                         RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-3642-12T1


IN THE MATTER OF REGISTRANT                APPROVED FOR PUBLICATION
T.H.: APPLICATION FOR JUDICIAL
                                                 July 30, 2013
REVIEW OF NOTIFICATION AND TIER
CLASSIFICATION                                APPELLATE DIVISION


__________________________________________

           Argued Telephonically May 29, 2013 – Decided July 30, 2013
           Before Judges Messano,1 Kestin, and Newman.
           On appeal from the Superior Court of New
           Jersey,   Law  Division, Atlantic County,
           Docket No. 12010013.
           Seth Russell Belson, Assistant Deputy Public
           Defender, argued the cause for appellant
           T.H. (Joseph E. Krakora, Public Defender,
           attorney).
           Mario C. Formica, Chief Assistant County
           Prosecutor, argued the cause for respondent
           State of New Jersey (James P. McClain, Acting
           Atlantic County Prosecutor, attorney).
     The opinion of the court was delivered by

NEWMAN, J.A.D. (retired and temporarily assigned on recall).

     Registrant, T.H., appeals from the order of April 11, 2013,

denying his motion to be classified as a Tier One registrant,

representing a low risk to reoffend, as opposed to a Tier Two


1
  Judge Messano did not participate in oral argument.   However, the parties
consented to his participation in the decision. R. 2:13-2(b).
classification, representing a moderate risk to reoffend.                                The

focus of the application before the trial court was on criterion

seven of the Registrant Risk Assessment Scale (RRAS), length of

time since last offense.                  Registrant was scored "one year or

less" when he was initially tiered as reflected in the order of

February 13, 2013.              Registrant had been released from prison on

February 29, 2012, which was approximately two weeks short of

one year.          Because the matter was on appeal to this court, we

permitted the registrant to withdraw his appeal and return to

the trial court since by then more than one year had passed

since   his        prison      release.       The   sought-for          result   was    that

registrant would be recognized as having been out of prison more

than    one    year       but   less   than       five    years,    resulting      in    the

reduction of six points under the RRAS and, correspondingly,

placing him in Tier One.

       In    rejecting         registrant's       position    in    a    written     letter

opinion of March 28, 2013, the trial court held that criterion

seven is a static factor, that this factor was determined at the

original classification hearing, and that the "passage of time

after       that     is     not    a      changed        circumstance       that     allows

reconsideration           of     the   tier       assigned."       In     reaching      this

conclusion, the trial court relied upon In re N.N., 407 N.J.

Super. 30, 36-37 (Law Div. 2009), where the court held that the




                                              2                                    A-3642-12T1
registrant's        circumstances             had     not     changed           significantly.

Further,    the    N.N.     court    noted          that    the     time    since       the    last

offense    was     considered        a    static           factor    and        could    not     be

revisited. Id. at 37.               The trial court also followed N.N.'s

approach        regarding     when        a     tier        classification             could     be

challenged where there is "evidence of a change in circumstance,

indicating that the circumstances" appeared to be change of the

resident's location or place of employment. Ibid.                                According to

the   trial     court,     registrant's         tier        hearing       had    been    delayed

because of a motion to withdraw his guilty plea and an appellate

remand on a motion to withdraw his guilty plea.                                     Otherwise,

registrant       would    have     been       tiered       within    two    months       of     his

release.

      Registrant         asserts    that       criterion          seven    has     a    built-in

change     of    circumstances           and    the        trial     court       should        have

recognized       this    dynamism        in    scoring.           Since     registrant          was

offense free for more than one year, but less than five years,

his scoring should have been reduced by six points, representing

a moderate risk to reoffend.

      By way of background, the underlying offense involved the

registrant luring young girls, friends of his daughter, into his

home.     He then provided them with alcohol and marijuana to the

point of nausea and intoxication.                           While these charges were




                                               3                                         A-3642-12T1
pending, he attempted to have his daughter lie about the matter

to the police.        Registrant has compiled an extensive criminal

history,    which    includes    seven       prior    convictions   including     a

state prison sentence.          He was sentenced to offenses related to

luring, child endangerment, distribution of CDS in a school zone

and witness tampering.           His aggregate sentence was five years

with a mandatory minimum term of two years, six months without

parole eligibility.

    Prior to his release, registrant underwent a psychological

evaluation for Sexually Violent Predator (SVP) risk assessment.

In concluding that he did not warrant further review for civil

psychiatric commitment consideration, the report indicated that

the "MnSOST-R" and "STATIC-99R" were not scored because there is

no evidence that the instant offense was sexual in nature.                     The

report     also     found     there    was     insufficient      evidence    that

registrant    "is    at   a   high    risk   for     sexual   recidivism."     The

report went on to note that there was "insufficient evidence to

diagnose a paraphilia or other condition that predisposes him to

sexually offend."

    On     appeal,    registrant       makes   arguments      similar   to   those

presented to the trial court.                After a review of registrant's

arguments, those of the prosecutor, and the written decision of

the trial court, we are persuaded that criterion seven, by its




                                         4                               A-3642-12T1
very terms, was subject to review. We need not dwell on whether

the    trial     court    had     the       authority    to      consider       registrant's

argument      that     criterion        7    should    be     reconsidered        since   the

matter had already been resolved in the initial hearing.                              Nor do

we    think     it     mattered    that        the    delay      in    initially     tiering

registrant was due to other litigation pursued by registrant

related to his conviction.                   The matter was reviewable because

there was evidence of change in circumstances.

       Moreover, we disagree with the underlying premise of N.N.

that   the      time    from     the    last    offense       does     not   constitute      a

significant change of circumstances. Under the RRAS, scoring on

criterion       seven     is    divided       into    three      separate        categories:

"high risk" is defined as "year or less" since last offense;

"moderate risk" is defined as "more than one but less than five

years"; and "low risk" is defined as "five or more years."                                The

criterion, itself, has a built-in change of circumstances to

reflect the likelihood of reoffense.

       Further, the RRAS Manual explains that criterion seven "is

related to likelihood of re-offense [and] [t]he 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."          Manual      (June      1998),       p.6.

Accordingly,           "[t]ime         incarcerated         or        civilly      committed




                                                5                                   A-3642-12T1
[generally] does not count…."               Ibid. It is obvious to us that

the passage of time after initial assessment without reoffending

is as relevant to a reduced likelihood of re-offense as those

dynamic      criteria     which   measure      progress        over   time    regarding

circumstances       such     as   maintaining          employment,      response       to

treatment, and residential support. The longer the time within

which the registrant remains incident free, the less likely is

the incidence of reoffending.               To maintain that this criterion

is not reviewable after the passage of time is to ignore the

risk    categories      as   defined     in         criterion    seven.        Labeling

criterion seven as "static" under the Supreme Court decision in

In re C.A., 146 N.J. 71, 103 (1996), masks the very substance

contained within this criterion.

       Our court recognized as much in In re H.M., 343 N.J. Super,

219, 223-24 (App. Div. 2001).            There we reduced criterion seven,

by     necessity,       because    of    the         passage     of    time     without

reoffending.        The    same   result       is    warranted    here.       With    the

passage of more than one year without reoffense, the scoring is

correspondingly reduced from six points to three points.                             As a

result, registrant's RRAS score is thirty-three, placing him in

Tier One.

       One   of   the   concerns    of   the        trial   court,    echoed    by    the

State, was that registrants would routinely file for a reduction




                                           6                                   A-3642-12T1
in points under criterion 7 of the RRAS when the passage of time

made a difference in scoring.                      That may well be, but, as pointed

out,    the       likelihood         of    reoffending          is    less           likely    with    the

passage       of    time      when        registrant      has        remained          incident-free.

Thus,       the     risk       to     the      community             is     diminished,             which,

correspondingly, may be reflected in the extent of community

notification.

       We     would      be    remiss        if    we     did    not        emphasize          that    the

psychological            examination          of        registrant          by        the     State     in

assessing         his    risk       assessment          for   SVP         commitment          questioned

whether the underlying offense was "sexual in nature," found

insufficient            evidence      that        registrant         "is        at    high     risk    for

sexual recidivism," and was unable "to diagnose a paraphilia or

other       condition         that        predisposes         him     to        sexually        offend."

Registrant's incident-free conduct since his release from prison

buttresses         the     evaluation         conducted         by        the    State        authority,

further supporting the point reduction under the RRAS scale.

       Reversed and remanded to the trial court for such further

proceedings         as     may       be     appropriate         in        light        of     the    point

reduction we have ordered.




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