The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1008-22
APPROVED FOR PUBLICATION
IN THE MATTER OF
REGISTRANT M.L. 1 August 16, 2024
____________________ APPELLATE DIVISION
Argued February 13, 2024 2 – Decided August 16, 2024
Before Judges Gooden Brown,3 Natali and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Docket No. ML-22-03-
0038.
Fletcher C. Duddy, Assistant Public Defender, argued
the cause for appellant M.L. (Jennifer Nicole Sellitti,
Public Defender, attorney; Fletcher C. Duddy, of
counsel and on the briefs; Christina John, Assistant
Deputy Public Defender, on the briefs).
Tara Carlin, Assistant Prosecutor, argued the cause for
respondent State of New Jersey (LaChia L. Bradshaw,
Burlington County Prosecutor, attorney; Tara Carlin, of
counsel and on the briefs).
1
We use initials to protect the confidentiality of the proceedings in accordance
with Rule 1:38-3(c)(11).
2
On February 22, 2024, we granted M.L.'s motion for a stay pending the Law
Division's resolution of his subsequent motion to reclassify. On April 18, 2024,
we received supplemental briefings in which the parties advised us the outcome
of that motion did not resolve the issues raised in this appeal.
3
Judge Gooden Brown did not participate in oral argument but joins the
decision with counsel's consent. R. 2:13-2(b).
The opinion of the court was delivered by
PUGLISI, J.S.C. (temporarily assigned).
In this appeal, as a matter of first impression, we consider whether the
State may move to expand the scope of notification under Megan's Law,
N.J.S.A. 2C:7-1 to -23, based on an increased risk of harm to the community not
otherwise accounted for in the Registrant Risk Assessment Scale (Scale).
I.
Megan's Law is intended "to protect the community from the dangers of
recidivism by sexual offenders." In re Registrant C.A., 146 N.J. 71, 80 (1996)
(citing N.J.S.A. 2C:7-1(a)). To that end, it requires certain sex offenders to
register with law enforcement agencies, N.J.S.A. 2C:7-2 to -4, which are then
authorized "to release relevant and necessary information regarding sex
offenders to the public when the release of the information is necessary for
public protection," in accordance with the AG Guidelines.4 In re Registrant
N.B., 222 N.J. 87, 95 (2015) (quoting N.J.S.A. 2C:7-5(a)), citing N.J.S.A. 2C:7-
8(a).
4
Attorney General Guidelines for Law Enforcement for the Implementation of
Sex Offender Registration and Community Notification Laws (rev. Feb. 2007).
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The scope of community notification is primarily determined by a
registrant's designation as a Tier I, II or III offender. N.J.S.A. 2C:7-8(a), (c)(1)
to (3). A registrant's tier designation indicates the risk of re-offense, as
determined by the consideration of thirteen factors or criteria in the Scale, which
are weighted and totaled. In re Registrant J.G., 463 N.J. Super. 263, 273-74
(App. Div. 2020).
Offenders who score between zero and thirty-six points are deemed Tier I
(low risk), and only "law enforcement agencies likely to encounter" the
registrant are notified. N.J.S.A. 2C:7-8(c)(1). Offenders who score between
thirty-seven and seventy-three points are deemed Tier II (moderate risk) and, in
addition to Tier I notification, schools and organizations in the community are
also notified. N.J.S.A. 2C:7-8(c)(2). Offenders who score seventy-four points
or higher are deemed Tier III (high risk) and, in addition to Tier I and II
notification, "members of the public who are likely to encounter" the registrant
are also notified. N.J.S.A. 2C:7-8(c)(3). Depending on tier designation and
other statutory requirements, offenders are also subject to inclusion on the
internet registry. N.J.S.A. 2C:7-13.
A registrant's due process is satisfied by way of a tiering hearing, during
which the State must demonstrate by clear and convincing evidence both the
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registrant's level of risk to the community and the scope of notification necessary
to protect the community. In re Registrant R.F., 317 N.J. Super. 379, 383-84
(App. Div. 1998). Although it is not scientific evidence, the Scale is a "reliable
and useful tool that the State can use to establish its prima facie case concerning
a registrant's tier classification and manner of notification." In re Registrant
C.A., 146 N.J. at 110. While a tier classification made on the basis of the Scale
score should be afforded deference, it is not absolute; a Megan's Law judge must
conduct an independent review of the merits of the case and not rely solely on
the Scale score. Id. at 108-09.
Our Supreme Court has permitted limited challenges to a registrant's Scale
score:
In most cases, we expect that the tier classification
suggested by the Scale will be the same classification
recommended by the prosecutor and approved by the
court. However, there may be cases in which the
registrant presents subjective criteria that would
support a court not relying on the tier classification
recommended by the Scale. In those cases, we do not
expect the court to blindly follow the numerical
calculation provided by the Scale, but rather to enter the
appropriate tier classification. We recognize that
subjective accomplishments, such as an individual
registrant's positive response to treatment, may warrant
a lower classification than the Scale recommends.
However, we believe that those determinations are best
made on a case-by-case basis within the discretion of
the court.
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[Id. at 109].
In In re Registrant G.B., 147 N.J. 62, 69 (1996), our Supreme Court again
acknowledged the Scale is not immune from challenge. "The Scale is only a
tool, albeit a useful one. It does not graduate to an irrebuttable presumption
simply because it is properly and accurately computed." Id. at 80-81. There,
the Court identified three types of challenges a registrant may lodge:
First, a registrant may introduce evidence that the
calculation that led to the Scale score was incorrectly
performed either because of a factual error, because the
registrant disputes a prior offense, because the variable
factors were improperly determined, or for similar
reasons. Second, a registrant may introduce evidence
at the hearing that the Scale calculations do not
properly encapsulate his specific case; or phrased
differently, a registrant may maintain that his case falls
outside the "heartland" of cases and, therefore, that he
deserves to be placed in a tier other than that called for
by the prosecutor's Scale score. Finally, a registrant
may introduce evidence that the extent of notification
called for by his tier categorization is excessive because
of unique aspects of his case.
[Id. at 85].
The Court opined "few cases" would present facts that would undermine
the Scale score as calculated for a registrant. Id. at 82. It is "[o]nly in the
unusual case where relevant, material, and reliable facts exist for which the
Scale does not account, or does not adequately account, should the Scale score
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be questioned. Those facts must be sufficiently unusual to establish that a
particular registrant's case falls outside the 'heartland' of cases." Ibid. The Court
provided two examples where a heartland motion may lie: when the registrant's
sexual offenses were limited to within the family home, and a "more common"
scenario concerning a registrant's psychological state. Id. at 82-83. "In some
instances, an expert evaluating a registrant may believe that the registrant 's
psychological profile makes him substantially less likely to reoffend than the
general sex offender." Id. at 83. Because the Scale does not "consider positive
psychiatric profiles and positive post-sentence behavior as true mitigating
factors that can reduce the projected risk of reoffense, expert testimony may be
essential for an accurate tier designation, even to the point of overriding the
Scale score." Ibid.
In addition to a heartland motion challenging the Scale score itself, the
Court recognized "[a] separate challenge that potentially could be raised to the
Scale score concern[ing] the scope of community notification," referring to "a
registrant whose Scale score was properly computed and whose case does not
fall outside the 'heartland' of cases in terms of his risk of reoffense" but
nevertheless "seek[s] to narrow the scope of community notification." Id. at 84.
The Court foresaw "few cases in which such a challenge will be successful"
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because "the scope of notification for each tier categorization has been strictly
defined by the Attorney General" in the AG Guidelines. Ibid. The Court
concluded that "in the unusual case, facts may exist that warrant a narrowing of
the notification (or, perhaps, even the expansion of the notification)." Ibid.
M.L. argues the Court's holding in G.B. leads to the ineluctable conclusion
that a Megan's Law judge must be bound by the tier designation determined by
the Scale unless the registrant, and not the State, presents support to depart from
the Scale score; and that only the court, and not the State, may use psychological
evidence to justify a departure from the Scale score. We are unpersuaded by
this cramped interpretation of Megan's Law and hold that the State may, in
certain limited circumstances, request an upward adjustment of notification.
Because we are also satisfied that M.L.'s case presented one of those limited
circumstances, we affirm.
II.
On the night of June 26, 1987, then nineteen-year-old M.L., fifteen-year-
old R.C. and three other individuals attended a party, where M.L. drank alcohol
heavily. They left the party shortly after midnight to go swimming in a wooded
area. Upon arrival, M.L. led R.C. into the woods where he sexually assaulted
her and then strangled her to death with her bra. He left her body and rejoined
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the rest of the group, telling them R.C. had gone to the bathroom and he could
not find her.
After feigning a search for ten minutes, M.L. drove the other individuals
home except for A.M., who had passed out in the car. M.L. drove back to the
woods, retrieved R.C.'s body and clothing, placed them in the trunk of the car,
and continued driving around. When A.M. awoke around 7:00 a.m., M.L. pulled
the car into a motel parking lot and showed him R.C.'s body in the trunk. The
car did not restart, so the two left it and took public transportation back to their
respective homes. That evening, A.M. reported the murder to law enforcement.
M.L. hid in the woods for two days until another friend convinced him to turn
himself in to the State Police.
M.L. was indicted for two counts of murder (capital offense), N.J.S.A.
2C:11-3(a)(1) and (2) (counts one and two); first-degree murder, N.J.S.A.
2C:11-3(a)(3) (count three); two counts of first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(3) and (6) (counts four and five); third-degree
hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count six); and fourth-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count seven). On
March 22, 1989, a jury found M.L. guilty of all counts.
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At sentencing, counts two and three merged with count one, and count
seven merged with count five. M.L. was sentenced to life imprisonment with a
thirty-year parole ineligibility period on count one; a consecutive fifteen-year
term on count five; and a four-year consecutive term on count six.
M.L. was paroled on April 9, 2021, and moved to Camden County. The
State served him with notice of proposed tiering as a Tier II with inclusion on
the internet registry, and Tier III community notification. After conducting the
tiering hearing on February 10, 2022, the Camden County Megan's Law judge
entered an order the next day confirming M.L.'s Scale score of sixty-four, which
placed him in Tier II, with inclusion on the internet registry. The judge also
granted the State's application for Tier III door-to-door community notification
within a 1,000-foot radius of M.L.'s residence. M.L. appealed the order but
subsequently withdrew it because he moved from Camden County.
On August 8, 2022, M.L. relocated to and registered in Burlington County.
On September 12, 2022, he was again served with notice of proposed tiering as
a Tier II with inclusion on the internet registry, and Tier III door-to-door
notification within a half-mile radius of his residence.5
5
The Tier III notification radius increased based on M.L.'s move to a less
densely populated area. See In re Registrant E.A., 285 N.J. Super. 554 (1995).
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The Burlington County Megan's Law judge conducted the tiering hearing
on November 30, 2022. In considering the State's motion for Tier III
notification, the judge expressed doubt that the Scale's consideration of
"significant victim harm" encompassed the facts of this case, which had resulted
in the "ultimate harm" of R.C.'s death.
The judge then considered three psychological evaluations administered
to M.L. The first, dated January 6, 2021, by Richard Mucowski, Ph.D., was an
in-depth psychological evaluation prepared for purposes of determining M.L.'s
suitability for parole release. Dr. Mucowski noted M.L. admitted he forced
himself on R.C. and strangled her because she refused to perform oral sex on
him.6 He expressed concerns about M.L.'s sexual and emotional abuse as a
child, substance abuse and prior self-injurious behavior. Dr. Mucowski noted
M.L. had not had any treatment for his sex offense or his own sexual abuse. He
concluded M.L. presented a medium risk for reoffending if released on parole
and recommended "close supervision" if that occurred.
6
Dr. Mucowski noted this statement contradicted M.L.'s prior statement to Dr.
Greenberg that he had consensual sex with R.C., during which R.C. said
something about his "manhood . . . not being big enough." He told Dr.
Greenberg this made him think of his mother, who had made a similar comment
to him a few years prior, and "he went into a blind rage and strangled [R.C.]."
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The second evaluation, dated September 5, 2022, by Leland D. Mosby,
Ed.D., was conducted at the request of the State Parole Board after M.L. had
been released on parole, to determine his suitability for future treatment. Dr.
Mosby concluded M.L. presented a "higher moderate category for violence and
sexual recidivism" and recommended he continue with therapy.
The third evaluation, dated November 1, 2022, by Kenneth L. McNiel,
Ph.D., was conducted at M.L.'s request to assess his psychosexual health and
risk to the community in connection with the State's application for Tier III
notification. Dr. McNiel noted there were "minor discrepancies" in M.L.'s prior
accounts of the murder and the "[c]omprehensive risk assessment provide[d] a
mixed picture." He found M.L.'s "significant historical risks" were improved or
stable and his dynamic risks were minimal based on his positive adjustment in
the community, and therefore M.L. presented a low moderate risk of sexual or
other violence. He concluded the risk could be "reasonably managed under
[parole] supervision, and that a Tier [III] notification including door-to-door
notifications would more likely increase the risk of residential and/or
employment instability than decrease his overall risk to the community."
In weighing this case, the judge noted the positive aspects of M.L.'s
progress, including his adherence to parole conditions, community support,
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gainful employment and participation in counseling. He also discussed risk
factors, including the short time M.L. had been on parole release in the
community and the potential for his provocation to anger, particularly with
alcohol or drug use.7
The judge found that, given the type of harm inflicted, which was "the
death of another human being," the risk of harm to the community outweighed
M.L.'s privacy interest. On December 2, 2022, the judge entered an order
confirming M.L.'s Scale score of fifty-eight,8 which placed him in Tier II with
inclusion on the internet registry, and granted the State's application for Tier III
door-to-door notification. On consent of the State, the Tier III notification has
been stayed pending the resolution of this appeal.
III.
We review a trial court's conclusions regarding a Megan's
Law registrant's tier designation and scope of community notification for
7
The judge also expressed his concerns regarding M.L.'s reconnecting with his
mother, given the fact that he identified her as a trigger for his strangling R.C.,
but noted they "don't talk about the past" and were "living for today, trying to
enjoy today and going forward together." Contrary to M.L.'s contention, this
concern does not appear to be a primary factor in the judge's decision.
8
The State consented to a reduction in criteria nine (response to treatment),
eleven (therapeutic support) and twelve (residential support).
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an abuse of discretion. See In re Registrant A.I., 303 N.J. Super. 105, 114 (App.
Div. 1997). "[A]n abuse of discretion arises when a decision is made without
a rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis." State v. R.Y., 242 N.J. 48, 65 (2020) (internal
quotation marks omitted) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002)). The trial court's findings will be upheld so long as they are
supported by sufficient evidence in the record and we find "no basis for
disturbing those factual findings." In re Registrant J.G., 463 N.J. Super. at
277. "A trial court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995).
We first address whether the State may bring a heartland motion seeking
to expand the scope of notification, and note that the record before us is unclear
whether M.L. raised this issue before the Megan's Law judge. Ordinarily, we
will decline consideration of an issue not properly raised before the trial court,
unless the jurisdiction of the court is implicated or the matter concerns an issue
of great public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
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(1973). Because we recognize the important public safety implications
presented by this appeal, we will consider the issue.
Having reviewed precedent concerning heartland applications, we are
satisfied the State may, in limited circumstances, request notification more
expansive than indicated by a registrant's confirmed Scale score. As with a
registrant's heartland application, the State may only request an expansion of
notification in the "unusual case where relevant, material, and reliable facts exist
for which the Scale does not account, or does not adequately account . . . . Those
facts must be sufficiently unusual to establish that a particular registrant's case
falls outside the 'heartland' of cases." In re Registrant G.B., 147 N.J. at 82.
We agree this case, which resulted in the "ultimate harm" of death to the
victim, presented the facts not taken into account by the Scale. The AG
Guidelines define criteria one, degree of force, as "related to the seriousness of
the potential harm to the community if reoffense occurs." AG Guidelines,
Exhibit E. The example provided for high risk is where the "offender causes
lasting or substantial physical damage to [the] victim, or offender uses or is
armed with a weapon." Ibid. Although "[t]hese examples are in no way intended
to be exclusive," they nevertheless reflect the Scale does not account for a sexual
assault that resulted in the victim's murder.
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While M.L.'s Scale score was properly computed, the judge nevertheless
had the obligation to determine whether, given the individual facts of the case,
the notification attendant to that tier was appropriate:
The final determination of dangerousness lies with the
courts, not the expertise of psychiatrists and
psychologists. Courts must balance society's interest in
protection from harmful conduct against the
individual's interest in personal liberty and autonomy.
The ultimate decision on dangerousness is, therefore, a
legal one, not a medical one, even though it is guided
by medical expert testimony.
[In re D.C., 146 N.J. 31, 59 (1996).]
Because Megan’s Law was enacted to enable the public to protect itself
against the dangers posed by sex offenders, the "level of notification required
for the public to protect itself varies according to what crime the public must
guard against." In re Registrant C.A., 146 N.J. at 102 (citing Doe v. Poritz, 142
N.J. 1, 73 (1994)). "The need for greater or lesser notification is directly related
to the gravity of the offense to be re-committed along with the risk that the
registrant will re-commit whatever crime the registrant committed before." Ibid.
For this reason, we reject M.L.'s contention the State's application in this case
was required to be supported by expert testimony. Here, the upward adjustment
was not grounded in a reassessment of the level of risk based on a psychological
evaluation, but on the type of harm at risk of being inflicted.
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We recognize that Megan's Law is intended to protect the public from
recidivism of those convicted of sex offenses, and our Legislature has not
enacted similar registration and notification requirements for other types of
violent crimes. We note that here, in either of M.L.'s explanations for his
motivation, his murder of R.C. was inextricably intertwined with his sexual
assault of her. Our decision should not be construed to require Tier III
notification in every case where a sexual assault resulted in the death of the
victim. This determination must still be made on a case by case, fact -specific
basis. Given our deferential standard of review and the particular facts of this
case, we are satisfied the judge's decision here did not constitute an abuse of
discretion.
Affirmed.
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