STATE OF NEW JERSEY VS. RANDY A. HOWARD (19-07-1166, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1042-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RANDY A. HOWARD,

Defendant-Appellant.
________________________

Submitted February 23, 2021 – Decided June 11, 2021

Before Judges Fisher and Gummer.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Accusation No. 19-07-1166.

Joseph E. Krakora, Public Defender, attorney for
appellant (Ruth E. Hunter, Designated Counsel, on the
brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Debra G. Simms, Deputy Attorney
General, of counsel and on the brief).

PER CURIAM
 Defendant pleaded guilty to failing to register under Megan's Law 1 when

he relocated to New Jersey after he was convicted of second-degree rape in

North Carolina and ordered as part of his sentence to register as a sex offender .

Defendant argues he is entitled to a vacation of the failure-to-register charge and

guilty plea pursuant to In re A.A., 461 N.J. Super. 385 (App. Div. 2019).

Because the determination that defendant had to register as a sex offender was

made by a North Carolina judge as part of a sentence for a North Carolina

conviction and not by a New Jersey prosecutor, we affirm.

In 2019, defendant was charged with third-degree failure to register under

Megan's Law, contrary to N.J.S.A. 2C:7-2(c)(3), which provides that a person

required to register as a sex offender who moves to New Jersey from another

jurisdiction must register within ten days of residing in the State.

During a plea hearing, the State advised the court, pursuant to a

negotiated plea agreement, defendant was pleading guilty to the charge and the

State was seeking non-custodial probation. The State told the court defendant

had been convicted of second-degree rape in 2008 in North Carolina and was

required to register as a sex offender in New Jersey. Defense counsel confirmed

1
N.J.S.A. 2C:7-1 to -23.

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defendant had been convicted in 2008 and did not dispute he was required to

register as a sex offender.

Before defendant testified, the court explained, with no objection or

correction, its understanding that defendant was pleading guilty for a third-

degree crime of failing to register "due to a conviction for a sexual assault in

North Carolina in 2008." Defendant confirmed under oath (1) he had been

convicted out of state in 2008 for a crime he committed in 1998; (2) his

conviction obligated him to register when he relocated to New Jersey; and (3)

he had not registered until five or six months after he relocated. After testifying,

defendant pleaded guilty to the third-degree crime of failure to register.

Defendant's presentence report contained a description of his North

Carolina criminal history, including:

In 2002, [defendant] was found guilty by jury of
statutory rape. He was sentenced to 16 to 21 years
prison with sex offender registration. In 2008, he was
resentenced to 70-93 months prison with 2,263 days
credit for the lesser offense of second degree rape with
sex offender registration. It is unclear why [defendant]
was resentenced. The offense involves [defendant], at
28 years old, having a sexual relationship with a 15 year
old mildly retarded female. They later married, but
after divorcing during her pregnancy, the police
reopened the case and charged him with statutory rape.

[(Emphasis added).]

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According to the report, a representative of "North Carolina's Megan's Law

Division" advised police officers that defendant "was still an active registrant."

At the sentencing hearing, the court reviewed the information in the

presentence report. Defense counsel confirmed everything in the presentence

report was accurate. Defendant declined the opportunity to speak or to ask any

questions. The court again stated defendant had pleaded guilty to a third-degree

crime of failing to register and had been convicted "in 2008 for sexual assault

in North Carolina." Defendant did not object to that characterization. The court

sentenced defendant to one-year probation, subject to seven days' imprisonment,

which defendant already had served. The court subsequently entered a judgment

of conviction, which defendant now appeals.

On appeal, defendant argues he was entitled, pursuant to A.A., 461 N.J.

Super. 385, to notice of "the State's determination that he was required to register

under Megan's Law" as a sex offender and to a judicial review of that

determination.2

2
In making this argument, defendant does not contend the North Carolina crime
for which he was ultimately convicted and sentenced, second-degree rape, falls
outside the list of sex offenses contained in Megan's Law. See N.J.S.A. 2C:7-
2(b).
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 Defendant's reliance on A.A. is misplaced. The defendant in A.A. was a

New Jersey resident who had been arrested in New York and charged in New

York with second-degree disseminating indecent material to a minor, in

violation of New York Penal Law § 235.21(3) (Consol. 2019). A.A., 461 N.J.

Super. at 391. The defendant pleaded guilty to that charge and was sentenced

to five years' probation. Id. at 392. His pre-sentence investigation report stated

(1) defendant had to remain in New York until and unless an interstate transfer

was approved; and (2) his offense in New York did not require registration under

New York's Sex Offender Registration Act, N.Y. Corr. Law § 168 (Consol.

2019). Ibid.

New York requested transfer of A.A.'s probation to New Jersey; a New

Jersey probation officer submitted documentation regarding A.A.'s conviction

to an assistant prosecutor, requesting a determination as to whether A.A. would

be required to register in New Jersey under Megan's Law. Ibid. In making that

determination, the assistant prosecutor had to consider whether A.A.'s New

York offense was "similar to" one of the sex offenses enumerated in Megan's

Law. See N.J.S.A. 2C:7-2(b)(3). The assistant prosecutor advised the probation

officer the crime for which A.A. had been convicted in New York would fall

under Megan's Law and he was required to be registered if he was living in New

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Jersey. Ibid. New Jersey accepted the transfer of the defendant's probation and

required him to register. Id. at 393.

Nine years later, A.A. moved to terminate ab initio his Megan's Law

registration requirement. Ibid. We held, under those circumstances, the

defendant was entitled to notice of and the opportunity to challenge in court the

assistant prosecutor's determination that A.A.'s New York crime, which did not

require registration in New York, was "similar to" a crime listed in Megan's

Law, requiring registration in New Jersey. Id. at 395.

Those circumstances are not present here. The determination that

defendant was required to register as a sex offender was not made by a New

Jersey prosecutor but by a North Carolina judge as part of the sentence defendant

received in North Carolina, pursuant to North Carolina law. See N.C.G.S.A. §

14-208.9(b). The presentencing report stated defendant was sentenced to a term

of imprisonment "with sex offender registration" for both his statutory-rape and

second-degree rape convictions in North Carolina. Defense counsel confirmed

the accuracy of the presentence report. The requirement that defendant register

as a sex offender was not the result of a New Jersey prosecutor analyzing

whether the crime for which defendant was convicted in North Carolina, second-

degree rape, was "similar to" one of the sex offenses enumerated in Megan's

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Law under N.J.S.A. 2C:7-2(b)(3). Defendant knew when he left North Carolina

based on the sentence he received there he was required to register as a sex

offender.3

Affirmed.

3
Defendant argues in the alternative his judgment of conviction should be
amended to set forth a fourth-degree crime instead of a third-degree crime. He
bases that argument on our decision in State v. Timmendequas, 460 N.J. Super.
346 (App. Div. 2019). After defendant filed his appeal, our Supreme Court
issued its decision in State v. Brown, 245 N.J. 78, 96 (2021), "disapprov[ing]"
our analysis in Timmendequas and rejecting the argument, which defendant
makes here, that an ex post facto violation occurs when, pursuant to a 2007
Megan's Law amendment, a third-degree charge for failure to register is imposed
on a defendant who was convicted of a sex offense before the 2007 amendment.
Accordingly, we reject defendant's argument that his conviction should be
reduced to a fourth-degree crime.
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