IN THE MATTER OF REGISTRANT L.F. (ML-00040043, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 6, 2018
• Docket: A-3340-16T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3340-16T1

IN THE MATTER OF REGISTRANT L.F. __________________________________

Argued May 21, 2018 - Decided August 6, 2018

Before Judges Messano, Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. ML-00040043.

Jesse M. DeBrosse, Assistant Deputy Public Defender, argued the cause for appellant L.F. (Joseph E. Krakora, Public Defender, attorney; Jesse M. DeBrosse, on the brief).

Matthew T. Spence, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Mary Eva Colalillo, Camden County Prosecutor, attorney; Matthew T. Spence, of counsel and on the brief).

PER CURIAM L.F. was convicted of rape1 in Pennsylvania in 1992, 18 Pa.

Cons. Stat. § 3121, before the Legislature amended the

registration provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23,

to add subsection (g), N.J.S.A. 2C:7-2(g), described more fully

in our opinion in In re G.H. and In re G.A., ___ N.J. Super. ___

(2018), also issued today, making the lifetime registration

requirements "permanent [and] irrevocable" for certain

offenders. G.H., ___ N.J. Super. ___ (slip op. at 2) (quoting

In re State ex rel. C.K., 233 N.J. 44, 66 (2018)).

Following the completion of his sentence, L.F. moved to New

Jersey and registered under Megan's Law on June 12, 2001. The

Camden County Prosecutor's Office classified him as a Tier I

offender. L.F.'s 1992 convictions represent his sole brush with

the law. In 2017 he moved to be relieved of his obligation to

register under N.J.S.A. 2C:7-2(f). Although acknowledging L.F.

had been offense-free for more than fifteen years following his

release from prison, thereby permitting him to apply for relief

from his registration requirements under subsection (f), the

trial judge denied the application on the basis of subsection

1 L.F. was also convicted in the same proceeding of simple assault, unlawful restraint, false imprisonment, involuntary deviant sexual intercourse, indecent assault and indecent exposure. The State concedes, "for Megan's Law review purposes[,] that [L.F.'s] actions consist of a 'sole sex offense.'"

2 A-3340-16T1 (g). Specifically, the court found L.F.'s Pennsylvania rape

conviction similar to one for sexual assault under New Jersey

law, N.J.S.A. 2C:14-2(c)(1), as both criminalize sexual

penetration with the use of force, thus rendering him ineligible

to apply to terminate his registration obligation under

subsection (g)'s ban for those offenders convicted of sexual

assault pursuant to N.J.S.A. 2C:14-2(c)(1).

L.F. appeals from the court's March 2, 2017 order denying

his application to terminate his registration requirements. He

argues the plain language of N.J.S.A. 2C:7-2(g) applies only to

convictions for "sexual assault pursuant to paragraph (1) of

subsection c. of N.J.S.[A.] 2C:14-2" and not to out-of-state

offenses.

We deem that argument to be without sufficient merit to

warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), in

light of N.J.S.A. 2C:7-2(b)(3)'s inclusion of out-of-state

convictions for offenses similar to those enumerated in

subsection N.J.S.A. 2C:7-2(b)(2) as sex offenses "[f]or the

purposes of this act," requiring the offender to register under

Megan's Law, N.J.S.A. 2C:7-2(a)(1). See In re R.B., 376 N.J.

Super. 451, 464 (App. Div. 2005) (explaining that "so long as

the conviction being compared to a Megan's Law enumerated

offense contains the same essential elements, and the underlying

3 A-3340-16T1 purposes of the crimes are consonant, the conviction should be

considered similar to the Megan's Law enumerated offense for

purposes of requiring sex offender registration in New Jersey"),

overruled in part on other grounds by In re T.T., 188 N.J. 321,

334 (2006); see also Marino v. Marino, 200 N.J. 315, 330 (2009)

(discussing the maxim of statutory construction calling for

interpreting sections of a statute included within the same Act

by reading them in pari materia).

Having concluded, however, in G.H. that the retroactive

application of subsection (g) to those convicted of sex offenses

prior to its effective date in 2002 was not the intent of the

Legislature and would, in any event, be manifestly unfair if

applied to such offenders,2 slip op. at 28, we reverse the trial

court's March 2, 2017 order and remand for a hearing on L.F.'s

application to be relieved of his obligation to register under

N.J.S.A. 2C:7-2(f).

Reversed and remanded.

2 Because the record makes clear that L.F. registered in New Jersey prior to the effective date of subsection (g), we need not consider whether the holding of G.H. applies to those offenders with out-of-state convictions which pre-date enactment of subsection (g) who moved to New Jersey after its effective date.

4 A-3340-16T1