IN THE MATTER OF REGISTRANT A.A. (ML-09-07-0111) (ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0678-18T1

APPROVED FOR PUBLICATION

IN THE MATTER OF

REGISTRANT A.A. November 15, 2019

_____________________ APPELLATE DIVISION

Argued October 7, 2019 – Decided November 15, 2019

Before Judges Fasciale, Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. ML-09-07-

0111.

James H. Maynard argued the cause for appellant A.A.

(Maynard Law Office, LLC, attorneys; James H.

Maynard, on the briefs).

Frank J. Ducoat, Special Deputy Attorney General/

Acting Assistant Prosecutor, argued the cause for

respondent State of New Jersey (Theodore N.

Stephens II, Acting Essex County Prosecutor,

attorney; Frank J. Ducoat, of counsel; Maria I.

Guerrero, Special Deputy Attorney General/Acting

Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

FASCIALE, P.J.A.D.

This appeal requires us to address the general procedure and related due

process protections afforded to individuals who committed crimes outside New

Jersey when law enforcement allege that those crimes are "similar to" Megan's

Law offenses under N.J.S.A. 2C:7-1 to -23, and therefore require registration

in this State.

We hold that a county assistant prosecutor (AP) must first make the

"similar to" determination. If the AP imposes a registration obligation, the

offender is entitled to notice and an opportunity to challenge that obligation by

filing a motion with the judge. The motion triggers a summary hearing,

wherein the judge addresses the legal question of whether the out-of-state

conviction was "similar to" a qualifying conviction under Megan's Law. In

accordance with R.B.,1 the judge should (1) undertake an element-by-element

legal comparison of the criminal codes of New Jersey and the other state; and

(2) compare the elements of the crimes with the purposes of the underlying

criminal statutes. Consistent with R.B., and to avoid reviewing the elements

of the offense in a vacuum, the judge may also examine trustworthy, relevant

evidence as to the underlying factual predicate for the out-of-state conviction.

In this case, an AP performed the "similar to" analysis and determined

A.A. had a duty to register in New Jersey as a sex offender. A.A. filed a

motion to terminate that obligation ab initio, which the judge denied. A.A.

appeals from that order.

1

In re Registrant R.B., 376 N.J. Super. 451, 464 (App. Div. 2005).

A-0678-18T1

2

We conclude the AP correctly performed the "similar to" analysis and

determined A.A. had a duty to register. A.A. received notice of that

obligation, registered, and challenged the determination in the Law Division.

Applying R.B., the judge here properly concluded the New York conviction

was "similar to" an enumerated offense under Megan's Law. We therefore

affirm.

I.

At all relevant times, A.A. resided in New Jersey. According to a New

York pre-sentence investigation report and charging documents, in March

2008, A.A. engaged in sexual communications with an undercover police

officer in an internet chatroom, believing the officer to be a fourteen-year-old

girl. He then emailed three pictures of his genitals to the undercover police

officer. In April 2008, A.A. traveled to a New York mall, intending to meet

the underage girl from the chatroom. The police met A.A. there, arrested him,

and seized a box of condoms from him.

The New York police charged A.A. with second-degree disseminating

indecent material to a minor, New York Penal Law § 235.21(3) (Consol.

2019). In September 2008, he pled guilty to that charge, and in December

2008, the judge entered judgment and sentenced him to five years' probation.

A-0678-18T1

3

A.A.'s pre-sentence investigation report addressed the transfer of probation

from one state to another:

This offender may be eligible for an interstate

[t]ransfer at the discretion of the receiving state.

Interstate Compact Rules require that persons

sentenced to probation on a sex offense that requires

them to register in either the sending or receiving state

are NOT entitled to proceed to the receiving state until

that state investigates and reporting instructions are

issued. The [offender] must remain in [New York]

until this process is completed. If the transfer request

is rejected, regardless of the [offender's] current

residence[,] [the offender] must remain in [New

York]. If [the offender] [is] allowed to travel by the

receiving state and then that state later rejects the

transfer, the offender must return to New York within

[fifteen] days.

The same report further stated that, although A.A.'s offense in New York "does

not require SORA 2 registration, sex offender conditions of [p]robation are

recommended."

New York requested the transfer of A.A.'s probation supervision to New

Jersey. In March 2009, a New Jersey County Senior Probation Officer (SPO)

provided documentation of A.A.'s New York conviction to a New Jersey AP

and requested a determination as to whether A.A. "will be required to register

under Megan's Law in our state[.]" The SPO indicated to the AP that he would

2

Sex Offender Registration Act, N.Y. Corr. Law § 168 (Consol. 2019).

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4

provide the AP's determination to New York when the SPO responded to the

transfer request. The AP advised the SPO:

It appears his [New York] conviction is Megan's Law

in [New Jersey] . . . . [The New York] statute

resembles . . . our Luring Statute[,] [N.J.S.A.] 2C:13-

6[,] which makes him Megan's Law. He's already

living in [New Jersey and] should already be

registered. Technically, he's in violation. If you agree

to the supervision, make him register [with the local

police department] ASAP. We will need copies of his

entire file in order to tier him once he registers.

The SPO then responded:

He is not currently in [New Jersey], as per [i]nterstate

guidelines for transfers he is required to stay in New

York . . . for [five] days until we send reporting

instructions that his case has been approved. I will

refer him to [the local New Jersey police department]

once the case has been accepted. The information on

the offense that I faxed was all that New York

provided[;] if there is any other paperwork[,] I will

mail it to you.

Thereafter, New Jersey Probation Services accepted supervision of A.A.

from New York. In April 2009, the SPO advised the AP of the transfer and

enclosed A.A.'s paperwork. The SPO noted:

As per our previous correspondence, your office

determined that [A.A.'s] offense would require him to

register under Megan's Law in New Jersey, and I

confirmed with [a] [d]etective [of the local New

Jersey police department] that he registered his

address [in New Jersey] with their department[.]

Therefore, A.A. had notice of his obligation to register.

A-0678-18T1

5

In April 2018, nine years after the AP performed the "similar to"

analysis, A.A. filed a motion to terminate ab initio his Megan's Law

registration requirement. The judge heard oral argument in July 2018. On

September 5, 2018, the judge issued the order and written decision denying his

motion, which led to this appeal.

II.

On appeal, A.A. argues:

POINT I

MEGAN'S LAW WAS UNCONSTITUTIONALLY

IMPOSED ON A.A. ABSENT DUE PROCESS

PROTECTIONS UNDER THE STATE AND

FEDERAL CONSTITUTIONS.

POINT II

THE COURT BELOW UNCONSTITUTIONALLY

SHIFTED THE BURDEN OF PROOF AS TO THE

"SIMILAR TO ANALYSIS" UNDER MEGAN'S

LAW TO A.A.

POINT III

THE FAILURE OF THE COURT TO RESTRICT ITS

ANALYSIS OF A.A.'S NEW YORK CONVICTION

TO AN ELEMENTS ONLY TEST VIOLATES THE

SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

POINT IV

THE NEW JERSEY CRIMINAL STATUTE THAT IS

"SIMILAR TO" THE NEW YORK CRIMINAL

A-0678-18T1

6

STATUTE OF WHICH A.A. WAS CONVICTED IS

N.J.S.A. 2C:34-3(B).

POINT V

BECAUSE [NEW YORK PENAL LAW] § 235.21(3)

DOES NOT INCLUDE ALL OF THE ESSENTIAL

ELEMENTS OF N.J.S.A. 2C:24-4A, THE MEGAN'S

LAW COURT ERRED IN FINDING THE NEW

YORK CONVICTION SIMILAR TO A MEGAN'S

LAW REGISTERABLE OFFENSE.

III.

We begin by briefly summarizing the pertinent law on registration

obligations. Megan's Law generally establishes a registration system for sex

offenders and offenders who commit predatory acts against children. It

devises community notification procedures, which are based on a risk

assessment of the offender. Doe v. Poritz, 142 N.J. 1, 14 (1995). The

expressed purposes of the registration and notification procedures are "public

safety" and "preventing and promptly resolving incidents involving sexual

abuse and missing persons." N.J.S.A. 2C:7-1. The law is remedial and not

intended to be punitive. Doe, 142 N.J. at 12-13.

Megan's Law specifically addresses registration obligations for offenders

convicted of qualifying crimes in other jurisdictions. N.J.S.A. 2C:7-2 states in

pertinent part:

(a) (1) A person who has been convicted . . . of a sex

offense as defined in subsection b. of this section shall

A-0678-18T1

7

register as provided in subsections c. and d. of this

section.

....

b. For the purposes of this act[,] a sex offense shall

include the following:

....

(2) A conviction . . . for . . . endangering the welfare

of a child by engaging in sexual conduct which would

impair or debauch the morals of the child pursuant to

subsection a. of [N.J.S.A. 2C:24-4] . . . or an attempt

to commit [that crime;]

(3) A conviction . . . for an offense similar to any

offense enumerated in paragraph (2) or a sentence on

the basis of criteria similar to the criteria set forth in

paragraph (1) of this subsection entered or imposed

under the laws of the United States, this State, or

another state.

[(Emphasis added).]

Pertinent to A.A.—who resided in New Jersey at the time of his New

York conviction and who would be serving a probationary sentence under th e

supervision of Essex County Probation Services—N.J.S.A. 2C:7-2 further

provides that:

c. A person required to register under the provisions of

this act shall do so on forms to be provided by the

designated registering agency as follows:

(1) A person who is required to register and who is

under supervision in the community on probation . . .

shall register at the time the person is placed under

supervision . . . in accordance with procedures

A-0678-18T1

8

established by . . . the Administrative Office of the

Courts;

....

(3) A person moving to or returning to this State from

another jurisdiction shall register with the chief law

enforcement officer of the municipality in which the

person will reside or, if the municipality does not have

a local police force, the Superintendent of State

Police[.]

....

e. A person required to register under . . . paragraph

(3) of subsection b. . . . on the basis of a conviction for

an offense similar to an offense enumerated in

paragraph (2) of subsection b. shall verify his address

annually in a manner prescribed by the Attorney

General[.]

[(Emphasis added).]

IV.

We now turn to the heart of this case: whether A.A. is entitled to

procedural due process on the "similar to" analysis, and if so, what process is

due. We conclude that A.A. is entitled to procedural due process. That is, he

is entitled to notice of the AP's initial determination that he must register under

Megan's Law. He can challenge that determination at a summary hearing in

the Law Division.

The United States Constitution provides that no state shall "deprive any

person of life, liberty, or property, without due process of law[.]" U.S. Const.

amend. XIV, § 1. New Jersey's Constitution "does not enumerate the right to

A-0678-18T1

9

due process, but protects against injustice and, to that extent, protects 'values

like those encompassed by the principle[] of due process.'" Doe, 142 N.J. at

99 (Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985)) (alteration in

original); see also N.J. Const. art. I, ¶ 1. In concluding that A.A. is entitled to

procedural due process, we consider whether the State interfered with a liberty

or property interest, and if so, whether the associated "similar to" procedures—

notice and an opportunity to be heard in the Law Division—are

constitutionally sufficient.

An offender's liberty interest is significantly affected by an AP's "similar

to" determination. For example, the offender must be registered for at least

fifteen years before seeking termination of that obligation under N.J.S.A.

2C:7-2(f).3 An offender faces potential criminal liability for failing to register .

N.J.S.A. 2C:7-2. Registered offenders are limited in other consequential ways.

See, e.g., N.J.S.A. 2C:7-23 (prohibiting participation in certain organizations).

Also, the AP's initial "similar to" registration determination imposes

3

N.J.S.A. 2C:7-2(f) provides the only basis for terminating a properly

imposed Megan's Law registration requirement; it is predicated upon the

offender not committing another offense for fifteen years and proof that the

offender "is not likely to pose a threat to the safety of others ." In addition,

N.J.S.A. 2C:7-2(g) limits the offenders who may access this procedure. We

note that A.A. did not file his motion under this statute; rather, he moved to

terminate his obligation ab initio.

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10

obligations associated with any subsequent tier decision by the prosecutor,

particularly if the offender is classified as a Tier II or Tier III offender .

N.J.S.A. 2C:7-8, -13. Indeed, the Supreme Court concluded that "under both

the Federal and State Constitutions, the Registration and Notification Laws

implicate [protectable] liberty interests in privacy and reputation, and therefore

trigger the right to due process." Doe, 142 N.J. at 106.

But procedural due process—a flexible concept—"depends on the

particular circumstances." Ibid. At a minimum, it requires notice and an

opportunity to be heard. Ibid. Our focus is not so much on the notice to which

A.A. is clearly entitled; he is indisputably entitled to notice of his registration

obligation, which he received. Rather, we concentrate on the process of

making the "similar to" determination, and A.A.'s associated right to be heard.

Megan's Law does not establish a procedure for making the "similar to"

determination. Although the Office of the Attorney General (AG) adopted the

Attorney General Guidelines for Law Enforcement for the Implementation of

Sex Offender Registration and Community Notification Laws (AG's

Guidelines) (rev'd Feb. 2007), the AG's Guidelines also do not identify a

A-0678-18T1

11

procedure for conducting the "similar to" analysis. 4 At oral argument before

us, counsel verified that no such documentation exists.

The State argues A.A. is not entitled to procedural due process because

A.A. is classified as a Tier I offender, and the Court previously concluded that

only Tier II and Tier III classifications warrant hearings. See id. at 107.

However, the State's reliance on Doe is misplaced. Doe did not address

protectable interests under N.J.S.A. 2C:7-2(b)(3), nor whether an offender with

an out-of-state conviction is entitled to due process with respect to a "similar

to" analysis. The concept of tier classification and community notification is

completely different than a "similar to" analysis under N.J.S.A. 2C:7-2(b)(3).

Thus, we reject the State's contention that A.A. is not entitled to due process in

a "similar to" analysis.

4

In March 2019, A.A.'s counsel notified the AG about this appeal, attached

his merits brief, and stated:

Pursuant to . . . Rule 4:28-4(a) and (c) . . . [A.A.] [has]

challeng[ed] the constitutionality of N.J.S.A. 2C:7-

2(b)(3). [A.A.] asserts . . . that [the statute's] failure

. . . to afford [A.A.], and others similarly situated, any

process whatsoever prior to determining that an

individual with an out-of-state conviction is required

to register under Megan's Law, violates the New

Jersey [and Federal] Constitution[s].

The AG did not seek intervention in this appeal, although it had the right to do

so.

A-0678-18T1

12

Nevertheless, even if procedural due process principles do not entitle

offenders to the right to file a motion and challenge an AP's determination that

the out-of-state conviction is "similar to" an enumerated offense under

Megan's Law, fundamental fairness requires such a process. In invoking the

doctrine, the Court stated in Doe:

New Jersey's doctrine of fundamental fairness "serves

to protect citizens generally against unjust and

arbitrary governmental action, and specifically against

governmental procedures that tend to operate

arbitrarily. [It] serves, depending on the context, as an

augmentation of existing constitutional protections or

as an independent source of protection against state

action."

[Id. at 108 (alteration in original) (quoting State v.

Ramseur, 106 N.J. 123, 377 (1987) (Handler, J.,

dissenting)).]

The Court noted that it relied on the doctrine of fundamental fairness "to

protect the rights of defendants at various stages of the criminal justice process

even when such procedures were not constitutionally compelled." Ibid.

Moreover, a summary "similar to" hearing, when requested by motion, will not

seriously burden the State or an offender.

A.

The first question as to the "similar to" procedure is whether a county

AP or a Law Division judge makes the initial determination. On this issue, the

parties agree. Indeed, at oral argument before us, counsel stated that the

A-0678-18T1

13

general procedure for undertaking a "similar to" determination—and the one

used here—requires that an AP make the initial determination of whether the

out-of-state conviction is "similar to" an enumerated offense under Megan's

Law. This procedure is congruent with Megan's Law, which accords county

APs substantial responsibility to perform many day-to-day acts in furtherance

of the statute. See, e.g., N.J.S.A. 2C:7-4(c); N.J.S.A. 2C:7-8(d); N.J.S.A.

2C:7-13(e); N.J.S.A. 2C:7-21(b); Doe, 142 N.J. at 22-23; AG's Guidelines, at

4-5. Therefore, we see no reason to change this practice.

B.

The next question is whether A.A. was entitled to challenge the AP's

determination that his out-of-state conviction was "similar to" an enumerated

offense under Megan's Law. Once again, the parties agree that a registrant

may challenge the initial determination, which underscores A.A.'s fundamental

entitlement to procedural due process protections. At oral argument before us,

counsel agreed that A.A. had the right—which he exercised here—to file a

motion in the Law Division to terminate his registration obligation ab initio.

The motion triggers a summary hearing before the judge, which we will now

address.

First, a judge performs a "similar to" analysis on the motion by

following the protocol in R.B. The judge's role at the summary hearing is

A-0678-18T1

14

primarily a legal one. In R.B., a registrant sought a declaration in the Law

Division that his federal crime was not "similar to" an enumerated offense

under Megan's Law. 376 N.J. Super. at 459. The judge concluded the crimes

were similar and required R.B. to register as a sex offender. Id. at 459-60. We

conducted a de novo review and upheld that conclusion, and addressed the

"similar to" analysis:

[S]o long as the conviction being compared to a

Megan's Law enumerated offense contains the same

essential elements, and the underlying purposes of the

crimes are consonant, the conviction should be

considered similar to the Megan's Law enumerated

offense for purposes of requiring sex offender

registration in New Jersey. Because the elements of

the offense cannot be viewed in a vacuum, to make

this determination may entail examining the facts

underlying the offense as charged in the indictment.

We believe this approach will reconcile the competing

public policies of protecting the public against sex

offenders, while also ensuring the potential registrant's

due process rights.

[Id. at 464 (emphasis added).]

Thus, at the summary hearing, the judge should primarily: (1) undertake an

element-by-element legal comparison of the criminal codes of New Jersey with

that of the other jurisdiction; and (2) compare the underlying purposes of the

criminal statutes. Consistent with R.B., and to avoid reviewing the elements

of the offense in a vacuum, the judge may examine trustworthy, relevant

A-0678-18T1

15

evidence as to the underlying factual predicate for the out-of-state conviction.

Id. at 465.

On this appeal, A.A. proposes we limit the evidence a judge can consider

at the summary hearing. He suggests that the judge only consider the statutes,

charging documents, and plea allocutions. But his proposal ignores our

statement in R.B., that "the elements of the offense cannot be viewed in a

vacuum," and the "similar to" determination may entail examining the facts

underlying the offense. His proposal does not acknowledge the Court's

statement that Megan's Law "should be construed broadly to achieve its goal of

protecting the public[.]" State v. S.R., 175 N.J. 23, 36 (2002). There are also

practical problems associated with imposing such limitations.

From a practical standpoint, a judge at the summary hearing cannot

control how other jurisdictions prepare charging documents nor the

information included in a plea allocution. In some cases, charging documents

may provide detailed facts about the underlying offense; yet in others, they

may not. In some instances—like here—documents may not be available for

the judge's review. There may be instances where an offender does not plead

guilty, but is found guilty or found not guilty by reason of insanity.

Consequently, a judge at a summary hearing may examine the facts underlying

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16

the offense so long as that examination entails consideration of reliable and

trustworthy evidence of the factual predicate for the underlying offense.

We reject A.A.'s related contention that the Sixth Amendment of the

United States Constitution limits what evidence a judge may consider at the

summary hearing. To support his argument, he cites criminal cases involving

sentencing decisions, to which the Sixth Amendment applies. 5 His reliance on

that body of law is misplaced. The Sixth Amendment applies to criminal

prosecutions, but a "similar to" determination is not a criminal prosecution,

and the judge does not consider an appropriate sentence for a criminal

conviction. By the time a judge conducts the summary hearing, the foreign

jurisdiction has already resolved an offender's guilt (either by a plea or trial)

and imposed a sentence.

Second, we reject A.A.'s argument that at the hearing the State must

prove by clear and convincing evidence that the out-of-state conviction is

5

See Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243 (2016);

Descamps v. United States, 570 U.S. 254 (2013); Taylor v. United States, 495

U.S. 575 (1990); United States v. Chapman, 866 F.3d 129 (3d Cir. 2017), cert.

denied, ___ U.S. ___, 138 S. Ct. 1582 (2018); United States v. Edwards, 836

F.3d 831 (7th Cir. 2016); United States v. Sherbondy, 865 F.2d 996 (9th Cir.

1988); United States v. Vidaure, 861 F.2d 1337 (5th Cir. 1988); United States

v. Headspeth, 852 F.2d 753 (4th Cir. 1988); State v. Rhodes, 329 N.J. Super.

536, 542 (App. Div. 2000). He also cites two federal immigration cases where

the criminal law standard was applied. See Sessions v. Dimaya, ___ U.S. ___,

138 S. Ct. 1204 (2018); Stubbs v. Att'y Gen., 452 F.3d 251 (3d Cir. 2006).

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"similar to" an enumerated offense under Megan's Law. Comparing the

elements and underlying purposes of the crimes is a legal task. In conducting

the "similar to" determination, a judge may examine the facts of the underlying

offense to avoid considering the elements of the offense in a vacuum, but the

judge does so merely to determine whether the elements and purposes of the

crimes are "similar to" a Megan's Law offense. 6

A judge's "similar to" legal determination at a summary hearing is

completely different than, for example, a judicial determination for tier

classification and community notification, which "must be [made] by clear and

convincing evidence." G.H. v. Twp. of Galloway, 401 N.J. Super. 392, 403

(App. Div. 2008) (citing E.B. v. Verniero, 119 F.3d 1077, 1111 (3d Cir.

1997)), aff'd o.b., 199 N.J. 135 (2009). Clear and convincing evidence is

characterized "as evidence on which the trier of fact can rest 'a firm belief or

conviction as to the truth of the allegations sought to be established.'" In re

Registrant J.G., 169 N.J. 304, 330-31 (2001) (quoting In re Purrazella, 134

N.J. 228, 240 (1993)). In those matters, unlike here, a judge balances the

6

We note that at the summary hearing, the judge mistakenly referred to A.A.

having a burden of proof, and also stated that the State must prove by clear and

convincing evidence that A.A.'s New York crime was "similar to" an

enumerated Megan's Law offense. Ultimately, however, the judge applied

R.B. and determined that the New York crime was "similar to" an enumerated

offense under Megan's Law.

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18

registrant's right to privacy against the community's interest in safety and

notification. In re Registrant G.B., 147 N.J. 62, 74 (1996).

Along those lines, the Registrant Risk Assessment Scale (RRAS) is a

reliable instrument used to determine whether a sex offender's risk of re-

offense is low (Tier I), moderate (Tier II), or high (Tier III). Id. at 81-82; State

v. C.W., 449 N.J. Super. 231, 260 (App. Div. 2017) (citing In re Registrant

V.L., 441 N.J. Super. 425, 429 (App. Div. 2015)). "The RRAS was developed

by a committee of mental health experts and members of the law enforcement

community convened by the Attorney General." C.W., 449 N.J. Super. at 260.

A.A. obtained a score of twenty on his RRAS, classifying him as a Tier I

offender with a low-risk of re-offense.

Another difference between the legal determination by the judge at a

"similar to" hearing and the assignment of a tier rating to a registered sex

offender is that in the latter, the court considers thirteen factors in four distinct

categories: (a) the seriousness of the offense; (b) the offender's history; (c) the

available community support; and (d) the offender's characteristics. Ibid.

(citing V.L., 441 N.J. Super. at 429); see In re Registrant C.A., 146 N.J. 71,

103 (1996) (addressing the thirteen factors). Each factor is assigned a risk

level of low (0), moderate (1), or high (3), and "[t]he total for all levels within

a category provides a score that is then weighted based on the particular

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19

category." C.A., 146 N.J. at 104. Judicial determinations regarding tier

classification and community notification are within the judge's discretion and

based on all of the available evidence, not simply the "numerical calculation

provided by the [RRAS]." G.B., 147 N.J. at 78-79 (citing C.A., 146 N.J. at

109). Ultimately, "a value judgment" is required. Id. at 78 (citing C.A., 146

N.J. at 109). At a "similar to" hearing, the judge would not make a

discretionary decision based on a value judgment; it is a legal determination.

Here, the judge adhered to these minimum procedural due process

protections in conducting the summary hearing.

V.

Finally, we address A.A.'s argument that the judge erroneously

determined that his New York conviction was "similar to" an enumerated

offense under Megan's Law; specifically, that the judge erred in concluding

New York Penal Law § 235.21(3), second-degree disseminating indecent

material to minors, is "similar to" N.J.S.A. 2C:24-4(a), third-degree

endangering the welfare of a child. Instead, A.A. maintains that his New York

conviction is "similar to" a conviction under N.J.S.A. 2C:34-3(b), third-degree

promoting obscene material to persons under the age of eighteen, which is not

an enumerated offense under Megan's Law. N.J.S.A. 2C:7-2(b). Our review

of A.A.'s argument is de novo. R.B., 376 N.J. Super. at 460.

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A.A. was convicted under New York Penal Law § 235.21, which

provides:

A person is guilty of disseminating indecent material

to minors in the second[-]degree when:

....

3. Knowing the character and content of the

communication which, in whole or in part, depicts

actual or simulated nudity, sexual conduct or sado-

masochistic abuse, and which is harmful to minors, he

intentionally uses any computer communication

system allowing the input, output, examination or

transfer, of computer data or computer programs from

one computer to another, to initiate or engage in such

communication with a person who is a minor.

Under New York Penal Law § 235.20(1) (Consol. 2019), a "[m]inor" is

defined as "any person less than seventeen years old." "Nudity" is defined as :

[T]he showing of the human male or female genitals,

pubic area or buttocks with less than a full opaque

covering, or the showing of the female breast with less

than a fully opaque covering of any portion thereof

below the top of the nipple, or the depiction of

covered male genitals in a discernably turgid state.

[N.Y. Penal Law § 235.20(2).]

Finally, "[h]armful to minors" is defined as:

[T]hat quality of any description or representation, in

whatever form, of nudity, sexual conduct, sexual

excitement, or sado-masochistic abuse, when it:

(a) Considered as a whole, appeals to the prurient

interest in sex of minors; and

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(b) Is patently offensive to prevailing standards in the

adult community as a whole with respect to what is

suitable material for minors; and

(c) Considered as a whole, lacks serious literary,

artistic, political and scientific value for minors.

[Id. at § 235.20(6).]

In New Jersey, N.J.S.A. 2C:24-4(a)(1) proscribes endangering the

welfare of a child:

(1) Any person having a legal duty for the care of a

child or who has assumed responsibility for the care of

a child who engages in sexual conduct which would

impair or debauch the morals of the child is guilty of a

crime of the second[-]degree. Any other person who

engages in conduct or who causes harm as described

in this paragraph to a child is guilty of a crime of the

third[-]degree.

[(Emphasis added).] 7

In 2008, at the time of A.A.'s offense, the term "[c]hild" was defined as "any

person under [sixteen] years of age"; that definition was amended in 2013, to

define "[c]hild" as "any person under [eighteen] years of age." N.J.S.A.

7

A.A. correctly notes that N.J.S.A. 2C:24-4(a) was amended in 2013. L.

2013, c. 136, § 1. However, the amendments did not affect the substance of

the criminalized acts; it only bifurcated those acts into two subparts.

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2C:24-4(b)(1). See Cannel, N.J. Criminal Code Annotated, cmt. 1 on N.J.S.A.

2C:24-4 (2019).8

In addition, N.J.S.A. 2C:34-3(b) proscribes "[p]romoting obscene

material" to persons under the age of eighteen:

(1) A person who knowingly sells, distributes, rents or

exhibits to a person under [eighteen] years of age

obscene material is guilty of a crime of the third

degree.

(2) A person who knowingly shows obscene material

to a person under [eighteen] years of age with the

knowledge or purpose to arouse, gratify or stimulate

himself or another is guilty of a crime of the third

degree if the person showing the obscene material is at

least four years older than the person under [eighteen]

years of age viewing the material.

The statute defines "[o]bscene material" as:

[A]ny description, narrative account, display,

depiction of a specified anatomical area or specified

sexual activity contained in, or consisting of, a picture

or other representation, publication, sound recording,

live performance or film, which by means of posing,

composition, format or animated sensual details, emits

sensuality with sufficient impact to concentrate

prurient interest on the area or activity.

[N.J.S.A. 2C:34-3(a)(1).]

8

A.A. communicated with a person he believed to be fourteen years old.

Thus, his equal protection argument is not implicated because at all relevant

times, communicating sexual materials to a fourteen-year-old was a criminal

offense under New York and New Jersey law.

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It defines "[s]pecified anatomical area" as: "(a) [l]ess than completely

and opaquely covered human genitals, pubic region, buttock or female breasts

below a point immediately above the top of the areola; or (b) [h]uman male

genitals in a discernibly turgid state, even if covered." N.J.S.A. 2C:34-3(a) to

(b). It defines "[s]pecified sexual activity" as: "(a) [h]uman genitals in a state

of sexual stimulation or arousal; or (b) [a]ny act of human masturbation,

sexual intercourse or deviate sexual intercourse; or (c) [f]ondling or other

erotic touching of covered or uncovered human genitals, pubic region, buttock

or female breast." N.J.S.A. 2C:34-3(a)(4). And N.J.S.A. 2C:34-3(a)(6)

defines "[e]xhibit" as "the sale of admission to view obscene material."

The judge considered these statutes and rejected A.A.'s argument that his

New York conviction was "similar to" N.J.S.A. 2C:34-3(b), stating an

"essential element" of New York Penal Law § 235.21(3) was the initiation or

engagement of communication with a minor via computer, whereas that

element was not found in N.J.S.A. 2C:34-3(b). The judge determined that

A.A.'s New York conviction was "similar to" a conviction under N.J.S.A.

2C:24-4(a), given that both statutes criminalized exhibiting explicit materials

to children for the purpose of sexual gratification. Applying our de novo

review, the facts underlying the New York prosecution made it clear that

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A.A.'s New York conviction was "similar to" endangering the welfare of a

child. N.J.S.A. 2C:24-4(a).

Considering the three criminal statutes, there are certainly similarities

between New York Penal Law § 235.21(3), N.J.S.A. 2C:24-4(a), and N.J.S.A.

2C:34-3(b). However, the underlying concern of N.J.S.A. 2C:34-3(b) is the

threat to public decency through the promotion of obscene material. By

contrast, New York Penal Law § 235.21(3) and N.J.S.A. 2C:24-4(a) share the

same essential elements and underlying concern: the harm caused to minors

by engaging in sexual conduct, including communicating sexual images to

children via the internet.9

Eschewing only an element-by-element approach, and considering the

charging documents and A.A.'s admissions to New York authorities, his New

9

See, e.g., State v. Hackett, 166 N.J. 66, 77 (2001) (stating that "the focus in a

prosecution for endangering the welfare of children shifts from the mental

state of the actor in performing the lewd conduct to the potential effect that

such conduct may have on the morals of the child or children who are witness

to the conduct"); State v. White, 105 N.J. Super. 234, 236-37 (App. Div. 1969)

(finding that the Title 2A crime of impairing the morals of a child differed

from crime of exposing children to obscene publications, even though

defendant could have been indicted under either); and People ex rel. George v.

Howard, 970 N.Y.S.2d 662, 664, 667 (N.Y. Crim. Ct. 2013) (denying writ of

habeas corpus, finding that petitioner's having emailed picture of his penis to

minor in Alabama was extraditable because his alleged conduct was

punishable under N.Y. Penal Law § 235.21(3)).

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York conviction is "similar to" the conviction for endangering the welfare of a

child. N.J.S.A. 2C:24-4(a).

Affirmed.

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