Opinion
DOCKET NO. A-5269-12T2
03-18-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.M., Defendant-Appellant.
James H. Maynard argued the cause for appellant (Maynard & Sumner, LLC, attorneys; Mr. Maynard, on the brief). Andrew Robert Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor; Mr. Burroughs, of counsel and on the brief). Fletcher C. Duddy, Deputy Public Defender, argued the cause for amicus curiae New Jersey Public Defender (Joseph E. Krakora, Public Defender, attorney; Mr. Duddy, on the brief). Sarah Lichter, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Ms. Lichter, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Koblitz and Haas. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-10-2499. James H. Maynard argued the cause for appellant (Maynard & Sumner, LLC, attorneys; Mr. Maynard, on the brief). Andrew Robert Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor; Mr. Burroughs, of counsel and on the brief). Fletcher C. Duddy, Deputy Public Defender, argued the cause for amicus curiae New Jersey Public Defender (Joseph E. Krakora, Public Defender, attorney; Mr. Duddy, on the brief). Sarah Lichter, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Ms. Lichter, on the brief). PER CURIAM
Defendant J.M. appeals from the Law Division's June 6, 2013 order denying his motion to modify his sentence. We affirm.
On July 10, 1989, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; and third-degree aggravated sexual contact, N.J.S.A. 2C:14-3a. Prior to sentencing, the judge referred defendant to the Adult Diagnostic Treatment Center (ADTC) "for an evaluation to determine his eligibility for sentencing under the purview of the New Jersey Sex Offender Act[,]" (Sex Offender Act) N.J.S.A. 2C:47-1 to - 10. The ADTC issued a written report concluding that defendant's "repetitive deviant sexual behavior was performed compulsively." Based upon that report, the judge found that defendant was a "compulsive and repetitive offender[,]" and sentenced him to the ADTC for an aggregate, indeterminate term not to exceed seven years pursuant to the Sex Offender Act.
In 1994, the Legislature enacted the Registration and Community Notification Laws (Megan's Law), N.J.S.A. 2C:7-1 to - 11. Because the judge had found that defendant's conduct "was characterized by a pattern of repetitive, compulsive behavior," N.J.S.A. 2C:7-2b(1), defendant was subject to the registration and notification requirements of Megan's Law upon his release from the ADTC. Doe v. Poritz, 142 N.J. 1, 20-21 (1995). Pursuant to N.J.S.A. 2C:7-2c, defendant was required to register at his local police station. Because defendant's conduct was deemed "repetitive and compulsive," he is required to "verify his address with the appropriate law enforcement agency every 90 days in a manner prescribed by the Attorney General." N.J.S.A. 2C:7-2e. "[O]ther registrants must do so annually." Doe, supra, 142 N.J. at 21; N.J.S.A. 2C:7-2e. Registration and verification as prescribed by Megan's Law "are lifetime requirements . . . ." Ibid.
In Doe, the Supreme Court "determined that the registration and notification provisions applicable to sexual offenders . . . did not constitute punishment" and, therefore, did not violate the Ex Post Facto Clause of the United States Constitution. State v. Perez, ___ N.J. ___, ___ (2015) (slip op. at 29) (citation omitted); Doe, supra, 142 N.J. at 40-77. Thus, Megan's Law applies to sexual offenders, like defendant, who committed their offenses prior to its enactment.
Because defendant was convicted of aggravated sexual assault pursuant to N.J.S.A. 2C:14-2a, he is not eligible "to make application to the Superior Court . . . to terminate the registration obligation." N.J.S.A. 2C:7-2g.
On October 17, 2012, defendant filed a one-page "motion to modify sentence." He asserted that he was no longer "repetitive and compulsive," and asked the court to "allow[] him to register with the local police department annually instead of every 90 days." In support of this motion, defendant submitted an April 13, 2012 report prepared by a psychologist, who opined that, while defendant "was indeed repetitive and compulsive at the time he was originally evaluated by the ADTC, he is no longer repetitive and compulsive. He presents extremely low risk of re-offense at this time." Defendant did not submit any other evidentiary materials with his motion.
In Doe, the Supreme Court reviewed the statistical and scientific documentation the Legislature relied upon in enacting Megan's Law, and it observed that these studies demonstrated that "[t]he recidivism of a repetitive and compulsive sex offender is almost intractable." Id. at 15-16, 40. Defendant's psychologist did not address any of this scientific evidence in his eight-page report.
The legal basis for defendant's motion is not clear from the meager pleadings. At oral argument, defendant's attorney acknowledged that Megan's Law contained no provision permitting a registrant to retroactively challenge a sentencing judge's determination that his or her behavior was "repetitive and compulsive." Indeed, counsel stated that "[o]nce the repetitive and compulsive adjudication is made, the verification schedule is determined and there's no way to change it under our present system." However, counsel continued:
[I]n thinking about this matter, it really became clear to me that what I'm asking the [c]ourt to do is to accept that we need to add another judicial tool to the toolbox of the application and implementation of the Megan's Law regulatory regime; not the statutory law -- the statutory law was
articulated and passed by the [L]egislature, but, [left] to the regulatory administration of and application of, and interpretation and functions of the courts.
Defendant's attorney also recognized that an argument could be made that his request for a "refinement to Megan's Law" might be better addressed by the Legislature. However, in response to the judge's inquiry on this point, the attorney stated he was "more comfortable" making his "proposal" to the courts.
Other than obliquely stating that "there's a fundamental fairness aspect to this in the constitutional sense[,]" defendant's attorney did not make a direct challenge to the constitutionality of the quarterly address verification requirement set forth in N.J.S.A. 2C:7-2e. Although counsel argued that it was inconvenient for defendant to verify his address four times a year, as opposed to annually, defendant did not submit a certification setting forth facts supporting this claim.
In an oral opinion, the judge ruled that she lacked jurisdiction to consider defendant's proposal to revise the verification requirements of Megan's Law, and she suggested that defendant ask the Legislature to address his ideas. Thus, the judge denied defendant's motion to modify his sentence. This appeal followed.
On appeal, defendant continues to accept, as settled law, the principles set forth in Doe, supra; acknowledges that the address verification requirement is not punitive; and makes no argument that the application of the verification requirement to him violates the ex post facto clause. Instead, he again argues that "[t]here are strong public policy reasons underlying the concept that the courts should periodically re-evaluate a Megan's Law [r]egistrant's 'Verification' Schedule obligations" and that the courts should "establish a new 'judicial tool' for the improvement of the implementation of Megan's Law and for the better achievement of its legislative intent: to protect the public from sex offense recidivism." We disagree.
At our request, both the Attorney General and the Office of the Public Defender submitted amicus briefs addressing defendant's contentions.
As the Supreme Court has observed:
Judging whether a statute is effective is a matter for policymakers. We do not pass judgment on the wisdom of a law or render an opinion on whether it represents sound social policy. That is the prerogative of our elected representatives. We must confine our review to the constitutionality of the statute.Stated simply, "'courts do not act as a super-legislature.'" Trautmann ex rel. Trautmann v. Christie, 211 N.J. 300, 307 (2012) (quoting Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 222 (1985)).
[Caviglia v. Royal Tours of America, 178 N.J. 460, 476 (2004) (internal citations omitted).]
Thus, we must decline to consider defendant's proposal that Megan's Law be "refined" to include a provision permitting him and "similarly-situated registrants" to modify their address verification schedule. Instead, as suggested by the trial judge, defendant's request should be addressed to the Legislature.
N.J.S.A. 2C:7-2e provides that registrants shall verify their addresses "in a manner prescribed by the Attorney General." While the statute does not authorize the Attorney General to modify the verification schedule, a registrant may still petition the Attorney General to consider revising the current guidelines as they pertain to the manner in which verification is made. Thus, for example, if defendant believes that the current in-person verification requirement is too burdensome, he may petition the Attorney General to consider modifying the guidelines to permit an alternative form of verification.
In his appellate brief, defendant has included an argument stating that "the present Megan's Law verification scheme lacks fundamental fairness and is not rationally related to the Act's legislative intent of protecting the public . . . ." However, he does not cite to any specific constitutional provision or any case law in support of his contention. Such "a bare assertion or generalized allegation of infringement of a constitutional right does not create a claim of constitutional dimension." Grexa v. State, Dep't of Human Services, 168 N.J. Super. 202, 209 (App. Div. 1978) (internal quotation marks and citation omitted).
Moreover, even if we were inclined to consider defendant's contention that the adoption of his "proposal" is constitutionally required, we would not be able to do so on the basis of the inadequate record in this case. Unlike in Doe, defendant did not file a complaint in the Law Division challenging the constitutionality of the address verification requirements set forth in N.J.S.A. 2C:7-2e. He also did not notify the Attorney General that he was challenging the constitutionality of the statute as required by Rule 4:28-4(a)(1).
Defendant did not request an evidentiary hearing. Aside from the psychologist's eight-page report that was attached to his notice of motion to modify his sentence, defendant did not submit any other evidentiary material for the trial court's consideration. The psychologist's report was six months old by the time defendant filed his modification motion and did not address any of the scientific evidence the Supreme Court considered in Doe. We therefore lack the full record necessary to enable us to review the "constitutional" argument defendant had belatedly presented. Hazo v. Geltz, 537 F.2d 747, 751 (3d Cir. 1976) (courts "should not act on constitutional issues except on a full record"); N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 171 (App. Div. 2009) (declining to consider a due process claim on less than "a full record").
Effective July 1, 2014, the Legislature amended the internet notification provisions of Megan's Law, N.J.S.A. 2C:7-13e, to require that, subject to certain specified exceptions, "the individual registration record of an offender . . . shall be made available to the public on the Internet registry if the offender's conduct was characterized by a pattern of repetitive, compulsive behavior. . . ." However, defendant's appeal was limited to the address verification schedule established in N.J.S.A. 2C:7-2e and, therefore, the recent amendments to the notification requirements are not relevant to, or addressed in, this opinion.
--------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION