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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1387-16T1
IN THE MATTER OF REGISTRANT N.F.,
Appellant. _______________________________________
Argued April 24, 2018 – Decided June 11, 2018
Before Judges Yannotti, Mawla and DeAlmeida.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. 16090004.
Michael C. Woyce argued the cause for appellant N.F. (Murphy & Woyce, attorneys; Michael C. Woyce, on the brief).
Kristen L. Brewer, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Esther Suarez, Hudson County Prosecutor, attorney; Kristen L. Brewer, on the brief).
PER CURIAM
N.F. appeals from an order entered by the Law Division on
November 30, 2016, which designated him as a Tier II sex offender
under the Registration and Community Notification Laws, N.J.S.A.
2C:7-1 to -11 (Megan's Law), and as subject to Tier II community notification and inclusion on the Sex Offender Internet Registry
(Internet Registry), N.J.S.A. 2C:7-12 to -19. We affirm.
I.
This appeal arises from the following facts. On or about
November 28, 2011, the North Bergen Police Department (NBPD)
received an anonymous phone call alleging possible child abuse.
NBPD detectives located the witness, J.D., who reported that a man
(later identified as N.F.) had shown her a video depicting a man
engaging in sexual activity with a young female child named
"Jackie."
According to J.D., N.F. claimed he was the man in the video.
The NBPD referred the matter to the Special Victims Unit (SVU) in
the Hudson County Prosecutor's Office (HCPO). J.D. also met with
investigators from the New Jersey Division of Youth and Family
Services (the Division) and described what she had seen.1
SVU Detective Kristen Fusiak interviewed J.D., who provided
a statement under oath. J.D. explained that on November 26, 2011,
she was driving around with a female friend. They picked up N.F.,
whom she had never met before. They then drove to N.F.'s home, but
only J.D. and N.F. went inside. While sitting in the living room,
J.D. and N.F. discussed their childhoods and previous incidents
1 The Division is now known as the Division of Child Protection and Permanency.
2 A-1387-16T1 of sexual assault. N.F. then began discussing a girl named
"Jackie." He retrieved a laptop computer and showed J.D.
approximately five minutes of a video depicting a man receiving
oral sex from a young female who appeared to be between the age
of seven and ten years old.
According to J.D., N.F. claimed to be the man in the video,
although his face was not shown. He also identified the minor as
"Jackie," a ten-year-old "neighbor" he sees regularly. N.F. said
he engaged in oral and anal sex with the minor. J.D. stated that
N.F. also showed her other child pornographic videos in which he
was not involved, and asked J.D. if she would like to engage in
sexual relations with him and the minor. J.D. left N.F.'s home.
On November 30, 2011, Fusiak showed J.D. approximately
sixteen photographs of fourth, fifth, and sixth grade classes at
a North Bergen elementary school. J.D. did not identify any of the
females as the minor in N.F.'s pornographic video. On December 2,
2011, J.D. was shown a photograph of J.B. She stated she was
eighty-percent sure that it was the photograph of the female child
shown in the pornographic video that N.F. had shown to her.
On December 2, 2011, members of the SVU and NBPD executed
multiple search warrants at N.F.'s addresses in North Bergen and
another municipality, and communications-data warrants for any
items seized at those locations. The searches yielded, among other
3 A-1387-16T1 things, several computers, a digital camera, and one unmarked
video tape. Numerous videos and images of child pornography were
found on the electronic devices. The video that J.D. had described
was not located.
However, among the videos recovered was a homemade
pornographic video depicting N.F. and a female he refers to as his
"cousin." On the video, N.F. discussed sodomizing a young girl
with a broomstick, and then stated "let's see like I'd wanna [sic]
do that to like, like a girl that's a little under developed like
someone like [A.], like [ten] years old going on [eleven]." N.F.
and his "cousin" then discussed engaging in sexual activity with
a juvenile.
One of the Division's workers spoke with N.F.'s children, and
one of the children advised her that he has an eight-year-old
playmate named "Jackie" who lives nearby. J.B., who goes by the
name of "Jackie," and her mother, Ja.B., were brought to the HCPO
to give a statement. Ja.B. stated that N.F. was a friend of her
ex-husband.
Ja.B. said J.B. spent a lot of time at N.F.'s home playing
with his children and slept over at N.F.'s house approximately
three times. N.F. was there two of those times. Ja.B. stated that
on one occasion J.B. returned from N.F.'s home and was "acting
weird" in the bathroom. J.B. told Ja.B. that she was bleeding from
4 A-1387-16T1 her vaginal area and had a pinkish discharge. However, J.B. denied
that anyone touched her.
Fusiak spoke with J.B. and had her identify certain body
parts on anatomically-detailed drawings. Fusiak asked J.B. if
there was any place on her body that no one was permitted to touch.
J.B. responded that no one was supposed to touch her "private
part" and "butt." J.B. initially hesitated in answering, but then
said no one was allowed to touch her chest. When asked why she
hesitated, J.B. responded that she had to think if anyone had
touched her. She denied ever seeing male genitals. She acknowledged
she spends time at N.F.'s home and has slept over there.
Fusiak and J.B. next discussed the incident in the bathroom.
J.B. initially claimed she did not remember the incident but then
said "it was kind of at two places" – once at her house and once
at another house where she lived at times. She stated that at her
house, her private part hurt and she did not know why. She also
said nothing came out, and she did not know what Ja.B. saw when
she examined her. J.B. stated she told her mother that no one had
touched her. J.B. said, however, that blood came out of her private
part at the other house.
When asked about N.F., J.B. said she did not like him because
he is "weird." J.B. stated that she did not think N.F. was cute
and she denied having a crush on him. When asked if N.B. had a
5 A-1387-16T1 crush on her, J.B. said she was not sure. J.B. answered "no" to
nearly every question about sexual matters that Fusiak asked.
However, when asked if N.F. touched her butt, J.B. initially said
yes and then quickly said no. J.B. also denied N.F. had ever
recorded her on video. Eventually, J.B. began crying and said she
did not want to continue the discussion.
Shortly thereafter, J.B. returned to the interview room, and
Fusiak questioned her about a Facebook conversation J.B. had with
N.F. The messages read as follows:
J.B.: I waz up im so bored
N.F.: It's late baby girl. Get ready for bed.
Love you.
J.B.: reallyyyyyyyyyy
N.F.: Really really (with a smiley face)
J.B.: yesss
J.B.: Jookie!!!!
J.B.: wat[sic]!!!!!!!!!
Fusiak explained to J.B. that the conversation could be
interpreted as a boyfriend-girlfriend relationship. J.B. said she
did not like N.F. and continued to deny that anyone ever touched
her body parts, specifically N.F. Fusiak told J.B. she saw the
video of her and N.F., but J.B. denied ever touching male genitals.
J.B. acknowledged the videotaping by stating that the incidents
6 A-1387-16T1 happened in the living room and sometimes the other children were
in another room.
She said N.F. touched her belly and demonstrated a chopping
motion. When asked what sexual touching happened in the living
room, J.B. denied that any such touching occurred and said she did
not remember anything. Several days later, Ja.B. called Fusiak to
inform her that J.B. claimed N.F. had promised her an iPod.
On December 7, 2011, N.F.'s ex-wife, T.F., was interviewed.
N.F. and T.F. have three children together. Among other things,
T.F. said four neighborhood children frequented their home to play
with her children, and one of the children was named "Jackie."
T.F. told Fusiak that either she, N.F., or a babysitter would be
home when the children would play together.
T.F. denied that any other neighborhood children frequented
her home. T.F. also said there was a laptop computer in the home
that recently broke when her son spilled juice on it. The last
time she saw the laptop was November 30, 2011. T.F.'s children
were also interviewed. They acknowledged there was another laptop
in the home, but stated they had not seen it recently.
N.F. was charged with first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a) (count one); second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a) (count two); fourth-degree
abuse, cruelty and neglect of a child, N.J.S.A. 9:6-1 and -3 (count
7 A-1387-16T1 three); first-degree endangering the welfare of a child (creation
of child pornography), N.J.S.A. 2C:24-4(b)(3) (count four);
second-degree endangering the welfare of a child (distribution of
child pornography), N.J.S.A. 2C:24-4(b)(5)(i) (count five); and
fourth-degree endangering the welfare of a child (possession of
child pornography), N.J.S.A. 2C:24-4(b)(5)(ii) (count six).
On October 1, 2013, N.F. pled guilty to count five. On January
24, 2014, he was sentenced to five years in state prison, and
required to register as a sex offender under Megan's Law, N.J.S.A.
2C:7-2. After his release from custody, N.F. registered as
required. The HCPO filed a notice of proposed Tier II
classification, Tier II notification to the community, and
inclusion on the Internet Registry. N.F. filed an objection to the
proposed classification and requested an evidentiary hearing.
On November 18, 2016, the Law Division judge conducted a
hearing in the matter. N.F. presented the testimony of Dr. James
R. Reynolds, a psychologist and expert in the field of sex offender
treatment and risk assessment. Dr. Reynolds opined that N.F. was
a low risk for involvement in future criminal behavior. Dr.
Reynolds scored N.F. as having an overall total of five points on
the Registrant Risk Assessment Scale (RRAS). He gave N.F. three
points for history of anti-social acts and two points for substance
abuse that is in remission. Dr. Reynolds gave N.F. zero points for
8 A-1387-16T1 all other factors on the RRAS. In his report, Dr. Reynolds opined
that the available records indicated that allegations N.F.
sexually abused an underage child were not substantiated.
On November 30, 2016, the judge heard oral argument and
rendered a decision from the bench, finding N.F. subject to Tier
II classification, Tier II community notification, and inclusion
on the Internet Registry. The judge memorialized his findings in
an order dated November 30, 2016, and granted an oral motion for
stay of placement on the Internet Registry pending appeal. This
appeal followed.
On appeal, N.F. raises the following arguments: (1) the trial
court incorrectly applied the RRAS in evaluating his risk by
applying inappropriate factors regarding his offense; (2)
notwithstanding his RRAS score, he should be subject to Tier I
community notification without placement on the Internet Registry;
(3) the State did not prove by clear and convincing evidence that
he committed an act of sexual penetration with a minor female; and
(4) the RRAS is being applied differently in certain counties,
with the potential for arbitrary results.
II.
We begin our consideration of the appeal by summarizing the
relevant provisions of Megan's Law and the tier classification
process. Depending on the type and time of offense, Megan's Law
9 A-1387-16T1 requires certain sex offenders to register with local law
enforcement agencies and notify the community. In re T.T., 188
N.J. 321, 327 (2006) (citing N.J.S.A. 2C:7-2). Because
registration and community notification under Megan's Law has a
significant impact upon a registrant's personal liberties, the
trial court must balance the registrant's right to privacy against
the community's interest in safety and notification. In re
Registrant G.B., 147 N.J. 62, 74 (1996). In applying this balancing
test, the RRAS is a reliable tool. Id. at 81–82.
The RRAS is an instrument used to determine whether a sex
offender's risk of re-offense is low (Tier I), moderate (Tier II),
or high (Tier III). State v. C.W., 449 N.J. Super. 231, 260 (2017)
(citing In re V.L., 441 N.J. Super. 425, 429 (App. Div. 2015)).
In assigning a tier rating to a registered sex offender, the court
considers thirteen factors across four categories: (a) seriousness
of the offense; (b) the offender's history; (c) community support
available; and (d) the characteristics of the offender. Ibid.
(citing V.L., 441 N.J. Super. at 429).
"Seriousness of offense" includes: (1) degree of force; (2)
degree of contact; and (3) age of victim. In re Registrant C.A.,
146 N.J. 71, 103 (1996). "Offender's history" includes: (4) victim
selection; (5) number of offenses/victims; (6) duration of
10 A-1387-16T1 offensive behavior; (7) length of time since last offense; and (8)
any history of anti-social acts. Ibid.
"Support available" and "characteristics of offender" are
considered "dynamic categories, because they are evidenced by
current conditions." Ibid. "Characteristics of offender" includes:
(9) response to treatment and (10) substance abuse. Id. at 103–
04. "Support available" includes: (11) therapeutic support, (12)
residential support; and (13) employment/educational stability.
Id. at 104.
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." Ibid. A registrant who receives a total factor score
below thirty-seven is considered Tier I and a low risk for re-
offense. Id. at 83. A registrant who receives a total factor score
of more than thirty-seven, but less than seventy-four, is deemed
Tier II and a moderate risk for re-offense. Ibid. Finally, a
registrant who receives a total factor score of seventy-four or
higher is considered Tier III and a high risk for re-offense.
Ibid.
N.J.S.A. 2C:7-8(c)(1) provides that when risk of re-offense
is low, "law enforcement agencies likely to encounter the
[registrant]" must be notified. When risk of re-offense is
11 A-1387-16T1 moderate, "organizations in the community including schools,
religious and youth organizations" must be notified in addition
to the notice to law enforcement agencies. N.J.S.A. 2C:7-8(c)(2).
When risk of re-offense is high, public notice "designed to reach
members of the public likely to encounter the [registrant]" is
required, in addition to the other notice required. N.J.S.A. 2C:7-
8(c)(3). Additionally, "where public access . . . [is] warranted,
based on the relative risk posed by the particular offender," some
offenders will be subject to the Internet Registry. N.J.S.A. 2C:7-
13(b).
The RRAS is, however, "only one possible consideration" of
many in determining a registrant's risk of re-offense. G.B., 147
N.J. at 78. Although the RRAS is a "useful tool to help prosecutors
and courts determine whether a registrant's risk of re-offense is
low, high, or moderate," it is "not a scientific device." C.A.,
146 N.J. at 108.
"[I]t is impossible to create an all-inclusive scale," and
thus, "any classification based on the [RRAS] should not be viewed
as absolute." Id. at 109. Judicial determinations regarding tier
classification and community notification should be 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]." G.B., 147 N.J. at
12 A-1387-16T1 78–79 (quoting C.A., 146 N.J. at 109). Ultimately, "a value
judgment" is required. Id. at 78 (citing C.A., 146 N.J. at 109).
Moreover, all judicial determinations regarding tier
classification and community notification "must be [made] by clear
and convincing evidence." G.H. v. Twp. of Galloway, 401 N.J. Super.
392, 403 (App. Div. 2008) (citing E.B. v. Verniero, 119 F.3d 1077,
1111 (3d Cir. 1997)). Clear and convincing evidence has been
characterized "as evidence on which the trier of fact can rest 'a
firm belief or conviction as to the truth of the allegations sought
to be established.'" In re Registrant J.G., 169 N.J. 304, 330–31
(2001) (quoting Matter of Purrazella, 134 N.J. 228, 240 (1993)).
In challenging a tier designation, a registrant may argue
that: (1) the RRAS score was erroneously calculated; (2) the case
falls outside the "heartland" of Megan's Law cases; and (3) the
extent of community notification required is excessive due to
"unique" aspects of the registrant's case. T.T., 188 N.J. at 330
(quoting G.B., 147 N.J. at 85). In presenting such a challenge,
the registrant must introduce evidence showing the RRAS "did not
accurately weigh certain factors" or "take into account certain
peculiar factors" relevant in determining a registrant's risk of
re-offense. G.B., 147 N.J. at 82.
13 A-1387-16T1 III.
N.F. argues that the State failed to establish by clear and
convincing evidence that he engaged in sexual penetration with
anyone other than consenting adults. N.F. therefore argues his
score of fifteen (high risk) in factor two of the RRAS (degree of
contact) was erroneous. We disagree.
When calculating a registrant's score on the RRAS, "the State
is free to rely on hearsay statements to support its assertions
and does not need to base its calculations surrounding the
underlying offense solely on the facts of conviction." G.B., 147
N.J. at 79 (citing C.A., 146 N.J. at 88–93). The trial court then
may consider "all reliable information" including "[s]exual
offenses, not the subject of a conviction" and supported by
admissions, police reports, and psychiatric reports. In re J.W.,
410 N.J. Super. 125, 130–31 (App. Div. 2009) (citing In re
Registrant C.A., 285 N.J. Super. 343, 347–48 (App. Div. 1995)).
The trial court may rely on the evidence it considers relevant and
trustworthy in making its determination. C.A., 285 N.J. Super. at
343.
On appeal, we must accord substantial deference to the trial
court's factual determinations if supported by "adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,
14 A-1387-16T1 65 N.J. 474, 484 (1974)). "Deference is especially appropriate
'when the evidence is largely testimonial and involves questions
of credibility.'" Id. at 412 (quoting In re Return of Weapons to
J.W.D., 149 N.J. 108, 117 (1997)). We must defer to the trial
court's factual findings "regardless of whether the evidence is
live testimony, a videotaped statement, or documentary evidence."
State v. S.N., 231 N.J. 497, 514 (2018) (citing State v. S.S., 229
N.J. 360, 379 (2017)).
In this case, the trial judge found that the State had proven
by clear and convincing, if not overwhelming, evidence that N.F.
had committed an act of sexual penetration upon the female minor,
J.B. The judge found that J.D.'s statements on this issue were
"completely credible" and, for this reason, N.F. would receive a
score of fifteen (high risk) on factor two of the RRAS (degree of
contact). There is sufficient credible evidence in the record to
support the judge's finding.
As the judge pointed out in his decision, J.D. stated under
oath that N.F. showed her a video of a man receiving oral sex from
a young female victim who appeared to be between the ages of seven
and ten years old. Furthermore, N.F. identified himself as the man
depicted in the pornographic video. N.F. also identified the young
female victim as "Jackie," a ten-year-old "neighbor" whom he sees
regularly.
15 A-1387-16T1 As noted previously, when they executed the search warrants,
the investigators could not locate the video that J.D. described.
The judge found, however, that this did not mean the video did not
exist on the night J.D. said she saw it. Moreover, N.F. told J.D.
that he engaged in oral and anal sex with the young female victim,
and he invited J.D. to engage in sexual relations with him and the
victim. The judge found J.D.'s statement was "completely credible
and reliable."
We note that J.D.'s statement was corroborated by other
evidence, including the significant amount of child pornography
recovered from N.F.'s home, his inappropriate Facebook
conversation with a female minor nicknamed "Jackie" who lived
nearby, and the numerous similarities between N.F.'s conversation
with J.D. and his conversation with his "cousin" in a homemade
pornographic video that was recovered later. In that video, N.F.
is seen telling his "cousin" he wanted to sexually penetrate a
named ten-year-old female.
Accordingly, we conclude there is sufficient credible
evidence in the record to support the judge's finding that N.F.
sexually penetrated a young female victim who was about ten years
old. The record supports the judge's determination that N.F.'s
score in factor two of the RRAS (degree of contact) was fifteen.
16 A-1387-16T1 IV.
Next, N.F. argues that the judge erroneously scored his RRAS,
resulting in an inaccurate and inflated risk assessment. As stated
previously, the judge placed N.F. in Tier II, the moderate level
of risk of re-offense for Megan's Law community notification,
based on a final score of sixty-three on the RRAS.
In the category of "seriousness of offense," the judge found
that N.F. had a total score of thirty. This score consisted of
fifteen points (high risk) for factor two (degree of contact)
based on the aforementioned finding of penetration. It also
included fifteen points (high risk) for factor three (age of the
victim), since the victim was under the age of thirteen.
In the category of "offense history," the judge found N.F.
also had a total score of thirty. This score consisted of nine
points (high risk) for factor four (victim selection), nine points
(high risk) for factor five (number of offenses/victims), three
points (moderate risk) for factor seven (length of time since last
offense), and nine points (high risk) for factor eight (history
of anti-social acts).
In addition, in the category of "characteristics of
offender," the judge found that N.F. had a score of two (moderate
risk) for factor ten (substance abuse). The judge also found that
17 A-1387-16T1 N.F. had a score of one (moderate risk) in factor thirteen
(education/employment stability).
On appeal, N.F. argues that factors one through five of the
RRAS should not be scored for child pornography offenders. He
contends these factors are designed primarily for "contact
offenses," and should be left un-scored in cases involving child
pornography offenders.
We note, however, that N.F. did not receive a score for factor
one (degree of force). Moreover, N.F.'s score for factor two
(degree of contact) was based on the finding that he committed an
act of sexual penetration upon the female victim, who was about
ten years old. Factor three (age of the victim) was based in part
on the age of the victim, who was under thirteen years of age, and
the many other victims who appear in the child pornography videos.
The scores on factors four (victim selection) and five (number of
offenses/victims) also were based on the victims depicted in the
numerous child pornography videos found in N.F.'s house.
Notwithstanding N.F.'s arguments to the contrary, we are not
convinced that it was inappropriate for the court to consider his
possession and distribution of child pornography for purposes of
scoring factors three, four, and five. The courts have recognized
that children depicted in child pornography are, in fact, victims.
18 A-1387-16T1 In New York v. Ferber, 458 U.S. 747, 759 n.10 (1982), the Court
observed that
Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child's actions are reduced to a recording, the pornography may haunt him [or her] in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system of child pornography.
See also In re Cohen, 220 N.J. 7, 12 (2014) (noting that each time
someone views child pornography, the child depicted therein is
again victimized).
Here, N.F. was subject to registration and community
notification under Megan's Law because he was found guilty of
endangering the welfare of a child through the distribution of
child pornography to J.D. See N.J.S.A. 2C:7-2(a)(2); N.J.S.A.
2C:24-4(b)(5)(a)(i). The fact that a registrant has possessed
numerous child pornography videos is an appropriate consideration
in determining whether there is a risk that the registrant will
re-offend in this manner. Therefore, in scoring factors three,
four, and five of the RRAS, it was appropriate for the court to
consider the many victims depicted in the child pornography videos
N.F. possessed.
19 A-1387-16T1 In support of his argument that child pornography offenders
should not be scored in factors one through five of the RRAS, N.F.
relies upon In re Registrant P.B., 427 N.J. Super. 176 (App. Div.
2012). In that case, the registrant was charged with third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a) and
(b), for possession of child pornography on his home computer, and
he pled guilty to third-degree child endangerment under N.J.S.A.
2C:24-4(a). Id. at 180. On the RRAS, the registrant received a
total score of seventy-two, placing him in the category of persons
who pose a moderate risk to re-offend. Ibid. On appeal, the
registrant argued this tiering was incorrect. Id. at 179.
We "reject[ed] the notion" that a "high" risk level under
factor two (degree of contact) could be "satisfied by a showing
that a registrant merely possessed depictions of penetrative
sexual activity with children, without any concomitant indication
that [the registrant] played a role in the penetrative activity
either as a participant or a producer." Id. at 183. We explained
it seems evident from N.J.S.A. 2C:7-1 to -23 and authoritative interpretive materials developed to implement the legislation that, under the very terms of Megan's Law alone, the accused must have engaged in some kind of participation in penetrative activity before he or she can be deemed to be responsible for it on any level.
20 A-1387-16T1 N.F. argues that P.B. holds that factors one and two of the
RRAS should not be scored for child pornography offenders. However,
in P.B., the court only addressed factor two and held that it
should not be scored for the "mere possession and viewing of child
pornography." Id. at 181. As we have explained, however, this case
does not involve the mere possession of child pornography because
the evidence shows that N.F. "played a role in the penetrative
activity either as a participant or a producer." Id. at 183.
Therefore, N.F.'s reliance upon P.B. is misplaced.
Furthermore, in determining N.F.'s risk of re-offense it was
entirely appropriate for the court to consider the numerous victims
depicted in N.F.'s child pornography videos when scoring factors
three, four, and five of the RRAS.
In view of our decision, that N.F. was correctly scored under
the RRAS, we need not address the issue of whether other
registrants, who have only been convicted of endangering the
welfare of a child through the possession of child pornography,
should be scored in factors one, three, four, and five.
V.
Next, N.F. argues that regardless of his score on the RRAS,
he should only be subject to Tier I scope of community notification
without placement on the Internet Registry, because his risk of
re-offense is allegedly low, and he has made some progress in sex
21 A-1387-16T1 offender treatment. N.F. argues that his case falls outside the
"heartland" of Megan's Law cases and that the extent of
notification ordered is excessive because of "unique" aspects of
his case. Again, we disagree.
Generally, in challenging a registrant's RRAS score or the
scope of community notification, "expert testimony will be neither
necessary nor helpful." G.B. 147 N.J. at 85. However, "in limited
circumstances, expert testimony may be introduced . . . to
establish the existence of unique aspects of a registrant's offense
or character that render the [RRAS] score suspect." Id. at 68.
The court has "the ultimate authority to decide what weight to
attach to the [RRAS] and what weight to attach to expert
testimony." Id. at 85. "The final determination of dangerousness
lies with the courts, not the expertise of psychiatrists and
psychologists." Id. at 86 (quoting In re D.C., 146 N.J. 31, 59
(1996)).
Moreover, there is a presumptive scope of community
notification concerning Tier II offenders. In re Registrant M.F.,
169 N.J. 45, 62 (2001). "Unless limiting circumstances affecting
the nature of a [Tier II] registrant's risk of re-offense are
presented, the State is entitled to give effect to the legislative
preference, indeed presumption, of the need for notice to the
specified schools and community organizations located in the area
22 A-1387-16T1 frequented by a registrant." Ibid. This presumption "logically
advances the legislative goal of public protection, specifically
the protection of children and women vulnerable to a sex offender
with a moderate risk of re-offending." Ibid.
In this case, although N.F. apparently has made some progress
in his sex offender treatment while at the Adult Diagnostic
Treatment Center, N.F. has failed to present any unique aspects
of his offense or his character that would render the RRAS score
suspect or warrant departure from the community notification
recommendations pursuant to the Guidelines adopted by the New
Jersey Attorney General. N.F. relies in large part on the testimony
and report of Dr. Reynolds, who opined that N.F. should be tiered
as a "low risk" offender. The record shows, however, that Dr.
Reynolds did not consider all of the available evidence when
evaluating N.F. Dr. Reynolds did not have any progress reports of
N.F.'s current treatment. In formulating his opinion, Dr. Reynolds
did not include any conduct that did not result in a criminal
conviction. He chose not to consider J.D.'s statements, claiming
it was only an allegation "that was not proved."
We therefore conclude there is sufficient credible evidence
to support the trial court's finding that N.F. should be classified
in Tier II, and subject to Tier II community notification and
placement in the Internet Registry.
23 A-1387-16T1 VI.
N.F. also argues for the first time on appeal that factors
three, four, and five of the RRAS are being scored differently by
certain counties when scoring child pornography offenders. N.F.
maintains that the lack of uniformity between the counties raises
the possibility of arbitrary and county-specific scoring on the
RRAS.
"[I]ssues not raised below will ordinarily not be considered
on appeal unless they are jurisdictional in nature or substantially
implicate the public interest." N.J. Div. of Youth and Family
Servs. v. M.C. III, 201 N.J. 328, 339 (2010). Although N.F.
contends at least one county does not score victim characteristics
for persons convicted of child-pornography-related offenses, we
do not have a sufficient record concerning that matter, or any
record regarding how other counties score the RRAS for persons
convicted of offenses involving child pornography. Therefore, we
cannot address the issue.
We note again that this case does not involve child
endangerment through the possession of child pornography. It
involves a registrant convicted of endangering the welfare of a
child through the distribution of child pornography. Moreover,
this case involves a registrant who engaged in penetrative activity
with a young female victim, as a participant and producer of a
24 A-1387-16T1 child pornography video. We hold that under these circumstances,
it is not arbitrary or capricious for the court to consider the
registrant's possession of numerous child pornography videos, with
a multiplicity of victims depicted therein, when scoring factors
Affirmed.
25 A-1387-16T1