In re J.D-F.

248 N.J. 11

256 A.3d 958

In the MATTER OF Registrant J.D-F.

A-24 September Term 2020

084397

Supreme Court of New Jersey.

Argued April 27, 2021

Decided August 9, 2021

James H. Maynard argued the cause for appellant J.D-F. (Maynard Law Office, attorneys; James H. Maynard, Morristown, on the briefs).

Jeffrey L. Weinstein, Acting Assistant Prosecutor/Special Deputy Attorney General, argued the cause for respondent State of New Jersey (Michael J. Williams, Acting Hunterdon County Prosecutor, attorney; Jeffrey L. Weinstein, on the briefs).

Jonathan Edward Ingram, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Fletcher C. Duddy, Deputy Public Defender, of counsel, and Jonathan Edward Ingram, of counsel and on the brief).

Emily R. Anderson, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Emily R. Anderson, of counsel and on the brief).

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS join in JUSTICE FERNANDEZ-VINA's opinion.

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

In this appeal, the Court must decide whether N.J.S.A. 2C:7-2(g) (subsection (g) ), a Megan's Law provision that bars certain sex offenders from applying under N.J.S.A. 2C:7-2(f) (subsection (f) ) to terminate their registration as sex offenders, applies to a registrant who committed Megan's Law offenses before the date on which subsection (g) became effective but was convicted and sentenced after its effective date.

Subsection (f) permits registrants -- "[e]xcept as provided in subsection (g)" -- to make an application to terminate their registration as sex offenders upon proof that they have remained offense-free for at least fifteen years and no longer pose a threat to the safety of others. N.J.S.A. 2C:7-2(f).

Effective January 8, 2002, the Legislature added subsection (g) to Megan's Law. L. 2001, c. 392. Subsection (g) prohibits offenders from applying to terminate their registration if they have been convicted of certain enumerated sex offenses or of "more than one sex offense." N.J.S.A. 2C:7-2(g).

Here, the issue is determining whether subsection (g) was impermissibly applied to registrant, who committed a series of sex offenses between May and August 2001 but was not convicted for those offenses until December 2002.

The trial court and Appellate Division held that subsection (g) applied to registrant because he was convicted after that subsection's effective date.

We disagree. The fact that the plain text of subsection (g) bars persons "convicted of ... more than one sex offense" from terminating their registration obligations does not, in our view, mean that the pertinent date for determining whether subsection (g) would apply to a particular registrant is the date of conviction. The statute's reference to those convicted persons merely serves to define the class of people who may be subject to subsection (g)’s provisions. We hold that the relevant date for purposes of determining whether subsection (g) is effective as to a particular registrant is the date on which that registrant committed the sex offenses that would otherwise bar termination of registration under subsection (f).

Therefore, we reverse the judgment of the Appellate Division.

I.

A.

We begin by summarizing the pertinent facts and procedural history.

Registrant was twenty years old when he was working as a manager at a McDonalds in Hillsborough. He participated in interviewing and hiring two teenage boys -- A.S., age fifteen, and M.V.S., age sixteen. At some point between May 1 and August 31, 2001, registrant approached A.S. in the men's bathroom and told A.S. he would help him fix his disheveled clothing. Registrant then touched the boy between his legs, placing his hand on A.S.’s genitals, over his clothing. During this same period, registrant, on four or five occasions, kissed M.V.S. "or otherwise touched him inappropriately in a sexual manner."

On February 11, 2002, registrant was indicted and charged with third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count one), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two), for his conduct toward A.S. For his acts against M.V.S., registrant was charged with two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (counts three and four).

Registrant was tried by a jury and convicted, on December 19, 2002, on counts one, two, and four. The jury found registrant not guilty on count three.

Registrant was sentenced on May 21, 2003. After the sentencing judge merged count two into count one, registrant was sentenced to concurrent three-year terms of probation on counts one and four. Registrant was also required to serve sixty days in county jail as a special condition of probation. Further, registrant was ordered to adhere to Megan's Law registration requirements and community supervision for life (CSL).

On February 4, 2019, registrant filed a motion to terminate his Megan's Law registration and his CSL requirements. He submitted an affidavit alongside his motion certifying that he had not been convicted of any offense since the events of 2001, which the State later confirmed. Registrant also certified he had maintained gainful employment throughout his CSL and that he had never failed a random drug or alcohol test. Additionally, registrant submitted a psychosexual and actuarial assessment, completed by Dr. James Reynold, Ph.D., stating with a reasonable degree of psychological certainty that registrant "is not likely to commit another sexual offense"; "he does not present a risk of harm to others in the community"; and "his risk of harm ... will not increase if the Court determines that it is appropriate to relieve [registrant] of his registration obligation and to remove him from CSL."

The State accepted Dr. Reynold's conclusion that registrant no longer presented a risk of harm to others in his community and therefore did not oppose his release from CSL. However, the State objected to registrant's release from Megan's Law registration. In the State's view, subsection (g) made registrant ineligible for release under subsection (f) because he was convicted of more than one enumerated sex offense.

On April 2, 2019, the trial court adopted the State's position, granting registrant's motion to release him from his CSL obligations but denying it as to Megan's Law. According to the trial court, subsection (g) barred relief from Megan's Law's registration requirements, and application of subsection (g) was not retroactive in this matter because registrant was both convicted and sentenced after subsection (g)’s effective date. The trial court found that the Appellate Division's decision in In re Registrant G.H., 455 N.J. Super. 515, 190 A.3d 1059 (App. Div. 2018), aff'd, 240 N.J. 113, 220 A.3d 471 (2019), which held that subsection (g) could not be applied retroactively, did not apply here. In the trial court's view, "subsection (g) did not change the legal consequences on the day of [registrant's] convictions," and "[a]t the time of these convictions[,] he could not have reasonably relied upon the possibility of relief from lifetime registration."

After the trial court's decision, but prior to the Appellate Division's review of registrant's appeal in this matter, this Court affirmed the Appellate Division's decision in G.H. This Court concluded the Legislature never intended for subsection (g) to apply retroactively, that subsection (g) was not curative, and that none of the parties’ expectations in that matter warranted a retroactive application. See In re Registrant G.H., 240 N.J. 113, 114, 220 A.3d 471 (2019).

On March 18, 2020, the Appellate Division affirmed the trial court's decision to deny registrant's motion for release from his Megan's Law obligations "substantially for the reasons outlined by" the trial court. The Appellate Division noted that registrant was wrong to "focus on the timing of his criminal misconduct, rather than the date of his convictions." Because registrant was convicted after subsection (g) was enacted, unlike the registrants in G.H., the Appellate Division found that subsection (g) would apply to registrant without " ‘retroactively’ alter[ing] the legal consequences that attached to [his] December 2002 convictions."

Second, the Appellate Division held that subsection (g)’s plain language indicated that the relevant date for determining whether the statute was effective as to a particular registrant was, as is relevant here, the date on which the registrant was "convicted of ... more than one sex offense."

II.

A.

Registrant contends that both the trial court and the Appellate Division erred in their retroactivity analysis by using the dates of his conviction and sentencing rather than the date on which the conduct resulting in his offenses occurred. According to registrant, without an expression of contrary legislative intent, new civil laws may be given only prospective effect "as of the [d]ate of ‘[t]riggering’ [c]onduct." Registrant argues that the Appellate Division has "[i]mpermissibly [n]arrowed" G.H.’s retroactivity bar. In registrant's view, his date of conviction does not create the legal consequences under Megan's Law; rather, "imposition of [s]ubsection (g) is a legal consequence of the commission of specific offenses that are merely memorialized in a conviction." Registrant further argues that procedural due process and "fundamental fairness" prohibit applying subsection (g) to "registrants whose offense conduct predates the effective date" of that law because those registrants lacked " ‘prior notice’ and ‘fair warning’ of the consequences of their conduct."

Appearing as amicus curiae, the New Jersey Office of the Public Defender (Public Defender) aligns itself with registrant. The Public Defender argues that to...