IN THE MATTER OF REGISTRANT N.F.

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                     NOT FOR PUBLICATION WITHOUT THE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-1387-16T1


IN THE MATTER OF
REGISTRANT N.F.,

     Appellant.
_______________________________________

           Argued April 24, 2018 – Decided June 11, 2018

           Before Judges Yannotti, Mawla and DeAlmeida.

           On appeal from Superior Court of New Jersey,
           Law Division, Hudson County, Docket No.
           16090004.

           Michael C. Woyce argued the cause for
           appellant N.F. (Murphy & Woyce, attorneys;
           Michael C. Woyce, on the brief).

           Kristen L. Brewer, Assistant Prosecutor,
           argued the cause for respondent State of New
           Jersey   (Esther   Suarez,   Hudson   County
           Prosecutor, attorney; Kristen L. Brewer, on
           the brief).

PER CURIAM

     N.F. appeals from an order entered by the Law Division on

November 30, 2016, which designated him as a Tier II sex offender

under the Registration and Community Notification Laws, 
N.J.S.A.

2C:7-1 to -11 (Megan's Law), and as subject to Tier II community
notification and inclusion on the Sex Offender Internet Registry

(Internet Registry), 
N.J.S.A. 2C:7-12 to -19. We affirm.

                               I.

     This appeal arises from the following facts. On or about

November 28, 2011, the North Bergen Police Department (NBPD)

received an anonymous phone call alleging possible child abuse.

NBPD detectives located the witness, J.D., who reported that a man

(later identified as N.F.) had shown her a video depicting a man

engaging in sexual activity with a young female child named

"Jackie."

     According to J.D., N.F. claimed he was the man in the video.

The NBPD referred the matter to the Special Victims Unit (SVU) in

the Hudson County Prosecutor's Office (HCPO). J.D. also met with

investigators from the New Jersey Division of Youth and Family

Services (the Division) and described what she had seen.1

     SVU Detective Kristen Fusiak interviewed J.D., who provided

a statement under oath. J.D. explained that on November 26, 2011,

she was driving around with a female friend. They picked up N.F.,

whom she had never met before. They then drove to N.F.'s home, but

only J.D. and N.F. went inside. While sitting in the living room,

J.D. and N.F. discussed their childhoods and previous incidents


1
  The Division is now known as the Division of Child Protection
and Permanency.

                                2                           A-1387-16T1
of   sexual   assault.   N.F.   then   began    discussing     a    girl     named

"Jackie."     He   retrieved    a   laptop   computer    and       showed      J.D.

approximately five minutes of a video depicting a man receiving

oral sex from a young female who appeared to be between the age

of seven and ten years old.

      According to J.D., N.F. claimed to be the man in the video,

although his face was not shown. He also identified the minor as

"Jackie," a ten-year-old "neighbor" he sees regularly. N.F. said

he engaged in oral and anal sex with the minor. J.D. stated that

N.F. also showed her other child pornographic videos in which he

was not involved, and asked J.D. if she would like to engage in

sexual relations with him and the minor. J.D. left N.F.'s home.

      On   November   30,   2011,   Fusiak     showed   J.D.   approximately

sixteen photographs of fourth, fifth, and sixth grade classes at

a North Bergen elementary school. J.D. did not identify any of the

females as the minor in N.F.'s pornographic video. On December 2,

2011, J.D. was shown a photograph of J.B. She stated she was

eighty-percent sure that it was the photograph of the female child

shown in the pornographic video that N.F. had shown to her.

      On December 2, 2011, members of the SVU and NBPD executed

multiple search warrants at N.F.'s addresses in North Bergen and

another municipality, and communications-data warrants for any

items seized at those locations. The searches yielded, among other

                                       3                                   A-1387-16T1
things, several computers, a digital camera, and one unmarked

video tape. Numerous videos and images of child pornography were

found on the electronic devices. The video that J.D. had described

was not located.

     However,   among   the   videos   recovered   was   a   homemade

pornographic video depicting N.F. and a female he refers to as his

"cousin." On the video, N.F. discussed sodomizing a young girl

with a broomstick, and then stated "let's see like I'd wanna [sic]

do that to like, like a girl that's a little under developed like

someone like [A.], like [ten] years old going on [eleven]." N.F.

and his "cousin" then discussed engaging in sexual activity with

a juvenile.

     One of the Division's workers spoke with N.F.'s children, and

one of the children advised her that he has an eight-year-old

playmate named "Jackie" who lives nearby. J.B., who goes by the

name of "Jackie," and her mother, Ja.B., were brought to the HCPO

to give a statement. Ja.B. stated that N.F. was a friend of her

ex-husband.

     Ja.B. said J.B. spent a lot of time at N.F.'s home playing

with his children and slept over at N.F.'s house approximately

three times. N.F. was there two of those times. Ja.B. stated that

on one occasion J.B. returned from N.F.'s home and was "acting

weird" in the bathroom. J.B. told Ja.B. that she was bleeding from

                                 4                            A-1387-16T1
her vaginal area and had a pinkish discharge. However, J.B. denied

that anyone touched her.

     Fusiak spoke with J.B. and had her identify certain body

parts on anatomically-detailed drawings. Fusiak asked J.B. if

there was any place on her body that no one was permitted to touch.

J.B. responded that no one was supposed to touch her "private

part" and "butt." J.B. initially hesitated in answering, but then

said no one was allowed to touch her chest. When asked why she

hesitated, J.B. responded that she had to think if anyone had

touched her. She denied ever seeing male genitals. She acknowledged

she spends time at N.F.'s home and has slept over there.

     Fusiak and J.B. next discussed the incident in the bathroom.

J.B. initially claimed she did not remember the incident but then

said "it was kind of at two places" – once at her house and once

at another house where she lived at times. She stated that at her

house, her private part hurt and she did not know why. She also

said nothing came out, and she did not know what Ja.B. saw when

she examined her. J.B. stated she told her mother that no one had

touched her. J.B. said, however, that blood came out of her private

part at the other house.

     When asked about N.F., J.B. said she did not like him because

he is "weird." J.B. stated that she did not think N.F. was cute

and she denied having a crush on him. When asked if N.B. had a

                                5                           A-1387-16T1
crush on her, J.B. said she was not sure. J.B. answered "no" to

nearly every question about sexual matters that Fusiak asked.

However, when asked if N.F. touched her butt, J.B. initially said

yes and then quickly said no. J.B. also denied N.F. had ever

recorded her on video. Eventually, J.B. began crying and said she

did not want to continue the discussion.

     Shortly thereafter, J.B. returned to the interview room, and

Fusiak questioned her about a Facebook conversation J.B. had with

N.F. The messages read as follows:

          J.B.: I waz up im so bored

          N.F.: It's late baby girl. Get ready for bed.

          Love you.

          J.B.: reallyyyyyyyyyy

          N.F.: Really really (with a smiley face)

          J.B.: yesss

          J.B.: Jookie!!!!

          J.B.: wat[sic]!!!!!!!!!

     Fusiak explained to J.B. that the conversation could be

interpreted as a boyfriend-girlfriend relationship. J.B. said she

did not like N.F. and continued to deny that anyone ever touched

her body parts, specifically N.F.     Fusiak told J.B. she saw the

video of her and N.F., but J.B. denied ever touching male genitals.

J.B. acknowledged the videotaping by stating that the incidents

                                  6                         A-1387-16T1
happened in the living room and sometimes the other children were

in another room.

     She said N.F. touched her belly and demonstrated a chopping

motion. When asked what sexual touching happened in the living

room, J.B. denied that any such touching occurred and said she did

not remember anything. Several days later, Ja.B. called Fusiak to

inform her that J.B. claimed N.F. had promised her an iPod.

     On December 7, 2011, N.F.'s ex-wife, T.F., was interviewed.

N.F. and T.F. have three children together. Among other things,

T.F. said four neighborhood children frequented their home to play

with her children, and one of the children was named "Jackie."

T.F. told Fusiak that either she, N.F., or a babysitter would be

home when the children would play together.

     T.F. denied that any other neighborhood children frequented

her home. T.F. also said there was a laptop computer in the home

that recently broke when her son spilled juice on it. The last

time she saw the laptop was November 30, 2011. T.F.'s children

were also interviewed. They acknowledged there was another laptop

in the home, but stated they had not seen it recently.

     N.F. was charged with first-degree aggravated sexual assault,


N.J.S.A. 2C:14-2(a) (count one); second-degree endangering the

welfare of a child, 
N.J.S.A. 2C:24-4(a) (count two); fourth-degree

abuse, cruelty and neglect of a child, 
N.J.S.A. 9:6-1 and -3 (count

                                7                           A-1387-16T1
three); first-degree endangering the welfare of a child (creation

of   child   pornography),      
N.J.S.A.      2C:24-4(b)(3)       (count    four);

second-degree endangering the welfare of a child (distribution of

child pornography), 
N.J.S.A. 2C:24-4(b)(5)(i) (count five); and

fourth-degree endangering the welfare of a child (possession of

child pornography), 
N.J.S.A. 2C:24-4(b)(5)(ii) (count six).

      On October 1, 2013, N.F. pled guilty to count five. On January

24, 2014, he was sentenced to five years in state prison, and

required to register as a sex offender under Megan's Law, 
N.J.S.A.

2C:7-2.   After    his   release   from      custody,     N.F.    registered      as

required.    The   HCPO    filed    a       notice   of    proposed    Tier       II

classification,     Tier   II    notification        to   the    community,     and

inclusion on the Internet Registry. N.F. filed an objection to the

proposed classification and requested an evidentiary hearing.

      On November 18, 2016, the Law Division judge conducted a

hearing in the matter. N.F. presented the testimony of Dr. James

R. Reynolds, a psychologist and expert in the field of sex offender

treatment and risk assessment. Dr. Reynolds opined that N.F. was

a low risk for involvement in future criminal behavior. Dr.

Reynolds scored N.F. as having an overall total of five points on

the Registrant Risk Assessment Scale (RRAS). He gave N.F. three

points for history of anti-social acts and two points for substance

abuse that is in remission. Dr. Reynolds gave N.F. zero points for

                                        8                                  A-1387-16T1
all other factors on the RRAS. In his report, Dr. Reynolds opined

that   the   available   records   indicated   that    allegations     N.F.

sexually abused an underage child were not substantiated.

       On November 30, 2016, the judge heard oral argument and

rendered a decision from the bench, finding N.F. subject to Tier

II classification, Tier II community notification, and inclusion

on the Internet Registry. The judge memorialized his findings in

an order dated November 30, 2016, and granted an oral motion for

stay of placement on the Internet Registry pending appeal. This

appeal followed.

       On appeal, N.F. raises the following arguments: (1) the trial

court incorrectly applied the RRAS in evaluating his risk by

applying     inappropriate   factors     regarding    his   offense;   (2)

notwithstanding his RRAS score, he should be subject to Tier I

community notification without placement on the Internet Registry;

(3) the State did not prove by clear and convincing evidence that

he committed an act of sexual penetration with a minor female; and

(4) the RRAS is being applied differently in certain counties,

with the potential for arbitrary results.

                                   II.

       We begin our consideration of the appeal by summarizing the

relevant provisions of Megan's Law and the tier classification

process. Depending on the type and time of offense, Megan's Law

                                    9                             A-1387-16T1
requires    certain     sex    offenders       to   register    with   local    law

enforcement agencies and notify the community. In re T.T., 
188 N.J.    321,    327    (2006)        (citing    N.J.S.A.       2C:7-2).   Because

registration and community notification under Megan's Law has a

significant impact upon a registrant's personal liberties, the

trial court must balance the registrant's right to privacy against

the    community's    interest       in   safety    and   notification.    In    re

Registrant G.B., 
147 N.J. 62, 74 (1996). In applying this balancing

test, the RRAS is a reliable tool. Id. at 81–82.

       The RRAS is an instrument used to determine whether a sex

offender's risk of re-offense is low (Tier I), moderate (Tier II),

or high (Tier III). State v. C.W., 
449 N.J. Super. 231, 260 (2017)

(citing In re V.L., 
441 N.J. Super. 425, 429 (App. Div. 2015)).

In assigning a tier rating to a registered sex offender, the court

considers thirteen factors across four categories: (a) seriousness

of the offense; (b) the offender's history; (c) community support

available; and (d) the characteristics of the offender. Ibid.

(citing V.L., 
441 N.J. Super. at 429).

       "Seriousness of offense" includes: (1) degree of force; (2)

degree of contact; and (3) age of victim. In re Registrant C.A.,


146 N.J. 71, 103 (1996). "Offender's history" includes: (4) victim

selection;     (5)    number    of    offenses/victims;        (6)   duration    of



                                          10                              A-1387-16T1
offensive behavior; (7) length of time since last offense; and (8)

any history of anti-social acts. Ibid.

      "Support available" and "characteristics of offender" are

considered "dynamic categories, because they are evidenced by

current conditions." Ibid. "Characteristics of offender" includes:

(9) response to treatment and (10) substance abuse. Id. at 103–

04. "Support available" includes: (11) therapeutic support, (12)

residential support; and (13) employment/educational stability.

Id. at 104.

      Each factor is assigned a risk level of low (0), moderate

(1), or high (3), and "[t]he total for all levels within a category

provides a score that is then weighted based on the particular

category." Ibid. A registrant who receives a total factor score

below thirty-seven is considered Tier I and a low risk for re-

offense. Id. at 83. A registrant who receives a total factor score

of more than thirty-seven, but less than seventy-four, is deemed

Tier II and a moderate risk for re-offense. Ibid. Finally, a

registrant who receives a total factor score of seventy-four or

higher is considered Tier III and a high risk for re-offense.

Ibid.

      
N.J.S.A. 2C:7-8(c)(1) provides that when risk of re-offense

is   low,   "law    enforcement    agencies   likely     to   encounter    the

[registrant]"      must   be   notified.   When   risk   of   re-offense    is

                                     11                              A-1387-16T1
moderate,   "organizations   in   the   community   including   schools,

religious and youth organizations" must be notified in addition

to the notice to law enforcement agencies. 
N.J.S.A. 2C:7-8(c)(2).

When risk of re-offense is high, public notice "designed to reach

members of the public likely to encounter the [registrant]" is

required, in addition to the other notice required. 
N.J.S.A. 2C:7-

8(c)(3). Additionally, "where public access . . . [is] warranted,

based on the relative risk posed by the particular offender," some

offenders will be subject to the Internet Registry. 
N.J.S.A. 2C:7-

13(b).

     The RRAS is, however, "only one possible consideration" of

many in determining a registrant's risk of re-offense. G.B., 
147 N.J. at 78. Although the RRAS is a "useful tool to help prosecutors

and courts determine whether a registrant's risk of re-offense is

low, high, or moderate," it is "not a scientific device." C.A.,


146 N.J. at 108.

     "[I]t is impossible to create an all-inclusive scale," and

thus, "any classification based on the [RRAS] should not be viewed

as absolute." Id. at 109. Judicial determinations regarding tier

classification and community notification should be made "on a

case-by-case basis" within the discretion of the court and based

on all of the evidence available, not simply by following the

"numerical calculation provided by the [RRAS]." G.B., 147 N.J. at

                                  12                             A-1387-16T1
78–79 (quoting C.A., 
146 N.J. at 109). Ultimately,        "a value

judgment" is required. Id. at 78 (citing C.A., 
146 N.J. at 109).

     Moreover,   all   judicial    determinations   regarding   tier

classification and community notification "must be [made] by clear

and convincing evidence." G.H. v. Twp. of Galloway, 
401 N.J. Super.
 392, 403 (App. Div. 2008) (citing E.B. v. Verniero, 
119 F.3d 1077,

1111 (3d Cir. 1997)). Clear and convincing evidence has been

characterized "as evidence on which the trier of fact can rest 'a

firm belief or conviction as to the truth of the allegations sought

to be established.'" In re Registrant J.G., 
169 N.J. 304, 330–31

(2001) (quoting Matter of Purrazella, 
134 N.J. 228, 240 (1993)).

     In challenging a tier designation, a registrant may argue

that: (1) the RRAS score was erroneously calculated; (2) the case

falls outside the "heartland" of Megan's Law cases; and (3) the

extent of community notification required is excessive due to

"unique" aspects of the registrant's case. T.T., 
188 N.J. at 330

(quoting G.B., 
147 N.J. at 85). In presenting such a challenge,

the registrant must introduce evidence showing the RRAS "did not

accurately weigh certain factors" or "take into account certain

peculiar factors" relevant in determining a registrant's risk of

re-offense. G.B., 
147 N.J. at 82.




                                  13                        A-1387-16T1
                                          III.

       N.F. argues that the State failed to establish by clear and

convincing evidence that he engaged in sexual penetration with

anyone other than consenting adults. N.F. therefore argues his

score of fifteen (high risk) in factor two of the RRAS (degree of

contact) was erroneous. We disagree.

       When calculating a registrant's score on the RRAS, "the State

is free to rely on hearsay statements to support its assertions

and    does    not   need   to    base    its    calculations        surrounding      the

underlying offense solely on the facts of conviction." G.B., 
147 N.J. at 79 (citing C.A., 
146 N.J. at 88–93). The trial court then

may    consider      "all   reliable      information"        including    "[s]exual

offenses, not the subject of a conviction" and supported by

admissions, police reports, and psychiatric reports. In re J.W.,


410 N.J.    Super.   125,     130–31   (App.       Div.   2009)    (citing    In    re

Registrant C.A., 
285 N.J. Super. 343, 347–48 (App. Div. 1995)).

The trial court may rely on the evidence it considers relevant and

trustworthy in making its determination. C.A., 
285 N.J. Super. at
 343.

       On appeal, we must accord substantial deference to the trial

court's       factual   determinations           if    supported      by   "adequate,

substantial, credible evidence." Cesare v. Cesare, 
154 N.J. 394,

411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,

                                          14                                    A-1387-16T1

65 N.J. 474, 484 (1974)). "Deference is especially appropriate

'when the evidence is largely testimonial and involves questions

of credibility.'" Id. at 412 (quoting In re Return of Weapons to

J.W.D., 
149 N.J. 108, 117 (1997)). We must defer to the trial

court's factual findings "regardless of whether the evidence is

live testimony, a videotaped statement, or documentary evidence."

State v. S.N., 
231 N.J. 497, 514 (2018) (citing State v. S.S., 
229 N.J. 360, 379 (2017)).

     In this case, the trial judge found that the State had proven

by clear and convincing, if not overwhelming, evidence that N.F.

had committed an act of sexual penetration upon the female minor,

J.B. The judge found that J.D.'s statements on this issue were

"completely credible" and, for this reason, N.F. would receive a

score of fifteen (high risk) on factor two of the RRAS (degree of

contact). There is sufficient credible evidence in the record to

support the judge's finding.

     As the judge pointed out in his decision, J.D. stated under

oath that N.F. showed her a video of a man receiving oral sex from

a young female victim who appeared to be between the ages of seven

and ten years old. Furthermore, N.F. identified himself as the man

depicted in the pornographic video. N.F. also identified the young

female victim as "Jackie," a ten-year-old "neighbor" whom he sees

regularly.

                               15                          A-1387-16T1
     As noted previously, when they executed the search warrants,

the investigators could not locate the video that J.D. described.

The judge found, however, that this did not mean the video did not

exist on the night J.D. said she saw it. Moreover, N.F. told J.D.

that he engaged in oral and anal sex with the young female victim,

and he invited J.D. to engage in sexual relations with him and the

victim. The judge found J.D.'s statement was "completely credible

and reliable."

     We note that J.D.'s statement was corroborated by other

evidence, including the significant amount of child pornography

recovered   from    N.F.'s   home,    his    inappropriate     Facebook

conversation with a female minor nicknamed "Jackie" who lived

nearby, and the numerous similarities between N.F.'s conversation

with J.D. and his conversation with his "cousin" in a homemade

pornographic video that was recovered later. In that video, N.F.

is seen telling his "cousin" he wanted to sexually penetrate a

named ten-year-old female.

     Accordingly,   we   conclude    there   is   sufficient   credible

evidence in the record to support the judge's finding that N.F.

sexually penetrated a young female victim who was about ten years

old. The record supports the judge's determination that N.F.'s

score in factor two of the RRAS (degree of contact) was fifteen.



                                16                              A-1387-16T1
                                     IV.

     Next, N.F. argues that the judge erroneously scored his RRAS,

resulting in an inaccurate and inflated risk assessment. As stated

previously, the judge placed N.F. in Tier II, the moderate level

of risk of re-offense for Megan's Law community notification,

based on a final score of sixty-three on the RRAS.

     In the category of "seriousness of offense," the judge found

that N.F. had a total score of thirty. This score consisted of

fifteen points (high risk) for factor two (degree of contact)

based   on    the   aforementioned   finding    of   penetration.   It   also

included fifteen points (high risk) for factor three (age of the

victim), since the victim was under the age of thirteen.

     In the category of "offense history," the judge found N.F.

also had a total score of thirty. This score consisted of nine

points (high risk) for factor four (victim selection), nine points

(high risk) for factor five (number of offenses/victims), three

points (moderate risk) for factor seven (length of time since last

offense), and nine points (high risk) for factor eight (history

of anti-social acts).

     In      addition,   in   the    category   of    "characteristics     of

offender," the judge found that N.F. had a score of two (moderate

risk) for factor ten (substance abuse). The judge also found that



                                     17                             A-1387-16T1
N.F.   had   a   score   of   one   (moderate   risk)   in   factor   thirteen

(education/employment stability).

       On appeal, N.F. argues that factors one through five of the

RRAS should not be scored for child pornography offenders. He

contends     these   factors    are   designed    primarily    for    "contact

offenses," and should be left un-scored in cases involving child

pornography offenders.

       We note, however, that N.F. did not receive a score for factor

one (degree of force). Moreover, N.F.'s score for factor two

(degree of contact) was based on the finding that he committed an

act of sexual penetration upon the female victim, who was about

ten years old. Factor three (age of the victim) was based in part

on the age of the victim, who was under thirteen years of age, and

the many other victims who appear in the child pornography videos.

The scores on factors four (victim selection) and five (number of

offenses/victims) also were based on the victims depicted in the

numerous child pornography videos found in N.F.'s house.

       Notwithstanding N.F.'s arguments to the contrary, we are not

convinced that it was inappropriate for the court to consider his

possession and distribution of child pornography for purposes of

scoring factors three, four, and five. The courts have recognized

that children depicted in child pornography are, in fact, victims.



                                      18                               A-1387-16T1
In New York v. Ferber, 
458 U.S. 747, 759 n.10 (1982), the Court

observed that

          Pornography poses an even greater threat to
          the child victim than does sexual abuse or
          prostitution. Because the child's actions are
          reduced to a recording, the pornography may
          haunt him [or her] in future years, long after
          the original misdeed took place. A child who
          has posed for a camera must go through life
          knowing that the recording is circulating
          within the mass distribution system of child
          pornography.

See also In re Cohen, 
220 N.J. 7, 12 (2014) (noting that each time

someone views child pornography, the child depicted therein is

again victimized).

     Here,   N.F.    was   subject    to   registration   and   community

notification under Megan's Law because he was found guilty of

endangering the welfare of a child through the distribution of

child pornography to J.D. See 
N.J.S.A. 2C:7-2(a)(2); N.J.S.A.

2C:24-4(b)(5)(a)(i). The fact that a registrant has possessed

numerous child pornography videos is an appropriate consideration

in determining whether there is a risk that the registrant will

re-offend in this manner. Therefore, in scoring factors three,

four, and five of the RRAS, it was appropriate for the court to

consider the many victims depicted in the child pornography videos

N.F. possessed.




                                     19                           A-1387-16T1
       In support of his argument that child pornography offenders

should not be scored in factors one through five of the RRAS, N.F.

relies upon In re Registrant P.B., 
427 N.J. Super. 176 (App. Div.

2012). In that case, the registrant was charged with third-degree

endangering the welfare of a child, 
N.J.S.A. 2C:24-4(b)(5)(a) and

(b), for possession of child pornography on his home computer, and

he pled guilty to third-degree child endangerment under 
N.J.S.A.

2C:24-4(a). Id. at 180. On the RRAS, the registrant received a

total score of seventy-two, placing him in the category of persons

who pose a moderate risk to re-offend. Ibid. On appeal, the

registrant argued this tiering was incorrect. Id. at 179.

       We "reject[ed] the notion" that a "high" risk level under

factor two (degree of contact) could be "satisfied by a showing

that   a   registrant   merely   possessed   depictions   of   penetrative

sexual activity with children, without any concomitant indication

that [the registrant] played a role in the penetrative activity

either as a participant or a producer." Id. at 183. We explained

            it seems evident from 
N.J.S.A. 2C:7-1 to -23
            and   authoritative   interpretive   materials
            developed to implement the legislation that,
            under the very terms of Megan's Law alone, the
            accused must have engaged in some kind of
            participation in penetrative activity before
            he or she can be deemed to be responsible for
            it on any level.

            Ibid.


                                    20                             A-1387-16T1
      N.F. argues that P.B. holds that factors one and two of the

RRAS should not be scored for child pornography offenders. However,

in P.B., the court only addressed factor two and held that it

should not be scored for the "mere possession and viewing of child

pornography." Id. at 181. As we have explained, however, this case

does not involve the mere possession of child pornography because

the evidence shows that N.F. "played a role in the penetrative

activity either as a participant or a producer." Id. at 183.

      Therefore,    N.F.'s      reliance    upon    P.B.      is   misplaced.

Furthermore, in determining N.F.'s risk of re-offense it was

entirely appropriate for the court to consider the numerous victims

depicted in N.F.'s child pornography videos when scoring factors

three, four, and five of the RRAS.

      In view of our decision, that N.F. was correctly scored under

the   RRAS,   we   need   not   address    the   issue   of   whether     other

registrants, who have only been convicted of endangering the

welfare of a child through the possession of child pornography,

should be scored in factors one, three, four, and five.

                                     V.

      Next, N.F. argues that regardless of his score on the RRAS,

he should only be subject to Tier I scope of community notification

without placement on the Internet Registry, because his risk of

re-offense is allegedly low, and he has made some progress in sex

                                    21                                  A-1387-16T1
offender treatment. N.F. argues that his case falls outside the

"heartland"     of    Megan's      Law     cases       and   that     the   extent        of

notification ordered is excessive because of "unique" aspects of

his case.     Again, we disagree.

     Generally, in challenging a registrant's RRAS score or the

scope of community notification, "expert testimony will be neither

necessary nor helpful." G.B. 
147 N.J. at 85. However, "in limited

circumstances,       expert   testimony          may   be    introduced     .    .    .   to

establish the existence of unique aspects of a registrant's offense

or character that render the [RRAS] score suspect." Id. at 68.

The court has "the ultimate authority to decide what weight to

attach   to   the    [RRAS]     and       what    weight     to   attach    to       expert

testimony." Id. at 85. "The final determination of dangerousness

lies with the courts, not the expertise of psychiatrists and

psychologists." Id. at 86 (quoting In re D.C., 
146 N.J. 31, 59

(1996)).

     Moreover,       there    is      a    presumptive        scope    of       community

notification concerning Tier II offenders. In re Registrant M.F.,


169 N.J. 45, 62 (2001). "Unless limiting circumstances affecting

the nature of a [Tier II] registrant's risk of re-offense are

presented, the State is entitled to give effect to the legislative

preference, indeed presumption, of the need for notice to the

specified schools and community organizations located in the area

                                           22                                     A-1387-16T1
frequented by a registrant." Ibid. This presumption "logically

advances the legislative goal of public protection, specifically

the protection of children and women vulnerable to a sex offender

with a moderate risk of re-offending." Ibid.

     In this case, although N.F. apparently has made some progress

in his sex offender treatment while at the Adult Diagnostic

Treatment Center, N.F. has failed to present any unique aspects

of his offense or his character that would render the RRAS score

suspect   or   warrant   departure   from   the   community   notification

recommendations pursuant to the Guidelines adopted by the New

Jersey Attorney General. N.F. relies in large part on the testimony

and report of Dr. Reynolds, who opined that N.F. should be tiered

as a "low risk" offender. The record shows, however, that Dr.

Reynolds did not consider all of the available evidence when

evaluating N.F. Dr. Reynolds did not have any progress reports of

N.F.'s current treatment. In formulating his opinion, Dr. Reynolds

did not include any conduct that did not result in a criminal

conviction. He chose not to consider J.D.'s statements, claiming

it was only an allegation "that was not proved."

     We therefore conclude there is sufficient credible evidence

to support the trial court's finding that N.F. should be classified

in Tier II, and subject to Tier II community notification and

placement in the Internet Registry.

                                     23                            A-1387-16T1
                                     VI.

     N.F. also argues for the first time on appeal that factors

three, four, and five of the RRAS are being scored differently by

certain counties when scoring child pornography offenders. N.F.

maintains that the lack of uniformity between the counties raises

the possibility of arbitrary and county-specific scoring on the

RRAS.

     "[I]ssues not raised below will ordinarily not be considered

on appeal unless they are jurisdictional in nature or substantially

implicate the public interest." N.J. Div. of Youth and Family

Servs. v. M.C. III, 
201 N.J. 328, 339 (2010). Although N.F.

contends at least one county does not score victim characteristics

for persons convicted of child-pornography-related offenses, we

do not have a sufficient record concerning that matter, or any

record regarding how other counties score the RRAS for persons

convicted of offenses involving child pornography. Therefore, we

cannot address the issue.

     We   note    again    that   this    case    does   not    involve     child

endangerment     through   the    possession     of   child    pornography.      It

involves a registrant convicted of endangering the welfare of a

child through the distribution of child pornography. Moreover,

this case involves a registrant who engaged in penetrative activity

with a young female victim, as a participant and producer of a

                                     24                                   A-1387-16T1
child pornography video. We hold that under these circumstances,

it is not arbitrary or capricious for the court to consider the

registrant's possession of numerous child pornography videos, with

a multiplicity of victims depicted therein, when scoring factors

three, four, and five of the RRAS.

     Affirmed.




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