Review Of a Tier II Classification Under Megan’s Law and Whether Individual Was Required to Be Included on the Sex Offender Internet Registry.
Appellate Docket No.: A-1496-20
Decided March 22, 2022
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark
In a recent published opinion, the Appellate Division of New Jersey reviewed a tier II classification under Megan’s Law and whether B.B. was required to be included on the Sex Offender Internet Registry.
In B.B., in December 2009, B.B. was convicted in Pennsylvania of indecent assault against a person less than thirteen years old, contrary to 18 Pa. Cons. Stat. Ann. § 3126(a)(1). The conviction was based on B.B.’s 2005 sexual assault of his five-year-old brother. B.B. was sixteen at the time of the offense. The court sentenced B.B. to a term of incarceration of ten months and twenty-seven days, followed by probation.
In October 2015, B.B. was convicted of indecent assault against a person less than thirteen years old, contrary to 18 Pa. Cons. Stat. Ann. § 3126(a)(7). According to an affidavit of probable cause associated with his arrest, the offense took place in 2007, when B.B. was eighteen. He sexually assaulted a five-year-old girl who lived next door to him. The victim’s brother, with whom she lived, was B.B.’s friend. The sexual assault occurred when B.B was spending the night at their house. For this conviction, the court sentenced B.B. to a term of incarceration of fifteen to thirty months.
Both offenses came to light many years after the sexual assaults. Pennsylvania officials categorized B.B. as a low-risk offender with a ten-year registration period and no community notification.
In 2019, B.B., then thirty-one and married, moved to Atlantic County. He is employed full-time and has no children. Shortly after he relocated, B.B. registered as a sex offender with local police. His registration triggered the Megan’s Law tier classification process.
The county prosecutor informed B.B. in writing of the State’s intention to: (1) classify B.B. as a Tier II registrant at moderate risk to re-offend; (2) notify schools and community organizations in his neighborhood of his presence; and (3) include his personal identifiers on the Internet Registry. The notice included an RRAS score on which the proposed Tier II classification was based. B.B. objected to the proposed classification, as well as the inclusion of his personal identifiers on the Internet Registry.
At a hearing before the trial court, B.B. challenged the State’s proposed scores on several of the RRAS factors. However, he appealed only the court’s findings with respect to factor six, duration of offensive behavior. The Court agreed with the State’s position on Tier classification, and placed B.B. in Tier II moderate risk category (37-73 points). However, the Court did not require B.B. to be placed on the Internet Registry.
The State appealed the Internet Registry requirement and B.B. appealed the tier classification. With regard to the tier classification, the Appellate Division found it moot, as even if the Court agreed with B.B., his tier classification would still be Tier II moderate risk. With regard to the Internet Registry, the Appellate Division did not find any exception that applied to B.B. to allow the Court to exclude him from the Internet Registry and ruled he must be placed there.
This case is important to understand the overview of Megan’s Law. The scope of community notification is primarily determined by a registrant’s designation as a Tier I (low), Tier II (moderate), or Tier III (high) offender. N.J.S.A. 2C:7-8(a), (c)(1) to (3). Tier designations are indicative of a registrant’s risk of re-offense, as determined by the trial court’s consideration of the thirteen factors in the RRAS. In re Registrant J.G., 463 N.J. Super. 263, 273 (App. Div. 2020). If the risk of re-offense is low, only law enforcement agencies likely to encounter the registrant are notified. N.J.S.A. 2C:7-8(c)(1). If the risk of re-offense is moderate, schools and community organizations in the community are also notified. N.J.S.A. 2C:7-8(c)(2). If the risk of reoffense is high, notification is also given to members of the public who are likely to encounter the registrant. N.J.S.A. 2C:7-8(c)(3).
The burden is on the State to prove by clear and convincing evidence both a registrant’s risk to the community and the scope of notification necessary to protect the community. In re Registrant R.F., 317 N.J. Super. 379, 383-84 (App. Div. 1998). The evidence “must be ‘so clear, direct and weighty and convincing as to enable . . . a judge . . . to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.'” In re Registrant J.G., 169 N.J. 304, 331 (2001) (quoting In re R.F., 317 N.J. Super. at 384).
What’s more, once an individual is placed on Tier II moderate risk or Tier III high risk, they are required to be placed on the Internet Registry in addition to the notice requirements above. The Court did not find an exception here for B.B. to be excluded from the registry, but interestingly enough invited him to apply to the Supreme Court of New Jersey for a review as to the Internet Registry requirement – an issue not heard before by the Court.
If you or someone you know seeks to terminate their Megan’s Law obligations or Community Supervision for Life, has questions regarding Tier classification or registration requirements, or have been charged with any indictable offense or disorderly persons, contact the experienced attorney at Hark & Hark to ensure you are adequately defended, otherwise you could have negative impacts on your case like the defendant above.
At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures.
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