IN THE MATTER OF REGISTRANT J.G. IN THE MATTER OF REGISTRANT C.C. (ML-17-13-0023 AND ML-18-04-0057, MONMOUTH AND CAMDEN COUNTIES 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NOT FOR PUBLICATION WITHOUT THE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-4807-17T1
A-5512-18T1

IN THE MATTER OF
REGISTRANT J.G. APPROVED FOR PUBLICATION
___________________
April 13, 2020

IN THE MATTER OF APPELLATE DIVISION
REGISTRANT C.C.
___________________

Argued January 22, 2020 – Decided April 13, 2020

Before Judges Accurso, Gilson and Rose.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. ML-17-13-
0023 and Camden County, Docket No. ML-18-04-
0057.

Glenn D. Kassman, Designated Counsel, argued the
cause for appellant J.G. (Joseph E. Krakora, Public
Defender, attorney; Glenn D. Kassman, of counsel and
on the brief).

Ellyn Rebecca Rajfer, Assistant Prosecutor, argued the
cause for respondent State of New Jersey in A-4807-17
(Christopher Gramiccioni, Monmouth County
Prosector, attorney; Ellyn Rebecca Rajfer, of counsel
and on the brief).

Jesse M. De Brosse, Assistant Deputy Public Defender,
argued the cause for amicus curiae New Jersey Office
of the Public Defender in A-4807-17 (Joseph E.
 Krakora, Public Defender, attorney; Jesse M. DeBrosse
on the brief).

Jesse M. De Brosse, Assistant Deputy Public Defender,
argued the cause for appellant C.C. (Joseph E. Krakora,
Public Defender, attorney; Jesse M. De Brosse, of
counsel and on the brief).

Matthew Thomas Spence, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent State of New Jersey in A-5512-18 (Jill
S. Mayer, Acting Camden County Prosecutor, attorney;
Matthew Thomas Spence, of counsel on the brief).

The opinion of the court was delivered by

GILSON, J.A.D.

These two appeals raise challenges to the use of the Registrant Risk

Assessment Scale (RRAS) to determine the risk of re-offense by persons who

have been convicted of possessing or distributing child pornography.

Defendants both pled guilty to second-degree endangering the welfare of a

child by distributing child pornography in violation of N.J.S.A. 2C:24 -

4(b)(5)(a)(iii). Following the completion of their custodial sentences, they

were both found to pose a moderate risk of re-offense and were designated as

Tier Two registrants under the Registration and Community Notification Laws,

N.J.S.A. 2C:7-1 to -23, commonly known as Megan's Law.

A-4807-17T1
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 Defendants appeal from the orders imposing that level of classification,

contending that, as applied to them, the use of the RRAS was improper. They

also argue that the use of the RRAS in tiering sex offenders who have been

convicted of one offense related to possessing or distributing child pornography

gives a skewed tiering result. Thus, defendants argue that the RRAS should be

modified, replaced, or not used in tiering one-time child pornography offenders.

We conclude that neither defendant created the record to support his

arguments. Accordingly, we affirm and issue this consolidated opinion to

address the common arguments presented by defendants.

I.

To put defendants' challenges in context, we summarize the facts giving

rise to their convictions. We also summarize the procedural history concerning

their Megan's Law classifications.

Defendant J.G.

In 2015, law enforcement personnel obtained and executed a warrant to

search for an electronic device used to share a video of child pornography. J.G.'s

computer was seized. He later admitted that he had downloaded child

A-4807-17T1
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pornography images and videos to his computer and had shared at least one

video depicting child pornography on an internet video chat site.

A forensic examination of J.G.'s computer revealed that it contained at

least six images and twenty-three videos of child pornography. J.G.'s computer

also contained another seventeen videos with names suggesting they depicted

child pornography. Some of the child pornography had been stored on J.G.'s

computer for approximately three years.

J.G. was charged with two counts of possessing child pornography and

one count of distributing child pornography. In January 2016, he pled guilty to

second-degree endangering the welfare of a child by distributing child

pornography. In accordance with his plea agreement, J.G. was sentenced in the

third-degree range to three years in prison. He was also sentenced to the

registration and reporting requirements under Megan's Law.

After J.G. was released from prison, the State determined that he posed a

moderate risk of re-offense based on a score of forty-six points on the RRAS.

Thus, the State notified J.G. that he would be classified as a Tier Two offender,

which required community and internet notification. J.G. objected, and the trial

court conducted a hearing.

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 At J.G.'s classification hearing, the State submitted the RRAS and

supporting information. J.G. disputed certain of the scores, and in particular,

the scores on factors three (age of victim), four (victim selection), and five

(number of offenses or victims). To support his position, J.G. called Dr. Philip

Witt, a psychologist, as an expert witness.

Dr. Witt was qualified as an expert in the evaluation, treatment, and risk

assessment of sex offenders. He explained that he met with and evaluated J.G.

using the Child Pornography Offender Risk Tool (CPORT) and the Sexual

Violence Risk-20 (SVR-20). He opined that J.G. posed a low risk of re-

offending because he had only one conviction of distributing child pornography

and did not have a history of anti-social behavior or convictions involving

physical contact with victims.

To put his opinions in context, Dr. Witt explained that he had served on

the Attorney General's task force that developed the RRAS. Dr. Witt testified

that when the RRAS was developed in 1995, child pornography had not been

considered. Focusing on factors three, four, and five of the RRAS, Dr. Witt

opined that those factors were inaccurate in assessing the risk of one-time child

pornography offenders. Thus, he offered three options: (1) not use the RRAS

A-4807-17T1
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for such offenders and use a different instrument; (2) use the RRAS, but not

score factors three, four, and five; or (3) use the RRAS, but create an exception

allowing courts to classify one-time child pornography offenders as Tier One

offenders.

On cross examination, Dr. Witt acknowledged the CPORT had not been

validated as an instrument for assessing the risk of re-offense and that the study

underlying CPORT had limits. In that regard, Dr. Witt acknowledged that none

of the eighty men involved in the CPORT study had prior child pornography

convictions and, therefore, the study was biased towards lower-risk offenders.

After hearing the testimony of Dr. Witt, and considering the submissions

and arguments of counsel, the trial court found the State had presented clear and

convincing evidence that J.G. posed a moderate risk of re-offense. The court

read its findings of fact and conclusions of law into the record on June 20, 2018.

The court first considered J.G.'s specific objections to the scoring of

factors three, four, five, and six of the RRAS. The court rejected Dr. Witt's

opinion that J.G. posed a low risk of re-offending because the court found that

Dr. Witt had not thoroughly checked J.G.'s self-reporting and the state had

shown that J.G. misreported and minimized his behavior. Accordingly, the court

A-4807-17T1
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accepted the State's score of forty-six on the RRAS and ruled that it was

appropriate to put J.G. in Tier Two, warranting community notification.

The court also considered, but rejected, Dr. Witt's opinion that factors

three, four, and five of the RRAS should not be used in scoring one-time child

pornography offenders. The court also found that CPORT was not an

appropriate alternative tool since it had not been validated as an actuarial

instrument. In addition, the court rejected Dr. Witt's argument that because child

pornography was not considered in developing the RRAS, that scale was not

appropriate for child pornography offenders.

Defendant C.C.

C.C. was identified as someone downloading and distributing child

pornography through a peer-to-peer network. Such networks allow users to

download content from other users' collections. In 2016, a number of electronic

devices were seized from C.C.'s home in accordance with a warrant. An

examination of those devices revealed that they contained approximately 40,000

images and videos of child pornography. The children depicted in those images

and videos ranged in age from nine to fifteen years old. Some of those images

had been downloaded in 2000, more than fifteen years earlier.

A-4807-17T1
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 C.C. admitted he used peer-to-peer programs and had used his laptop

computer to download pornography. He was charged with four counts of

endangering the welfare of children by possessing and distributing child

pornography. In 2017, C.C. pled guilty to one count of second-degree

endangering the welfare of a child by distributing child pornography. He was

sentenced to five years in prison, parole supervision for life, and registration and

reporting requirements under Megan's Law.

Following his parole in May 2018, the State determined that C.C. posed a

moderate risk of re-offense based on a score of fifty-nine points on the RRAS.

Accordingly, the State notified C.C. that he would be classified as a Tier Two

offender, which required community and internet notification.

C.C. objected, and the trial court conducted a classification hearing on

April 4, 2019. At the hearing, the State presented the RRAS and supporting

information. The State and C.C. agreed to lower the scoring on factors seven

(length of time since last offense) and thirteen (employment stability). They

disputed the scoring of factors three, four, and five. The State sought high risk

scores on each of those factors. In contrast, C.C. argued for low risk scores, that

A-4807-17T1
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is, a zero on each of those factors. To support his position, C.C. called Dr. Witt

as an expert.

Dr. Witt testified that he met with C.C. and conducted evaluations using

CPORT and SVR-20. Dr. Witt explained that he had served on the Attorney

General's task force that developed the RRAS and a 2005 task force that

developed the Juvenile Risk Assessment Scale (JRAS), the juvenile counterpart

to the RRAS. Dr. Witt again testified that when the RRAS was developed, child

pornography had not been considered. He contended the JRAS considered child

pornography but did not score victim characteristics in pornography-only cases

if the offender had not committed a physical offense against the children

depicted in the images. Dr. Witt then recommended that the rules for scoring

factors three, four, and five on the JRAS should also apply to the RRAS.

The trial court did not accept Dr. Witt's opinions. The court declined to

apply the JRAS in scoring factors under the RRAS, reasoning that juveniles are

treated differently from adults for good reason. The court went on to accept the

high risk scoring on factors three, four, and five as submitted by the State under

the RRAS. The court found there was clear and convincing evidence that certain

victims were below the age of thirteen, the victims were strangers to C.C., and

A-4807-17T1
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there were over 40,000 victims. Consequently, on April 4, 2019, the court

entered an order classifying C.C. as a Tier Two registrant under Megan's Law.

C.C. filed a motion for reconsideration. As part of that motion, C.C.

submitted certifications from Dr. Jackson T. Bosley and Dr. Sean Hiscox, two

psychologists who also served on the committee for the JRAS. On July 11,

2019, the court entered an order denying C.C.'s motion for reconsideration.

II.

On these appeals, J.G. and C.C. both challenge the use of the RRAS in

determining their risk of re-offending under Megan's Law. They contend that

offenders, such as themselves, who have been convicted of only one offense of

possessing or distributing child pornography, should be scored differently from

sex offenders with a history of physical contact with their victims. Accordingly,

defendants argue that factors three, four, and five of the RRAS should be scored

as low risk or should be replaced with the JRAS scoring guidelines.

Alternatively, defendants argue that a new scale should be developed because

child pornography was not considered when the RRAS was developed and

factors three, four, and five of the RRAS systematically overstate the risk of re-

offense.

A-4807-17T1
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 The primary issue presented by these appeals is whether the RRAS is an

appropriate tool to help assess the risk of re-offense for sex offenders who are

convicted of one offense for possession or distribution of child pornography.

We hold that it is. To put that issue in context, we first summarize the history

of Megan's Law and the cases evaluating Megan's Law. Next, we analyze

whether defendants have presented records that support a re-evaluation of the

RRAS scale.

A. Megan's Law

Megan's Law was enacted "to protect the community from the dangers of

recidivism by sexual offenders." In re C.A., 146 N.J. 71, 80 (1996) (citing Doe

v. Poritz, 142 N.J. 1, 12-20 (1995)); N.J.S.A. 2C:7-2(a). The statute requires

certain sex offenders to register with law enforcement agencies. N.J.S.A. 2C:7-

2 to -4. Law enforcement agencies are then required "to release relevant and

necessary information regarding sex offenders to the public when the release of

the information is necessary for public protection." N.J.S.A. 2C:7-5(a); In re

N.B., 222 N.J. 87, 95 (2015).

Megan's Law identifies three levels of community notification depending

upon the degree of the risk of re-offense. N.J.S.A. 2C:7-8(a). If the risk of re-

A-4807-17T1
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offense is low, 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,

organizations in the community are also notified. N.J.S.A. 2C:7-8(c)(2). If the

risk of re-offense 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); In re N.B.,

222 N.J. at 95.1

In Megan's Law, the Legislature required the Attorney General, in

consultation with an advisory council, to "promulgate guidelines and procedures

for the notification required" by the Act. N.J.S.A. 2C:7-8(a). The guidelines

were required to identify factors relevant to the risk of re-offense and the

Legislature instructed the Attorney General to consider at least eight factors and,

if appropriate, to develop other factors. N.J.S.A. 2C:7-8(b).

As instructed, the Attorney General "convened a committee composed of

mental health experts[,] as well as members of the Law Enforcement Committee,

which drafted the [RRAS] and the accompanying Registrant Risk Assessment

1
Following a 2000 constitutional amendment, Megan's Law was amended in
2001 to make information in the State's registry about certain sex offenders
publicly available on the internet. L. 2001, c. 167 (codified as N.J.S.A. 2C:7-
13).
A-4807-17T1
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Manual (RRA Manual), which explains the [RRAS]." In re C.A., 146 N.J. at

82. The RRAS identified thirteen factors and assigned them to four categories:

seriousness of offense, offense history, characteristics of offender, and

community support. Ibid. The RRAS gives greater weight to the first two

categories. Registrants are assigned scores for each factor and the factors are

then adjusted by multipliers. If the score is thirty-six or below, the registrant is

assigned to Tier One. If the score is between thirty-seven and seventy-three, the

registrant is assigned to Tier Two. And if the score is seventy-four or above

(the maximum score is 111), the registrant is assigned to Tier Three. Ibid.; In

re V.L., 441 N.J. Super. 425, 428-29 (App. Div. 2015).

The Supreme Court has held that the registration and community

notification components of Megan's Law are constitutional and enforceable.

Doe, 142 N.J. at 28; In re M.F., 169 N.J. 45, 52-53 (2001). The Court also has

upheld the use of the RRAS in classifying registrants. In re C.A., 146 N.J. at

108-09. Moreover, the Court has repeatedly ruled that the RRAS is entitled to

deference. Ibid.; In re G.B., 147 N.J. 62, 81-83 (1996); In re N.B., 222 N.J. at

95 n.3.

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 The RRAS, however, is not immune to specific challenges as applied to a

particular registrant. In re G.B., 147 N.J. at 83-84. To protect the registrant's

liberty and privacy interests, the Court has held that a registrant is entitled, if

requested, to a judicial hearing to challenge his or her tiering. Doe, 142 N.J. at

30; In re G.B., 147 N.J. at 79. At that hearing, the State has the initial burden

of proof and can rely on the RRAS. In that regard, our Supreme Court has

explained that the RRAS is a "tool." In re G.B., 147 N.J. at 78. Accordingly,

the RRAS is "a useful guide to determine the amount of notification [the]

community should receive." Id. at 69. Nevertheless, "[t]he responsibility for

ultimately determining the proper scope of notification is left to the trial court

after a hearing on the matter." Ibid. (citing In re C.A., 146 N.J. at 83).

Furthermore, the judicial determination regarding the tiering classification and

community notification "must be [made] by clear and convincing evidence." In

re A.A., 461 N.J. Super. 385, 401 (App. Div. 2019) (alteration in original)

(quoting G.H. v. Twp. of Galloway, 401 N.J. Super. 392, 403 (App. Div. 2008)).

In explaining the use of the RRAS, our Supreme Court has stated:

Even though "the [RRAS] provides a useful guide for
the prosecutors and court to evaluate risk of re-
offense," the court must still make "a value judgment"
in determining the proper tier classification and scope

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 of community notification. Thus, courts are not "to
blindly follow the numerical calculation provided by
the [RRAS], but rather to enter the appropriate tier
classification" based on all of the evidence available to
them. The determination of tier classification and
scope of notification "are best made on a case-by-case
basis within the discretion of the court."

[In re G.B., 147 N.J. at 78-79 (citations omitted)
(quoting In re C.A., 146 N.J. at 108-09).]

In challenging a tier determination, a registrant may argue that (1) the

RRAS score was erroneously calculated, (2) the case falls outside the

"heartland" of Megan's Law cases, or (3) the extent of community notification

required is excessive due to "unique" aspects of the registrant's case. In re T.T.,

188 N.J. 321, 330 (2006) (quoting In re G.B., 147 N.J. at 85). The Court has

also ruled that in limited circumstances, a registrant can call an expert to

"establish the existence of unique aspects of a registrant's offense or character

that render the [RRAS] score suspect." In re G.B., 147 N.J. at 69. Accordingly,

our Supreme Court has explained that if the expert testimony is believed, "such

evidence would lead to the conclusions that the [RRAS] does not adequately

represent the risk of recidivism for that particular registrant and that, therefore,

in such circumstances the scope of notification should be more limited than that

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indicated by the registrant's [RRAS] score and attendant tier classification."

Ibid. The Court noted that such challenges will be rare. Id. at 82.

The Court has also made clear, however, that registrants cannot argue

that the RRAS as a scale is unreliable. Ibid. Instead, the Court has repeatedly

held that the RRAS "is presumptively reliable." Ibid.; In re N.B., 222 N.J. at

95 n.3. Thus, the Court has explained:

[The RRAS] is presumptively accurate and is to be
afforded substantial weight – indeed it will even have
binding effect – unless and until a registrant "presents
subjective criteria that would support a court not
relying on the tier classification recommended by the
[RRAS]."

....

Challenges to the [RRAS] itself, or challenges to the
weight afforded to any of the individual factors that
comprise the [RRAS], are not permitted. Instead, all
challenges must relate to the characteristics of the
individual registrant and the shortcomings of the
[RRAS] in his particular case.

[In re G.B., 147 N.J. at 81, 85 (quoting In re C.A., 146
N.J. at 109).]

B. The evidence presented by J.G. and C.C.

Under existing case law, a registrant can challenge his or her individual

classification, but cannot challenge the RRAS itself. Id. at 85. Nevertheless,

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we do not read In re G.B. or its progeny as forever precluding a challenge to the

RRAS provided the challenge is based on empirical studies or data developed

since 1996. Moreover, the studies or data would need to be sufficiently reliable

such that others within the community of professionals evaluating, treating, and

assessing the risk of re-offense by sex offenders would rely on those studies or

data. In re Accutane Litigation, 234 N.J. 340, 399-400 (2018).

Accordingly, we analyze the challenges presented by J.G. and C.C. on two

levels: (1) the RRAS as applied to them; and (2) the RRAS itself. Neither J.G.

nor C.C. presented credible evidence to show that the RRAS as applied to them

was improper. They also both failed to present any studies or data that call into

question the continued validity of the RRAS as applied to one-time child

pornography offenders.

1. The As-Applied Challenges

As already summarized, both J.G. and C.C. rely on the testimony of Dr.

Witt in presenting their as-applied challenges. Dr. Witt evaluated both J.G. and

C.C., reviewed materials related to both offenders, and opined that they

presented a low risk of re-offending. In offering that opinion, Dr. Witt relied

primarily on the self-reports provided by J.G. and C.C. Both trial courts found

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that J.G.'s and C.C.'s self-reporting was incomplete and minimized their past

behavior. Moreover, both trial courts rejected as unreliable Dr. Witt's testimony

and opinions concerning the low risk presented by J.G. and C.C.

The trial courts' findings in that regard are supported by evidence in the

record and we discern no basis for disturbing those factual findings. See In re

A.R., 234 N.J. 82, 104 (2018) (holding that there is no abuse of discretion when

a trial court's factual findings are supported by "sufficient credible evidence in

the record"); In re A.I., 303 N.J. Super. 105, 114 (App. Div. 1997) (holding that

appellate courts review tiering determinations for abuse of discretion). Without

Dr. Witt's testimony, neither J.G. nor C.C. has established a factual basis to

challenge the scoring of the RRAS as applied to them.

Just as importantly, the trial courts found that there was clear and

convincing evidence that J.G. and C.C. posed moderate risks of sexual re-

offending. J.G. had possessed at least six images and twenty-three videos of

child pornography. Moreover, he possessed some of that child pornography for

more than three years. C.C. had possessed approximately 40,000 images and

videos of child pornography, and he possessed some of that material for more

than fifteen years. Consequently, there was clear and convincing evidence that

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both J.G. and C.C. victimized children under the ages of thirteen, those children

were strangers, and there were numerous victims. Indeed, both J.G. and C.C.

distributed child pornography thereby continuing the revictimization of the

children depicted in those videos. See In re Cohen, 220 N.J. 7, 12 (2014) (noting

that "[c]hild pornography, in particular, revictimizes the children involved with

each viewing of the same image or video").

2. The RRAS Itself

J.G. and C.C. again rely on Dr. Witt to challenge the RRAS itself. Dr.

Witt pointed out that the committee that developed the RRAS did not expressly

consider child pornography, and in particular the effects of the internet on child

pornography. Accordingly, Dr. Witt offered three options: (1) not use the RRAS

for one-time child pornography offenders and use a different "instrument"; (2)

use the RRAS but not score factors three, four, and five; or (3) use the RRAS

but create an exception that allows trial courts to classify child pornography-

only offenders as Tier One offenders. Moreover, C.C. argues that factors three,

four, and five of the RRAS should be scored as low risk (that is, zero) "as a

matter of law."

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 The flaw in these arguments is that neither J.G. nor C.C. presented any

new, validated empirical studies or data supporting their positions. Dr. Witt

suggested either using CPORT in place of the RRAS or using the JRAS as a

modification to the RRAS. Dr. Witt acknowledged, however, that CPORT had

not been validated as an instrument for assessing the risk of re-offense and that

the study underlying CPORT had limits. Dr. Witt also acknowledged that the

JRAS was developed for juveniles. Data and studies demonstrate that juveniles

behave differently, and in particular, more impulsively, than adults. See In Re

C.K., 233 N.J. 44, 51 (2018) (holding that juvenile sex offenders "are more

likely to act impulsively" than adult sex offenders). Indeed, our Supreme Court

has recognized that juveniles act differently from adults and therefore, in

appropriate circumstances, warrant different treatment. See State v. Zuber, 227

N.J. 422, 445-46 (2017) (quoting Miller v. Alabama, 567 U.S. 460, 480 (2012))

(recognizing "children are different, and . . . those differences counsel against

irrevocably sentencing them to a lifetime in prison"). We agree with both trial

courts that Dr. Witt did not present sufficient studies or data to support

modifying or replacing the RRAS with CPORT or the JRAS.

A-4807-17T1
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 Without an alternative instrument, or new study or empirical data, J.G.

and C.C. rely on the assertion that child pornography was not expressly

considered when the RRAS was developed. That argument is an insufficient

basis for rejecting the use of the RRAS.

The RRAS was developed in 1995 by the Attorney General with the

assistance of mental health experts. Child pornography clearly existed in 1995.

As developed, the scale was to be applied to various sex offenders. Even if

every type of offender were not expressly considered, that omission does not

mean that the RRAS is automatically inapplicable to a particular type of

offender, such as a one-time child pornography offender. In other words,

although the developers of the RRAS did not expressly consider child

pornography, that omission is not evidence that the RRAS should not be applied

to a registrant convicted of a child pornography offense. Instead, there must be

evidence that experts in the area of assessing the risk of re-offense of sex

offenders generally agree that one-time child pornography offenders are

different, and should be evaluated differently, from other sex offenders. Neither

J.G. nor C.C. presented such evidence. Moreover, neither J.G. nor C.C.

presented evidence demonstrating that the Attorney General has been requested

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to reevaluate the efficacy of the RRAS for tiering child pornography offenders

under Megan's Law.

In summary, we discern no basis to reject the trial courts' findings that

J.G. and C.C. both failed to present evidence demonstrating that as applied to

them the use of the RRAS was improper. We also hold that neither J.G. nor

C.C. presented evidence that warranted a rejection of, or modification to, the

RRAS when applied to one-time child pornography offenders. Finally, we do

not preclude the possibility that a registrant could develop the record to

challenge the RRAS when it is applied to a one-time child pornography offender.

That record, however, was not presented by either J.G. or C.C.

Affirmed.

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