STATE OF NEW JERSEY v. FREDERICK CRUMRINE

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                        NOT FOR PUBLICATION WITHOUT THE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 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-4337-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FREDERICK CRUMRINE,

        Defendant-Appellant.


              Argued October 18, 2017 – Decided December 11, 2017

              Before Judges Alvarez and Nugent.

              On appeal from Superior Court of New Jersey,
              Law Division, Salem County, Accusation No.
              00-05-0358.

              Justin T. Loughry argued the cause for
              appellant   (Loughry   and    Lindsay,   LLC,
              attorneys; Justin T. Loughry, on the brief).

              Louise T. Lester, Assistant Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney; Louise
              T. Lester, of counsel and on the brief).

PER CURIAM

        On   September    22,   2000,   defendant     Frederick    Crumrine        was

sentenced to concurrent terms of probation, with conditions, in
accordance with his agreement with the State.               He had earlier

entered guilty pleas to an accusation charging him with two counts

of child endangering, 
N.J.S.A. 2C:24-4(a).             Each count alleged

conduct committed against a different child.          The conduct occurred

during defendant's employment as a music teacher and was similar

in nature.     While measuring students for costumes they would wear

in a school play, he asked them to fully disrobe, on two or three

occasions per child.

     Defendant successfully completed his terms of probation, and

since   that   time   has   remained       offense-free,   fully   employed,

garnered substantial community support, and been evaluated as

posing no risk to the safety of others.                The judge granted

defendant's     application    for     termination    of    his    community

supervision for life (CSL), see 
N.J.S.A. 2C:43-6.4, but denied his

request to end his Megan's Law registration obligations, 
N.J.S.A.

2C:7-2(f), observing that defendant is "a perfect candidate to be

relieved of all of these obligations."           Defendant appeals, and we

affirm.

     At the time defendant pled guilty, the statute provided that

relief could be sought from registration requirements if:                 (1)

"the person has not committed an offense within [fifteen] years

following conviction," and (2) the person "is not likely to pose

a threat to the safety of others."          
N.J.S.A. 2C:7-2(f).     In 2001,

                                       2                             A-4337-15T3
however, the statute was amended in compliance with the Federal

Jacob Wetterling Act, 42 U.S.C.A. § 14071.1            That law directed

certain   guidelines    be   adopted   regarding   which    offenders    must

remain registered over their lifetime. In re L.E., 
366 N.J. Super.
 61, 66 (App. Div. 2003).      
N.J.S.A. 2C:7-2(g) was therefore amended

to bar relief from registration requirements when a person has

been convicted of more than one offense, such as this defendant:

"[a] person required to register under this section who has been

convicted of . . . more than one sex offense as defined in . . .

this section . . . is not eligible under subsection f. of this

section to make application to the Superior Court of this State

to   terminate   the   registration    obligations."       Thus,   defendant

raises the following points on appeal:

           I.    AS   THE   LAW   DIVISION  JUDGE   HELD,
                 REGISTRANT FRED CRUMRINE QUALIFIED FOR
                 AND MERITED TERMINATION OF HIS COMMUNITY
                 SUPERVISION FOR LIFE SENTENCE IMPOSED IN
                 YEAR 2000, BECAUSE MR. CRUMRINE HAD
                 DEMONSTRATED BY CLEAR AND CONVINCING
                 EVIDENCE THAT HE DID NOT POSE A RISK TO
                 OTHERS SAFETY []

           II.   APPELLANT     CRUMRINE     MEETS    THE
                 REQUIREMENTS FOR TERMINATION OF MEGAN'S
                 LAW REGISTRATION UNDER 2C:7-2 []

                 A.    Registrant should be released from
                       the    registration   requirements
                       because the application of N.J.S.

1
  This Act has since been repealed and was replaced by 42 U.S.C.A.
§ 16902.

                                       3                             A-4337-15T3
                    2C:7-2g to registrant violates the
                    ex post facto clause. []

               B.   N.J.S. 2C:7-2g should only be
                    applied   prospectively and  the
                    application of N.J.S. 2C:7-2g to
                    Registrant violates the ex post
                    facto clause. []

               C.   N.J.S.   2C:7-2g   as   applied   to
                    registrant violates the ex post
                    facto clause because it enhances the
                    punishment and its negative effect
                    is excessive in relationship to any
                    non-punitive purpose. []

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

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

The appeal raises a question of law, which we review de novo.

State v. Revie, 
220 N.J. 126, 132 (2014).

     Both the United States and the New Jersey Constitutions

prohibit ex post facto laws.     U.S. Const. art. I, § 10, cl. 1;

N.J. Const. art. IV, § 7, ¶ 3.   "The Ex Post Facto Clause is 'aimed

at laws that retroactively alter the definition of crimes or

increase the punishment for criminal acts.'"    State v. Perez, 
220 N.J. 423, 438 (2015) (citation omitted).    In order for a criminal

or penal law to be ex post facto, two elements must exist.    First,

                                  4                          A-4337-15T3
"it must be retrospective, that is, it must apply to events

occurring before its enactment."        Weaver v. Graham, 
450 U.S. 24,

29, 
101 S. Ct. 960, 964, 
67 L. Ed. 2d 17, 23 (1981).         Second, the

law must impose additional punishment for an already completed

crime.   Riley v. N.J. State Parole Bd., 
219 N.J. 270, 285 (2014).

      In regards to the first element, "[a] law is retrospective

if it 'appl[ies] to events occurring before its enactment' or 'if

it changes the legal consequences of acts completed before its

effective date.'"   Ibid. (quoting Miller v. Florida, 
482 U.S. 423,

430, 
107 S. Ct. 2446, 2451, 
96 L. Ed. 2d 351, 360 (1987)).            As to

the   second   element,   the   court   must   "ascertain   whether    the

legislature meant the statute to establish 'civil' proceedings,"

Kansas v. Hendricks, 
521 U.S. 346, 361, 
117 S. Ct. 2072, 2082, 
138 L. Ed. 2d 501, 514-15 (1997), and, if so, further consider whether

the statutory scheme is "so punitive either in purpose or effect

as to negate [the State's] intention to deem it civil."               Ibid.

(quoting United States v. Ward, 
448 U.S. 242, 248-49, 
100 S. Ct. 2636, 2641, 
65 L. Ed. 2d 742, 749 (1980)).        Notably, "[t]here 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 offen[s]e or the ultimate facts necessary

to establish guilt.'"     Perez, supra, 
220 N.J. at 438-39 (emphasis

omitted) (quoting Miller, supra, 
482 U.S. at 433).          Essentially,

                                    5                            A-4337-15T3
defendant contends that the change of law instituted two years

after his sentence increased the punishment for the offenses to

which he pled guilty.

     Before      reaching   defendant's       ex   post    facto    arguments,    we

address his claim that in any event, the prohibition found in


N.J.S.A. 2C:7-2(g) does not apply to him because the aberrant

behavior should be treated as one criminal episode.                 This argument

is unconvincing.      The counts of the accusation, although charging

conduct similar in nature, occurred on separate dates, separate

times,    and    involved   two   victims.         Therefore,       defendant    was

convicted of "more than one sex offense."                 
N.J.S.A. 2C:7-2(g).

     In rendering his decision, the Law Division judge relied on

Doe v. Poritz, 
142 N.J. 1 (1995).            There, the Court concluded that

Megan's    Law     notification    and       registration     requirements,       as

embodied in 
N.J.S.A. 2C:7-1 to -23, are not punitive——merely

"remedial in purpose."       Doe, supra, 
142 N.J. at 73.             Notification

and registration requirements are regulatory restrictions only.

State v. Schubert, 
212 N.J. 295, 319-20 (2012).                In contrast, CSL

and parole supervision for life (PSL), 
N.J.S.A. 2C:43-6.4, are

punitive in nature, imposed as a separate element of the sentence.

Perez,    supra,    
220 N.J.    at   440-41.       Since    the    registration

requirements were found to not be punitive in Doe, the judge



                                         6                                 A-4337-15T3
concluded they are not subject to ex post facto prohibitions. Doe,

supra, 
142 N.J. at 73-75.

      The conclusion, with which we agree, is supported by analysis

of the so-called Mendoza-Martinez factors.         See Riley, supra, 
219 N.J. at 285-86.        The Mendoza-Martinez factors, adopted in Riley

after the United States Supreme Court decision in Smith v. Doe,


538 U.S. 84, 97, 
123 S. Ct. 1140, 1149, 
155 L. Ed. 2d 164, 179-80

(2003), are:     whether the scheme "in its necessary operation" (1)

"has been regarded in our history and traditions as a punishment;"

(2)   "imposes    an    affirmative   disability   or   restraint;"   (3)

"promotes the traditional aims of punishment;" (4) "has a rational

connection to a nonpunitive purpose;" or (5) "is excessive with

respect to this purpose."

      Even where the legislative intent was to merely regulate,

courts must make an independent determination as to whether the

effect of a law is punitive.      Id. at 92.   As our Supreme Court has

repeatedly stated, the registration requirements are not punitive,

nor do they impose affirmative disabilities or restraints in

contrast with CSL or PSL.       Schubert, supra, 
212 N.J. at 305-07;

Doe, supra, 
142 N.J. at 12.      Hence, the first two Mendoza-Martinez

factors weigh towards the conclusion that application of 
N.J.S.A.

2C:7-2(g) to this defendant is not an ex post facto law.              The

registration requirements do not promote the traditional aims of

                                      7                          A-4337-15T3
punishment as they do not serve a purpose to either sanction or

rehabilitate.   They are designed essentially only to track.2   This

third applicable factor balances towards retroactive application

being constitutionally acceptable.    The registration requirements

are squarely fashioned to meet the nonpunitive goals of the law

and are not excessive. They are reasonable in light of the State's

purpose in enacting the law.

     Consideration of the Mendoza-Martinez factors demonstrates

that retroactive application of the Megan's Law restriction for

offenders who have been found guilty of two sex offenses is not

unconstitutional.     We agree with the Law Division judge that

defendant cannot be relieved from Megan's Law as a result of the

statutory provision enacted two years after he was sentenced.

     Finally, the copy of the judgment of conviction (JOC) included

in the appendix does not state that defendant was subject to

Megan's Law.    We do not have a copy of the transcript of the plea

colloquy, and do not know if the ramifications of the law were

then explained to defendant.    The plea form clearly states that

defendant would be subject to registration requirements, however,

no mention of Megan's Law was made during his sentencing. Because,



2 N.J.S.A. 2C:7-1 states in part: "The danger of recidivism . . .
require[s] a system of registration that will permit law
enforcement officials to identify and alert the public when
necessary for the public safety."

                                  8                         A-4337-15T3
like the Law Division judge, we follow longstanding precedent

interpreting   registration   requirements   as   regulatory   and   not

punitive, it is not improper to now amend the JOC to correctly

reflect this obligation.      See Schubert, supra, 
212 N.J. at 308-

10.   Accordingly, we remand for the sole purpose of correcting the

JOC. The correction is a mere ministerial act intended to properly

reflect the sentence and all its ramifications.

      Affirmed.




                                   9                            A-4337-15T3