State of New Jersey v. W.G.

• Court: New Jersey Superior Court Appellate Division
• Decided: November 6, 2024
• Docket: A-2462-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2462-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.G.,1

Registrant-Appellant. ________________________

Submitted October 21, 2024 – Decided November 6, 2024

Before Judges Berdote Byrne and Jacobs.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. ML-09-008.

Schuman, Hanlon Margulies, attorneys for appellant (Gerald D. Miller, on the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Angela Halverson, Assistant Prosecutor, on the brief).

PER CURIAM

1 We use initials to protect appellant's privacy interests. R. 1:38-11(b). Registrant appeals from the denial of his motion to terminate his Megan's

Law registration obligation. On August 14, 2000, registrant pleaded guilty to

third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was

sentenced to 180 days of imprisonment and two years of probation. As a

condition of his sentence, registrant was ordered to comply with Megan's Law

and community supervision for life ("CSL"). Decades later in 2023, defendant

moved to terminate his Megan's Law registration and CSL obligations, claiming

he was eligible because he had been offense-free for longer than the minimum

fifteen-year period required in N.J.S.A. 2C:7-2(f). However, in 2007, registrant

had been convicted of wandering or prowling with the purpose of unlawfully

obtaining or distributing a controlled dangerous substance ("CDS"), N.J.S.A.

2C:33-2.1(b), specifically marijuana. Registrant sought to overcome this

obstacle by relying on provisions of the New Jersey Cannabis Regulatory,

Enforcement Assistance, and Marketplace Modernization Act ("CREAMM

Act"),2 which was enacted in 2021, in part, to allow for the expungement of

certain enumerated marijuana offenses. The trial court ruled the CDS offense

was not included in the list of marijuana offenses eligible for expungement

pursuant to the CREAMM Act.

2 N.J.S.A. 24:6I-31 to -56. A-2462-23 2 Registrant appeals, arguing his CDS offense should be deemed

expungable pursuant to the CREAMM Act to avoid "absurd" results that would

be contrary to the Act's purpose.

He questions:

I. DID THE TRIAL COURT ERR IN DENYING DEFENDANT'S MOTION TO TERMINATE HIS MEGAN'S LAW OBLIGATION WHEN HE HAS REMAINED OFFENSE-FREE, BUT FOR A WANDERING OR PROWLING TO OBTAIN MARIJUANA OFFENSE THAT IS NOT ENUMERATED UNDER THE CREAMM ACT AS EXPUNGABLE?

We conclude the trial court did not err and affirm.

I.

On April 28, 2000, a Monmouth County grand jury returned an indictment

containing three counts: second-degree sexual assault, N.J.S.A. 2C:14-2(c)(5),

now 2C:14-2(c)(4) (count one); third-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a) (count two); and fourth-degree criminal sexual contact,

N.J.S.A. 2C:14-3(b) (count three). Registrant pleaded guilty to count two, and

the State agreed to recommend that the remaining counts be dismissed.

On November 21, 2000, registrant was sentenced to 180 days

incarceration and two years' probation. He was obligated to comply with

Megan's Law and CSL as a condition of his sentence.

A-2462-23 3 On May 16, 2006, registrant was arrested and charged with possession of

CDS, specifically marijuana, in contravention of N.J.S.A. 2C:35-10(a)(4). He

subsequently pleaded guilty on June 29, 2007, to the lesser offense of

wandering, remaining in, or prowling public places with the purpose of

obtaining or selling CDS, contrary to N.J.S.A. 2C:33-2.1(b), a disorderly-

persons offense.

On January 11, 2023, registrant moved to terminate his obligation to

register under Megan's Law and be released from CSL, claiming he had not

committed any crimes during the fifteen years since his release from custody.

The State objected to registrant's removal from Megan's Law registration

but did not oppose his removal from CSL. Registrant's CSL obligation was

terminated; he does not seek review of the trial court's order with respect to this

issue. On March 14, 2024, the trial court denied the motion to terminate

registrant's Megan's Law obligation, ruling the CDS offense to which registrant

had pleaded guilty was not an enumerated offense eligible for expungement

pursuant to the CREAMM Act. The trial court found the language of the statute

enumerating the expungable offenses to be clear and unambiguous.

II.

Our review of the applicability, validity, or interpretation of statutes is de

A-2462-23 4 novo. See Kocanowski v. Twp. of Bridgewater, 237 N.J. 3, 9 (2019); State v.

Fuqua, 234 N.J. 583, 591 (2018). "A trial court's interpretation of the law and

the legal consequences that flow from established facts are not entitled to any

special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019)

(quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995)).

When interpreting the language of a statute, if the language "is clear on

its face, 'the sole function of the courts is to enforce it according to its terms.'"

Cashin v. Bello, 223 N.J. 328, 335 (2015) (quoting Hubbard v. Reed, 168 N.J.

387, 392 (2001)). "If a plain-language reading of the statute 'leads to a clear and

unambiguous result, then [the court's] interpretive process is over.'" State v.

Amer, 254 N.J. 405, 422 (2023) (quoting State v. Hupka, 203 N.J. 222, 232

(2010)). "[I]f there is ambiguity in the statutory language that leads to more

than one plausible interpretation, we may turn to extrinsic evidence, 'including

legislative history . . . .'" Williams v. N.J. State Parole Bd., 255 N.J. 36, 46

(2023) (quoting DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)). Likewise,

we may examine legislative history if "a plain reading of the statute leads to an

absurd result or [] the overall statutory scheme is at odds with the plain

language." State v. Rodriguez, 238 N.J. 105, 114 (2019) (quoting DiProspero,

A-2462-23 5 183 N.J. at 493).

Megan's Law is a sex-offender-registration and community-notification

statute. See N.J.S.A. 2C:7-1 to -11. As noted by the Legislature, the danger of

recidivism posed by sex offenders, particularly those offenders who commit

sexual acts against children, "require[s] a system of registration that will permit

law enforcement officials to identify and alert the public when necessary for the

public safety." N.J.S.A. 2C:7-1. Megan's Law requires registration by a person

"who has been convicted, adjudicated delinquent or found not guilty by reason

of insanity" for the commission of a listed "sex offense." N.J.S.A. 2C:7-2(a)(1).

Registration pursuant to the statute is an obligation for life, but registrants are

afforded a one-time opportunity to apply 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 . . . whichever is later, and is

not likely to pose a threat to the safety of others." N.J.S.A. 2C:7-2(f). This

narrow exception to the lifetime registration requirement in Megan's Law

requires a registrant be "offense free" and is not available to registrants who

commit an offense during the fifteen years following conviction or release but

later remain offense-free for a subsequent period of fifteen years. See In re

H.D., 241 N.J. 412, 421 (2020). The fifteen-year requirement "plainly refers to

A-2462-23 6 the conviction or release that trigger[ed] the registration requirement . . . . " Ibid.

The term "offense" is defined as "a crime, a disorderly persons offense or

a petty disorderly persons offense . . . . " N.J.S.A. 2C:1-14(k) Thus, a

disorderly-persons offense is an "offense" within the codified definition of

Megan's Law. See N.J.S.A. 2C:1-14(k).

Accordingly, we agree with the trial court. The court could not terminate

W.G.'s Megan's Law registration obligation pursuant to N.J.S.A. 2C:7-2(f)

because, having been convicted of a disorderly-persons offense in 2007, he was

not offense-free for fifteen years since the end of his period of incarceration.

The CREAMM Act is a wide-ranging statute that decriminalized certain

marijuana offenses, provided for the expungement of some offenses, and

redressed many adverse consequences to citizens who were disparately affected

by marijuana offenses. State v. Gomes, 253 N.J. 6, 11 (2023). The Act, passed

by the Legislature in February 2021, is codified, in relevant part, at N.J.S.A.

24:6I-31 to -56. Pursuant to the Act, prosecutors are advised not to pursue

certain enumerated marijuana offenses, N.J.S.A. 2C:35-23.1, and certain

enumerated marijuana convictions are expunged by operation of law. N.J.S.A.

2C:52-6.1.

N.J.S.A. 2C:52-6.1 directs the automatic expungement of any prior

A-2462-23 7 conviction for the obtaining or possession of marijuana, certain other marijuana

offenses, and "any disorderly persons offense or petty disorderly persons offense

subject to conditional discharge pursuant to N.J.S.A. 2C:36A-1." N.J.S.A.

2C:52-6.1 applies to "any case that, prior to [the] effective date, includes a

conviction or adjudication of delinquency solely for one or more crimes or

offenses involving" one of the following four categories of offenses:

[1] manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (12) of subsection b. of N.J.S.A. 2C:35-5, or [2] obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., or subsection b., or subsection c. of N.J.S.A. 2C:35-10, or [3] a violation involving marijuana or hashish as described herein and a violation of N.J.S.A. 2C:36-2 for using or possessing with intent to use drug paraphernalia with that marijuana or hashish, alone or in combination with each other, or [4] any disorderly persons offense or petty disorderly persons offense subject to conditional discharge pursuant to N.J.S.A. 2C:36A-1[.]

[Ibid.] At the time of his CDS offense, registrant was arrested and charged with

possession of a CDS, marijuana, contrary to N.J.S.A. 2C:35-10(a)(4). The

offense for which registrant was arrested is eligible for automatic expungement

under the second category of expungable offenses. See N.J.S.A. 2C:52-6.1.

A-2462-23 8 However, the lesser offense to which registrant pleaded guilty, "wandering,

remaining in or prowling public places with purpose of obtaining or selling

CDS," contrary to N.J.S.A. 2C:33-2.1(b), is not enumerated as being eligible for

expungement in N.J.S.A. 2C:52-6.1. Although a disorderly-persons offense

may be expungable pursuant to N.J.S.A. 2C:52-6.1's fourth category, W.G.'s

wandering offense does not meet the condition that it be "subject to conditional

discharge pursuant to N.J.S.A. 2C:36A-1." Offenses subject to conditional

discharge pursuant to N.J.S.A 2C:36A-1 are "any disorderly persons offense or

petty disorderly persons offense under chapter 35 or 36 of this title." It is an

ineluctable fact that registrant's offense was neither a chapter 35 nor 36 offense

subject to conditional discharge.

W.G. posits an absurd outcome would result from the CREAMM Act's

permitted expungement of a possession of marijuana offense but disallowed

expungement of a lesser-included offense. That argument is equally unavailing

for two reasons. First, the Legislature purposefully did not include N.J.S.A.

2C:33-2.1(b) as part of the CREAMM Act. "The Legislature is presumed to

know the law." Comm. of Petitioners for Repeal of Ordinance No. 522 (2013)

of Borough of W. Wildwood v. Frederick, 435 N.J. Super. 552, 567 (App. Div.

2014) (quoting David v. Gov't Emps. Ins. Co, 360 N.J. Super. 127, 143 (App.

A-2462-23 9 Div. 2003)). The decision of the Legislature must be respected, as "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).

Second, even if registrant had been able to demonstrate expungement was

available to him, it does not necessarily follow expungement pursuant to the

CREEAM ACT would apply to the narrow exception to lifetime registration

obligations offered to litigants pursuant to Megan's Law. As our Supreme Court

recently observed when reviewing the effect expungement had upon a different

statute, "[t]he relief afforded 'by . . . expungement . . . does not include the

wholesale rewriting of history.'" N.J. Div. of Child Prot. & Permanency v. A.P.,

258 N.J. 266, 278 (2024) (quoting G.D. v. Kenny, 205 N.J. 275, 294-95 (2011)).

The Supreme Court found:

In addition to N.J.S.A. 2C:52-19, the Legislature prescribed other exceptions to the expungement statute’s restrictions on the use and disclosure of expunged records and information. See, e.g., N.J.S.A. 2C:52-18 (exception for certain uses of expunged records by the Violent Crimes Compensation Office); id. at -20 (exception for certain uses of expunged records in conjunction with supervisory treatment or diversion programs); id. at -21 (exception for certain uses of expunged records in conjunction with setting bail, authorizing pretrial release, preparing a presentence report, or sentencing); id. at -22 (exception for certain uses of expunged records by the Parole Board); id. at -23 (exception for certain uses of

A-2462-23 10 expunged records by the Department of Corrections); id. at -23.1 (exception for certain uses of expunged or sealed records" to facilitate the State Treasurer’s collection of any court-ordered financial assessments that remain due at the time of an expungement or sealing of records granted by a court"); id. at -27(a) (exception for disclosure of the "fact of an expungement, sealing, or similar relief" under N.J.S.A. 2C:52-8(b)); id. at -27(b) (exception for disclosure of the "fact of an expungement of prior charges" dismissed in certain settings involving supervisory treatment or other diversion programs); id. at -27(c) (exception for "information divulged on expunged records," which "shall be revealed by a petitioner seeking employment within the judicial branch or with a law enforcement or corrections agency," and which "shall continue to provide a disability as otherwise provided by law").

[A.P., 258 N.J. at 27 n.4.]

For example, in State v. G.L., 420 N.J. Super. 158 (App. Div. 2011), the

defendant argued his multiple convictions for failure to re-register pursuant to

Megan's Law should be vacated because the underlying conviction subjecting

him to the Megan's Law's registration requirement was vacated and replaced

with an offense where he was not subject to registration. Id. at 161. We found

this argument futile, noting "[n]othing in the statute suggests that the

requirements of registration should be retroactively annulled because a plea to

a crime subject to Megan's [Law] is later withdrawn." Id. at 166. We further

disagreed with the defendant's contention fundamental fairness required we

A-2462-23 11 vacate his re-registration convictions, indicating at the time the defendant was

convicted for failing to re-register, "[he] was made fully aware of his reporting

obligations" and his violations were therefore "inarguably knowing." Id. at 167.

Although we need not reach that issue here because the CREEAM Act did

not enumerate the offense to which defendant had pleaded guilty, we conclude

no absurd result is created by this outcome.

Affirmed.

A-2462-23 12