IN THE MATTER OF REGISTRANT A.R. (ML-1491, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 29, 2021
• Docket: A-0561-19
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0561-19

IN THE MATTER OF REGISTRANT A.R. ___________________

Argued September 16, 2021 – Decided September 29, 2021

Before Judges Mawla and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. ML-1491.

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

David M. Liston, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Yolanda Ciccone, Middlesex County Prosecutor, attorney; David M. Liston, on the brief).

PER CURIAM

A.R. appeals from a September 26, 2019 order denying his request to

terminate his 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, obligations. A.R. argues he submitted sufficient evidence to support the conclusion that he would not pose a risk of

harm to the community and contends that the judge improperly relied on the

Registrant Risk Assessment Scale (RRAS) in denying his request. We affirm,

substantially for the reasons set forth in Judge Colleen M. Flynn's well-reasoned

written opinion. We add only the following brief remarks.

We discern the following facts from the record. In 1995, A.R. was living

with seven-year-old T.C. 1 and her family. On January 9, 1997, T.C. and her

mother reported to the police that A.R., then thirty-two years old, had sexually

abused T.C. multiple times between January and June 1995. The next day, T.C.

told the prosecutor's office that A.R. used to babysit her two years prior. She

stated that A.R. "touched her vagina with his hand underneath her clothes[,]

stuck his pee-pee in [her] butt[, and] while she was sleeping on the couch, he

pulled down her pants, got on top of her and 'stuck his pee-pee in [her] butt.'"

She stated "[h]e also asked her to 'suck on his pee-pee'" and A.R. touched her

vagina on approximately thirty occasions. T.C. also stated A.R. threatened to

kill her family if she told anyone and provided her "with a lot of stuff" so she

would keep the assaults a secret.

1 Initials are used to protect the identity of the victim. R. 1.38-3(c)(12).

2 A-0561-19 In March 1997, a Passaic County grand jury returned an indictment

against A.R. charging him with first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b)

(count two); and third-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a) (count three). He later pled guilty to second-degree sexual assault

and was sentenced to a six-year term at the Adult Diagnostic and Treatment

Center (ADTC). A.R. was also ordered to register under Megan's Law and

sentenced to CSL. 2

Dr. Mark Frank initially evaluated A.R. in 1997. Dr. Frank noted that

A.R. was previously diagnosed with schizoaffective disorder, 3 was unable to

control his anger, and had a lengthy history of suicide attempts. Dr. Frank also

noted A.R. "reported a long history of poly-drug and alcohol use." During the

interview, A.R. admitted to worrying "about engaging in similar inappropriate

sexual behavior in the future." Dr. Frank also identified signs of an "underlying

psychotic disorder, currently in apparent remission with psychopharmacological

treatment." He recommended "sex offender specific psychotherapy, intense

2 While at ADTC, A.R. was convicted of third-degree aggravated assault for which he received a concurrent three-year sentence. 3 Although Dr. Frank noted that there were no florid psychotic symptomatology during the evaluation, A.R. was taking Navane, an antipsychotic medication.

3 A-0561-19 substance abuse treatment and continued psychiatric/psychopharmacological

treatment . . ."

In 2002, Dr. Lawrence Allen Siegel evaluated A.R. Dr. Siegel noted A.R.

had "homicidal thoughts when he was drinking in the past" and a history of

alcohol and substance abuse. Dr. Siegel's diagnostic impression was pedophilia

as well as alcohol and cocaine abuse in institutional remission. Actuarially, A.R.

fell into "groups with a less than [fifty percent] risk of sexual re-offense." Dr.

Siegel acknowledged his treatment team's observation that A.R. minimizes his

"deviant arousal, alcohol problem and psychological problems," but noted that

it "does not necessarily equate with a high risk of sexual recidivism." Dr. Siegel

recommended that A.R. receive sex offender treatment, substance abuse

treatment, and mental health counseling. In doing so, he highlighted that A.R.'s

"impulsive nature . . . can be magnified if and when he abuses drugs or alcohol."

In 2003, A.R. was released from ADTC. In 2004, Thomas Calabrese

drafted a report recommending A.R. be placed in "[l]ow [t]ier [t]wo and possibly

[t]ier [o]ne" due to "low actuarial scores and current progression in treatment. .

. ." A.R. initially minimized his behavior, but later acknowledged and described

his sexual arousal to T.C. Indeed, A.R. admitted to "periodic sexual arousal to

pre-pubescent, pubescent, [and] adolescent females." Like Dr. Frank and Dr.

4 A-0561-19 Siegel, Calabrese noted A.R.'s substance abuse problem and his history with

suicidal ideations. Calabrese indicated that one of the precursors to A.R.'s sex-

offending behavior was his alcohol and substance abuse. Based on Calabrese's

report and A.R.'s RRAS score of forty-one, A.R. was classified into tier two

with a moderate risk of re-offense.

A.R. married a woman in 2010 and has an eight-year-old daughter from

that marriage. Pursuant to his parole obligations, A.R. was prohibited from

having unsupervised contact with children, including his daughter.

In 2017, Calabrese submitted a subsequent letter indicating A.R.'s

STATIC-99 score placed him in the low range of recidivism and noted his

"current significant medical issues have help[ed] mitigated his risk to re-offend

sexually." Calabrese highlighted that A.R. completed his mandated treatment;

but, if he "uses alcohol/substances it is recommended that he enter a program

that deals with those issues."

In 2018, Dr. James Reynolds conducted a psychosexual evaluation and

risk assessment. Dr. Reynolds' indicated A.R. self-reported he "does not have a

sexual attraction to underage persons." He also found A.R. "has not experienced

harmful thoughts or intentions" and had no "history of self-mutilating or self-

harmful behavior." Dr. Reynolds' gave A.R. an RRAS score total of thirty-seven

5 A-0561-19 points, placing "him at the low end of the moderate risk range." Based on

STATIC-99-R, ACUTE-2007, and STABLE-2007 assessments, he concluded

A.R. presented a "very low recidivism risk." Dr. Reynolds therefore

recommended A.R. be relieved of his Megan's Law obligations and removed

from CSL.

A.R. moved to terminate his obligation to register under Megan's Law,

N.J.S.A. 2C:7-2(f), and terminate his CSL, N.J.S.A. 2C:43-6.4(c). On

September 26, 2019, following oral argument, Judge Flynn issued a thirteen-

page written opinion denying defendant's request. She concluded Dr. Reynolds'

report contained "inaccuracies" and "inconsistencies," and that his conclusions

were "general, rather than individualized." The judge noted that, contrary to the

other experts' reports, Reynolds found A.R. was not sexually attracted to

underage persons and had no history of self-harmful behavior. She determined

A.R.'s mental health issues were "relatively overlooked in Dr. Reynolds' report."

With respect to the RRAS score, Judge Flynn found:

. . . Dr. Reynolds['] zero points under factor eight regarding history of anti-social behavior is not accepted by the court; rather, the initial score of three, for moderate risk based upon limited history of anti-social behavior should be included. This would bring the current RRAS score to at least [forty].

6 A-0561-19 With further regard to the RRAS score, Dr. Reynolds states that his calculation of [thirty-seven] points puts the registrant on the cusp of low to moderate risk. However, the scale is clear: [thirty-seven] is in the moderate range, albeit the bottom of that range.

Judge Flynn held A.R. did not prove by a preponderance of the evidence

that he was unlikely to threaten others' safety if released from his Megan's Law

obligations. Likewise, she concluded A.R. did not prove by clear and

convincing evidence that he is unlikely to threaten others' safety if released from

CSL. The judge noted "[t]here is no evidence that [A.R.] is in continued

treatment or takes medication in connection with his significant mental health

issues, which should be considered in the risk determination." She also found

A.R.'s alcohol and substance abuse history aggravated his unaddressed mental

health issues. Citing Calabrese's report, the judge recognized A.R.' s substance

abuse history and mental health issues acted as triggers to his sex-offending

behaviors. In other words, "[i]f alcohol/substance abuse might trigger sexual

re-offense, and a concern remains that he might relapse regarding

alcohol/substances, then concern remains that such a relapse could trigger sexual

re-offense."

Because the State conceded below that it has been more than fifteen years

since A.R.'s release and that he remained offense-free during that period, the

7 A-0561-19 sole issue on appeal is whether A.R. met his burden in proving he was "not likely

to pose a threat to the safety of others . . . ." We agree with Judge Flynn that

A.R. failed to do so.

We review the judge's determination on a motion to terminate CSL for

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 Megan's Law registration

obligations "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 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).

Likewise, a defendant may be relieved of CSL where "the person has not

committed a crime for [fifteen] years since the last conviction or release from

8 A-0561-19 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.

The RRAS was "designed to provide prosecutors with an objective

standard on which to base the community notification decision mandated by

[Megan's Law] and to assure that the notification law is applied in a uniform

manner throughout the State." In re C.A., 146 N.J. 71, 100-01 (1996). The

RRAS "is used to assess whether a registrant's risk of reoffending is low,

moderate or high." In re A.D., 441 N.J. Super. 403, 407 (App. Div. 2015); see

also In re V.L., 441 N.J. Super. 425, 429 (App. Div. 2015) ("An overall score of

[zero] to [thirty-six] places an offender in Tier [one]; [thirty-seven] to [seventy-

three], in Tier [two]; and [seventy-four] to 111, Tier [three]."). "Although the

Scale has not been empirically validated through scientific field studies, the

factors that comprise the Scale have been shown to be the best indicators of risk

of re-offense." In re C.A., 146 N.J. at 107. The RRAS is, however, "only one

possible consideration" of many in determining a registrant's risk of re-offense.

In re G.B., 147 N.J. 62, 78 (1996).

9 A-0561-19 Judge Flynn's reasons for discounting Dr. Reynolds' report are supported

by the record. Furthermore, the trial judge may accept or reject an expert report

and weight it appropriately. Maison v. N.J. Transit Corp., 460 N.J. Super. 222,

232 (App. Div. 2019); see also State v. S.N., 231 N.J. 497, 514-15 (2018)

("[R]egardless 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." (citing State v. S.S., 229 N.J. 360, 379

(2017))). Accordingly, we defer to the judge's credibility determination.

Based on this record, we conclude Judge Flynn's well-supported denial of

A.R.'s request to terminate his registration requirements under Megan's Law and

CSL was not an abuse of discretion. Although the RRAS may be helpful as an

indicator of "risk of re-offense," judges should take a more holistic approach to

evaluating a defendant's risk to the community under N.J.S.A. 2C:43-6.4(c) and

N.J.S.A. 2C:7-2(f), In re C.A., 146 N.J. at 107. Judge Flynn did exactly that.

After fully considering the record, she concluded A.R. failed to prove he was

not likely to commit another sexual offense. The judge cited A.R.'s long history

of substance and alcohol abuse, his seemingly unaddressed mental health issues,

10 A-0561-19 his proclivity for violence and angry outbursts, and his RRAS score. 4 We

discern no basis to overturn that decision.

We have carefully considered A.R.'s remaining arguments and conclude

they lack sufficient merit to warrant discussion in a written opinion. See R.

2:11-3(e)(2).

Affirmed.

4 Dr. Reynold's RRAS score of thirty-seven, which the judge rejected, still put A.R. within the moderate risk of re-offense.

11 A-0561-19