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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3342-23
IN THE MATTER OF REGISTRANT G.L.1 __________________
Argued February 25, 2025 – Decided March 6, 2025
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ML-23-07-0037.
Stephanie Lutz, Deputy Public Defender, argued the cause for appellant G.L. (Jennifer N. Sellitti, Public Defender, attorney; Stephanie Lutz, of counsel and on the briefs).
Shep A. Gerszberg, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Theodore N. Stephens, II, Essex County Prosecutor, attorney; Shep A. Gerszberg, of counsel and on the brief).
PER CURIAM
1 We use initials to preserve the confidentiality of these proceedings. R. 1:38- 3(c)(9). Appellant G.L. appeals from the June 5, 2024 Law Division order denying
his request to obtain a psychological evaluation and June 19, 2024 order
classifying him as a Tier II sex offender pursuant to the registration and
community notification provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23.
Having reviewed the record, parties' arguments, and applicable legal principles,
we affirm.
I.
In November 2007, appellant lured his ex-girlfriend, R.A., to his residence
in New York under the guise of having the money he owed for their daughter's
child support. After drinking alcohol with R.A., appellant punched and choked
her and forcibly penetrated her vaginally and anally. At the time appellant
committed the rape, he was twenty-seven years old and had two prior criminal
convictions.
In March 2010, appellant pleaded guilty in Kings County, New York to
third-degree sexual assault and first-degree criminal contempt for violating a
protection order at the time of the offense. In April, the sentencing court
imposed a term of imprisonment of two years and six months with a five-year
period of parole supervision for the rape conviction and an indeterminate term
of imprisonment of one year and six months to three years for the contempt
conviction. The New York State Department of Corrections and Community
A-3342-23 2 Supervision certified that appellant was incarcerated between May 11, 2010, and
August 17, 2010. He was thereafter reincarcerated on these charges from
November 4, 2013, until his parole on October 7, 2014. Appellant was classified
in New York as a level one sex offender with the lowest reporting requirements.
Appellant later moved to New Jersey, and the State served him on May 2,
2024 with a notice of intention to classify him as a Tier II moderate-risk offender
under Megan's Law with required notifications. The court thereafter scheduled
appellant for a tier hearing, which was adjourned to June 5. The day before the
hearing, appellant moved for leave to obtain a psychological evaluation and
advised the court he was seeking a Tier I classification under the "heartland"
exception pursuant to In re Registrant G.B., 147 N.J. 62 (1996).
On June 5, the court held a Megan's Law hearing. Appellant did not
challenge his Registrant Risk Assessment Scale (RRAS) score of fifty or the
determination that he was a moderate level of risk for re-offense but argued an
expert was warranted to opine that his "situation . . . [wa]s not adequately or
accurately captured by the RRAS." Specifically, appellant argued his "case
[wa]s unique and f[ell] outside of the heartland" of Megan's Law tiering cases
and that "the extent of notification called for by [appellant's] tier classification
would be excessive."
A-3342-23 3 The State opposed appellant's application as untimely filed. The State
further argued that all sex offender registrants want to be tiered as "Tier [I], but
the tiering is a legal determination, it[ is] not a psychological or a psychosocial
determination, and the experts rely on self-reporting, and they do[ not] always
look at what the relevant and reliable evidence [is], they look at their own
scoring." The State represented that appellant "dodged his obligation to register
in New Jersey for a protracted amount of time" and argued his conviction for
failing to register demonstrated he delayed the tiering process. Appellant did
not dispute that he had "plead[ed] guilty to . . . fail[ing] to register" under
Megan's Law after he had resided in New Jersey for some time.
At argument, the court requested that appellant's counsel respond to the
State's objection and whether "delay [wa]s really the issue." Appellant's counsel
responded that appellant was relying on G.B., because the Supreme Court has
found that "people that offend against household members generally pose a
lower risk," and appellant committed "a one-time offense against a former
romantic partner." Appellant's counsel requested to "support that argument with
a psychological evaluation," noting appellant had "over a decade with no
notification and no re-offending." The State agreed that appellant had not been
convicted of another sexual offense but refuted that appellant had not re-
offended because he was: found guilty of a local ordinance violation in 2019;
A-3342-23 4 found guilty of obstruction of justice in 2020; and pleaded guilty to failing to
register under Megan's Law in May 2021.
The court issued an order and accompanying oral decision denying
appellant's request for a psychological evaluation, and it later issued an order
tiering appellant under Megan's Law. The court found "there [was] nothing . . .
proffered . . . that indicate[d] this case [wa]s so unique that it [was] what G.B.
contemplate[d]." The court found appellant offered no support "that
indicate[d] . . . that this [wa]s a situation where the RRAS d[id] not adequately
account for what . . . [was being] talk[ed] about here." The court concluded he
failed to establish a "heartland exception," and his case was not "unique" as
contemplated under G.B. After denying appellant's request to obtain an expert,
the court tiered appellant as a Tier II offender, based on a total RRAS score of
fifty,2 and it ordered community notification, including internet publication.
The court noted appellant had no "specific objections with the RRAS" scoring
and indicated it was "satisfied by clear and convincing evidence that the scores
2 Regarding notification required for Tier II offenders, N.J.S.A. 2C:7-8(c)(2) provides that "[i]f risk of re-offense is moderate, organizations in the community including schools, religious and youth organizations shall be notified in accordance with the Attorney General's guidelines" as well as law enforcement agencies. A-3342-23 5 in each of the categories [were] appropriately supported by citations to various
portions of that record of documentation."
On appeal, appellant raises the following contentions:
POINT I
I. ACCORDING TO [G.B., 147 N.J. at 62] THE COURT SHOULD REVERSE AND REMAND THIS MATTER TO THE LAW DIVISION SO THE COURT BELOW CAN CONSIDER [APPELLANT'S] PSYCHOLOGICAL RISK EVALUATION REPORT PRIOR TO DETERMINING HIS MEGAN'S LAW TIER CLASSIFICATION AND SCOPE OF NOTIFICATION.3
A. The process through which the court determined that an expert report was unwarranted was insufficient for the adjudication of a dispositive issue with significant consequences.
B. According to G.B., [appellant] presented sufficient justification for a short adjournment to obtain an expert evaluation.
II.
"[W]e ordinarily review a trial [court]'s 'conclusions regarding a Megan's
Law registrant's tier designation and scope of community notification for an
abuse of discretion.'" In re Registrant R.S., 258 N.J. 58, 81 (2024) (quoting In
re Registrant B.B., 472 N.J. Super. 612, 619 (App. Div. 2022)). "[A]n abuse of
3 We have renumbered the point headings to comport with our style conventions. A-3342-23 6 discretion arises when a decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis." In re Registrant M.L., 479 N.J. Super. 433, 449 (App. Div. 2024)
(alteration in original) (quoting State v. R.Y., 242 N.J. 48, 65 (2020)). However,
"[a] trial court's interpretation of the law and the . . . consequences that flow
from established facts are not entitled to any special deference." Ibid. (quoting
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)).
"Megan's Law is intended 'to protect the community from the dangers of
recidivism by sexual offenders.'" B.B., 472 N.J. Super. at 618 (quoting In re
Registrant C.A., 146 N.J. 71, 80 (1996) (citing N.J.S.A. 2C:7-1(a))). "[I]t
requires certain sex offenders to register with law enforcement agencies,
N.J.S.A. 2C:7-2 to -4, which are then authorized 'to release relevant and
necessary information regarding sex offenders to the public when the release of
the information is necessary for public protection,' in accordance with the AG
Guidelines." M.L., 479 N.J. Super. at 442 (quoting In re Registrant N.B., 222
N.J. 87, 95 (2015)); see also N.J.S.A. 2C:7-5(a). "The law is remedial and not
intended to be punitive." In re Registrant C.J., 474 N.J. Super. 97, 105 (App.
Div. 2022) (quoting In re Registrant A.A., 461 N.J. Super. 385, 394 (App. Div.
2019)). "[T]he expressed purposes of the registration and notification
A-3342-23 7 procedures [under Megan's Law] are 'public safety' and 'preventing and
promptly resolving incidents involving sexual abuse and missing persons.'"
Ibid. (second alteration in original) (quoting A.A., 461 N.J. Super. at 394
(quoting N.J.S.A. 2C:7-1)). Offenders from other states who relocate to New
Jersey are subject to the registration requirements. N.J.S.A. 2C:7-2(c)(3).
The RRAS was created in response to the Legislature's directive in
Megan's Law for the Attorney General to "promulgate guidelines and procedures
for the notification" of a sex offender's whereabouts, depending on the offender's
degree of risk of re-offense. In re Registrant J.G., 463 N.J. Super. 263, 273-74
(App. Div. 2020) (quoting N.J.S.A. 2C:7-8). "The scope of community
notification is primarily determined by a registrant's designation as a Tier I, II
or III offender." M.L., 479 N.J. Super. at 442 (citing N.J.S.A. 2C:7-8(a), (c)(1)
to (3)). The Megan's Law "[t]ier designations reflect a registrant's risk of re-
offense, as determined by a judge assessing various information, including
thirteen factors referenced in the RRAS." C.J., 474 N.J. Super. at 106. Pursuant
to N.J.S.A. 2C:7-2(a), the RRAS was developed for the State's use "to establish
its prima facie case concerning a registrant's tier classification and manner of
notification." In re Registrant T.T., 188 N.J. 321, 328 (2006) (italicization
omitted) (quoting C.A., 146 N.J. at 110). "[T]he [RRAS] is presumptively
accurate and is to be afforded substantial weight—indeed it will even have
A-3342-23 8 binding effect—unless and until a registrant 'presents subjective criteria that
would support a court not relying on the tier classification recommended by the
[RRAS].'" C.J., 474 N.J. Super. at 107 (first and second alterations in original)
(quoting G.B., 147 N.J. at 81). "Although a tier classification made on the basis
of the [RRAS] should be afforded deference, a court should not rely solely on a
registrant's point total when it conducts a judicial review of a prosecutor's tier
level classification or manner of notification decisions." C.A., 146 N.J. at 108.
"Judicial determinations regarding tier classification and community
notification are 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].'" C.J., 474 N.J. Super. at 120
(alterations in original) (quoting G.B., 147 N.J. at 78-79).
"In challenging a tier determination, a registrant may argue that (1) the
RRAS score was erroneously calculated, (2) the case falls outside the 'heartland'
of Megan's Law cases, or (3) the extent of community notification required is
excessive due to 'unique' aspects of the registrant's case." J.G., 463 N.J. Super.
at 275 (citing T.T., 188 N.J. at 330).
The RRAS contains four categories of review: seriousness of the offense;
offense history; personal characteristics; and community support. See id. at 274
(citing C.A., 146 N.J. at 82). "The first two categories, '[s]eriousness of
A-3342-23 9 [o]ffense' and '[o]ffense [h]istory,' are considered static categories because they
relate to the registrant's prior criminal conduct." C.A., 146 N.J. at 103. The
next two categories, "'[c]haracteristics of [o]ffender' and '[c]ommunity
[s]upport' are considered to be dynamic categories, because they are evidenced
by current conditions." Ibid. The "static factors" relate to past criminal conduct
and weigh more heavily under the RRAS than the dynamic factors. In re
Registrant J.M., 167 N.J. 490, 500-01 (2001).
"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.'" 4 A.A., 461 N.J. Super. at 402
(alteration in original) (emphasis omitted) (quoting C.A., 146 N.J. at 104). "An
RRAS score . . . [totaling] 0 to 36 is low risk; 37 to 73 moderate risk; and 74 or
more, high risk." T.T., 188 N.J. at 329. "The State ultimately bears the burden
of proving—by clear and convincing evidence—a registrant's risk to the
community and the scope of notification necessary to protect the community. "
C.J., 474 N.J. Super. at 108.
4 "The point total of the '[s]eriousness of [c]rime' category, which is designed to predict the nature of any re-offense . . . is multiplied by five." C.A., 146 N.J. at 104. On the other hand, the categories of "'[o]ffense [h]istory,' '[c]haracteristics of [o]ffender[,]' and 'community support' . . . are multiplied by three, two, and one respectively." Ibid. A-3342-23 10 III.
Appellant argues the court erred in denying his request for a psychological
risk evaluation before it determined his Megan's Law tier classification and
notification requirements. He specifically contends the court erroneously
denied a psychological evaluation without considering that: after his release
from incarceration, he lived in New York without notification requirements for
approximately twelve years; he committed the sexual offense nearly seventeen
years ago; and he did not re-offend. Appellant does not dispute "whether he
should ultimately be subject to public notification" or his RRAS score, but he
maintains the court's Tier II classification and scope of notification
determinations warrant reversal and a remand for him to obtain a psychological
expert report.
"Only in the unusual case where relevant, material, and reliable facts exist
for which the [RRAS] does not account, or does not adequately account, should
the [RRAS] be questioned." G.B., 147 N.J. at 82. After the State has met its
burden of demonstrating prima facie evidence of a registrant's RRAS tier level
and notification, "the registrant then has the burden of producing evidence
challenging the prosecutor's determinations on both issues." C.J., 474 N.J.
Super. at 108 (quoting C.A., 146 N.J. at 84). A court shall review each
offender's tiering classification on a case-by-case basis and may adjust the
A-3342-23 11 recommended RRAS tier classification when a "registrant presents subjective
criteria that would support a court not relying on the tier classification ." M.L.,
479 N.J. Super. at 443 (quoting C.A., 146 N.J. at 109). The court is not limited
to only consider the RRAS factors, but it may also address "any other relevant
evidence, including when appropriate, the views of experts." In re Registrant
H.M., 343 N.J. Super. 219, 224 (App. Div. 2001). "[A] registrant shall be
permitted to introduce expert evidence about [their] tier classification . . . if such
evidence would, in the trial court's discretion, assist in the disposition of the
case." G.B., 147 N.J. at 87. The court shall hold an evidentiary hearing when a
registrant demonstrates a genuine issue of material fact regarding the registrant's
subjective tiering criteria. Cf R.S., 258 N.J. at 77-78 (finding a registrant is
entitled to an evidentiary hearing regarding publication on the sex of fender
internet registry, N.J.S.A. 2C:7-13(b)(2), "if the registrant demonstrates [that]
there exists a genuine issue of material fact about whether the registrant's
conduct can be characterized by a pattern of repetitive and compulsive
behavior"). Indeed, if the "trial court is concerned that the proposed tier
classification may be inappropriate, the court can, if necessary, secure its own
subjective evaluations . . . [and] appoint its own experts." C.A., 146 N.J. at 109.
We reject appellant's contention that the court erred in denying his motion
for an "opportunity to be evaluated by a psychologist" and proceeding to find he
A-3342-23 12 was a Tier II offender. While we recognize the RRAS does not consider
"positive post-sentence behavior as [a] true mitigating factor[] that can reduce
the projected risk of re[-]offense[,]" and "expert testimony may be essential for
an accurate tier designation," a registrant has the burden of presenting a material
issue regarding subjective criteria warranting an evaluation. G.B., 147 N.J. at
83. Stated another way, a registrant must make a sufficient prima facie showing
to the trial court of relevant evidence demonstrating that a further evaluation,
including the introduction of an expert's opinion, is warranted because the RRAS
does not accurately capture aspects of his or her character or current conditions.
See id. at 87-88. Appellant has failed to make the minimum necessary showing
here.
In the present matter, appellant argues he demonstrated the need for an
evaluation based on the years he lived in New York with no notification
requirements. The court found appellant failed to proffer sufficient facts
warranting "leave to obtain a psychological evaluation to support a 'heartland'
motion." We concur with the court's determination that appellant's lack of
notification requirements in New York are insufficient evidence to warrant a
psychological evaluation and to challenge the Tier II classification under G.B.
Appellant failed to show the RRAS "did not accurately weigh certain factors as
related to him or that the [RRAS] did not take into account certain peculiar
A-3342-23 13 factors of the registrant's offense or history that might be relevant in determining
his risk of re[-]offense." G.B., 147 N.J. at 82. Therefore, we discern no abuse
of discretion in the court's denial of appellant's psychological evaluation request.
We further conclude appellant's contention that the court was
"overriding[ly] concern[ed] with delay" is unsupported. The record illustrates
the court requested appellant's counsel to "respond" to the prosecutor's
arguments regarding appellant's delay in complying with Megan's Law. We note
appellant filed his motion with the court one day before the hearing. The State
served appellant on May 2, 2024 with its notice of a Megan's Law tier hearing
scheduled for May 7 and its intention to seek a Tier II classification. The court
adjourned the hearing to June 5, providing appellant further time, but he did not
obtain an expert evaluation. The State argued he "dodged" registering when he
moved to New Jersey and avoided the State's service of his hearing date. The
court noted it had sentenced appellant to probation after he was charged with,
and pleaded guilty to, failing to register under Megan's Law. The record
demonstrates the court's inquiry of appellant's counsel as to whether "delay
[was] really the issue" was in response to the State's arguments. The court's
denial of appellant's motion was not based on a finding of delay.
Appellant further emphasizes that since he committed the rape in 2007
and was released from incarceration, he has not re-offended. As the court noted,
A-3342-23 14 this is not "a situation where the RRAS does not adequately account for"
appellant's time in the community without re-offending. The RRAS accounts
for appellant's offense history under criteria five, and appellant scored a zero,
making him a low risk for re-offending, because his New York conviction for
raping his ex-girlfriend was the "only reported sex offense." Additionally, the
RRAS considered appellant's offense history while in the community after his
release from incarceration. Under RRAS's criteria seven, "length of time since
[his] last sexual offense," the court found appellant to be a low risk with a score
of a zero. A review of the record demonstrates the court did not abuse its
discretion in finding that appellant failed to demonstrate a sufficient showing
that he was outside of the heartland of cases of Tier II offenders or that his
notification requirements were excessive due to unique circumstances of his
case.
Finally, appellant argues for the first time on appeal that the court should
have heard his motion pursuant to Rule 1:6-2 as unopposed because the State
failed to timely file an opposition. R. 1:6-2(a) ("The motion shall be deemed
uncontested and there shall be no right to argue orally in opposition unless
responsive papers are timely filed and served stating with particularity the basis
of the opposition to the relief sought."). At oral argument, appellant did not
object to the State's opposition to his motion. It is well-recognized that appellate
A-3342-23 15 courts generally "decline to consider questions or issues not properly presented
to the trial court when an opportunity for such a presentation is available unless
the questions so raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest." Zaman v. Felton, 219 N.J. 199, 226-
27 (2014) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)).
For the sake of completeness, we add only the following comment. The
court appropriately permitted the State to oppose appellant's motion, which
appellant's counsel had filed on June 4, 2024, the day before the Megan's Law
hearing. Appellant did not dispute having ample notice that the State was
seeking a tier classification under Megan's Law and that the State served him
over one month before his June 2024 hearing. The court did not err in permitting
the State to oppose appellant's motion because he had filed the motion with one
days' notice, did not object to the State's oral argument in opposition, and did
not request an adjournment.
To the extent we have not addressed them, any remaining contentions
raised by appellant lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
A-3342-23 16