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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2781-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK T. DEBIASSE,
Defendant-Appellant.
___________________________
Submitted November 16, 2016 – Decided February 24, 2017
Before Judges Fuentes and Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment No. 10-05-0518.
Joseph E. Krakora, Public Defender, attorney
for appellant (Joshua D. Sanders, Assistant
Deputy Public Defender, of counsel and on the
brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Paula Jordao,
Assistant Prosecutor, on the brief).
PER CURIAM
A Morris County grand jury indicted defendant Mark T. DeBiasse
on one count of fourth degree failing to register as a convicted
sex offender as required by N.J.S.A. 2C:7-2e, commonly known as
"Megan's Law." Thereafter, defendant moved before the vicinage's
Assignment Judge to dismiss the indictment pursuant to N.J.S.A.
2C:2-11, characterizing his alleged failure to register as a de
minimis infraction. Defendant characterized his noncompliance as
practically inconsequential because he was wearing a global
positioning satellite (GPS) leg-bracelet during the relevant time
period.
After considering the arguments of counsel, the Honorable
Thomas L. Weisenbeck, A.J.S.C., denied defendant's motion. In a
statement of reasons attached to the order denying the motion,
Judge Weisenbeck concluded "defendant's failure to register is the
very type of conduct that the statute was designed to address."
After defendant waived his right to a jury trial, the matter
was tried as a bench trial before Judge Mary Gibbons Whipple on
April 7, 2014. The State called Borough of Madison Police
Detective Edward Mitchko as its only witness. Mitchko first
testified about defendant's criminal history by relying on the
judgments of conviction. On May 23, 1996, defendant was convicted
of second degree endangering the welfare of a child, N.J.S.A.
2C:24-4a. On November 1, 1996, the trial court sentenced defendant
for this offense. As a part of this sentence, the court placed
defendant on community supervision for life, pursuant to N.J.S.A.
2 A-2781-14T2
2C:43-6.4, and ordered defendant to register as a convicted sex
offender under N.J.S.A. 2C:7-2.
Detective Mitchko testified that on March 4, 2009, defendant
reported to the Madison Borough Police Station to comply with his
yearly obligation to register as a convicted sex offender under
N.J.S.A. 2C:7-2. Mitchko made clear this was not the first time
defendant had registered as a sex offender with the Madison Borough
Police Department. Mitchko testified he witnessed defendant
complete and sign the Morris County Prosecutor's Office Sexual
Offender registration form on March 4, 2009.1 Mitchko testified
that he reads "to each registrant . . . their duty to verify their
address. If they move[,] to notify us. If they move out-of-
state[,] to notify us and the town that they're moving to." The
form also apprised defendant that the next registration date was
March 4, 2010.
Mitchko testified defendant did not report to the Madison
Borough Police Department on March 4, 2010 to re-register as a sex
offender. Mitchko also spoke to other detectives in the Department
to determine whether defendant had attempted to contact them to
1
Although not a part of the record before us, it is not disputed
that defendant also completed and signed an acknowledgement of
duty to register, re-register, and verify address form on that
same day. According to the State, this document was admitted into
evidence by Judge Gibbons Whipple.
3 A-2781-14T2
explain his failure to appear. According to Mitchko, there are
no records indicating defendant contacted the Madison Borough
Police Department on March 4, 2010. After waiting a few days as
instructed, on March 10, 2010, Mitchko contacted the Morris County
Prosecutor's Office to obtain authorization for the issuance of a
warrant for defendant's arrest for committing the fourth degree
offense of failing to register as required under N.J.S.A. 2C:7-2.
Based on this evidence, Judge Gibbons Whipple found defendant
guilty of "knowingly fail[ing] to register as a sex offender as
required by law." The Judge noted that defense counsel "conceded
during opening statements that Mr. DeBiasse was required to
register and failed to do so[,] but argues that the State has not
proven the requisite culpability to establish that the failure was
knowing." In rejecting this argument, Judge Gibbons Whipple found
"[t]he State established through the testimony of Detective
Mitchko as well . . . as through [documentary exhibits admitted
into evidence] that Mr. DeBiasse knew of his obligation to
register."
Defendant argued, however, that the State was required to
prove more than defendant was "aware in March 2009 that he had to
report in 2010." As Judge Gibbons Whipple framed it, defendant
argued that "the State is required to prove his non-registration
4 A-2781-14T2
in 2010 was knowing." Once again, the judge found this argument
was not supported by the record.
There's no question here that the defendant
had actual knowledge of the duty to register
and that he failed to timely comply. Thus
this was not conduct wholly passive but
conduct which amounted to failure to act under
circumstances that should alert the doer [to]
the consequences of his deeds.
On October 31, 2014, defendant appeared before a different
judge to be sentenced. By that time, defendant had been detained
on this charge for 921 days. The court sentenced defendant to
time served, ordered him to submit to DNA testing, and imposed the
mandatory fines and penalties.
Defendant now appeals raising the following argument.
POINT ONE
SIMPLY BEING ADVISED OF A RESPONSIBILITY TO
RE-REGISTER, AND NOT RE-REGISTERING ON THE
SPECIFIED DATE, DOES NOT ESTABLISH THAT THE
CONDUCT WAS KNOWING AS REQUIRED UNDER N.J.S.A.
2C:7-2e ESTABLISHING THAT THE TRIAL COURT
IMPROPERLY APPLIED A DE FACTO STRICT LIABILITY
STANDARD IN THIS MATTER.
We reject this argument and affirm substantially for the
reasons expressed by Judge Gibbons Whipple. We add only the
following brief comments. N.J.S.A. 2C:7-2e provides, in pertinent
part: "A person required to register . . . shall verify his address
annually in a manner prescribed by the Attorney General." The
State acknowledges it is obligated to prove beyond a reasonable
5 A-2781-14T2
doubt that defendant, "knowing" he is required by law to register
as a sex offender, "knowingly failed to do so."
A person acts knowingly with respect to the
nature of his conduct or the attendant
circumstances if he is aware that his conduct
is of that nature, or that such circumstances
exist, or he is aware of a high probability
of their existence. A person acts knowingly
with respect to a result of his conduct if he
is aware that it is practically certain that
his conduct will cause such a result.
"Knowing," "with knowledge" or equivalent
terms have the same meaning.
[N.J.S.A. 2C:2-2b(2).]
As an appellate court, we afford substantial deference to the
trial judge's factual findings made while sitting as the trier of
fact in a bench trial. State v. Hinton, 216 N.J. 211, 228 (2013).
We are bound to uphold those findings as long as they are supported
by sufficient credible evidence in the record. State v. Handy,
206 N.J. 39, 44 (2011). "However, a reviewing court owes no
deference to the trial court's determinations as to matters of
law, and those determinations are reviewed de novo." State v.
Coles, 218 N.J. 322, 342 (2014).
Judge Gibbons Whipple's factual findings are well-supported
by the record developed at trial and we are thus bound by them.
6 A-2781-14T2
After reviewing her legal analysis and conclusions de novo, we are
in complete agreement with her interpretation of N.J.S.A. 2C:7-
2e.
Affirmed.
7 A-2781-14T2
STATE OF NEW JERSEY VS. DALE A. ROBERTS (15-10-1795, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion