IN THE MATTER OF REGISTRANT J.P. (18010056, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3147-18T1
IN THE MATTER OF
REGISTRANT J.P.
Argued telephonically May 7, 2020 –
Decided May 19, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. 18010056.
Jesse M. DeBrosse, Assistant Deputy Public Defender,
argued the cause for appellant J.P. (Joseph E. Krakora,
Public Defender, attorney; Jesse M. DeBrosse, of
counsel and on the brief).
Mario C. Formica, Deputy First Assistant Prosecutor,
argued the cause for respondent State of New Jersey
(Damon G. Tyner, Atlantic County Prosecutor,
attorney; Mario C. Formica, of counsel and on the
brief).
PER CURIAM
Registrant J.P. pled guilty to two counts of first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(1), each naming as the victim a separate child
residing in J.P.'s household. In accord with the plea agreement, on February 21,
2014, the judge sentenced defendant in the second-degree range, eight years
concurrent on each crime, subject to the No Early Release Act's eighty-five
percent parole ineligibility. N.J.S.A. 2C:43-7.2.
Upon J.P.'s release, after a Megan's Law classification hearing, the Law
Division judge classified him as a Tier II moderate risk of reoffense. The judge
also concluded J.P. was not exempt from the Internet Sex Offender Central
Registry, N.J.S.A. 2C:7-12 and -13. That each count related to a separate victim,
she opined, meant that the household/incest exception was not available to J.P.
In her view, no other reading of the statute would "make sense." We agree and
affirm.
J.P. raises the following points of error:
I. J.P. SHOULD HAVE BEEN EXCLUDED
FROM THE INTERNET REGISTRY UNDER
N.J.S.A. 2C:7-13(D)(2), THE HOUSEHOLD
EXCEPTION, BECAUSE HIS CONVICTION IN 2014
FOR ACTS AGAINST HIS BIOLOGICAL SONS
WAS "SINGLE CONVICTION" INVOLVING
"MEMBERS OF NO MORE THAN A SINGLE
HOUSEHOLD."
A. Since the phrase "members of no more than
a single household" is plural, it applies to
cases involving more than one victim,
provided the offenses were committed
within a single household.
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B. J.P. has a "single conviction" for purposes
of the internet registry statute even though
he was convicted of two counts, as he was
convicted on one occasion without re-
offense.
C. Contrary to the State's argument below, the
Attorney General Guidelines cannot be
used to interpret a statutory provision that
makes no mention of them.
N.J.S.A. 2C:7-13(d) enumerates exceptions from Internet registration of
an offender's record. In order to qualify for an exception, an offender's risk
level, like J.P.'s, must be no more than moderate, subjecting him or her to
notification requirements including "schools, religious and youth org anizations
. . . in accordance with the Attorney General's Guidelines," in addition to "law
enforcement agencies likely to encounter the person registered . . . ." N.J.S.A.
2C:7-8(c)(1) and (2).
The specific exception at issue requires the registrant's "sole sex offense"
be a "conviction . . . under circumstances in which the offender was related to
the victim by blood . . . ." N.J.S.A. 2C:7-13(d)(2). This is usually referred to
as the "household/incest exception" to Internet registration.
J.P. contends that since the offenses were committed against members of
a single household, albeit two separate children, he committed a "sole sex
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offense." He argues he is thus exempt, as any other construction of the statute
would render meaningless the following closing language to the pertinent
section:
For purposes of this subsection, "sole sex offense"
means a single conviction, adjudication of guilty or
acquittal by reason of insanity, as the case may be, for
a sex offense which involved no more than one victim,
no more than one occurrence or, in the case of an
offense which meets the criteria of paragraph (2) of this
subsection, members of no more than a single
household.
[N.J.S.A. 2C:7-13(d).]
If J.P.'s crimes are construed as a "sole sex offense," then he is not subject to
registration on the Internet.
As the Supreme Court has repeatedly stated, when addressing questions
of statutory construction, our primary goal is to determine the intent of the
Legislature. In re N.B., 222 N.J. 87, 98 (2015). "[T]he best indicator of that
intent is the plain language chosen by the Legislature." State v. Gandhi, 201
N.J. 161, 176 (2010); see also State v. Bolvito, 217 N.J. 221, 228 (2014)
("statutes, words and phrases shall be read and construed with their context, and
shall, unless inconsistent with the manifest intent of the legislature or unless
another or different meaning is expressly indicated, be given their generally
accepted meaning") (quotations omitted).
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"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." State v. Shelley, 205 N.J. 320, 323 (2011). However, a court
will seek out "extrinsic evidence, such as legislative history, for assistance when
statutory language yields more than one plausible interpretation." Id. at 323-24(quotations omitted). The Court has described the provision containing the
household/incest exception as "ambiguous." N.B., 222 N.J. at 99.
"[A]n offender in the household/incest category . . . may qualify for the
exception in a broader category of cases: those which involve 'no more than one
victim, no more than one occurrence or . . . members of no more than a single
household.'" Id. at 100 (quoting N.J.S.A. 2C:7-13(d) and noting that the
household/incest exception is intended to be less restrictive than the other two
exceptions contained in that section).
In N.B., the defendant-registrant was an individual convicted of one count
of aggravated sexual assault who admitted to assaulting his half-sister multiple
times when they lived together. Id. at 91-92. In applying the household/incest
exception, the Court had to "determine whether the Legislature intended that an
offender . . . qualifies for the household/incest exception notwithstanding his or
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her admission to more than one instance of sexual contact with a victim who is
his or her relative." Id. at 97-98.
In deciding the meaning of "sole sex offense," the Court relied on Megan's
Law committee statements noting the definition "help[s] ensure that the
exemption from inclusion on the Internet registry is not improperly applied to
repeat sex offenders who offend against more than one victim or who victimize
a single individual more than once." Id. at 102 (citing S. Comm. Statement to
S. 1208 (May 6, 2004); Assemb. Comm. Statement to S. 1208 (June 3, 2004)).
The Court therefore concluded "that the Legislature intended the
household/incest exception to apply to a registrant whose single conviction
otherwise meets the requirements of [the exception] and involves more than one
instance of sexual contact with a single victim who is within his or her
household." Ibid. However, the court did "not address whether an offender with
a single conviction premised upon multiple acts upon multiple victims, all
within the household and to whom the offender was related 'by blood or affinity
to the third degree . . . ,' would fall within the household/incest exception . . . ."
Id. at 102 n.7.
J.P. asserts that this case concerns the very issue the Supreme Court
declined to address in N.B., whether an offender with multiple acts on multiple
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victims, if within one household, fits within the household/incest exception.
Thus, the real dispute is narrowed down to what the Legislature meant when it
only made the exception available to an offender convicted of a "sole sex
offense."
The parties agree that defendant meets many of the requirements of the
household/incest exception by being a moderate risk of re-offense, being related
to the victims, and having the victims within his household. It cannot be
reasonably argued, however, that having pled guilty to two separate offenses,
each involving a different victim, defendant entered a guilty plea t o a "single
conviction," or is guilty of committing only a "sole sex offense."
The use of the word "members" of a single household is not surplusage if
the statute as applied in this case is given that construction. The reference to
"members" could readily be a reference to a perpetrator and a victim, not just a
reference to more than one victim. The plural usage cannot overcome the clear
statement of intent and unequivocal language at the beginning of the sentence,
that sole sex offense means "a single conviction . . . for a sex offense which
involved no more than one victim . . . ." N.J.S.A. 2C:7-13(d) (emphasis added).
In the context of Megan's Law reporting, we have previously said that the word
"conviction" did not mean "judgment of conviction" for purposes of determining
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the timeframe in which to register under Megan's Law. In re J.S., 444 N.J.
Super. 303, 310, 313 (App. Div. 2016).
Furthermore, the cases upon which J.P. relies have to do with enhanced
sentencing. See State v. Anderson, 186 N.J. Super. 174 (App. Div. 1982); State
v. Bowser, 272 N.J. Super. 582 (Law Div. 1993). Even if the incest/household
exception to Internet registration is available for a defendant family member
who commits multiple sexual offenses against one victim, that does not mean
that multiple charges as to separate victims are included. See N.B., 222 N.J. at
100-03. This was not a "sole sex offense," but two sexual offenses. J.P. was
properly subjected to Internet registration.
Affirmed.
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