RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-5321-16T1 A-5322-16T1
IN THE MATTER OF REGISTRANT H.D. APPROVED FOR PUBLICATION ________________________ December 7, 2018 IN THE MATTER OF APPELLATE DIVISION REGISTRANT J.M. ________________________
Argued October 29, 2018 – Decided December 7, 2018
Before Judges Messano, Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Law Division, Essex County and Salem County, Docket Nos. ML-98-07-0091 and ML-98-17-0002.
Fletcher C. Duddy, Deputy Public Defender, argued the cause for appellant H.D. (in A-5321-16) (Joseph E. Krakora, Public Defender, attorney; Fletcher C. Duddy, of counsel and on the briefs; Stephanie A. Lutz, Assistant Deputy Public Defender, on the briefs).
Jesse M. DeBrosse, Assistant Deputy Public Defender, argued the cause for appellant J.M. (in A-5322-16) (Joseph E. Krakora, Public Defender, attorney; Jesse M. DeBrosse, on the briefs).
Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (in A-5321-16) (Theodore Stephens II, Acting Essex County Prosecutor, attorney; Frank J. Ducoat and Maria I. Guerrero, Special Deputy Attorneys General/Acting Assistant Prosecutors, of counsel; Frank J. Ducoat, on the brief).
David M. Galemba, Assistant Prosecutor, argued the cause for respondent State of New Jersey (in A-5322- 16) (John T. Lenahan, Salem County Prosecutor, attorney; David M. Galemba, of counsel and on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
We 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 Violent 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 (App. Div. 2018) (quoting State v.
A-5321-16T1 2 Schubert, 212 N.J. 295, 305 (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 person 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:
1 "The Legislature subsequently amended the statute, replacing CSL with parole supervision for life (PSL)." G.H., 455 N.J. Super. at 524 (citing L. 2003, c. 267, § 1). 2 In 2003, the Legislature comprehensively revised the statute involving computer-related offenses, repealing N.J.S.A. 2C:20-29. See L. 2003, c. 39, § 9.
A-5321-16T1 3 [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
(quoting In re J.S., 444 N.J. Super. 303, 312 (App. Div.), certif. denied, 225
N.J. 339 (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 (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
A-5321-16T1 4 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
(App. Div. 2015), aff'd o.b., 227 N.J. 626 (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, 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. This [fifteen]-year period is measured from the date of the
registrant's last conviction, not [his] underlying conviction under Megan's
Law." He entered an order terminating CSL for H.D., and subsequently denied
H.D.'s motion for reconsideration of the denial of the termination of his
registration obligations.
A-5321-16T1 5 I.
Before us, appellants argue subsection (f)'s clear and unambiguous
language permits relief from their registration obligations because they
remained offense free for fifteen years following their last conviction. They
note that subsection (f)'s reference to the "conviction" that starts the fifteen -
year clock is not limited to the sex-offense conviction that triggered Megan's
Law's registration in the first instance. 3 In other words, according to
appellants, the fifteen-year clock reset in 2001, due to appellants' subsequent
"conviction or release from a correctional facility for any term of
imprisonment." N.J.S.A. 2C:7-2(f). Alternatively, appellants contend that
even if subsection (f) is ambiguous, various tenets of statutory construction,
common sense and the rule of lenity require reversal.
The State also argues that subsection (f) is clear and unambiguous.
However, the State argues a conviction for any offense forever bars relief
when it occurs within fifteen years following a "conviction or release from a
correctional facility" for the sex offense. The State contends this interpretation
3 Because of the facts presented, we need not address the "permanent [and] irrevocable" "lifetime registration requirements" imposed by N.J.S.A. 2C:7 - 2(g) on those convicted of aggravated sexual assault, N.J.S.A. 2C:14-2(a), sexual assault, N.J.S.A. 2C:14-2(c)(1), or more than one sex offense. G.H., 455 N.J. Super. at 521 (quoting In re State ex rel. C.K., 233 N.J. 44, 66 (2018)).
A-5321-16T1 6 is consistent with the Legislature's intent in enacting Megan's Law.
Additionally, the State argues the Legislature's use of different language in
N.J.S.A. 2C:43-6.4(c), specifically, that the applicant remain offense free for
fifteen years from "the last conviction or release from incarceration,"
evidences an intention to treat CSL differently from registration, because
registration is remedial, while CSL is penal in nature. Compare Doe, 142 N.J.
at 73 (holding Megan's Law's registration requirements were "clearly and
totally remedial in purpose"), with Schubert, 212 N.J. at 308 (holding CSL was
"punitive rather than remedial at its core").
II.
Because we confront a "question . . . of statutory interpretation, . . . we
are 'neither bound by, nor required to defer to, the legal conclusions of a trial
. . . court.'" In re N.B., 222 N.J. 87, 94 (2015) (quoting State v. Gandhi, 201
N.J. 161, 176 (2010)). "The overriding goal of all statutory interpretation 'is to
determine as best we can the intent of the Legislature, and to give effect to that
intent.'" State v. S.B., 230 N.J. 62, 67 (2017) (quoting State v. Robinson, 217
N.J. 594, 604 (2014)). "[W]e begin with the statute's plain language and give
terms their ordinary meaning[,]" permissibly "draw[ing] inferences based on
the statute's overall structure and composition." Id. at 68 (first citing
DiProspero v. Penn, 183 N.J. 477, 492 (2005); and then citing State v. Hupka,
A-5321-16T1 7 203 N.J. 222, 231-32 (2010)). "We do not view [statutory] words and phrases
in isolation but rather in their proper context and in relationship to other parts
of [the] statute, so that meaning can be given to the whole of [the] enactment."
State v. Twiggs, 233 N.J. 513, 533 (2018) (alteration in original) (quoting
State v. Rangel, 213 N.J. 500, 509, (2013)). "If the Legislature's intent is clear
on the face of the statute, then the 'interpretative process is over.'" S.B., 230
N.J. at 68 (quoting Hupka, 203 N.J. at 232).
However, "[i]f the language does not lead to a single, clear meaning, we
can look to extrinsic evidence, including legislative history, for guidance."
State v. O'Driscoll, 215 N.J. 461, 474 (2013) (citing Rangel, 213 N.J. at 509).
The statute's purpose and context provide sources of extrinsic evidence of
legislative intent, J.S., 444 N.J. Super. at 308, as does the policy supporting its
enactment. State v. Thomas, 166 N.J. 560, 567 (2001). We may also consider
extrinsic evidence of legislative intent "if a literal reading of the statute would
yield an absurd result, particularly one at odds with the overall statutory
scheme." N.B., 222 N.J. at 99 (quoting Wilson ex rel. Manzano v. City of
Jersey City, 209 N.J. 558, 572 (2012)). If ambiguity in a penal statute remains
after consideration of extrinsic sources, the rule of lenity requires us to resolve
that ambiguity in favor of a defendant. Twiggs, 233 N.J. at 533.
A-5321-16T1 8 A.
Recall, subsection (f) permits relief from registration obligations if "the
person 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." N.J.S.A. 2C:7-2(f) (emphasis added). We conclude that the
emphasized portion of subsection (f) is ambiguous, not as to when the fifteen-
year-offense-free clock starts, but rather, more accurately, whether the clock
may ever reset.
Only those "convicted, adjudicated delinquent or found not guilty by
reason of insanity for commission of a sex offense" are required to register.
N.J.S.A. 2C:7-2(a)(1). Subsection (f), in turn, only applies to "person[s]
required to register" under Megan's Law. N.J.S.A. 2C:7-2(f). "The
registration requirements of Megan's Law, as well as related legislation
adopted at the same time, including CSL, are imposed at sentencing." J.S.,
444 N.J. Super. at 311. As the State argues, a reasonable inference drawn
from these provisions is that despite the lack of any specific reference in
subsection (f) to the underlying sex offense, the Legislature intended repeat
offenders to remain on the registry.
A-5321-16T1 9 Appellants' argument is also reasonable. The Legislature could have
specified that the only "conviction" that commenced the fifteen-year clock was
the underlying sex offense conviction that required registration in the first
instance. However, it did not do so. We presume that the Legislature knows
how to express its intention, and "a court may not rewrite a statute or add
language that the Legislature omitted." State v. Munafo, 222 N.J. 480, 488
(2015) (citing DiProspero, 183 N.J. at 492). In addition, the Legislature
decided the fifteen-year period began even later for some offenders, i.e., upon
their "release from a correctional facility." N.J.S.A. 2C:7-2(f). However, it
chose to use the indefinite term — "any" — to describe the term of
imprisonment, which release therefrom starts the fifteen-year clock. See ibid.
(permitting relief from registration if offender remains offense free fo r fifteen
years following "release from a correctional facility for any term of
imprisonment imposed") (emphasis added). Here, too, the Legislature could
have clearly stated that the fifteen-year period began only after the offender
completed the "term of imprisonment imposed" on the conviction for the
underlying sex offense, and no other. But, again, it chose not to do so.
In short, because subsection (f)'s plain language lacks "a single, clear
meaning," we must consider other interpretive aids. O'Driscoll, 215 N.J. at
474.
A-5321-16T1 10 B.
The limited legislative history surrounding passage of subsection (f)
provides little assistance in discerning the Legislature's intent. When
introduced, subsection (f) stated:
A person required to register under this act may make application to the Superior Court of this State to terminate the obligation upon proof that the person 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 commit an offense in the future.
[Assemb. B. 84, Gen. Assemb., Reg. Sess. (N.J. 1994) (as introduced to Assembly, August 15, 1994) (emphasis added).]
Thereafter, the Legislature replaced the emphasized language with "and is not
likely to pose a threat to the safety of others." L. 1994, c. 133, § 2. The
original version, which focused on predicting the likelihood of any re-offense,
arguably lends support to the State's position that subsection (f) was intended
to permanently bar any relief to a sex offender who commits another offense.
However, the Legislature did not adopt that version of subsection (f), choosing
instead to focus on the predictability of a registrant's likely threat to public
safety.
The State argues that registration is a presumptive lifetime obligation
under Megan's Law which the Court found was permissible as part of a
A-5321-16T1 11 comprehensive remedial design. Doe, 142 N.J. at 21. It asserts that subsection
(f) provides relief in only a narrowly defined circumstance. The State
therefore argues that permanently barring subsection (f) relief to those who
commit an offense, however minor, within the first fifteen years following
conviction or release for the underlying sex offense is wholly consonant with
Megan's Law's remedial purpose. We disagree.
We need not reiterate in detail the Court's rationale supporting its initial
conclusion that Megan's Law was "'clearly and totally remedial in purpose' and
'designed simply and solely to enable the public to protect itself from the
danger posed by sex offenders.'" G.H., 455 N.J. Super. at 522 (quoting Doe,
142 N.J. at 73). The Court has since recognized the significance of subsection
(f) to the remedial nature of the statutory scheme. "The underlying assumption
of [subsection (f) ] [was] that when a registrant, who has been [offense free]
for fifteen or more years, no longer poses a risk to the safety of the public,
keeping him bound to the registration requirements no longer serves a remedial
purpose.” Ibid. (quoting C.K., 233 N.J. at 64).
It follows that permanently denying relief to a registrant who has led a
law-abiding life for fifteen years after conviction and otherwise meets the
requirements of subsection (f) serves no remedial purpose. One need only
consider that the State's interpretation would permanently deny relief to an
A-5321-16T1 12 offender who: 1) lives offense free for 14 years and 364 days after his
conviction for a sex offense; 2) then commits a petty disorderly persons
offense; and 3) lives another 15 offense-free years thereafter. That result does
not serve any of Megan's Law remedial purposes and demonstrates the State's
construction of subsection (f) leads to illogical and absurd outcomes that the
Legislature never intended. See State v. Harper, 229 N.J. 228, 238-39 (2017)
(concluding urged statutory construction would lead to absurd results that were
contrary to the legislative scheme).
Appellants' construction of subsection (f), on the other hand, is entirely
consistent with the Legislature's determination that registrants who have lived
fifteen offense-free years and no longer "pose a threat to the safety of others"
should be permitted to ask a court to terminate their registration obligations.
Appellants' interpretation requires no alteration of the language in subsection
(f). They recognize that, despite the relatively minor nature of the offenses,
subsection (f)'s fifteen-year period began anew because of their 2001
convictions. See A.D., 441 N.J. Super. at 405 (citing N.J.S.A. 2C:1-14(k))
(holding that "the term 'offense' in [subsection (f)] means 'a crime, a
disorderly persons offense or a petty disorderly persons offense,'" and bars
relief during the fifteen-year period). In other words, appellants accept the
legislative premise underlying subsection (f), that is, unless a registrant
A-5321-16T1 13 remains offense free for fifteen years, the registration requirements first
imposed by Megan's Law upon conviction of a sex offense remain intact.
As noted, although the judge would not relieve H.D. of his registration
requirements, he nonetheless terminated H.D.'s CSL under N.J.S.A. 2C:43-
6.4(c), finding that he had remained offense free for fifteen years since his last
conviction and clearly and convincingly demonstrated he no longer posed a
threat to public safety. Ibid. We noted the anomaly of a similar result in
G.H., 455 N.J. Super. at 524.
The State seeks to explain this away by arguing CSL is part of the
sentencing provisions of the Criminal Code, reflecting its penal nature, while
registration is remedial. Undoubtedly, that is what the Court has held.
Schubert, 212 N.J. at 307. However, those words are not talismans, which
mere invocation transforms an illogical result into the reflection of implicit
legislative intent.
In J.S., we were asked to decide if subsection (f)'s fifteen-year period
commenced upon entry of a guilty plea or entry of a judgment of conviction.
444 N.J. Super. at 306. We recognized Megan's Law's comprehensive
legislative scheme, noted the Legislature's ability to "fairly measure" the risk
of re-offense, and held subsection (f)'s fifteen-year period began to run from
the entry of a judgment of conviction, thus, measuring "the offense-free time
A-5321-16T1 14 frame against fifteen years of compliance with the registration requirements. "
J.S., 444 N.J. Super. at 312.
We specifically found support for our conclusion in the language of
N.J.S.A. 2C:43-6.4(c), "adopted contemporaneously with Megan's Law." Id. at
312. Despite the somewhat different language employed by the Legislature in
N.J.S.A. 2C:43-6.4(c), we concluded that provision supported our
interpretation of subsection (f), noting, "[w]e find it anomalous to suggest the
Legislature intended one time frame for termination of Megan's Law
registration and a different time frame for release from CSL." Ibid.
We recognize that J.S. resolved a different issue. Nevertheless, in that
case, we harmonized the Legislature's use of different language to avoid an
interpretation inconsistent with legislative intent. So, too, the construction
urged by appellants here harmonizes the different verbiage employed by the
Legislature in subsection (f) and N.J.S.A. 2C:43-6.4(c). It does not result in
two different time frames for potential relief from the consequences of
conviction for one singular sex offense: one period that permits permanent
relief from CSL and another that permanently denies relief from registration
We are convinced that the Legislature never intended to forever bar
relief from Megan's Law's registration requirements to every person who
A-5321-16T1 15 commits an offense, however minor, within the first fifteen years following
conviction of a sex offense or release from custody after that conviction. We
therefore reverse in A-5321-16 and A-5322-16 and remand the matters to the
Law Division. The respective courts shall consider whether H.D. and J.M.
have remained offense free since their 2001 convictions and are "not likely to
pose a threat to the safety of others." N.J.S.A. 2C:7-2(f).
Reversed and remanded. We do not retain jurisdiction.
A-5321-16T1 16