IN THE MATTER OF REGISTRANT R.R. (ML-20-15-0033, 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NOT FOR PUBLICATION WITHOUT THE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-1286-20

IN THE MATTER OF
REGISTRANT R.R.
______________________

Submitted November 8, 2021 – Decided January 4, 2022

Before Judges Sabatino and Rothstadt.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. ML-20-15-0033.

Joseph E. Krakora, Public Defender, attorney for
appellant R.R. (Olivia Nardone, Assistant Deputy
Public Defender, of counsel and on the brief).

Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent State of New Jersey (Natalie
Pouch, Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Registrant R.R. appeals from the Law Division's October 21, 2020

"Classification Order Authorizing Tier 2 Classification and Inclusion on the

Internet." The order sustained a prosecutor's classification of registrant as Tier-

Two Moderate Risk, under the Registration and Community Notification Laws
(Megan's Law), N.J.S.A. 2C:7-1 to -23. According to registrant, under Megan's

Law, he was entitled to a ten-point reduction of his risk score on the Registrant

Risk Assessment Scale (RRAS) because of the unsupported inclusion of factor

three (age of victim). If discounted, registrant would have received a reduction

of his overall RRAS score from fifty-one to forty-one, which would keep him in

the Tier Two-Moderate Risk classification but could support a later favorable

tier reduction.1

On appeal, registrant argues that the trial judge erred in finding that the

State established by clear and convincing evidence the ages of the children in a

pornographic video found on his computer. He contends that factor three (age

of victim) should be reduced from "moderate risk" (under thirteen) to "low risk"

(thirteen to seventeen) because the reviewing judge improperly relied on an

arrest report that "guess/estimate[d]" the children's ages to be between ten - to

twelve-years-old, and on a two-page confession, which could not be located and

produced for the judge's consideration. We disagree and affirm.

1
A reduction in the total RRAS score may allow registrant to move from a Tier
Two to a Tier One classification in a future re-evaluation. See Attorney General
Guidelines for Law Enforcement for the Implementation of Sex Offender
Registration and Community Notification Laws (rev. Feb. 2007) at 53
[hereinafter Guidelines] (citing N.J.S.A. 2C:7-7).
A-1286-20
2
 Registrant's obligation to comply with Megan's Law's requirements arose

from his convictions in New York and in federal court. Specifically, in June

2005, a New York grand jury indicted registrant on ten counts of Possessing a

Sexual Performance by a Child, N.Y. Penal Law § 263.16. On November 30,

2005, he was sentenced to a one-year term.

Registrant's New York conviction arose from a search warrant detectives

executed at registrant's home after receiving a tip that he was engaging in an

internet chat of a sexual nature with an adult posing as a fourteen-year-old boy.

Registrant, who was home at the time of the execution, agreed to cooperate with

investigators and gave a two-page and six-page confession.2 A forensic

examination of registrant's computer uncovered child pornography, including

photos of what turned out to be a thirteen-year-old boy from North Dakota in

"various stages of dress and sexual contact with [registrant]."

According to a June 14, 2015 six-page written statement given by

registrant to New York police, he admitted to engaging in an online chat with

the thirteen-year-old from North Dakota and to subsequently traveling there and

engaging in oral sex and anal intercourse with the child in a motel room. In

2
The two-page confession was not located and thus not produced for purposes
of the Megan's Law hearing. The six-page confession was considered by the
trial court and is part of the record on appeal.
A-1286-20
3
addition, a July 13, 2005 supplemental report issued by a detective indicated that

registrant also "gave a two page . . . written confession as to his downloading of

child pornography via the internet in addition to meeting a [thirteen]-year-old

boy online and traveling to Fargo, North Dakota to engage in sex with the

minor." The ages of the children in the child pornography were not specified in

the supplemental report, but the arrest report stated as follows:

[Registrant,] on or about June 14, 2006 [in the] County
of Suffolk, State of New York, knowing the character
and content thereof knowingly had in his possession or
control a performance which includes sexual conduct
by a child less than [sixteen] years of age; in that
[registrant] possessed on his computer a computer file
containing a video of two 10-year[-]old to 12-year[-]old
juvenile males engaging in oral sex. This information
is based partly on the oral admissions of [registrant].

On November 4, 2005, a federal grand jury in the District of North Dakota

indicted registrant on three charges arising from his travelling to North Dakota

and sexually assaulting his victim. On October 10, 2006, registrant pled guilty

to Production of Materials Involving Sexual Exploitation of a Minor and was

later sentenced to a fifteen-year term. See [R.R.] v. United States, No. 3:08-

CV-116, 2008 U.S. Dist. LEXIS 110117, at *5 (D.N.D. Dec. 18, 2008).

Registrant was released from federal custody on July 31, 2019, and advised of

his obligation to register.

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4
 On August 2, 2020, the Ocean County Prosecutor served registrant with a

notice of Tier Two-Moderate Risk of Re-offense classification based on an

RRAS score of fifty-six, which subjected registrant to community notification

and placement on the Sex Offender Internet Registry (Internet Registry).

Registrant challenged the State's calculations as to factor one (degree of force),

which was scaled as "moderate risk" and assigned a score of one and a multiplier

of five points, and factor three (age of victim), which was scaled as "high risk"

and assigned a score of three and a multiplier of fifteen points.

In connection with factor one, the North Dakota victim reported that

registrant forced him to remove his clothing by threatening to hurt or kill him

and that he told him several times that if he told anyone about the sexual assault,

registrant would come back and kill him. 3 Factor three was based upon law

enforcement's "investigation . . . reveal[ing] that . . . registrant possessed on his

computer a . . . file containing a video of two 10-12-year-old juvenile males

engaging in oral sex." After negotiations, the State agreed to reduce factor one

to "low risk" and assigned zero points because the lower classification was

consistent with the facts of the North Dakota case.

3
The victim's statement regarding the use of force and threats were later found
to be untrue.
A-1286-20
5
 Registrant maintained his challenge to factor three (age of victim) at his

October 19, 2020 tier hearing before the trial judge,4 who ultimately denied

registrant's challenge and affirmed the State's classification of registrant as a

Tier Two-Moderate Risk of Re-offense based on a recalculation of the RRAS of

fifty-one. In his oral decision placed on the record on October 19, 2020, the

judge found that after considering the evidence and counsel's argument

regarding factor three, the State proved by clear and convincing evidence that

the children's ages were ten- to twelve-years-old and that factor three was

properly classified as a "moderate risk." The judge explained his reasons as

follows:

Now, the question is the age of the victim of high risk.
The Court has reviewed both the complaint, which has
the information from law enforcement that [their] ages
[to be] between [ten] and [twelve] and that appears to
be part of the law enforcement's determination. Also,
law enforcement indicated and alluded to a confession
by the [registrant] at that time. The Court did hear from
the State after hearing from his attorney that it was a
six-page confession and nothing was contained there
regarding those ages. But the State has brought up there
was also a two-page one which they could not find. So

4
"The Supreme Court's Outline of Procedures for Megan's Law Cases and the
Megan's Law Bench Manual require completion of judicial review proceedings
within forty-five days from service of Notice of Classification." In re Registrant
J.W., 410 N.J. Super. 125, 132 (App. Div. 2009).
A-1286-20
6
 there is the inference that [the] information was
contained there.
I am going to find by clear and convincing evidence that
the [fifteen points] should remain in accordance [with]
the RRAS scale score.
This appeal followed.

On appeal, registrant argues that the State failed to demonstrate by clear

and convincing evidence "that the juveniles in the video were in fact under

[thirteen]-years-old" because it failed to provide any information as to how the

investigator determined age. As an example, registrant notes that "an

investigat[ive] report may briefly describe the video/image and estimate a

juvenile's age based on the physical development of the child." Because there

is no such report, registrant argues, age cannot be determined clearly and

convincingly. Registrant further observes that because a child that is ten - to

twelve-years-old "may look very similar" to a thirteen-year-old, in the absence

of a more detailed analysis or investigation, "the ages could be easily mistaken"

and not determinable clearly and convincingly. He concludes that the children's

ages in the arrest report are "merely a guess/estimate" and that the reviewing

judge erred in his affirmance of the "moderate risk" classification under factor

three. We disagree.

A-1286-20
7
 Under the Guidelines and the accompanying Registrant Risk Assessment

Scale Manual (RRA Manual), each Megan's Law registrant is assigned to a tier

using the RRAS, which determines the scope of community notification.

Guidelines at 22-23. The RRAS consists of four categories: (1) Seriousness of

Offense, (2) Offense History, (3) Characteristics of Offender, and (4)

Community Support. RRA Manual at 3. Within the four categories, thirteen re-

offense risk factors 5 are weighed and rated as low, moderate, or high risk. RRA

Manual at 4-8. "Depending on that rating, the offender is attributed a score of

0, 1, or 3, respectively." In re Registrant J.M., 167 N.J. 490, 499 (2001).

Thereafter, the factors are weighed by different multipliers. For instance, each

factor under the "Seriousness of Crime" category is multiplied by five, whereas

each factor under the "Offense History," "Characteristics of Offender," and

"Community Support" is multiplied by three, two, and one, respectively. In re

Registrant C.A., 146 N.J. 71, 104 (1996).

5
The factors are: (1) Degree of Force, (2) Degree of Contact, (3) Age of the
Victim, (4) Victim Selection, (5) Number of Offenses/Victims, (6) Duration of
Offensive Behavior, (7) Length of Time Since Last Offense, (8) History of
Antisocial Acts, (9) Response to Treatment, (10) Substance Abuse, (11)
Therapeutic Support, (12) Residential Support, and (13)
Employment/Educational Stability.
A-1286-20
8
 The combined points from all factors determine the final score for tierin g

purposes and scope of required community notification. Guidelines at 22-23. A

registrant can fall into one of three tiers. Tier One is anything below 37 points

and designated "low risk," which requires notification of registrant's presence in

the community to law enforcement only. RRA Manual at 4; Guidelines at 22.

Tier Two is 37-73 points and designated "moderate risk," which requires

notification to law enforcement, schools, and registered community

organizations. RRA Manual at 4; Guidelines at 22-23. Tier Three is 74-111

points and designated "high risk," which requires notification to law

enforcement, schools, registered community organizations, and members of the

public likely to encounter registrant. RRA Manual at 4; Guidelines at 23. All

registrants are subjected, at minimum, to Tier One notification. C.A., 146 N.J.

at 81. In addition to community notification, N.J.S.A. 2C:7-12 to -20 requires

that registrants in the tiers two or three are to be placed on the Internet Registry

unless exempted by N.J.S.A. 2C:7-13(d).

The Supreme Court "vested reviewing courts with the obligation of

providing procedural due process to ensure the appropriateness of a tier

classification." C.A. 146 N.J. at 94 (citation omitted). The reviewing judge is

tasked with conducting an evidentiary and investigatory hearing, that is civil and

A-1286-20
9
not criminal in nature, in which it carefully balances registrant's due process and

fundamental fairness rights and the community's right of protection against

registrant's risk of re-offense. Ibid. Judicial determinations regarding tier

classification and community notification are made "on a case-by-case basis

within the discretion of the court" and "based on all the evidence available," not

simply by following the "numerical calculation provided by the [RRAS]." In re

Registrant G.B., 147 N.J. 62, 78-79 (1996) (quoting C.A., 146 N.J. at 109).

Ultimately, "a value judgment" is required in determining the proper tier

classification and community notification. Id. at 78 (quoting C.A., 146 N.J. at

109).

"[T]he ultimate determination of a registrant's risk of re-offense and the

scope of notification is reserved to the sound discretion of the trial court." Id.

at 79. As such, "[w]e give deference to the findings of the trial judge where . . .

his findings [are] supported by the record." State v. N.G., 381 N.J. Super. 352,

365 (App. Div. 2005) (citation omitted). Such deference is appropriate and

owed to the reviewing judge's determination, "regardless of whether the

evidence is live testimony, a videotaped statement, or documentary evidence."

State v. S.N., 231 N.J. 497, 514 (2018) (citation omitted). That is because "a

standard of deference to a trial court's fact findings, even fact findings based

A-1286-20
10
solely on . . . documentary evidence, best advances the interests of justice in a

judicial system that assigns different roles to trial courts and appellate courts."

State v. S.S., 229 N.J. 360, 379 (2017).

The Supreme Court has also "prescribed a two-step procedure for

evidence production." C.A., 146 N.J. at 83. "In the first step, the prosecutor

has the burden of going forward with prima facie evidence that 'justifies the

proposed level and manner of notification.'" Ibid. (citation omitted). "In the

second step, assuming the prosecutor's burden is met, the registrant then has the

burden of producing evidence challenging the prosecutor's determinations on

both issues." Id. at 83-84 (citation omitted).

To dispute a proposed tier designation, a registrant can, for example

"introduce evidence at the hearing that the [RRAS] calculations do not properly

encapsulate his specific case." G.B., 147 N.J. at 85. Or, registrant may

"produce[] proof, whether in the form of reliable hearsay, affidavit, or an offer

of live testimony, that is sufficient to raise a 'genuine issue of material fact,' that

the tier classification and the manner of notification are inappropriate." C.A.,

146 N.J. at 97. While registrant bears the burden of producing evidence that the

tier classification and manner of notification is inappropriate, it is ultimately the

A-1286-20
11
State's burden to establish by clear and convincing evidence that the proposed

tier classification is warranted. G.B., 147 N.J. at 77.

"Once the State has satisfied its burden of going forward, the court 'shall

affirm the prosecutor's determination unless it is persuaded by a preponderance

of the evidence that it does not conform to the laws and Guidelines'" based upon

a reviewing judge's independent review of the case and its merits. C.A., 146

N.J. at 84 (quoting Doe v. Poritz, 142 N.J. 1, 32 (1995)).

In determining a registrant's classification, the judge may rely upon the

RRAS. However,

[t]he Supreme Court has made clear that 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 of community notification
based on all of the evidence available to it. These
determinations are best made on a case-by-case basis
within the discretion of the court. [C.A., 146 N.J. at
108-09]; [G.B., 147 N.J. at 78-79].

Of course, such judgments must be based on evidence
that is clear and convincing. In re Registrant M.F., 169
N.J. 45, 54 (2001). While the Rules of Evidence do not
apply, the court may consider all reliable information.
Sexual offenses, not the subject of a conviction, may be
considered in the risk calculus, and may be supported
by documentation deemed reliable including, e.g.
admissions by the Registrant, police reports and
psychiatric reports. In re Registrant C.A., 285 N.J.

A-1286-20
12
 Super. 343, 347-48 (App. Div. 1995), aff'd, [C.A.], 146
N.J. at 71.

[J.W., 410 N.J. Super. at 130-31 (emphasis added).]

Reliable documents that may not be admissible under our Rules of

Evidence, may still be considered by a judge making a classification

determination because the "hearing process . . . is not governed by the rules of

evidence." C.A., 146 N.J. at 83 (internal citations omitted). Thus, "[t]he

reviewing court may rely exclusively on documentary evidence 'on all issues.'"

Ibid. (citation omitted). Nonetheless, the reviewing judge shall only consider

evidence that is "relevant and trustworthy." See N.J.R.E. 101(a)(3). Thus,

relaxing the standards of admissibility is "not to be equated with automatic

admissibility." C.A., 146 N.J. at 95 (quoting State v. Davis, 96 N.J. 611, 623

(1984)). Instead, hearsay evidence that is reliable under the totality of the

circumstances of the statement being considered is "admissible and sufficient to

allow the State to sustain its burden of presenting a prima facie case." Id. at 95-

96. As such, a reviewing judge "may take into account any [credible]

information available," which may be in the form of "admissions by the

registrant, police reports, [or] pre-sentencing reports." Id. at 83 (quoting RRA

Manual at 5).

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13
 Here, therefore, we are not persuaded by registrant's argument that the

reviewing judge should not have considered the arrest report's description of the

depicted children's ages. Contrary to registrant's contention, the arrest report is

very specific when it provided information as to the contents of the video,

including the children's ages. Particularly, the arrest report stated: (1) the

location of where the file was found (registrant's computer), (2) the type of file

(video), (2) the number of participants (two), (3) the participants' gender (male),

(4) the age of the participants (ten- to twelve-years-old) and (5) the type of act

being performed (oral sex).

In addition, the arrest report noted that this information was "partly" based

on registrant's admission. There was no showing before the reviewing judge

that the statements were unreliable as unsupported by registrant's admissions or

the report's author's viewing of the recording stored on registrant's computer.

Notably, registrant never certified that the ages of the children were in fact

different.

The supplemental arrest report states that registrant "gave a two-page and

six-page written confession as to his downloading of child pornography via the

internet in addition to meeting a [thirteen] year old boy online and traveling to

Fargo, North Dakota to engage in sex with the minor." Because the subject of

A-1286-20
14
the six-page written confession is about registrant's trip to North Dakota and

having sexual intercourse with a child, a reasonable inference can be drawn that

the two-page confession is about the "downloading of child pornography,"

which contains the information of the children's ages included in the arrest report

as the prosecutor argued, without objection, during the hearing. State v. Smith,

167 N.J. 158, 178 (2001) (noting that a prosecutor may draw reasonable

inferences from evidence and that appellate courts have "acknowledged that if a

prosecutor's arguments are based on the facts of the case and reasonable

inferences therefrom, what is said in discussing them, 'by way of comment,

denunciation or appeal, will afford no ground for reversal'") (quoting State v.

Johnson, 31 N.J. 489, 510 (1960)). Indeed, during the hearing, registrant

conceded the possibility that the information could have come from his oral

admission. Specifically, he contended "we don't really know who came up with

those ages. It could have been [registrant] saying it, or it could have been the

investigator."

Moreover, as already noted, registrant did not present any evidence that

contradicted or provided the actual age of the children depicted in the video.

Without such evidence there was no reason advanced to support a finding that

the arrest reports were unreliable. See C.A., 146 N.J. at 98 (finding that police

A-1286-20
15
reports may be deemed reliable because it is "presume[d] that police officers . . .

will accurately report on the statements given to them"). Simply arguing that a

child that is ten- to twelve-years-old may be mistaken for a thirteen-year-old,

without more, did not "create a material factual question" or trump the reviewing

judge's sound discretion. See C.A., 146 N.J. at 110 (remanding to reviewing

court after finding that "material factual question about the nature and

circumstances [of a factor] may have a significant effect on [registrant's] tier

classification").

Here, the judge conducted an independent review of the record before him,

affirmed the prosecutor's Tier Two-Moderate Risk of re-offense classification,

including the moderate risk assessment for factor three (age of victim). In

particular, he observed that law enforcement determined the children's ages as

being ten- to twelve-years-old in its arrest report. In addition, he found that an

inference can be drawn from the references to a confession in the supplemental

report that the children's ages were contained in the two-page confession

supports law enforcement's determination. Under the totality of the

circumstances, he ultimately found that the State clearly and convincingly met

its burden of proof. We have no cause to disturb that result.

Affirmed.

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