                              RECORD IMPOUNDED

                       NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION

                                              SUPERIOR COURT OF NEW JERSEY
                                              APPELLATE DIVISION
                                              DOCKET NO. A-0816-15T1
                                                APPROVED FOR PUBLICATION
IN THE MATTER OF REGISTRANT
D.F.S.                                                  July 1, 2016

                                                     APPELLATE DIVISION


            Argued May 24, 2016 - Decided July 1, 2016

            Before Judges Reisner, Hoffman and Leone.

            On appeal from the Superior Court of New
            Jersey,   Law   Division,   Hudson County,
            Indictment No. 05-11-02091.

            Michael C. Woyce argued the cause for
            appellant D.F.S. (Murphy & Woyce, attorneys;
            Mr. Woyce, on the brief).

            Eric   P.   Knowles,   Assistant  Prosecutor,
            argued the cause for respondent State of New
            Jersey    (Esther   Suarez,   Hudson   County
            Prosecutor, attorney; Erin M. Campbell,
            Assistant Prosecutor, on the brief).

    The opinion of the court was delivered by

REISNER, P.J.A.D.

    Registrant D.F.S. appeals from an August 28, 2015 order,

resulting      from    a   Megan's     Law    tier   hearing.     Following    the

hearing, the judge (Megan's Law judge or trial judge) directed

that D.F.S.'s individual registration record be included on the

sex offender Internet registry, pursuant to N.J.S.A. 2C:7-13(e),

because   at    the    time   D.F.S.    was    sentenced    for   his     predicate
crime, the sentencing judge found that his sexually offending

conduct was repetitive and compulsive.1    See N.J.S.A. 2C:47-3.

     The pertinent provision states:

           Notwithstanding the provisions of paragraph
           d.   of   this    subsection     [including   an
           exception for incest offenders whose risk of
           re-offense is moderate], the individual
           registration record of an offender to whom
           an exception enumerated in paragraph (1),
           (2) or (3) of subsection d. of this section
           applies shall be made available to the
           public on the Internet registry if the
           offender's conduct was characterized by a
           pattern of repetitive, compulsive behavior,
           or the State establishes by clear and
           convincing     evidence     that,    given   the
           particular facts and circumstances of the
           offense    and    the     characteristics    and
           propensities of the offender, the risk to
           the general public posed by the offender is
           substantially similar to that posed by
           offenders   whose    risk    of   re-offense  is
           moderate and who do not qualify under the
           enumerated exceptions.

           [N.J.S.A. 2C:7-13(e) (emphasis added)].

     We conclude that the trial judge correctly interpreted the

statute,   because    N.J.S.A.   2C:7-13(e)    requires       that    the

information of a moderate or low risk sex offender appear on the


1
  The Megan's Law judge also placed defendant in Tier 2 (moderate
risk), but only the Internet notification is at issue on this
appeal. The Megan's Law judge stayed the Internet notification
pending appeal.    The stay is hereby vacated, effective forty-
five days from the date of this opinion.        That schedule is
intended to permit an orderly, non-emergent process should
D.F.S. intend to pursue a further appeal and seek a further
stay.



                                  2                             A-0816-15T1
registry       "if    the    offender's           conduct          was    characterized      by    a

pattern of repetitive, compulsive behavior." (emphasis added).

We   conclude        that    the       decision          whether          such   an    offender's

individual registration record "shall be made available to the

public on the Internet registry" depends on the nature of his

sexual offenses at the time he committed them, and not on his

mental condition at the time of the tier hearing.                                     Accordingly,

we affirm the order on appeal.

                                              I

     In    2006,      D.F.S.          pled   guilty       to       first-degree        aggravated

sexual assault, N.J.S.A. 2C:14-2(a)(1), for sexually molesting

his step-daughter.               According to statements D.F.S. made to the

psychologist         who    interviewed           him    prior       to    sentencing,     D.F.S.

began    molesting         the    child      when       she    was       between   the    ages    of

twelve and fourteen, and engaged in an escalating series of

sexual crimes against the victim, including digital penetration

and performing oral sex on her.2                              The psychologist concluded

that,    for    purposes         of    classification              under    N.J.S.A.     2C:47-3,

D.F.S.    had    engaged         in    "a    pattern          of    sex    offending     behavior


2
  D.F.S. did not provide us with the transcript of his plea
hearing or the plea form. Hence, we do not know what facts he
admitted as part of his guilty plea.      Nor do we know what
information he was given about the possible consequences of his
guilty plea. He also did not provide us with the transcript of
his sentencing hearing.



                                                  3                                       A-0816-15T1
[that] can be characterized as having been both repetitively and

compulsively performed."           The sentencing judge imposed a term of

ten   years   in   prison,       subject    to    the   No     Early   Release    Act,

N.J.S.A. 2C:43-7.2, to be served at the Adult Diagnostic and

Treatment Center (ADTC) for sex offenders.                     There is no dispute

on    this    record      that     the     sentencing        judge     adopted    the

psychologist's     finding       and    determined      that    D.F.S.'s   offenses

were repetitive and compulsive.3               D.F.S. did not appeal from the

ADTC sentence.

      On March 24, 2015, D.F.S. was released from prison.                          By

virtue of his conviction, he was subject to the registration and

notification provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23.

He was afforded a hearing to challenge his proposed Tier Two

classification, N.J.S.A. 2C:7-8, and to challenge his proposed

inclusion on the Internet registry.                 N.J.S.A. 2C:7-13; see Doe

v. Poritz, 142 N.J. 1, 107 (1995) (mandating tier classification

hearings); Paul P. v. Verniero, 982 F. Supp. 961, 964 (D.N.J.

1997)   (noting     the    New     Jersey        Supreme     Court's    1997     order

mandating that the State prove a registrant's appropriate tier

classification     by   clear     and    convincing        evidence),    aff'd,    170


3
  At the Megan's Law hearing on August 7, 2015, D.F.S.'s attorney
conceded that "we have no issue with the finding at the time of
sentencing,   at   that  time   he  was   found  repetitive   and
compulsive."



                                           4                                A-0816-15T1
F.3d 396 (3d Cir. 1999).        At his hearing, D.F.S. argued that due

to his successful treatment at the ADTC, he was no longer a

"repetitive      and   compulsive"      sex       offender,      and     thus    his

registration     information    should      not    be    made    public     on   the

Internet registry, pursuant to N.J.S.A. 2C:7-13(e).

       In a written opinion dated August 28, 2015, the trial judge

interpreted      the   phrase    "if       the     offender's         conduct    was

characterized by a pattern of repetitive, compulsive behavior,"

as evincing a legislative focus on the time when the offense was

committed.      N.J.S.A. 2C:7-13(e).             Therefore, the judge placed

no weight on a defense expert report opining that, at present,

D.F.S. is no longer "repetitive and compulsive."                       Because the

sentencing court had determined that D.F.S.'s sexually offending

conduct was repetitive and compulsive, the Megan's Law judge

held   that    N.J.S.A.   2C:7-13(e)    required        that    his    registration

information be placed on the Internet registry.

                                   II

       In his appellate brief, D.F.S. raises the following points

of argument:

              POINT I: PLACEMENT ON THE INTERNET REGISTRY
              AS A RESULT OF A FINDING THAT [D.F.S.] WAS
              REPETITIVE AND COMPULSIVE AT THE TIME OF
              SENTENCING,   WHERE   [D.F.S.]   WAS  NEVER
              INFORMED OF THIS CONSEQUENCE, VIOLATES THE
              DOCTRINE OF FUNDAMENTAL FAIRNESS




                                       5                                   A-0816-15T1
         POINT II: THE TRIAL COURT ERRED BECAUSE IT
         FAILED TO MAKE A FINDING BY CLEAR AND
         CONVICING    EVIDENCE    THAT   [D.F.S.]   WAS
         "REPETITIVE AND COMPULSIVE" AT THE TIME OF
         THE TIER HEARING AND INSTEAD RELIED UPON A
         FINDING   BY   A   LOWER   STANDARD   MADE  AT
         SENTENCING

         POINT III: THE TRIAL COURT ERRED IN HOLDING
         THAT   A    FINDING   OF   "REPETITIVE  AND
         COMPULSIVE" IS A STATIC FACTOR

         POINT IV:      THE STATUTORY LANGUAGE IS
         AMBIGUOUS AND THE TRIAL COURT SHOULD HAVE
         LOOKED TO THE BROADER STATUTORY ENACTMENT OF
         "MEGAN'S LAW" IN DETERMINING THE MEANING OF
         THE 2013 AMENDMENTS TO N.J.S.A. 2C:7-13

    As discussed later in this opinion, we decline to address

several of D.F.S.'s appellate arguments because they were not

raised in the trial court, are not supported by an appropriate

evidentiary record, or are otherwise not properly presented by

this appeal.

    However, the interpretation of N.J.S.A. 2C:7-13(e) is both

properly before us and central to the appeal.    Hence, we begin

with that issue.4   In 2000, the New Jersey Constitution was

amended to authorize public dissemination of information about

sex offenders:


4
  The general history of Megan's Law, and the procedures it
requires, have been detailed in other cases, and need not be
repeated here. See A.A. v. New Jersey, 341 F.3d 206, 208-09 (3d
Cir. 2003); A.A. v. State, 384 N.J. Super. 481, 486-91 (App.
Div.), certif. denied, 188 N.J. 346 (2006), cert. denied, 549
U.S. 1181, 127 S. Ct. 1169, 166 L. Ed. 2d 996 (2007).



                               6                          A-0816-15T1
                Notwithstanding any other provision of
           this Constitution and irrespective of any
           right    or      interest     in     maintaining
           confidentiality, it shall be lawful for the
           Legislature    to    authorize    by   law   the
           disclosure    to    the   general    public   of
           information pertaining to the identity,
           specific and general whereabouts, physical
           characteristics and criminal history of
           persons found to have committed a sex
           offense.    The scope, manner and format of
           the disclosure of such information shall be
           determined by or pursuant to the terms of
           the law authorizing the disclosure.

           [N.J. Const. art. IV, § 7, ¶ 12.]

    Shortly thereafter, the Legislature passed L. 2001, c. 167,

which   established   the   Internet   registry   for   certain    sexual

offenders.   N.J.S.A. 2C:7-12 to -19.       The Legislature made the

following findings and declarations:

                The Legislature finds and declares that
           the public safety will be enhanced by making
           information about certain sex offenders
           contained   in   the  sex  offender   central
           registry established pursuant to [N.J.S.A.
           2C:7-4] available to the public through the
           Internet.   Knowledge of whether a person is
           a convicted sex offender at risk of re-
           offense could be a significant factor in
           protecting oneself and one's family members,
           or those in care of a group or community
           organization, from recidivist acts by the
           offender.    The technology afforded by the
           Internet would make this information readily
           accessible to parents and private entities,
           enabling   them   to  undertake   appropriate
           remedial precautions to prevent or avoid
           placing potential victims at risk.

           [N.J.S.A. 2C:7-12.]




                                  7                               A-0816-15T1
    At that time, the Legislature indicated its policy view

that it was not necessary to include incest offenders5 on the

Internet    registry,    ibid.,    and   accordingly,      the      statute    as

originally enacted contained an exception for offenders whose

risk of re-offense was moderate and whose sole sex offense was

an incest offense.      N.J.S.A. 2C:7-13(d)(2).6

    However in 2013, the Legislature amended the statute to

require Internet     listing of any offender "whose risk of re-

offense is moderate or low and whose conduct was found to be

characterized by a pattern of repetitive, compulsive behavior

pursuant to the provisions of [N.J.S.A.] 2C:47-3."                      N.J.S.A.

2C:7-13(b)(2); L. 2013, c. 214, § 2 (eff. July 1, 2014).                      The

amendment also specifically required Internet listing of such

offenders     "[n]otwithstanding"     the     exceptions      in     subsections

(d)(1)-(3),    including   the    exception    for   incest    offenders      set

forth in subsection (d)(2).        N.J.S.A. 2C:7-13(e).            The amendment


5
  In this opinion, we use the terms "incest offenders" and
"incest offense" to refer to the offenders and sexual crimes
listed in N.J.S.A. 2C:7-13(d)(2).
6
  At the tier hearing, the State did not contest D.F.S.'s
assertion that his prior conviction would fall within section
13(d)(2). See In re N.B., 222 N.J. 87, 90 (2015) (holding that
an offender who committed multiple acts of sexual contact
against a relative, but had only one conviction, fell within the
incest exception in N.J.S.A. 2C:7-13(d)(2)). The correctness of
that assertion is not before us on this appeal.




                                     8                                  A-0816-15T1
therefore eliminated the exception for incest offenders whose

sex offenses were found to be repetitive and compulsive.7

      Despite the amendment's wording, defendant argues that, at

the   tier    hearing,    the     State   must   prove   that   an   offender's

current conduct is characterized by repetitive and compulsive

sexual offending.        We cannot agree.

      In     construing     the     statute,     we   follow    certain     well

established principles.

             "The     primary    goal     of    statutory
             interpretation 'is to determine as best [as
             possible] the intent of the Legislature, and
             to give effect to that intent.'"      "[T]he
             best indicator of that intent is the plain
             language chosen by the Legislature."     The
             Legislature   has   instructed  that,   when
             construing "its statutes, 'words and phrases
             shall be read and construed with their
             context, and shall, unless inconsistent with

7
   We find no merit in defendant's argument that the 2013
amendments must be construed in light of the Legislature's
earlier policy statement, in N.J.S.A. 2C:7-12, that some incest
offenders should be exempted from inclusion on the Internet
registry. The 2013 amendment reflects a change in that policy.
In fact the legislative history of the amendment strongly
suggests that the Legislature perceived the previous exceptions
as creating a loophole which the Legislature intended to close.
See Senate Law and Pub. Safety Comm., Statement to S. 2636 (June
6, 2013).   After reviewing the current exceptions in the law,
the Statement unequivocally expressed the legislative intent:
"This bill requires an offender whose conduct was found to be
repetitive and compulsive to appear on the Internet registry."
Ibid.   The Statement then explained that under the amendment,
"an offender whose conduct was found to be repetitive and
compulsive" will no longer be able to "invok[e] one of the
statutory exceptions to keep his registration information from
being published on the Internet." Ibid.



                                          9                            A-0816-15T1
                the manifest intent of the Legislature or
                unless another or different meaning is
                expressly   indicated,    be   given    their
                generally accepted meaning, according to the
                approved usage of the language.'"    State v.
                Bolvito, 217 N.J. 221, 228 (2014) (quoting
                N.J.S.A. 1:1-1).

                [N.B., supra, 222 N.J.           at        98    (additional
                citations omitted).]

       If   a    straightforward    reading          of    the    statute    yields      its

plain meaning, we need go no further.                           State v. Shelley, 205

N.J. 320, 323 (2011); DiProspero v. Penn, 183 N.J. 477, 492

(2005).

                "When the Legislature's chosen words lead to
                one   clear  and   unambiguous   result,   the
                interpretative process comes to a close,
                without the need to consider extrinsic
                aids."   A  court   "seek[s]   out   extrinsic
                evidence, such as legislative history, for
                assistance when statutory language yields
                'more than one plausible interpretation.'"
                A court may also turn to extrinsic evidence
                "if a literal reading of the statute would
                yield an absurd result, particularly one at
                odds with the overall statutory scheme."

                [N.B., supra, 222 N.J. at 98-99 (citations
                omitted).]

       In   analyzing    N.J.S.A.    2C:7-13,             we    consider    the   text    of

section 13, the sex offender sentencing statute to which it

refers, and the statutory scheme (Megan's Law) of which section

13 is a part.

       Based upon our reading of its plain wording, we conclude

that    N.J.S.A.       2C:7-13(e)    is        not        ambiguous.       The    relevant



                                          10                                      A-0816-15T1
provision is phrased in the past tense, applying to registrants

"whose conduct was found to be characterized by a pattern of

repetitive,       compulsive      behavior."         Ibid.        (emphasis    added).

Moreover,       another    provision    of    the    same    section      specifically

made clear that Internet listing was required for all offenders

"whose conduct was found to be characterized by a pattern of

repetitive, compulsive behavior pursuant to the provisions of

[N.J.S.A.] 2C:47-3."             N.J.S.A. 2C:7-13(b)(2) (emphasis added).

We conclude that both provisions describe a static factor, which

can   be   found      in   the   decision     made    by    the    sentencing    court

pursuant to N.J.S.A. 2C:47-3.

      Any doubt on that point is resolved by considering the

included reference to N.J.S.A. 2C:47-3, which is part of the Sex

Offender Act (Act), N.J.S.A. 2C:47-1 to -10.                      The Act's "central

theme"     is    to    "address[]      sex    offenders"          whose   conduct    is

clinically determined to be both repetitive and compulsive.                           In

re Civil Commitment of W.X.C., 204 N.J. 179, 196 (2010), cert.

denied, 562 U.S. 1297, 131              S. Ct. 1702, 179             L. Ed. 2d 635

(2011); see N.J.S.A. 2C:47-1 (sex offenders convicted of one of

the listed offenses must be clinically examined to determine if

their "conduct was characterized by a pattern of repetitive,

compulsive behavior," and if so, whether they are amenable to

sex offender treatment and willing to participate in it).




                                         11                                   A-0816-15T1
      N.J.S.A.      2C:47-3    sets     forth         the   criteria        the    sentencing

court is to use in determining whether to sentence a convicted

sex offender to the ADTC.                 Subsections 3(a) and 3(b) provide

that "[i]f the report of the [clinical] examination reveals that

the     offender's    conduct       was     characterized             by     a    pattern      of

repetitive, compulsive behavior" and "[i]f the court finds that

the     offender's    conduct       was     characterized             by     a    pattern      of

repetitive,    compulsive        behavior,"            then    an     ADTC       sentence      is

appropriate      so   long     as     the    offender          is     also       amenable       to

treatment and willing to engage in it.                      N.J.S.A. 2C:47-3(a), (b)

(emphasis added).

      The 2013 amendment to N.J.S.A. 2C:7-13 rewrote subsection

13(b)     entirely     to     include       the       previously-quoted                language,

including the reference to N.J.S.A. 2C:47-3.                                That reference

signals that for purposes of section 13, the terms "repetitive"

and "compulsive" are to be based on findings made under N.J.S.A.

2C:47-3.     Nothing in the wording or history of the amendment

suggests     that     the     terms     "repetitive"            and        "compulsive"        in

subsection 13(e) should be interpreted differently than the same

phrase in subsection 13(b).               Thus, the Legislature intended the

Internet    registration       decision          to    be     based    on        the   findings

originally made at the time of sentencing pursuant to N.J.S.A.

2C:47-3.




                                            12                                          A-0816-15T1
    Additional       wording    found        in   N.J.S.A.    2C:7-13(e)     also

supports our conclusion.             The section provides that Internet

listing is required if the offender's conduct was found to be

repetitive and compulsive, "or [if] the State establishes by

clear and convincing evidence" that the offender poses a current

risk by proving

          that,   given   the   particular   facts  and
          circumstances   of   the   offense   and  the
          characteristics and propensities of the
          offender, the risk to the general public
          posed by the offender is substantially
          similar to that posed by offenders whose
          risk of re-offense is moderate and who do
          not qualify under the enumerated exceptions.

          [N.J.S.A. 2C:7-13(e).]

Thus, subsection 13(e) sets forth, in the alternative, two bases

for Internet listing:         a static criterion consisting of a past

finding   of     repetitive    and    compulsive       conduct;   or   evidence

proving that the offender poses a current risk of re-offense

even though his past sexual offenses would not otherwise require

Internet listing.

    The broader statutory framework of which N.J.S.A. 2C:7-13

is a part further supports our conclusion.                   The Legislature's

concern   with     offenders    whose        conduct   was   characterized    by

repetitive, compulsive behavior is reflected throughout Megan's




                                        13                             A-0816-15T1
Law.8    N.J.S.A. 2C:7-2(b)(1), which addresses the registration of

sex     offenders,    states     that     the    sex    offenses       subject      to   the

registration provisions include

             [a]ggravated sexual assault, sexual assault,
             aggravated    criminal     sexual    contact,
             kidnapping pursuant to [N.J.S.A. 2C:13-
             1(c)(2)] or an attempt to commit any of
             these crimes if the court found that the
             offender's conduct was characterized by a
             pattern of repetitive, compulsive behavior,
             regardless of the date of the commission of
             the offense or the date of conviction.

Hence,     Megan's      Law     applies         retroactively         to     repetitive,

compulsive     offenders.       The     conduct     referred      to    in    the    above

quoted     language    is     the   conduct      exhibited       in    committing        the

offense.

        Further,     offenders      who    are    required       to    register      under

N.J.S.A.     2C:7-2(b)(1)       must      "verify      [their]    address      with      the

appropriate law enforcement agency every 90 days," whereas other


8
  In Doe v. Poritz, the Court described the challenge the
Legislature faced in designing Megan's Law: "The recidivism of a
repetitive and compulsive sex offender is almost intractable.
The problem of this form of recidivism poses an enormous
challenge to the Legislature to devise a solution generally
designed to remedy the problem without unnecessarily penalizing
those who are its source."    Doe v. Poritz, supra, 142 N.J. at
40; see also id. at 14-20. The Court noted that offenders whose
conduct was repetitive and compulsive are "those most likely,
even many years later, to reoffend." Id. at 74. In W.X.C., the
Court again acknowledged the Legislature's concern for the
particular danger posed by offenders whose sex crimes were
repetitive and compulsive. W.X.C., supra, 204 N.J. at 196-97.




                                           14                                    A-0816-15T1
convicted     offenders            must     verify        their        addresses          annually.

N.J.S.A.    2C:7-2(e).               Thus,       the    Legislature           placed       stricter

registration          requirements          on     offenders       whose           crimes,        when

committed,       were     characterized            by     repetitive          and        compulsive

behavior.

      N.J.S.A.         2C:7-8,       which       sets     forth        the    procedures           for

notification          based    on     the    risk       of    re-offense,           states        that

"[c]riminal      history        factors       indicative          of    high       risk     of     re-

offense" include "[w]hether the offender's conduct was found to

be    characterized           by     repetitive         and       compulsive             behavior."

N.J.S.A. 2C:7-8(b)(3)(a).                   By contrast, a separate subsection

lists as another risk factor the offender's "[r]ecent behavior."

N.J.S.A.     2C:7-8(b)(7).             The        plain      language          of        subsection

8(b)(3)(a), as well as the contrast with subsection 8(b)(7),

illustrates       that        "repetitive         and     compulsive"             refers     to    an

offender's past conduct.

      Nearly identical language to that used in N.J.S.A. 2C:7-

2(b)(1)    and    N.J.S.A.          2C:7-8(b)(3)(a)          appears         in    the     Internet

registry      sections,              N.J.S.A.          2C:7-13(b)(2)               and      -13(e).

Generally,       "a    word     or    phrase       should      have      the       same     meaning

throughout the statute in the absence of a clear indication to

the   contrary."          Perez      v.     Pantasote,        Inc.,      95       N.J.    105,     116

(1984).     Reading Megan's Law as a whole, it is apparent to us




                                                 15                                        A-0816-15T1
that the phrase used in N.J.S.A. 2C:7-13(e) - "was characterized

by a pattern of repetitive, compulsive behavior" - refers to the

determination that was made at sentencing.

       Defendant's reliance on State v. N.G., 381 N.J. Super. 352

(App. Div. 2005), is misplaced.                 The decision addresses how the

sentencing court is to decide whether to sentence an offender to

the   ADTC.       In    that   case,     the     defendant   appealed       his    ADTC

sentence,     claiming     that     the    phrase       "repetitive,       compulsive

behavior," as used in N.J.S.A.                 2C:47-3, was unconstitutionally

vague, and in the alternative, that the State failed to prove

that his conduct met those criteria.                  Id. at 356.    The defendant

was   accused     of    molesting   his    nieces       between   1991     and    1997.

However, he was not sentenced until 2004.

       At his Horne9 hearing, the State's psychologist testified

that the defendant's conduct was both repetitive and compulsive.

The   defendant's       expert    opined       that   although    the    defendant's

conduct was repetitive, it was not compulsive, in the sense that

it    was   not   the    product    of     an    irresistible       urge    that    the

defendant could not control.              The defense expert opined that a

finding of compulsion required an ongoing problem that had "been

active in the last six months" and because the defendant "had

9
  State v. Horne, 56 N.J. 372, 378-79 (1970), entitles a
convicted sex offender to a hearing before the court decides
whether to impose an ADTC sentence.



                                          16                                 A-0816-15T1
not   demonstrated     evidence    of    recurrent       pedophilic       fantasies,

urges,   or   acts     since    1995    or     1997,    his    behavior     was   not

compulsive."     Id. at 358.

      This    court     found     that        the   terms      "repetitive"       and

"compulsive" were not vague, and noted that both sides' experts

ascribed essentially the same meanings to those terms.                      However,

the court looked at the purpose of an ADTC sentence, which was

not only to punish the offender but also "to treat [defendant's]

underlying    psychological       problems."           Id.    at   363.   The   court

reasoned:

             It follows then, that if an individual's
             conduct at the time he is sentenced is no
             longer   characterized  by   a   pattern  of
             repetitive, compulsive behavior, he would
             not    benefit   from   rehabilitation   and
             consequently would not require treatment.
             That being so, the purposes of the Act would
             not be fostered by sentencing him to the
             ADTC. In other words, to decide whether an
             offender's conduct is characterized by a
             pattern of repetitive, compulsive behavior
             so as to warrant ADTC treatment, a court
             must consider the offender's condition at
             sentencing, not merely his behavior on the
             dates that the criminal conduct in question
             occurred.

             [Ibid.]

The Panel found that the trial court reasonably credited the

State's expert's testimony that the defendant likely suffered

from "pedophilia in remission;" he "remained at risk to commit

another offense," particularly if he used alcohol; and his lack



                                         17                                 A-0816-15T1
of recent offenses may have been due to lack of opportunity

rather than recovery.      Id. at 365.

       Since N.G. was decided, the Supreme Court decided W.X.C.,

which   suggests   a   slightly    different   analysis    to   support     the

result reached in N.G.       In W.X.C., the Court observed that the

Legislature had repeatedly narrowed the ADTC sentencing statute,

to conserve the State's limited resources for the treatment of

incarcerated sex offenders.        W.X.C., supra, 204 N.J.          at 196-97,

199. The Court observed that, currently, in order to impose an

ADTC    sentence   under   N.J.S.A.       2C:47-3,    a   finding    of   past

repetitive and compulsive conduct is not enough. Rather, the

sentencing court must find four factors:             "[F]our qualifications

must coalesce for a Sex Offender Act sentence: repetitiveness;

compulsiveness; amenability; and willingness to participate in

treatment."    Id. at 197.        Had W.X.C. been decided at the time,

perhaps the court in N.G. would have reasoned that an offender

who has brought his sexual compulsions under control prior to

the date of sentencing would not be "amenable" to treatment at

ADTC, in the sense that he would no longer benefit from that

treatment, and hence should not be sentenced there.

       However, for purposes of this case, we need not decide

whether N.G. should have focused on whether the defendant was

"amenable" to treatment at the time of sentencing, rather than




                                     18                               A-0816-15T1
on whether he was a "repetitive and compulsive" offender at that

point in time.          Suffice to say that, under the holding of N.G.,

the   determination           as    to     whether     a     convicted        sex   offender's

conduct "was" repetitive and compulsive is made at the time of

sentencing.       That is also the point in time which is relevant

for purposes of the Internet registry statute, N.J.S.A. 2C:7-

13(e).

      N.G.   has       no    further       relevance        to     our    analysis       because,

rather     than     addressing            the    placement         of     a   sex   offender's

information       on    the       Internet       registry,       it     addressed        the   most

appropriate       use        of     the     State's         very      limited       therapeutic

resources     for      treating           incarcerated        sex        offenders.            Those

concerns     about      limitations             on   therapeutic         resources       have     no

application to the placement of a sex offender's registration

information       on        the     Internet         registry.            Unlike     the        ADTC

sentencing     process,            the    purpose      of    the      registry      is    not    to

rehabilitate sex offenders but solely to protect the public.

See N.J.S.A. 2C:7-1; N.J.S.A. 2C:7-12.

      Accordingly, we affirm the trial court's order requiring

that D.F.S.'s registration information be placed on the Internet

registry, pursuant to N.J.S.A. 2C:7-13(e), because at the time

D.F.S. was sentenced the court found that his offenses were

repetitive and compulsive.




                                                 19                                       A-0816-15T1
                                           III

      Defendant's additional appellate issues are not properly

before   us    on    this   appeal.10       D.F.S.      argues     that    he   was   not

informed, at his sentencing, of the possible Megan's Law-related

consequences of a finding that his conduct was repetitive and

compulsive.         That issue was not raised before the Megan's Law

judge;   and    in    any   event,    an    application       to    revise      D.F.S.'s

previous      classification     at     the      time    of   sentencing,        or    to

withdraw his guilty plea, must be filed as a post-conviction

application in his criminal case.

      As previously noted, at the Megan's Law hearing, D.F.S.'s

counsel specifically informed the court that "we have no issue

with the finding at the time of sentencing, at that time he was

found repetitive and compulsive."                 D.F.S. did not argue that,

had   the     sentencing     court    applied      the    clear      and    convincing

standard of proof, instead of the preponderance of the evidence

standard, the "repetitive and compulsive" decision at sentencing

would have been different at the time he was sentenced.                               See

State v. Howard, 110 N.J. 113, 131 (1988) (for ADTC sentencing

purposes, repetitive and compulsive behavior need only be proven

10
   To ascertain with certainty what issues were raised in the
Megan's Law hearing, we required the parties to provide us with
their trial court briefs.   D.F.S. provided us with his brief.
The State advised that it did not file a brief in the trial
court.



                                           20                                   A-0816-15T1
by a preponderance).             Consequently, this case does not present

an appropriate vehicle for us to decide whether the "repetitive

and    compulsive"        decision     must        have   been    made       by   clear       and

convincing evidence, in order for the Megan's Law judge to later

rely    on    it    for     purposes     of    deciding         whether      to     place      an

offender's information on the Internet registry.                                  That issue

must await another case.              See State v. J.M., Jr., __ N.J. __, __

(2016) (slip op. at 21) (disapproving the rendering of advisory

opinions).

       In     the    trial      court,      D.F.S.        did     not       challenge         the

constitutionality of N.J.S.A. 2C:7-13(e).                        Nor did he argue that

it violated the doctrine of fundamental fairness. He did not, at

the    trial       level,      give   the     Attorney         General       notice      of     a

constitutional challenge.              See R. 4:28-4(a).                As a result, the

record       created      is    insufficient         to    permit        decision       of     a

constitutional         challenge      based     on    a   claim       that    the   Internet

registry requirement violates due process.                            Nor does this case

present      an     appropriate       vehicle       for   us     to    address      what       we

perceive as the implicit premise underlying D.F.S.'s arguments:

that an offender whose crimes were repetitive and compulsive can

be     sufficiently         rehabilitated          such   that,        as    a    matter       of

constitutional principle, the repetitive and compulsive nature




                                              21                                      A-0816-15T1
of    his    past    conduct    can   no     longer   justify       disclosing     his

personal information on the Internet registry.11

       Constitutional issues are not afterthoughts to be raised

for    the   first    time     on   appeal      without   a   proper     evidentiary

record.      A hearing in which the opposing party has no notice of

the constitutional issue, and hence has no reason to present

opposing evidence pertinent to the issue, does not produce a

fair   or    satisfactory      record.           Consequently,      we   decline    to

depart from the usual rule that we will not entertain arguments

raised for the first time on appeal.                See State v. Robinson, 200

N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,

234 (1973); see also Conn. Dep't of Pub. Safety v. Doe, 538 U.S.

1, 7-8, 123 S. Ct. 1160, 1164-65, 155 L. Ed. 2d 98, 105 (2003)

(rejecting      procedural      due    process      claim,    but    declining      to

address substantive due process claim relating to Connecticut's

11
   We note that several constitutional challenges to Megan's Law
Internet registration provisions have already been rejected. See
Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164
(2003) (upholding Alaska's Internet Registry law against ex post
facto challenge); A.A. v. New Jersey, supra, 341 F.3d at 213
(holding that "whatever privacy interest the Registrants have in
their home addresses is substantially outweighed by [New
Jersey's] interest in expanding the reach of its notification
[via the Internet Registry] to protect additional members of the
public"); A.A. v. State, supra, 384 N.J. Super. at 498-500
(rejecting a federal equal protection challenge to N.J. Const.
art. IV, § 7, ¶ 12, and noting that the language of paragraph 12
precluded a challenge based on any other provision of the New
Jersey Constitution). However, the record is inadequate for our
consideration of this particular constitutional challenge.



                                           22                               A-0816-15T1
Internet    registry       law,      because       the       appeal    did    not   properly

present the issue); cf. State v. Bueso, __ N.J. __, __ (2016)

(slip op. at 11-13).

    Lastly,        D.F.S.       argues       that       the     Internet      registration

statute    is   overbroad           and   does     not       serve     the   Legislature's

underlying      purpose        of     protecting          the     public      against      sex

offenders    who    pose    a     current      danger.          He    contends      that   the

purpose    of   the    tier     hearings         is     to    evaluate       an   offender's

current risk to reoffend, and that using one static aspect of an

offender's      past     conduct          (whether        it     was     repetitive        and

compulsive)     would, in his words "frustrate[] the purpose of the

Internet     Registry."             Absent     a       constitutional        flaw    in    the

statute,     that      issue        presents       a     policy       decision      for    the

Legislature.

    Affirmed.




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