                       RECORD IMPOUNDED

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1243-16T2

STATE OF NEW JERSEY,

     Plaintiff-Appellant,               APPROVED FOR PUBLICATION

                                                 July 22, 2019
v.
                                            APPELLATE DIVISION
PAUL TIMMENDEQUAS,

     Defendant-Respondent.
_____________________________

           Argued February 4, 2019 – Decided July 22, 2019

           Before Judges Messano, Fasciale and Gooden Brown.

           On appeal from an interlocutory order of the Superior
           Court of New Jersey, Law Division, Middlesex
           County, Indictment No. 15-11-1377.

           Jennifer E. Kmieciak, Deputy Attorney General,
           argued the cause for appellant (Gurbir S. Grewal,
           Attorney General, attorney; Jennifer E. Kmieciak, of
           counsel and on the brief).

           James K. Smith, Jr., Assistant Deputy Public
           Defender, argued the cause for respondent (Joseph E.
           Krakora, Public Defender, attorney; James K. Smith,
           Jr., of counsel and on the brief).

     The opinion of the court was delivered by

MESSANO, P.J.A.D.
      In 1998, defendant Paul Timmendequas pled guilty to second-degree

sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a). The judge sentenced defendant in

1999 to two concurrent seven-year terms of imprisonment at the Adult

Diagnostic and Treatment Center, the registration requirements of Megan's

Law, N.J.S.A. 2C:7-1 to -23, and community supervision for life (CSL),

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

"component" of Megan's Law. State v. Schubert, 212 N.J. 295, 305 (2012).

      N.J.S.A. 2C:7-2(a) criminalizes the failure to register as required by

subsections (c) and (d) of the statute. Subsection (c) governs the obligations to

initially register, and subsection (d) specifically criminalizes the failure to

notify the appropriate authorities and re-register upon relocation.           When

defendant was convicted, a person committed a fourth-degree crime if he

failed to register as a sex offender or failed to notify the appropriate authoriti es

and re-register upon relocating. N.J.S.A. 2C:7-2(a) and (d) (1999). Similarly,

violating conditions of CSL was a fourth-degree crime. N.J.S.A. 2C:43-6.4(d)

(1999). The Legislature increased the penalty for failing to register as a sex

offender under subsection (a) to a third-degree crime in 2007. L. 2007, c. 19.

It increased the penalties for failing to notify and re-register upon relocation,




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and for violating conditions of CSL, to third-degree crimes in 2014. L. 2013,

c. 214.1

      In 2015, a Middlesex County grand jury indicted defendant for third-

degree violation of conditions of CSL, N.J.S.A. 2C:43-6.4(d) (count one);

third-degree absconding from parole, N.J.S.A. 2C:29-5(b) (count two); two

counts of third-degree failure to register as a sex offender and to notify law

enforcement of relocation and re-register, N.J.S.A. 2C:7-2(a) and (d) (counts

three and four); and third-degree theft, N.J.S.A. 2C:20-9 (count five).2

Defendant moved to dismiss counts one, three and four, arguing that when he

was convicted of the underlying sex offenses, see N.J.S.A. 2C:7-2(b), the

crimes charged in those counts were not third-degree offenses. Defendant




1
   Earlier, in 2004, the Legislature replaced CSL with parole supervision for
life (PSL). L. 2003, c. 267. In State v. Perez, 220 N.J. 423, 442 (2015), the
Court held that applying the PSL amendments to defendants previously
sentenced to CSL violated the Ex Post Facto Clauses of the federal and state
constitutions. See U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3.
2
  Counts three and four charged defendant with violating N.J.S.A. 2C:7-2(a)
and (d) twice on the same day, once when he failed to notify the Edison Police
Department ten days before he intended to relocate from his Edison residence,
and again when he failed to notify the Bridgewater Police Department and re-
register within ten days of his intention to move to that town.



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                                        3
contended that increasing his potential sentence exposure violated the Ex Post

Facto Clauses.3

      In a thoughtful written opinion, Judge Colleen M. Flynn agreed. She

entered an order dismissing counts one, three and four without prejudice to the

State's ability to re-indict defendant "with appropriate grading of the charges."

We granted the State leave to appeal.

      We stayed this appeal and several others because the Court had granted

certification in State v. Hester, 233 N.J. 115 (2017). There, the defendant,

who was convicted prior to the 2014 amendment to N.J.S.A. 2C:43-6.4(d),

argued the increased penalty for violating the conditions of CSL ran afoul of

the Ex Post Facto Clauses. The Court agreed. State v. Hester, 233 N.J. 381,

385 (2018) ("[T]he Federal and State Ex Post Facto Clauses bar the retroactive

application of the 2014 Amendment to defendants' CSL violations."). As a

result, the State withdrew its appeal of that part of Judge Flynn's order

dismissing count one.

      The State now contends:

            POINT I

            THERE IS NO EX POST FACTO VIOLATION
            WHEN A SEX OFFENDER WHO FAILS TO

3
   Defendant also argued this violated principles of double jeopardy. The
judge rejected that claim, and defendant has not raised the issue before us.


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                                        4
            REGISTER AFTER MARCH 1, 2007 IS CHARGED
            WITH A THIRD[-]DEGREE CRIME.

The State's primary argument is that charging defendant with a third-degree

offense does not violate the Ex Post Facto Clauses because "the amended

statute applies only prospectively to defendant's new crimes of failing to

register after March 1, 2007[,]" and "does not retroactively increase the

penalties for defendant's 1999 . . . convictions."     The State contends that

Hester does not compel a contrary result.

      Defendant's counter-argument is simple. He contends that registration

was a condition of his 1999 sentence. Increasing the penalties for failing to

register or notify and re-register upon relocation, therefore, imposes additional

punishment after he committed his crime, in violation of the Ex Post Facto

Clauses.4

                                       I.

      In Hester, the defendants were sentenced to CSL prior to the 2014

amendment that increased the penalty for a violation of CSL from a fourth- to

a third-degree crime punishable by a presumptive prison term, and converted

CSL to PSL with additional restrictions and consequences in case of such a

4
   Because defendant is charged with conduct that occurred after the 2007
amendment to N.J.S.A. 2C:7-2(a), and the 2014 amendment to subsection (d),
even though the parties cite to and refer to only the 2007 amendment, we refer
to both generically as "the amendments" for the balance of the opinion.


                                                                        A-1243-16T2
                                       5
violation.   233 N.J. at 385.     The trial judges concluded that applying the

amended statute to the defendants violated the Ex Post Facto Clauses, and we

affirmed on appeal. Id. at 390.

      Before the Court, the State argued, "[b]ecause [the] defendants

committed their CSL violations after the effective date of the [a]mendment,

. . . they committed new crimes subject to new statutory punishments and

therefore the [a]mendment did not relate back or increase the punishment for

[the] defendants' predicate sex offenses." Id. at 390-91. According to the

State, because the defendants' offenses were new offenses, prosecuting them as

third-degree offenses was not an ex post facto violation.

      The Court rejected the argument. Justice Albin wrote:

                   An ex post facto law is defined by two critical
             elements. "[F]irst, the law 'must be retrospective, that
             is, it must apply to events occurring before its
             enactment'; and second, 'it must disadvantage the
             offender affected by it.'" A retroactive law that
             merely effects a procedural change to a statutory
             scheme will fall outside of the constitutional
             prohibition. In contrast, a law that retroactively
             "imposes additional punishment to an already
             completed crime" disadvantages a defendant, and
             therefore is a prohibited ex post facto law.

                   The State contends that the "completed crime" is
             the CSL violation, whereas [the] defendants assert that
             the "completed crime" is the predicate offense. Here,
             because the additional punishment attaches to a
             condition of [the] defendants' sentences, the



                                                                        A-1243-16T2
                                        6
            "completed crime" necessarily relates back to the
            predicate offense.

            [Id. at 392 (first alteration in original) (citations
            omitted).]

      Focusing on the precise issue before it, the Court noted that "[p]arole

and probation are punishments imposed for the commission of a crime." Id. at

393 (citing Riley v. N.J. State Parole Bd., 219 N.J. 270, 288 (2014)). "A

statute that retroactively imposes increased 'postrevocation penalties [on a

scheme of supervised release] relate[s] to the original offense,' raising the

issue of whether the defendant is 'worse off' for ex post facto purposes." Ibid.

(alterations in original) (quoting Johnson v. United States, 529 U.S. 694, 701

(2000)). As a result,

            the 2014 [a]mendment materially altered [the]
            defendants' prior sentences to their disadvantage —
            increasing to a third-degree crime a violation of the
            terms of their supervised release and converting their
            CSL to PSL . . . . The 2014 [a]mendment effected not
            a simple procedural change but rather one that offends
            the very principles animating the Ex Post Facto
            Clauses of our Federal and State Constitutions.

            [Id. at 398.]

                                        II.

      Employing similar reasoning, we might conclude that the amendments to

N.J.S.A. 2C:7-2 that increased penalties for failing to register and for failing to

notify law enforcement and re-register upon relocation were both retroactive in

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                                        7
their application and disadvantaged defendant.       Id. at 392. The additional

punishment attached to a "completed crime," because the community

registration provisions of Megan's Law are "condition[s] of defendant['s]

sentence[]." Ibid.

      Recognizing the potential impact of Hester, the State alternatively

asserts that this case is different "for at least three critical reasons."      It

contends that Hester only dealt with violations of CSL, and the Court made no

mention of a "completely separate statute, N.J.S.A. 2C:7-2." The argument is

unpersuasive because there is no indication that the defendants in Hester raised

the issue, and therefore it was not before the Court. 5

      The State also argues that the United States Supreme Court has already

held that because registration is not "punitive," "[a] sex offender who fails to


5
   Nor did the defendants raise the issue before us. See State v. Hester, 449
N.J. Super. 314 (App. Div. 2017). Although we stated that the defendants
"faced the mandatory imposition of extended prison terms and PSL which,
unlike the remedial registration and notification requirements of Megan's Law,
is considered to be a penal post-sentence supervisory scheme," id. at 320, we
made that statement, not to resolve whether retrospective increased
punishment for failure to register violates the Ex Post Facto Clause, but rather,
to acknowledge the remedial purposes of Megan's Law. See Doe v. Poritz,
142 N.J. 1, 73 (2015) (concluding 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"). We were never asked
to address the constitutionality of retrospective increased punishment for the
failure to register or to notify and re-register upon relocation.



                                                                        A-1243-16T2
                                         8
comply with the reporting requirement may be subjected to a criminal

prosecution for that failure, but any prosecution is a proceeding separate from

the individual's original offense." Smith v. Doe, 538 U.S. 84, 101-02 (2003).

      However, the sole issue before the Court in Smith was the

constitutionality of Alaska's registration and community notification statute as

applied to sex offenders convicted prior to its passage. 6 Id. at 89-91. Here, the

State seeks to extend the import of the single sentence cited above by

removing it from its context in the opinion:

            A sex offender who fails to comply with the reporting
            requirement may be subjected to a criminal
            prosecution for that failure, but any prosecution is a
            proceeding separate from the individual's original
            offense. Whether other constitutional objections can
            be raised to a mandatory reporting requirement, and
            how those questions might be resolved, are . . . beyond
            the scope of this opinion. It suffices to say the
            registration requirements make a valid regulatory
            program effective and do not impose punitive
            restraints in violation of the Ex Post Facto Clause.

            [Id. at 101-02.]

      Several federal courts have recognized the limits of Smith's holding.

See, e.g., Doe v. Snyder, 834 F.3d 696, 703 (6th Cir. 2016) ("Smith . . .


6
   Coincidentally, the Alaska Supreme Court held the registration statute at
issue in Smith was punitive, and its retroactive application to previously
convicted sex offenders violated the state constitution. Doe v. State, 189 P.3d
999, 1018-19 (Alaska 2008).


                                                                         A-1243-16T2
                                        9
involved nothing more than reporting requirements . . . ."); United States v.

Young, 582 F. Supp. 2d 846, 851 (W.D. Tex. 2008) ("The Supreme Court did

not determine whether prosecution of retroactively applied registration

requirements, which impose criminal penalties, violate the ex post facto

clause."); United States v. Gillette, 553 F. Supp. 2d 524, 528 (V.I. 2008)

("Smith does not even remotely stand for the proposition that retrospective

punishment for failure to register . . . is permissible under the Ex Post Facto

Clause."); United States v. Stinson, 507 F. Supp. 2d 560, 565 (S.D. W. Va.

2007) ("It is clear in reading Smith that the primary focus of the Supreme

Court was whether the registry and notification requirements themselves

violated the Ex Post Facto Clause.").

      Here, defendant did not challenge, nor could he, the constitutionality of

Megan's Law, including its imposition of criminal penalties for those who fail

to register or notify and re-register upon relocation. Poritz, 142 N.J. at 21-22;

see also id. at 43 (holding Megan's Law "does not constitute punishment even

though . . . it may indirectly and adversely affect, potentially severely, some of

those subject to its provisions"). Defendant's challenge is to the amendments,

which, he contends, "materially altered defendant['s] prior sentence[] to [his]

disadvantage." Hester, 233 N.J. at 398.




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                                        10
      We come then to the State's final and most persuasive argument. It notes

that N.J.S.A. 2C:7-2 requires all sex offenders to register, including those who

are not on any form of supervised release under CSL or PSL, either because

their crimes pre-dated the passage of Megan's Law, or because their particular

sex offense does not require a mandatory PSL sentence under N.J.S.A. 2C:43 -

6.4(a). The State contends the holding in Hester is limited, therefore, because

it was "premised on the Court's finding that the amended version of N.J.S.A.

2C:43-6.4 enhanced the penalties for a violation of 'supervised release[,]'" an

obvious penal consequence of the defendants' original conviction. See Hester,

233 N.J. at 385 ("Community supervision for life was a punishment imposed

on defendants at the time they were sentenced."); see also Schubert, 212 N.J. at

307 (distinguishing the consequences of registration and notification from "the

significant restrictions that are attendant to [CSL]"). Because registration is

not punishment imposed at the time of sentencing, Poritz, 142 N.J. at 43,

increasing the penalty for failing to register or notify and re-register upon

relocation was not "additional punishment [that] attache[d] to a condition of

defendant['s] sentence[]." Hester, 233 N.J. at 392. 7 While there is intuitive

appeal to the argument, we reject it.


7
    The Sixth Circuit concluded that Michigan's pervasive registration
requirements and restrictions, combined with enforcement by criminal
                                                          (continued)

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                                        11
      Initially, the Legislature could have chosen an alternative method to

compel compliance with Megan's Law's registration requirements, but, instead

it elected to impose potential penal consequences upon those who failed to

register or provide notification and re-register upon relocation. Thus, while

the Court in Poritz held the overall purpose of Megan's Law is remedial in

nature, the method chosen to enforce its registration requirements is not. See,

e.g., Gillette, 553 F. Supp. 2d at 528 (recognizing that although the federal

registration statute "may be considered a civil regulatory scheme, there [was]

no justification for viewing" an amendment that imposed a harsher sentence

for failing to register as "civil in nature []or nonpunitive"). The Committee

statement reporting favorably on the proposed legislation that became L. 2007,

c. 19 makes clear it was intended to increase the punitive consequences for

those who violated Megan's Law's registration obligations. Assemb. Judiciary

Comm. Statement to S. 716 & 832 (Oct. 23, 2006). Because the Legislature

enacted the amendments "to impose punishment[,]" the statutes "had a punitive

intent." Riley, 219 N.J. at 285 (quoting Smith, 538 U.S. at 92). That alone

compels ex post facto analysis. Ibid.

(continued)
penalties for violations, "resemble[] the punishment of parole/probation" and
made the entire scheme punitive. Snyder, 834 F.3d at 703. The District Court
of Colorado reached a similar result regarding that state's registration
requirements. Millard v. Rankin, 265 F. Supp. 3d 1211, 1231 (D. Colo. 2017).


                                                                       A-1243-16T2
                                        12
      Along these lines, some federal courts have conducted ex post facto

analyses when amendments to otherwise remedial federal sexual offender

notification statutes imposed additional punitive consequences, for example,

increasing sentencing exposure when the sex offender travelled interstate and

failed to register.   In Gillette, the district court concluded that it was a

violation of the ex post facto clause to apply increased penalties for failing to

register to the defendant, who traveled interstate and failed to register before

the effective date of the amendment. 553 F. Supp. 2d at 533; accord Stinson,

507 F. Supp. 2d at 569.

      Additionally, many federal and state courts have concluded that

subsequent amendments to an otherwise constitutional remedial registration

scheme, which make obligations more onerous than when the crime was

committed or when registration was initially imposed, may result in ex post

facto violations, even though the amendments did not increase the direct penal

consequence for non-compliance. See, e.g., Snyder, 834 F.3d at 698, 705-06

(concluding    retroactive   application    of   more   restrictive   registration

requirements in amended Michigan law were punitive and violated ex post

facto clause); Commonwealth v. Muniz, 164 A.3d 1189, 1193, 1218 (Pa. 2017)

(more onerous lifetime registration enacted after the defendant committed the

crime, but before he was sentenced, violated ex post facto clause); Doe v.



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                                       13
State, 111 A.3d 1077, 1100 (N.H. 2015) (aggregate effects of amendments to

previously constitutional regulatory scheme, including lifetime registration

without review, made the legislation punitive); Starkey v. Okla. Dep't of Corr.,

305 P.3d 1004, 1030 (Okla. 2013) (finding retroactive application of lifetime

registration was punitive and violated ex post facto clause); State v. Williams,

952 N.E.2d 1108, 1113 (Ohio 2011) (amendment that increased length of

registration period violated state ex post facto prohibition when applied to a

defendant who committed the crime before effective date of amendment);

Commonwealth v. Baker, 295 S.W.3d 437, 446-47 (Ky. 2009) (residency

restriction too punitive when applied retroactively); State v. Letalien, 985 A.2d

4, 26 (Me. 2009) (retroactive application of lifetime registration violated ex

post facto clause).

      We are persuaded that defendant's original 1999 sentence required hi m

to comply ostensibly for the rest of his life with Megan's Law's registration

requirements, which, in themselves, were not punitive but were enforced

through decidedly punitive means. The amendments increased the punishment

for defendant's non-compliance with that portion of his 1999 sentence. As

such, the amendments "materially altered defendant['s] prior sentence[] to [his]

disadvantage." Hester, 233 N.J. at 398. We therefore agree with Judge Flynn




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                                       14
that the State may not prosecute the crimes charged in counts three and four as

third-degree crimes.

      However, we see no reason why the judge dismissed the counts without

prejudice, thereby forcing the State to return to the grand jury if it sought to re -

indict defendant based on the same proofs it originally adduced. The only

consequence of that effort would be essentially to amend the charges to

properly designate them as fourth-degree offenses. Our Court Rules already

permit such an amendment without re-presentation.              Compare R. 3:7-4

(permitting amendment of the indictment "to correct an error in . . . the

description of the crime . . . or to charge a lesser included offense provided

that the amendment does not charge another or different offense . . . and the

defendant will not be prejudiced . . . in his or her defense"), with State v. Dorn,

233 N.J. 81, 93-94 (2018) (explaining constitutional right to indictment and

limits upon subsequent amendment). On the record before us, defendant never

challenged the sufficiency of the evidence before the grand jury, nor could he

claim any prejudice resulted from having to defend now against crimes that

required proof of the same elements but carried lesser penalties. On the State's

motion, the court may amend the indictment to reflect the proper grading of

the charges.

      Affirmed as modified.



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