In re H.D.

198 A.3d 1007, 457 N.J. Super. 205
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 7, 2018
DocketDOCKET NOS. A-5321-16T1; A-5322-16T1
StatusPublished
Cited by2 cases

This text of 198 A.3d 1007 (In re H.D.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re H.D., 198 A.3d 1007, 457 N.J. Super. 205 (N.J. Ct. App. 2018).

Opinion

MESSANO, P.J.A.D.

*208We consolidate these two appeals that were argued back-to-back to issue a single opinion because they involve only one common legal issue.

Appellants J.M. and H.D. were convicted of sex offenses, see N.J.S.A. 2C:7-2(b), in 1994 and 1998 respectively, and sentenced to periods of probation. Pursuant to the provisions of Megan's Law, N.J.S.A. 2C:7-1 to 11, both were sentenced to community supervision for life (CSL) as required by N.J.S.A. 2C:43-6.4(a), the *209Violent Predator Incapacitation Act (VPIA), "enacted as a 'component' of Megan's Law at the time of its passage in 1994." In re G.H., 455 N.J. Super. 515, 524, 190 A.3d 1059 (App. Div. 2018) (quoting State v. Schubert, 212 N.J. 295, 305, 53 A.3d 1210 (2012) ).1 J.M. and H.D. also registered as sex offenders pursuant to N.J.S.A. 2C:7-2(a) and (c).

In 2001, J.M. was convicted of computer-related theft, N.J.S.A. 2C:20-29, a disorderly persons offense, and sentenced to one year of probation.2 Also in 2001, H.D. was convicted of fourth-degree failure to register as a sex offender, N.J.S.A. 2C:7-2(a)(3), and sentenced to one year of probation. Both J.M. and H.D. have remained offense free since 2001.

Pursuant to N.J.S.A. 2C:7-2(f) (subsection (f) ), any registrant may apply "to the Superior Court ... to terminate the [registration] obligation upon proof that the *1010person has not committed an offense within [fifteen] 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." In 2017, J.M. moved to be relieved of his registration obligations.

H.D. sought the same relief in 2017, and additionally moved to terminate CSL pursuant to N.J.S.A. 2C:43-6.4(c), which states:

[A] judge may grant a petition for release from a special sentence of [community] supervision for life only upon proof by clear and convincing evidence that 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 [community] supervision.
[ (Emphasis added).]

The provision "mirrors [subsection (f) ]." G.H., 455 N.J. Super. at 524, 190 A.3d 1059 (quoting *210In re J.S., 444 N.J. Super. 303, 312, 133 A.3d 282 (App. Div.), certif. denied, 225 N.J. 339, 137 A.3d 1198 (2016) ).

Following oral argument, the Law Division judge denied J.M.'s motion to terminate his registration requirements, reasoning J.M. was "precluded from being relieved from his Megan's Law obligations because of [his subsequent] disorderly persons conviction."

In support of his motion before a different Law Division judge, H.D. provided the report of Dr. James Reynolds, a psychologist, who opined that H.D. did "not present a risk of harm to members of the community." In his thoughtful written opinion, citing Doe v. Poritz, 142 N.J. 1, 21, 662 A.2d 367 (1995), the motion judge noted that Megan's Law imposed lifetime registration requirements upon convicted sex offenders, and "registrants are not entitled to terminate their obligations as a matter of right." Only those who "fall into a narrow and admittedly strict category will ... be permitted to terminate their registration requirement. That is, they must remain [offense free] for [fifteen] years following their conviction or release from incarceration on the underlying offense that obligates them to register." (Emphasis in original).

The judge quoted our opinion in In re A.D., 441 N.J. Super. 403, 423, 119 A.3d 241 (App. Div. 2015), aff'd o.b., 227 N.J. 626, 153 A.3d 241 (2017), in which we expressed some sympathy for, but ultimately rejected the argument that "there should be no absolute bar ... to the termination of registration requirements, particularly where the repeat offenses are minor; and ... not sexual in nature ...." Noting the panel in A.D. refused to substitute its judgment for that of the Legislature, id. at 424, 119 A.3d 241, the judge denied H.D.'s motion to terminate his registration obligations.

However, the judge reached a different result regarding termination of CSL. He concluded that N.J.S.A. 2C:43-6.4(c) was "unlike the statute that governs Megan's Law registration." He reasoned, "CSL may be terminated after a showing that a registrant has not committed an offense for a period of [fifteen] years.

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Bluebook (online)
198 A.3d 1007, 457 N.J. Super. 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hd-njsuperctappdiv-2018.