IN THE MATTER OF REGISTRANT S.G

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                             NOT FOR PUBLICATION WITHOUT THE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-2560-19

IN THE MATTER OF
REGISTRANT S.G.
___________________

                Argued September 29, 2021 – Decided October 28, 2021

                Before Judges Fuentes and Gilson.

                On appeal from the Superior Court of New Jersey, Law
                Division, Monmouth County, Docket No. ML-03-13-
                0025.

                Michael C. Woyce, Assistant Deputy Public Defender,
                argued the cause for appellant (Joseph E. Krakora,
                Public Defender, attorney; Michael Woyce, on the
                brief).

                Ellyn Rajfer, Special Deputy Attorney General/Acting
                Assistant Prosecutor, argued the cause for respondent
                (Lori Linskey, Acting Monmouth County Prosecutor,
                attorney; Ellyn Rajfer, of counsel and on the brief).

PER CURIAM

       Registrant S.G. appeals from a February 19, 2020 order denying his

motion to terminate his obligations under Megan's Law,  N.J.S.A. 2C:7-1 to -23,

and community supervision for life (CSL),  N.J.S.A. 2C:43-6.4. He argues he
submitted evidence showing that he would not pose a risk of harm to the

community and contends that the trial court improperly rejected the conclusions

of experts and imposed a requirement not found in the statutes. We reject S.G.'s

arguments and affirm.

                                        I.

      We discern the facts and procedural history from the record. In 1997, a

fifteen-year-old girl reported that, over the past three years, S.G. had repeatedly

sexually assaulted her. The victim had been a tennis student at a club where

S.G. worked as a coach. The assaults included repeated acts of fondling, oral

sex, and sexual intercourse.

      In March 1998, S.G. pled guilty to one count of first-degree aggravated

sexual assault,  N.J.S.A. 2C:14-2(a). He was evaluated at the Adult Diagnostic

Treatment Center at Avenel (the ADTC) and found to be eligible for sentencing

under the Sex Offender Act,  N.J.S.A. 2C:47-1 to -10, because his "actions

towards [the] victim [had been] performed both repetitively and compulsively."

Accordingly, in July 1998, S.G. was sentenced to eight years to be served at the

ADTC. He was also sentenced to requirements under Megan's Law and CSL.

      In April 2003, S.G. was released from ADTC. Shortly thereafter, he was

evaluated in accordance with Megan's Law as a Tier II offender with a score of


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forty-eight on the Registrant Risk Assessment Scale. In October 2003, an order

was entered memorializing his Tier II registration and directing community

notification and internet publication. The CSL was supervised by the Division

of Parole within the State Parole Board. See N.J.A.C. 10A:71-1.1 and -6.11.

      Following his release from the ADTC, defendant sought permission to

resume teaching tennis to minors.          That permission was granted under

restrictions that ensured parents were present during the lessons and aware of

S.G.'s conviction and Megan's Law obligations.

      Since his release, S.G. has not been convicted of any new criminal

offenses. He has also not been found to have violated any of his restrictions or

requirements under Megan's Law or CSL. His CSL record, however, includes

numerous instances where S.G. failed to comply with CSL or Megan's Law, but

he was not formally charged with violations.

      In October 2019, S.G. filed a motion to terminate his obligations under

CSL and Megan's Law.        In support of that application, he submitted an

evaluation conducted by Timothy Foley, Ph.D., a letter from Emili Rambus, Psy.

D., stating that he had completed sex offender counseling, and several character

letters. The State opposed his motion. At the State's request, S.G. was evaluated

by Janet DiGiorgio-Miller, Ph.D., and his supervision records were produced.


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      Dr. Foley's report, dated September 27, 2018, concluded that defendant

presented a negligible risk for recidivism and opined that continued community

notification was not warranted.         Dr. DiGiorgio-Miller's evaluation was

performed in September 2019 and found that defendant had a low risk of re-

offense. She recommended that defendant be released from CSL and Megan's

Law reporting.      Defendant's therapist, Dr. Rambus, submitted a therapy

completion letter dated July 27, 2018. She opined that defendant posed a low

risk of re-offense and that it would be appropriate to remove him from CSL and

Megan's Law.

      On February 19, 2020, the motion was heard by Judge Jill Grace O'Malley,

J.S.C. Counsel presented oral arguments, but no witnesses were called. Judge

O'Malley reviewed the record, which included the expert reports, the letter from

Dr. Rambus, and the parole supervision report.              Judge O'Malley gave

considerable weight to the multiple parole infractions committed by S.G.

between 2008 and 2018. She reviewed fifteen instances that included S.G.

getting his hair cut at a children's salon; S.G. admitting that he did not stay at an

approved residence on several nights; S.G. going to New York without

permission from Parole to leave the state; S.G. using tennis courts at a high

school to teach tennis lessons; S.G. attending a summer sports camp that used


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tennis courts at Monmouth University's campus; S.G. lying to Parole about his

location when he was stopped by local police after he had been at a bar with

friends; and S.G. admitting to Parole that he did not inform them about his

ongoing involvement with a sports camp that predominately catered to minors

because he knew they would not give him permission to do so.

       Judge O'Malley found that those parole infractions demonstrated S.G.'s

general disregard for complying with his obligations under CSL and Megan's

Law.    Judge O'Malley further considered but rejected the opinions and

recommendations of the two experts and Dr. Rambus. The Judge found that

none of those doctors appropriately considered S.G.'s supervision record, and

instead, they unduly relied on S.G.'s self-reporting. Judge O'Malley therefore

found that S.G. failed to establish that he would not pose a risk to the community

if he were released from his obligations under CSL and Megan's Law. Having

set forth detailed reasons for her findings on the record on February 19, 2020,

that same day, the Judge issued an order denying S.G.'s motion.

                                       II.

       On appeal, S.G. presents two main arguments. He contends that he (1)

established clear and convincing evidence that he would not pose a risk of harm

to the community; and (2) Judge O'Malley abused her discretion by imposing a


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requirement for termination that is not found in the relevant statutes. In that

regard, he contends that Judge O'Malley reasoned that he must be tested in the

community without parole restrictions to meet his burden under  N.J.S.A. 2C:7-

2(f) and  N.J.S.A. 2C:43-6.4(c).

      We review a trial court's decision on a motion to terminate obligations

under CSL or Megan's Law for an abuse of discretion. See In re J.W.,  410 N.J.

Super. 125, 130 (App. Div. 2009) (evaluating risk of re-offense under an abuse

of discretion standard). An abuse of discretion occurs when the trial judge's

"decision is 'made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'" Jacoby v. Jacoby,

 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Flagg v. Essex Cnty.

Prosecutor,  171 N.J. 561, 571 (2002)).

      A registrant may apply to terminate the obligations under Megan's Law

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

following conviction or release from a correctional facility . . . and is not likely

to pose a threat to the safety of others."  N.J.S.A. 2C:7-2(f). "Relief from

Megan's Law registration may be granted upon proof by a preponderance of the




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evidence that a person is not likely to pose a threat to the safety of others." In

re J.M.,  440 N.J. Super. 107, 116 (Law. Div. 2014). 1

       Similarly, a defendant may be relieved from CSL where "the person has

not committed a crime for [fifteen] years since the last conviction or release

from incarceration, whichever is later, and that the person is not likely to pose a

threat to the safety of others if released from parole supervision."  N.J.S.A.

2C:43-6.4(c).    "However, a person requesting termination from CSL/PSL

obligations must demonstrate the same evidence by satisfying the court by the

higher burden of 'clear and convincing evidence.'" In re J.M.,  440 N.J. Super.

at 116. 2




 1 N.J.S.A. 2C:7-2(g) (subsection (g)), enacted in 2002, bars certain offenders
from ever applying for termination of their registration requirements. The
Supreme Court recently concluded that subsection (g) does not apply
retroactively. In re G.H.,  240 N.J. 113, 113 (2019). Judge O'Malley
acknowledged this decision in her reasoning and did not bar S.G.'s application
under subsection (g).
2
   CSL was replaced with Parole Supervision for Life (PSL) in 2004. See L.
1994, c. 130, § 2 (codified at N.J.S.A. 2C:43–6.4 (1995)); L. 2003, c. 267, § 1
(PSL effective Jan. 14, 2004). "Because PSL imposes greater punishment on an
offender than CSL does, an offender sentenced to CSL cannot later be subjected
to the harsher special sentencing provisions of the PSL statute." State v. F.W.,
 443 N.J. Super. 476, 483 (App. Div. 2016) (citing State v. Perez,  220 N.J. 423,
442 (2015)).

                                        7                                    A-2560-19
      Having reviewed the trial court's thorough oral decision, we affirm

substantially for the reasons found by Judge O'Malley. A trial judge may accept

or reject expert reports and weigh them accordingly. See State v. S.N.,  231 N.J.
 497, 514-15 (2018) (noting that "regardless of whether the evidence is live

testimony, a videotaped statement, or documentary evidence, deference is owed

to the trial court's determinations of fact and credibility"). Judge O'Malley set

forth her reasons for not accepting the opinions and conclusions of the three

doctors. We defer to the judge's credibility determination. See also Maison v.

N.J. Transit Corp.,  460 N.J. Super. 222, 232 (App. Div. 2019) (the need for

expert testimony is a determination left to the discretion of a trial judge).

      S.G. argues that Judge O'Malley incorrectly stated that none of the doctors

considered S.G.'s supervision record while on CSL.          We do not find that

argument to be a fair characterization of Judge O'Malley's review. The Judge

had clearly reviewed the materials from the three doctors. She pointed out that

none of the doctors thoroughly evaluated the parole infractions between 2008

and 2018. Consequently, Judge O'Malley had a basis for rejecting the opinions

of the two experts and the letter from the treating therapist, and we find no basis

for second-guessing that evaluation.




                                         8                                      A-2560-19
      S.G. also argues that Judge O'Malley imposed a requirement that he show

that he could function without parole restrictions to meet his burden that he

would not pose a risk to the community. We reject this contention because it

mischaracterizes Judge O'Malley's findings. Judge O'Malley detailed the parole

infractions and found that defendant demonstrated a pattern of not complying

with the restrictions and obligations imposed by Megan's Law and CSL. The

Judge also found that those actions demonstrated that S.G. would pose a risk to

the community if the restrictions were lifted. In doing so, she did note that

defendant has functioned only under those restrictions since his release. There

is nothing improper with noting that fact.

      More to the point, Judge O'Malley did not add a new requirement to the

standard for obtaining release from Megan's Law and CSL.             Instead, she

properly focused on the statutory requirement that a registrant prove that he or

she will not pose a risk of re-offense. The record contains facts supporting Judge

O'Malley's findings that S.G. failed to carry that burden.       Furthermore, in

making her findings, Judge O'Malley took a holistic approach to evaluating

S.G.'s risk to the community. That approach is consistent with  N.J.S.A. 2C:43-

6.4(c) and  N.J.S.A. 2C:7-2(f). See In re C.A.,  146 N.J. 71, 96, 107-09 (1996)

(allowing reliable hearsay evidence to be considered in judicial hearings on


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Megan's Law tier classifications); In re G.B.,  147 N.J. 62, 81 (1996) (stating that

courts should follow guidelines in conjunction with "relevant and reliable

evidence" to reach "ultimate determination of the risk of reoffense posed by the

registrant").

      Affirmed.




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