Opinion
DOCKET NO. A-0671-14T2
07-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.M., Defendant-Appellant.
Stefan J. Erwin, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Erwin, on the brief). Roberta DiBiase, Senior Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Ms. DiBiase, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 14-01-0119. Stefan J. Erwin, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Erwin, on the brief). Roberta DiBiase, Senior Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Ms. DiBiase, on the brief). PER CURIAM
We granted defendant's motion for leave to appeal from an August 26, 2014 order denying her motion to dismiss an indictment charging her with fourth-degree failure to register, N.J.S.A. 2C:7-2d. We affirm.
In 2000, defendant pled guilty in Texas to third-degree sale, distribution, or display of harmful material to a minor, Tex. Penal Code Ann. § 43.24(b)(3). The judge in Texas sentenced defendant to a suspended ten-year prison term, placing her on probation. Texas transferred defendant's probation to New Jersey when she moved here in 2005.
The Ocean County Prosecutor's Office determined that defendant's Texas conviction was similar to endangering the welfare of a child, N.J.S.A. 2C:24-4a, b(3) and (4). The Prosecutor asked a representative of the New Jersey county probation department to notify defendant about her obligation to register as a Tier One sex offender pursuant to N.J.S.A. 2C:7-2. Defendant complied by registering her address in New Jersey for several years, and then failed to do so in 2013.
A grand jury indicted and charged defendant with fourth-degree failure to register, N.J.S.A. 2C:7-2d. Defendant then moved to dismiss the indictment arguing primarily that she had no duty to register in New Jersey, and that her Texas conviction is dissimilar to any predicate New Jersey Megan's Law offense. The judge conducted oral argument, denied the motion, and rendered a comprehensive written opinion.
On appeal, defendant argues:
[POINT I]
Legal Analysis & Argument Concerning Due Process.
a. Background
b. The Constitutional Interests Implicated [B]y Megan's Law.
c. The [R.B.] Decision [A]nd Its Limitations.
d. Due Process Requires [A] Hearing With A High Burden [O]f Proof And Evidence.
i. Significant Due Process Is Required If One Considers The Private Interests Implicated.
ii. The Economic Costs Of Increasing The Process Due Is Nominal Both In Practice And In Comparison To The Private Interests At Stake.
e. The Process Due In This Circumstance Requires Proof Beyond A Reasonable Doubt And Use [O]f [T]he Rules [O]f Evidence.
[POINT II]
Legal Analysis and Argument Concerning Offense Comparison[.]
a. The Prosecution[']s Assertions [O]f Equivalence Between This State[']s Predicate Megan's Law Crimes And The Foreign Judgment [O]f Conviction Cannot Be Supported.
b. The Statute Prohibits The Display, Possession, [O]r Distribution [O]f Harmful Material [T]o Minors [O]r With The Use [Of] Minors.
c. The State Improperly Asserts That [Defendant] Has Violated The Equivalent [O]f
[N.J.S.A.] 2C:24-4(b)(3) [O]r (4) Endangering The Welfare [O]f A Child.
d. The New Jersey Analogue To The Texas Crime Is [N.J.S.A.] 2C:34-3 Obscenity [F]or [P]ersons [U]nder [Eighteen].
After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), and affirm substantially for the thoughtful reasons expressed by the judge in his written decision. We add the following brief comments.
We apply an abuse-of-discretion standard when reviewing a trial court's decision on a motion to dismiss an indictment. State v. Morrison, 188 N.J. 2, 11 (2006). The "indictment should be disturbed only on the clearest and plainest ground and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (internal citations and quotation marks omitted).
As to defendant's due process contention, the New Jersey Supreme Court has determined that Tier One sex offenders do not have a due process right to a hearing regarding their status as a sex offender. Doe v. Portiz, 142 N.J. 1, 106 (1995) (holding that only Tier Two and Tier Three classifications implicate such interests triggering a right to due process). As a result, the court did not deprive defendant of her procedural due process rights.
Moreover, pursuant to N.J.S.A. 2C:7-2b(1)-(3), an offender must register due to a conviction in another jurisdiction so long as the conviction being compared to a Megan's Law offense "contains the same essential elements, and the underlying purposes of the crimes are consonant[.]" In re R.B., 376 N.J. Super. 451, 464 (App. Div.), certif. denied, 185 N.J. 29 (2005), overruled in part by In re T.T., 188 N.J. 321 (2006). Here, the judge thoroughly analyzed the elements of the Texas and New Jersey statutes in question. We agree with the judge that these statutes have the same essential elements and their purpose is to criminalize the same behaviors.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION