                            RECORD IMPOUNDED

                      NOT FOR PUBLICATION WITHOUT THE
                     APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-0816-14T1
                                             APPROVED FOR PUBLICATION

                                                  July 20, 2015
IN THE MATTER OF REGISTRANT V.L.
                                                APPELLATE DIVISION
__________________________________

           Argued May 27, 2015 – Decided July 20, 2015

           Before Judges Nugent, Accurso and Manahan.

           On appeal from Superior Court of New Jersey,
           Law Division, Atlantic County, Docket No.
           ML# 03010049.

           Seth R. Belson, Assistant Deputy Public
           Defender, argued the cause for appellant
           V.L. (Joseph E. Krakora, Public Defender,
           attorney; Mr. Belson, on the brief).

           Erin   M.   Bisirri,   Assistant   Prosecutor,
           argued the cause for respondent State of New
           Jersey (James P. McClain, Atlantic County
           Prosecutor,    attorney;   Ms.   Bisirri,   of
           counsel and on the brief).

    The opinion of the court was delivered by

NUGENT, J.A.D.

    V.L.   is    a    registered   sex   offender.      He   appeals    from   a

September 16, 2014 Law Division order reclassifying his risk of

reoffense or Tier, previously designated as low or Tier 1, to

moderate or Tier 2, the latter requiring notification of his

presence in the community not only to certain law enforcement

agencies   but       also   to   certain    community    institutions      and

organizations.        V.L. contends the trial court erred in scoring
the Registrant Risk Assessment Scale (RRAS), the instrument used

by prosecutors and courts to determine whether a sex offender

presents a low (Tier 1), moderate (Tier 2), or high (Tier 3)

risk    of   reoffense.         Specifically,           V.L.    argues    that      RRAS

criterion seven – length of time since last offense – applies to

sex offenses only, and the trial judge erred by ruling to the

contrary.      Our    review   of     the       Att'y   Gen.   Guidelines     for   Law

Enforcement for the Implementation of Sex Offender Registration

and Cmty. Notification Laws (June 1998, rev'd Feb. 2007) (the

Guidelines) leads us to agree with V.L.                    Accordingly, we reverse

and remand for a new tier hearing.

       The facts are undisputed.                 In 2003 V.L. pled guilty to

fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), a

sex offense as defined in Megan's Law.1                    The court sentenced him

to 364 days in jail and three years' probation.                        The court also

ordered      V.L.    to    comply     with        Megan's      Law's     registration

provisions, N.J.S.A. 2C:7-1 to -5.                  These provisions require an

incarcerated        sex   offender    to        register    with   the     chief    law

enforcement officer of the municipality in which the offender

proposes      to     reside    upon    release          from    jail     or   prison,




1
  Megan's Law refers to a group of bills concerning sex offenders
that became law on October 31, 1994. L. 1994, c. 127-34. The
term "sex offense" is defined in L. 1994, c. 133, §2 (N.J.S.A.
2C:7-2(b)).

                                            2                                 A-0816-14T1
periodically verify the address, and re-register upon a change

of address.

      Megan's Law's community notification provisions, N.J.S.A.

2C:7-6 to -10, require the chief law enforcement officer of the

municipality        where    a   sex    offender     resides       to    notify       certain

agencies and organizations of the sex offender's presence in the

community.          The extent of the notification depends upon the

registrant's risk of reoffense.                     If a registrant's reoffense

risk is low, law enforcement agencies likely to encounter the

registrant must be notified.                  N.J.S.A. 2C:7-8(c)(1).                  If the

reoffense risk is moderate, community organizations "including

schools, religious and youth organizations shall be notified[.]"

N.J.S.A. 2C:7-8(c)(2).                If the reoffense risk is high, "the

public      shall    be     notified[.]"            N.J.S.A.       2C:7-8(c)(3).              A

registrant's        "tier"       is    determined        in   large          part    by    the

registrant's score on the RRAS.

      In 2003, following V.L.'s release from his jail term for

the   sex    offense,       he   was    classified       as    a   Tier       1     offender.

Between     2003     and    2014,      V.L.   was    convicted          of    crimes      that

included employing a juvenile in                    the commission of a crime,

N.J.S.A. 2C:24-9, conspiracy, N.J.S.A. 2C:5-2, and shoplifting,

N.J.S.A.     2C:20-11(b);         possession        of    a   controlled            dangerous

substance, cocaine, N.J.S.A. 2C:35-10(a)(1); failing to verify

his address, N.J.S.A. 2C:7-2(e); and burglary, N.J.S.A. 2C:18-2.


                                              3                                      A-0816-14T1
      In 2014, following V.L.'s release from his prison term for

burglary and his notifying authorities of his intent to change

his address, the county prosecutor sought to reclassify him as a

Tier 2 offender.       At the tier hearing, the court determined that

V.L. fell within Tier 2.              In reaching that determination, the

court rejected V.L.'s argument that RRAS criteria seven, "Length

of Time Since Last Offense," referred to sex offenses only.                      The

court applied criterion seven to V.L.'s burglary conviction.                       As

a consequence, V.L.'s overall score on the RRAS exceeded the

maximum score for a low range or Tier 1 classification, and fell

within the score for a moderate range or Tier 2 classification.

V.L. appealed from the implementing order.

      We    begin    our   review     with      some   fundamental    observations

about Megan's Law.           The Legislature determined that the danger

of   recidivism      posed    by    sex     offenders    and   other    designated

predators "require[d] a system of registration that will permit

law enforcement officials to identify and alert the public when

necessary for the public safety."                  N.J.S.A. 2C:7-1a.       Megan's

Law's registration and notification provisions are intended to

"provide law enforcement with additional information critical to

preventing    and     promptly      resolving      incidents   involving    sexual

abuse and missing persons."            N.J.S.A. 2C:7-1b.

      The     Legislature          directed      the    Attorney      General     to

"promulgate         guidelines        and       procedures"     for     providing


                                            4                              A-0816-14T1
notification to either law enforcement, community organizations,

or the public, depending upon a sex offender's degree of risk of

reoffense.   N.J.S.A.   2C:7-8.       In   so   directing   the   Attorney

General, the Legislature noted explicitly that

         Factors relevant to risk of re-offense shall
         include,   but  not  be   limited  to,   the
         following:

         (1) Conditions of release that minimize risk
         of reoffense, including but not limited to
         whether the offender is under supervision of
         probation or parole; receiving counseling,
         therapy or treatment; or residing in a home
         situation    that  provides   guidance   and
         supervision;

         (2) Physical conditions that minimize risk
         of reoffense, including but not limited to
         advanced age or debilitating illness;

         (3) Criminal history factors indicative of
         high risk of reoffense, including:

         (a) Whether the offender's conduct was found
         to   be  characterized  by   repetitive  and
         compulsive behavior;

         (b) Whether the offender served the maximum
         term;

         (c) Whether the offender committed the sex
         offense against a child;

         (4) Other criminal history factors to be
         considered in determining risk, including:

         (a) The relationship         between   the   offender
         and the victim;

         (b) Whether the offense involved the use of
         a weapon, violence, or infliction of serious
         bodily injury;



                                  5                               A-0816-14T1
             (c) The number,          date       and   nature    of     prior
             offenses;

             (5) Whether psychological or psychiatric
             profiles indicate a risk of recidivism;

             (6) The offender's response to treatment;

             (7) Recent behavior, including behavior
             while confined or while under supervision in
             the community as well as behavior in the
             community following service of sentence; and

             (8)   Recent  threats against  persons  or
             expressions of intent to commit additional
             crimes.

             [N.J.S.A. 2C:7-8b].

      In    response     to   the     Legislative        Directive,       the   Attorney

General "convened a committee composed of mental health experts

as   well   as    members     of    the   Law     Enforcement      Committee,       which

drafted     the    [RRAS]       and    the       accompanying         Registrant     Risk

Assessment       Scale   Manual       (RRA       Manual),2      which    explains      the

[RRAS]."     In re Registrant C.A., 146 N.J. 71, 82 (1996).                            The

RRAS, a copy of which is attached to this opinion as Appendix A,

is   divided      into   four      categories:         "Seriousness       of    Offense,"

"Offense History," "Characteristics of Offender," and "Community

Support."        Each category contains at least two of a total of

thirteen criteria and each criterion is given a score of zero,

one, or three, depending on whether the criteria as applied to

the offender create a low, moderate, or high risk assessment

2
    The RRA Manual is included as "Exhibit E" in the Guidelines.


                                             6                                   A-0816-14T1
correlating to a tier.   The factors are then weighted by means

of a multiplier.   An overall score of 0 to 36 places an offender

in Tier 1; 37 to 73, in Tier 2; and 74 to 111, Tier 3.

    This appeal requires us to interpret the Guidelines and the

RRA Manual.   Because such an interpretation presents a purely

legal question, we owe no deference to the trial court and our

review is plenary.   State v. Pomianek, 221 N.J. 66, 80 (2015);

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995).

    The current RRA Manual explains:

         The purpose of this assessment is to provide
         a method of notification to the public so as
         to address the concerns of the community
         regarding the location of convicted sex
         offenders who may be a risk of committing
         further offenses.     The assessment process
         required by the statute is not intended to
         determine the actual probability of any one
         registrant reoffending.      Rather, as the
         Court's opinion in Doe v. Poritz makes
         clear, the Legislature has already concluded
         that the nature of the offense, i.e., a sex
         offense,   warrants   notification   at   some
         level.     "Therefore   the   probability   of
         reoffense on the part of moderate- or high-
         risk offenders is not the issue before the
         court, but rather the relatively greater
         risk of reoffense compared either to the
         low-risk offender class or the moderate-risk
         offender class." Doe v. Poritz, 142 N.J. 1,
         34 (1995).    Instead, using well recognized
         criteria, the panel has formulated a method
         of objectively placing registrants in tiers
         designed to provide the public with notice
         of   the   whereabouts   of    convicted   sex
         offenders, such that the community will be
         better informed and prepared.


                                7                         A-0816-14T1
         [Guidelines, supra, Exhibit E at 1.]

    Under the heading, "The likelihood that the defendant will

recidivate," the RRA Manual states:

         The expert panel reviewed existing risk
         assessment scales commonly used with sex
         offenders.   In addition, the panel reviewed
         considerable research regarding predicting
         sex offender recidivism.     These reviews of
         existing     instruments     and    empirical
         literature led the panel to select risk
         assessment criteria that have demonstrated
         empirical support and common usage by sex
         offender experts.      Other criteria which
         lacked    such    well-recognized   empirical
         support were not included.     These criteria
         can be divided into a few broad areas:

         1.2.1.    Intensity, duration, and frequency
         of   illegal    sexual  behavior:      Victim
         selection,    number   of   offenses/victims,
         duration of offensive behavior, and length
         of time since last offense fall into this
         category.

         1.2.2.    Antisocial lifestyle:    History of
         antisocial acts (other than sex offenses),
         substance abuse, and employment/educational
         stability fall into this category.

         1.2.3.    Involvement      in         treatment:
         Response   to   treatment   and      therapeutic
         support fall into this category.

         1.2.4. Social support:       Residential support
         falls in this category.

         For ease of use, on the scale itself, these
         criteria were grouped as follows:

                   1.   Seriousness of Offense
                   2.   Offense History
                   3.   Characteristics of Offender
                   4.   Community Support



                               8                            A-0816-14T1
          The latter three groups of criteria relate
          to the likelihood that the offender will
          recidivate.   The first group are criteria
          that relate to the consequences to the
          community should the offender recidivate.

          [Id. at 3-4.]

    Section    1.2.1   contains   an   explicit   statement    that    the

"length   of   time    since   last    offense    fall[s]     into    this

category[,]" namely, "[i]ntensity, duration, and frequency of

illegal sexual behavior[.]"

    In explaining how criterion seven – length of time since

last offense – is used on the RRAS, the RRA Manual states:

          7.   Length of time since last offense
          (while at risk) is related to likelihood of
          reoffense.     The time counted in this
          criterion is only time at risk — that is,
          when the offender is in a situation in which
          he or she has ready, unsupervised access to
          potential victims.     Time incarcerated or
          civilly committed does not count, given that
          most offenders do not commit offenses under
          those circumstances.   If, however, evidence
          exists (such as documented institutional
          disciplinary charge) that the offender did
          commit a sexual offense while incarcerated,
          then this offense should be included in the
          time calculation. For juveniles, time spent
          in residential placement without furloughs
          should be treated similarly to incarceration
          for adults.

          [Id. at 7.]

    The RRA Manual's reference to a sex offense committed in

prison is further evidence the expert panel and Attorney General

intended that criterion seven apply only to sex offenses.



                                   9                             A-0816-14T1
       Significantly, the "offense history" category on the RRAS

includes   criteria   eight,   "History   of   Anti-Social   Acts."     In

explaining that category, the RRA Manual states:

           8.   History of antisocial acts is a good
           predictor of future antisocial acts, sexual
           and otherwise.      The more extensive the
           antisocial history, the worse the prognosis
           for the offender.     Antisocial acts include
           crimes   against   persons,   crimes   against
           property,    and    status    offenses    (for
           juveniles).   Acts which are not the subject
           of criminal charges but that are credibly
           represented in the available records may be
           counted.   For example, sexual deviancy not
           the subject of criminal prosecution may be
           counted in this category as long as it has
           not already been included in Factor 5 above.
           In this way, any "double-counting" will be
           avoided.   Available documentation which can
           be   considered   may   include  evidence   of
           truancy, behavior problems in school or in a
           work situation, school suspensions, work
           suspensions, prior diagnoses of conduct
           disorder or oppositional defiant disorder.
           Acts   perpetrated    while  incarcerated   or
           committed may be included.

           [Id. at 8.]

       The explicit inclusion in antisocial acts of crimes against

persons and crimes against property, coupled with the cautionary

note   against   double-counting,   suggests    that   non-sex   offenses

should be included in criterion eight, but not in criterion

seven.

       The foregoing sections of the RRA Manual lead to a single

conclusion concerning criterion seven: it refers to sex offenses

only, not to non-sex offenses.       The quoted sections also lead to

                                    10                           A-0816-14T1
the conclusion that non-sex offenses are included in category

eight.

       The   State     has     offered    no    persuasive      argument    to     the

contrary.3        Although the State accurately summarizes the purpose

of Megan's Law's notification requirements and correctly asserts

that V.L.'s changing circumstances warranted recalculating his

risk     assessment,     those     considerations        are    not     relevant    to

whether non-sex offenses should be included in RRAS criterion

seven.

       The   State     also    points    to    the   definition    of    offense    in

N.J.S.A.     2C:1-14k,        namely,    "a    crime,    a     disorderly    persons

offense      or    a   petty     disorderly      persons       offense    unless     a

particular section in this code is intended to apply to less

than all three[.]"            Neither the Guidelines nor the RRA Manual,

however, refer to or incorporate the definitional section of the

New Jersey Code of Criminal Justice.4                   Were we to consider the

definition of offense in N.J.S.A. 2C:1-14k in a document that

neither references it nor suggests in any way that it should be


3
  The State is not represented in this case by the Attorney
General.  The Attorney General has taken no position on the
issue.
4
  This appeal was argued back-to-back with In re A.D., ___ N.J.
Super. ___ (App. Div. 2015), which concerns the definition of
the term offense in N.J.S.A. 2C:1-14k and the use of the term in
N.J.S.A. 2C:7-2f, the Megan's Law provision that permits
registrants to apply for termination of their registration
obligations.

                                          11                                A-0816-14T1
followed,    we   would     also   consider        the   prefatory    language     in

N.J.S.A.     2C:1-14      that   the   definitions         mean   what     they    say

throughout    the   Code     "unless    a    different      meaning      plainly   is

required[.]"        The    context     of    the    word   offense    in    the    RRA

Manual's explanatory sections make plain that the term offense

in criterion seven refers to a sex offense.

    For the foregoing reasons, we reverse the order classifying

V.L. as a Tier 2 offender and remand for a Tier hearing.                       We do

not suggest that V.L. should be classified or not classified in

any Tier.     Rather, we hold only that non-sex offenses are not to

be included in criterion seven of the RRAS.

    Reversed and remanded.




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