IN THE MATTER OF REGISTRANT H.D. IN THE MATTER OF REGISTRANT J.M. (ML-98-07-0091 AND ML-98-17-0002, ESSEX COUNTY, SALEM COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-5321-16T1
A-5322-16T1

IN THE MATTER OF
REGISTRANT H.D.
APPROVED FOR PUBLICATION
________________________
December 7, 2018
IN THE MATTER OF
APPELLATE DIVISION
REGISTRANT J.M.
________________________

Argued October 29, 2018 – Decided December 7, 2018

Before Judges Messano, Gooden Brown and Rose.

On appeal from Superior Court of New Jersey, Law
Division, Essex County and Salem County, Docket
Nos. ML-98-07-0091 and ML-98-17-0002.

Fletcher C. Duddy, Deputy Public Defender, argued
the cause for appellant H.D. (in A-5321-16) (Joseph E.
Krakora, Public Defender, attorney; Fletcher C.
Duddy, of counsel and on the briefs; Stephanie A.
Lutz, Assistant Deputy Public Defender, on the
briefs).

Jesse M. DeBrosse, Assistant Deputy Public Defender,
argued the cause for appellant J.M. (in A-5322-16)
(Joseph E. Krakora, Public Defender, attorney; Jesse
M. DeBrosse, on the briefs).

Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent State of New Jersey (in A-5321-16)
(Theodore Stephens II, Acting Essex County
 Prosecutor, attorney; Frank J. Ducoat and Maria I.
Guerrero, Special Deputy Attorneys General/Acting
Assistant Prosecutors, of counsel; Frank J. Ducoat, on
the brief).

David M. Galemba, Assistant Prosecutor, argued the
cause for respondent State of New Jersey (in A-5322-
16) (John T. Lenahan, Salem County Prosecutor,
attorney; David M. Galemba, of counsel and on the
brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

We consolidate these two appeals that were argued back-to-back to issue

a single opinion because they involve only one common legal issue.

Appellants J.M. and H.D. were convicted of sex offenses, see N.J.S.A.

2C:7-2(b), in 1994 and 1998 respectively, and sentenced to periods of

probation. Pursuant to the provisions of Megan's Law, N.J.S.A. 2C:7-1 to 11,

both were sentenced to community supervision for life (CSL) as required by

N.J.S.A. 2C:43-6.4(a), the Violent Predator Incapacitation Act (VPIA),

"enacted as a 'component' of Megan's Law at the time of its passage in 1994."

In re G.H., 455 N.J. Super. 515, 524 (App. Div. 2018) (quoting State v.

A-5321-16T1
2
Schubert, 212 N.J. 295, 305 (2012)).1 J.M. and H.D. also registered as sex

offenders pursuant to N.J.S.A. 2C:7-2(a) and (c).

In 2001, J.M. was convicted of computer-related theft, N.J.S.A. 2C:20-

29, a disorderly persons offense, and sentenced to one year of probation.2 Also

in 2001, H.D. was convicted of fourth-degree failure to register as a sex

offender, N.J.S.A. 2C:7-2(a)(3), and sentenced to one year of probation. Both

J.M. and H.D. have remained offense free since 2001.

Pursuant to N.J.S.A. 2C:7-2(f) (subsection (f)), any registrant may apply

"to the Superior Court . . . to terminate the [registration] obligation upon proof

that the person has not committed an offense within [fifteen] years following

conviction or release from a correctional facility for any term of imprisonment

imposed, whichever is later, and is not likely to pose a threat to the safety of

others." In 2017, J.M. moved to be relieved of his registration obligations.

H.D. sought the same relief in 2017, and additionally moved to terminate

CSL pursuant to N.J.S.A. 2C:43-6.4(c), which states:

1
"The Legislature subsequently amended the statute, replacing CSL with
parole supervision for life (PSL)." G.H., 455 N.J. Super. at 524 (citing L.
2003, c. 267, § 1).
2
In 2003, the Legislature comprehensively revised the statute involving
computer-related offenses, repealing N.J.S.A. 2C:20-29. See L. 2003, c. 39, §
9.

A-5321-16T1
3
 [A] judge may grant a petition for release from a
special sentence of [community] supervision for life
only upon proof by clear and convincing evidence that
the person has not committed a crime for [fifteen]
years since the last conviction or release from
incarceration, whichever is later, and that the person is
not likely to pose a threat to the safety of others if
released from [community] supervision.

[(Emphasis added).]

The provision "mirrors [subsection (f)]." G.H., 455 N.J. Super. at 524

(quoting In re J.S., 444 N.J. Super. 303, 312 (App. Div.), certif. denied, 225

N.J. 339 (2016)).

Following oral argument, the Law Division judge denied J.M.'s motion

to terminate his registration requirements, reasoning J.M. was "precluded from

being relieved from his Megan's Law obligations because of [his subsequent]

disorderly persons conviction."

In support of his motion before a different Law Division judge, H .D.

provided the report of Dr. James Reynolds, a psychologist, who opined that

H.D. did "not present a risk of harm to members of the community." In his

thoughtful written opinion, citing Doe v. Poritz, 142 N.J. 1, 21 (1995), the

motion judge noted that Megan's Law imposed lifetime registration

requirements upon convicted sex offenders, and "registrants are not entitled to

terminate their obligations as a matter of right." Only those who "fall into a

narrow and admittedly strict category will . . . be permitted to terminate their

A-5321-16T1
4
registration requirement. That is, they must remain [offense free] for [fifteen]

years following their conviction or release from incarceration on the

underlying offense that obligates them to register." (Emphasis in original).

The judge quoted our opinion in In re A.D., 441 N.J. Super. 403, 423

(App. Div. 2015), aff'd o.b., 227 N.J. 626 (2017), in which we expressed some

sympathy for, but ultimately rejected the argument that "there should be no

absolute bar . . . to the termination of registration requirements, particularly

where the repeat offenses are minor; and . . . not sexual in nature . . . ." Noting

the panel in A.D. refused to substitute its judgment for that of the Legislature,

id. at 424, the judge denied H.D.'s motion to terminate his registration

obligations.

However, the judge reached a different result regarding termination of

CSL. He concluded that N.J.S.A. 2C:43-6.4(c) was "unlike the statute that

governs Megan's Law registration." He reasoned, "CSL may be terminated

after a showing that a registrant has not committed an offense for a period of

[fifteen] years. This [fifteen]-year period is measured from the date of the

registrant's last conviction, not [his] underlying conviction under Megan's

Law." He entered an order terminating CSL for H.D., and subsequently denied

H.D.'s motion for reconsideration of the denial of the termination of his

registration obligations.

A-5321-16T1
5
 I.

Before us, appellants argue subsection (f)'s clear and unambiguous

language permits relief from their registration obligations because they

remained offense free for fifteen years following their last conviction. They

note that subsection (f)'s reference to the "conviction" that starts the fifteen -

year clock is not limited to the sex-offense conviction that triggered Megan's

Law's registration in the first instance. 3 In other words, according to

appellants, the fifteen-year clock reset in 2001, due to appellants' subsequent

"conviction or release from a correctional facility for any term of

imprisonment." N.J.S.A. 2C:7-2(f). Alternatively, appellants contend that

even if subsection (f) is ambiguous, various tenets of statutory construction,

common sense and the rule of lenity require reversal.

The State also argues that subsection (f) is clear and unambiguous.

However, the State argues a conviction for any offense forever bars relief

when it occurs within fifteen years following a "conviction or release from a

correctional facility" for the sex offense. The State contends this interpretation

3
Because of the facts presented, we need not address the "permanent [and]
irrevocable" "lifetime registration requirements" imposed by N.J.S.A. 2C:7 -
2(g) on those convicted of aggravated sexual assault, N.J.S.A. 2C:14-2(a),
sexual assault, N.J.S.A. 2C:14-2(c)(1), or more than one sex offense. G.H.,
455 N.J. Super. at 521 (quoting In re State ex rel. C.K., 233 N.J. 44, 66
(2018)).

A-5321-16T1
6
is consistent with the Legislature's intent in enacting Megan's Law.

Additionally, the State argues the Legislature's use of different language in

N.J.S.A. 2C:43-6.4(c), specifically, that the applicant remain offense free for

fifteen years from "the last conviction or release from incarceration,"

evidences an intention to treat CSL differently from registration, because

registration is remedial, while CSL is penal in nature. Compare Doe, 142 N.J.

at 73 (holding Megan's Law's registration requirements were "clearly and

totally remedial in purpose"), with Schubert, 212 N.J. at 308 (holding CSL was

"punitive rather than remedial at its core").

II.

Because we confront a "question . . . of statutory interpretation, . . . we

are 'neither bound by, nor required to defer to, the legal conclusions of a trial

. . . court.'" In re N.B., 222 N.J. 87, 94 (2015) (quoting State v. Gandhi, 201

N.J. 161, 176 (2010)). "The overriding goal of all statutory interpretation 'is to

determine as best we can the intent of the Legislature, and to give effect to that

intent.'" State v. S.B., 230 N.J. 62, 67 (2017) (quoting State v. Robinson, 217

N.J. 594, 604 (2014)). "[W]e begin with the statute's plain language and give

terms their ordinary meaning[,]" permissibly "draw[ing] inferences based on

the statute's overall structure and composition." Id. at 68 (first citing

DiProspero v. Penn, 183 N.J. 477, 492 (2005); and then citing State v. Hupka,

A-5321-16T1
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203 N.J. 222, 231-32 (2010)). "We do not view [statutory] words and phrases

in isolation but rather in their proper context and in relationship to other parts

of [the] statute, so that meaning can be given to the whole of [the] enactment."

State v. Twiggs, 233 N.J. 513, 533 (2018) (alteration in original) (quoting

State v. Rangel, 213 N.J. 500, 509, (2013)). "If the Legislature's intent is clear

on the face of the statute, then the 'interpretative process is over.'" S.B., 230

N.J. at 68 (quoting Hupka, 203 N.J. at 232).

However, "[i]f the language does not lead to a single, clear meaning, we

can look to extrinsic evidence, including legislative history, for guidance."

State v. O'Driscoll, 215 N.J. 461, 474 (2013) (citing Rangel, 213 N.J. at 509).

The statute's purpose and context provide sources of extrinsic evidence of

legislative intent, J.S., 444 N.J. Super. at 308, as does the policy supporting its

enactment. State v. Thomas, 166 N.J. 560, 567 (2001). We may also consider

extrinsic evidence of legislative intent "if a literal reading of the statute would

yield an absurd result, particularly one at odds with the overall statutory

scheme." N.B., 222 N.J. at 99 (quoting Wilson ex rel. Manzano v. City of

Jersey City, 209 N.J. 558, 572 (2012)). If ambiguity in a penal statute remains

after consideration of extrinsic sources, the rule of lenity requires us to resolve

that ambiguity in favor of a defendant. Twiggs, 233 N.J. at 533.

A-5321-16T1
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 A.

Recall, subsection (f) permits relief from registration obligations if "the

person has not committed an offense within [fifteen] years following

conviction or release from a correctional facility for any term of imprisonment

imposed, whichever is later, and is not likely to pose a threat to the safety of

others." N.J.S.A. 2C:7-2(f) (emphasis added). We conclude that the

emphasized portion of subsection (f) is ambiguous, not as to when the fifteen-

year-offense-free clock starts, but rather, more accurately, whether the clock

may ever reset.

Only those "convicted, adjudicated delinquent or found not guilty by

reason of insanity for commission of a sex offense" are required to register.

N.J.S.A. 2C:7-2(a)(1). Subsection (f), in turn, only applies to "person[s]

required to register" under Megan's Law. N.J.S.A. 2C:7-2(f). "The

registration requirements of Megan's Law, as well as related legislation

adopted at the same time, including CSL, are imposed at sentencing." J.S.,

444 N.J. Super. at 311. As the State argues, a reasonable inference drawn

from these provisions is that despite the lack of any specific reference in

subsection (f) to the underlying sex offense, the Legislature intended repeat

offenders to remain on the registry.

A-5321-16T1
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 Appellants' argument is also reasonable. The Legislature could have

specified that the only "conviction" that commenced the fifteen-year clock was

the underlying sex offense conviction that required registration in the first

instance. However, it did not do so. We presume that the Legislature knows

how to express its intention, and "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). In addition, the Legislature

decided the fifteen-year period began even later for some offenders, i.e., upon

their "release from a correctional facility." N.J.S.A. 2C:7-2(f). However, it

chose to use the indefinite term — "any" — to describe the term of

imprisonment, which release therefrom starts the fifteen-year clock. See ibid.

(permitting relief from registration if offender remains offense free fo r fifteen

years following "release from a correctional facility for any term of

imprisonment imposed") (emphasis added). Here, too, the Legislature could

have clearly stated that the fifteen-year period began only after the offender

completed the "term of imprisonment imposed" on the conviction for the

underlying sex offense, and no other. But, again, it chose not to do so.

In short, because subsection (f)'s plain language lacks "a single, clear

meaning," we must consider other interpretive aids. O'Driscoll, 215 N.J. at

474.

A-5321-16T1
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 B.

The limited legislative history surrounding passage of subsection (f)

provides little assistance in discerning the Legislature's intent. When

introduced, subsection (f) stated:

A person required to register under this act may make
application to the Superior Court of this State 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 for any term of imprisonment imposed,
whichever is later, and is not likely to commit an
offense in the future.

[Assemb. B. 84, Gen. Assemb., Reg. Sess. (N.J. 1994)
(as introduced to Assembly, August 15, 1994)
(emphasis added).]

Thereafter, the Legislature replaced the emphasized language with "and is not

likely to pose a threat to the safety of others." L. 1994, c. 133, § 2. The

original version, which focused on predicting the likelihood of any re-offense,

arguably lends support to the State's position that subsection (f) was intended

to permanently bar any relief to a sex offender who commits another offense.

However, the Legislature did not adopt that version of subsection (f), choosing

instead to focus on the predictability of a registrant's likely threat to public

safety.

The State argues that registration is a presumptive lifetime obligation

under Megan's Law which the Court found was permissible as part of a

A-5321-16T1
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comprehensive remedial design. Doe, 142 N.J. at 21. It asserts that subsection

(f) provides relief in only a narrowly defined circumstance. The State

therefore argues that permanently barring subsection (f) relief to those who

commit an offense, however minor, within the first fifteen years following

conviction or release for the underlying sex offense is wholly consonant with

Megan's Law's remedial purpose. We disagree.

We need not reiterate in detail the Court's rationale supporting its initial

conclusion that Megan's Law was "'clearly and totally remedial in purpose' and

'designed simply and solely to enable the public to protect itself from the

danger posed by sex offenders.'" G.H., 455 N.J. Super. at 522 (quoting Doe,

142 N.J. at 73). The Court has since recognized the significance of subsection

(f) to the remedial nature of the statutory scheme. "The underlying assumption

of [subsection (f) ] [was] that when a registrant, who has been [offense free]

for fifteen or more years, no longer poses a risk to the safety of the public,

keeping him bound to the registration requirements no longer serves a remedial

purpose.” Ibid. (quoting C.K., 233 N.J. at 64).

It follows that permanently denying relief to a registrant who has led a

law-abiding life for fifteen years after conviction and otherwise meets the

requirements of subsection (f) serves no remedial purpose. One need only

consider that the State's interpretation would permanently deny relief to an

A-5321-16T1
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offender who: 1) lives offense free for 14 years and 364 days after his

conviction for a sex offense; 2) then commits a petty disorderly persons

offense; and 3) lives another 15 offense-free years thereafter. That result does

not serve any of Megan's Law remedial purposes and demonstrates the State's

construction of subsection (f) leads to illogical and absurd outcomes that the

Legislature never intended. See State v. Harper, 229 N.J. 228, 238-39 (2017)

(concluding urged statutory construction would lead to absurd results that were

contrary to the legislative scheme).

Appellants' construction of subsection (f), on the other hand, is entirely

consistent with the Legislature's determination that registrants who have lived

fifteen offense-free years and no longer "pose a threat to the safety of others"

should be permitted to ask a court to terminate their registration obligations.

Appellants' interpretation requires no alteration of the language in subsection

(f). They recognize that, despite the relatively minor nature of the offenses,

subsection (f)'s fifteen-year period began anew because of their 2001

convictions. See A.D., 441 N.J. Super. at 405 (citing N.J.S.A. 2C:1-14(k))

(holding that "the term 'offense' in [subsection (f)] means 'a crime, a

disorderly persons offense or a petty disorderly persons offense,'" and bars

relief during the fifteen-year period). In other words, appellants accept the

legislative premise underlying subsection (f), that is, unless a registrant

A-5321-16T1
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remains offense free for fifteen years, the registration requirements first

imposed by Megan's Law upon conviction of a sex offense remain intact.

As noted, although the judge would not relieve H.D. of his registration

requirements, he nonetheless terminated H.D.'s CSL under N.J.S.A. 2C:43-

6.4(c), finding that he had remained offense free for fifteen years since his last

conviction and clearly and convincingly demonstrated he no longer posed a

threat to public safety. Ibid. We noted the anomaly of a similar result in

G.H., 455 N.J. Super. at 524.

The State seeks to explain this away by arguing CSL is part of the

sentencing provisions of the Criminal Code, reflecting its penal nature, while

registration is remedial. Undoubtedly, that is what the Court has held.

Schubert, 212 N.J. at 307. However, those words are not talismans, which

mere invocation transforms an illogical result into the reflection of implicit

legislative intent.

In J.S., we were asked to decide if subsection (f)'s fifteen-year period

commenced upon entry of a guilty plea or entry of a judgment of conviction.

444 N.J. Super. at 306. We recognized Megan's Law's comprehensive

legislative scheme, noted the Legislature's ability to "fairly measure" the risk

of re-offense, and held subsection (f)'s fifteen-year period began to run from

the entry of a judgment of conviction, thus, measuring "the offense-free time

A-5321-16T1
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frame against fifteen years of compliance with the registration requirements. "

J.S., 444 N.J. Super. at 312.

We specifically found support for our conclusion in the language of

N.J.S.A. 2C:43-6.4(c), "adopted contemporaneously with Megan's Law." Id. at

312. Despite the somewhat different language employed by the Legislature in

N.J.S.A. 2C:43-6.4(c), we concluded that provision supported our

interpretation of subsection (f), noting, "[w]e find it anomalous to suggest the

Legislature intended one time frame for termination of Megan's Law

registration and a different time frame for release from CSL." Ibid.

We recognize that J.S. resolved a different issue. Nevertheless, in that

case, we harmonized the Legislature's use of different language to avoid an

interpretation inconsistent with legislative intent. So, too, the construction

urged by appellants here harmonizes the different verbiage employed by the

Legislature in subsection (f) and N.J.S.A. 2C:43-6.4(c). It does not result in

two different time frames for potential relief from the consequences of

conviction for one singular sex offense: one period that permits permanent

relief from CSL and another that permanently denies relief from registration

obligations.

We are convinced that the Legislature never intended to forever bar

relief from Megan's Law's registration requirements to every person who

A-5321-16T1
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commits an offense, however minor, within the first fifteen years following

conviction of a sex offense or release from custody after that conviction. We

therefore reverse in A-5321-16 and A-5322-16 and remand the matters to the

Law Division. The respective courts shall consider whether H.D. and J.M.

have remained offense free since their 2001 convictions and are "not likely to

pose a threat to the safety of others." N.J.S.A. 2C:7-2(f).

Reversed and remanded. We do not retain jurisdiction.

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