In the Matter of Registrant T.H.: Application For judicial Review of Notification and Tier Classification

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3642-12T1

IN THE MATTER OF REGISTRANT APPROVED FOR PUBLICATION
T.H.: APPLICATION FOR JUDICIAL
July 30, 2013
REVIEW OF NOTIFICATION AND TIER
CLASSIFICATION APPELLATE DIVISION

__________________________________________

Argued Telephonically May 29, 2013 – Decided July 30, 2013
Before Judges Messano,1 Kestin, and Newman.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Docket No. 12010013.
Seth Russell Belson, Assistant Deputy Public
Defender, argued the cause for appellant
T.H. (Joseph E. Krakora, Public Defender,
attorney).
Mario C. Formica, Chief Assistant County
Prosecutor, argued the cause for respondent
State of New Jersey (James P. McClain, Acting
Atlantic County Prosecutor, attorney).
The opinion of the court was delivered by

NEWMAN, J.A.D. (retired and temporarily assigned on recall).

Registrant, T.H., appeals from the order of April 11, 2013,

denying his motion to be classified as a Tier One registrant,

representing a low risk to reoffend, as opposed to a Tier Two

1
Judge Messano did not participate in oral argument. However, the parties
consented to his participation in the decision. R. 2:13-2(b).
classification, representing a moderate risk to reoffend. The

focus of the application before the trial court was on criterion

seven of the Registrant Risk Assessment Scale (RRAS), length of

time since last offense. Registrant was scored "one year or

less" when he was initially tiered as reflected in the order of

February 13, 2013. Registrant had been released from prison on

February 29, 2012, which was approximately two weeks short of

one year. Because the matter was on appeal to this court, we

permitted the registrant to withdraw his appeal and return to

the trial court since by then more than one year had passed

since his prison release. The sought-for result was that

registrant would be recognized as having been out of prison more

than one year but less than five years, resulting in the

reduction of six points under the RRAS and, correspondingly,

placing him in Tier One.

In rejecting registrant's position in a written letter

opinion of March 28, 2013, the trial court held that criterion

seven is a static factor, that this factor was determined at the

original classification hearing, and that the "passage of time

after that is not a changed circumstance that allows

reconsideration of the tier assigned." In reaching this

conclusion, the trial court relied upon In re N.N., 407 N.J.

Super. 30, 36-37 (Law Div. 2009), where the court held that the

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registrant's circumstances had not changed significantly.

Further, the N.N. court noted that the time since the last

offense was considered a static factor and could not be

revisited. Id. at 37. The trial court also followed N.N.'s

approach regarding when a tier classification could be

challenged where there is "evidence of a change in circumstance,

indicating that the circumstances" appeared to be change of the

resident's location or place of employment. Ibid. According to

the trial court, registrant's tier hearing had been delayed

because of a motion to withdraw his guilty plea and an appellate

remand on a motion to withdraw his guilty plea. Otherwise,

registrant would have been tiered within two months of his

release.

Registrant asserts that criterion seven has a built-in

change of circumstances and the trial court should have

recognized this dynamism in scoring. Since registrant was

offense free for more than one year, but less than five years,

his scoring should have been reduced by six points, representing

a moderate risk to reoffend.

By way of background, the underlying offense involved the

registrant luring young girls, friends of his daughter, into his

home. He then provided them with alcohol and marijuana to the

point of nausea and intoxication. While these charges were

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pending, he attempted to have his daughter lie about the matter

to the police. Registrant has compiled an extensive criminal

history, which includes seven prior convictions including a

state prison sentence. He was sentenced to offenses related to

luring, child endangerment, distribution of CDS in a school zone

and witness tampering. His aggregate sentence was five years

with a mandatory minimum term of two years, six months without

parole eligibility.

Prior to his release, registrant underwent a psychological

evaluation for Sexually Violent Predator (SVP) risk assessment.

In concluding that he did not warrant further review for civil

psychiatric commitment consideration, the report indicated that

the "MnSOST-R" and "STATIC-99R" were not scored because there is

no evidence that the instant offense was sexual in nature. The

report also found there was insufficient evidence that

registrant "is at a high risk for sexual recidivism." The

report went on to note that there was "insufficient evidence to

diagnose a paraphilia or other condition that predisposes him to

sexually offend."

On appeal, registrant makes arguments similar to those

presented to the trial court. After a review of registrant's

arguments, those of the prosecutor, and the written decision of

the trial court, we are persuaded that criterion seven, by its

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very terms, was subject to review. We need not dwell on whether

the trial court had the authority to consider registrant's

argument that criterion 7 should be reconsidered since the

matter had already been resolved in the initial hearing. Nor do

we think it mattered that the delay in initially tiering

registrant was due to other litigation pursued by registrant

related to his conviction. The matter was reviewable because

there was evidence of change in circumstances.

Moreover, we disagree with the underlying premise of N.N.

that the time from the last offense does not constitute a

significant change of circumstances. Under the RRAS, scoring on

criterion seven is divided into three separate categories:

"high risk" is defined as "year or less" since last offense;

"moderate risk" is defined as "more than one but less than five

years"; and "low risk" is defined as "five or more years." The

criterion, itself, has a built-in change of circumstances to

reflect the likelihood of reoffense.

Further, the RRAS Manual explains that criterion seven "is

related to likelihood of re-offense [and] [t]he time counted in

this criterion is only time at risk--that is, when the offender

is in a situation in which he or she has ready, unsupervised

access to potential victims." Manual (June 1998), p.6.

Accordingly, "[t]ime incarcerated or civilly committed

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[generally] does not count…." Ibid. It is obvious to us that

the passage of time after initial assessment without reoffending

is as relevant to a reduced likelihood of re-offense as those

dynamic criteria which measure progress over time regarding

circumstances such as maintaining employment, response to

treatment, and residential support. The longer the time within

which the registrant remains incident free, the less likely is

the incidence of reoffending. To maintain that this criterion

is not reviewable after the passage of time is to ignore the

risk categories as defined in criterion seven. Labeling

criterion seven as "static" under the Supreme Court decision in

In re C.A., 146 N.J. 71, 103 (1996), masks the very substance

contained within this criterion.

Our court recognized as much in In re H.M., 343 N.J. Super,

219, 223-24 (App. Div. 2001). There we reduced criterion seven,

by necessity, because of the passage of time without

reoffending. The same result is warranted here. With the

passage of more than one year without reoffense, the scoring is

correspondingly reduced from six points to three points. As a

result, registrant's RRAS score is thirty-three, placing him in

Tier One.

One of the concerns of the trial court, echoed by the

State, was that registrants would routinely file for a reduction

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in points under criterion 7 of the RRAS when the passage of time

made a difference in scoring. That may well be, but, as pointed

out, the likelihood of reoffending is less likely with the

passage of time when registrant has remained incident-free.

Thus, the risk to the community is diminished, which,

correspondingly, may be reflected in the extent of community

notification.

We would be remiss if we did not emphasize that the

psychological examination of registrant by the State in

assessing his risk assessment for SVP commitment questioned

whether the underlying offense was "sexual in nature," found

insufficient evidence that registrant "is at high risk for

sexual recidivism," and was unable "to diagnose a paraphilia or

other condition that predisposes him to sexually offend."

Registrant's incident-free conduct since his release from prison

buttresses the evaluation conducted by the State authority,

further supporting the point reduction under the RRAS scale.

Reversed and remanded to the trial court for such further

proceedings as may be appropriate in light of the point

reduction we have ordered.

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