RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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 ...
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