3We also reject the notion that the reference in subsection (2) of N.J.S.A. 2C:7-2(b) to all the kidnapping offenses in N.J.S.A. 2C:13-1 was mistaken because subsection (2) also expressly contains the more specific reference to kidnapping pursuant to N.J.S.A. 2C:13-1(c)(2).