Is Everyone Eligible For Removal From Megan’s Law in New Jersey?
Megan’s Law provides: a person required to register under this act may make application to the Superior Court of this State to terminate the obligation upon proof that the person has not committed an offense within 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others. N.J.S.A. 2C:7-2f.
The law was amended – to exclude certain offenses. As a result, individuals who entered into a pleas believing they could make a motion after 15 years may be statutorily ineligible. Those offenses are: An adult or juvenile convicted of, or acquitted by reason of insanity for aggravated sexual assault pursuant to subsection a. of N.J.S.2C:14-2(a) or sexual assault pursuant to paragraph (1) of subsection c. of N.J.S.2C:14-2 is not eligible under subsection f. of this section to make application to the Superior Court of this State to terminate the registration obligation. You may have other remedies such as a post-conviction rights motion.
Megan’s Law Vs. CSL in New Jersey
CSL (community supervision for life) has a similar provision which provides: a person sentenced to a term of parole supervision for life may petition the Superior Court for release from that parole supervision. The judge may grant a petition for release from a special sentence of parole supervision for life only upon proof by clear and convincing evidence that the person has not committed a crime for 15 years since the last conviction or release from incarceration, whichever is later, and that the person is not likely to pose a threat to the safety of others if released from parole supervision. … [A] person sentenced to a term of parole supervision for life may be released from that parole supervision term only by court order as provided in this subsection. N.J.S.A. 2C:43-6.4c.
Both statutes allow individuals who have been registered and supervised for 15 years and who are not likely to pose a threat to the safety of others are eligible for release from the requirements of registration and parole supervision.
Exceptions to Megan’s Law
As with most laws, there are certain exceptions. Megan’s law provides:
A person required to register under this section who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for more than one sex offense as defined in subsection b. of this section or who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for aggravated sexual assault pursuant to subsection a. of N.J.S.2C:14-2 or sexual assault pursuant to paragraph (1) of subsection c. of N.J.S.2C:14-2 is not eligible under subsection f. of this section to make application to the Superior Court of this State to terminate the registration obligation.
Unfortunately, this section was not in the original Megan’s Law statute. Therefore, many people who pled guilty to offenses and who were told by their lawyers that they could make an application to get off Megan’ law, cannot. In fact, they were legally told that they would be able to make a motion to terminate their obligations, and sometimes by the Judge but the law changed.
The “One Sex Offense” Defense
On a motion to terminate your obligations under Megan’s law, the State oftentimes argues that the offense occurred over more than one date or with more than one offense, and therefore, do not meet the statutorily requirements of Megan’s Law. One argument that can be made to counter the State’s argument is that if a defendant has one conviction for a sex offense, under N.J.S.A. 2C:7-2b(1), the Megan’s Law definition of a “sex offense” (and therefore subject to Megan’s Law), includes a conviction characterized by a “pattern of repetitive, compulsive behavior.” N.J.S.A. 2C:7-2b(1). As the definition implies s sex offense, under N.J.S.A. 2C:7-2b(1), is a determination of a pattern of repetitive compulsive behavior. In fact, it you were to look from a common sense perspective, then the statute compels the conclusion that N.J.S.A. 2C:2-7g is meant to exclude from relief individuals who have more than one conviction and to exclude those defendants who have been found not guilty by reason of insanity. N.J.S.A. 2C:2-7g.
The Megan’s Law statute itself is not clear on the “one sex offense” definition and if such an objection is raised an applicant should make a statutory construction argument. For example, it has been successfully argues that these particular Megan’s Law provisions should be construed to permit relief because of the legislature’s recognition that at some point, that there may be a time where the registration and supervision is both unnecessary, rehabilitation has been achieved, and an individual does not pose a threat to the safety of others. Under N.J.S.A. 2C:7-2b(1) the legislature stated “[f]or the purposes of this act a sex offense shall include the following:” conduct “characterized by a pattern of repetitive, compulsive behavior, regardless of the date of the commission of the offense or the date of conviction.” As defined by N.J.S.A. 2C:7-2b(1), and consistent with the intent of remedial provision set forth in the statute, a sole conviction is considered an offense for the purposes of N.J.S.A. 2C:7-2f. This issue will, in all likelihood, eventually make it through the Appellate Courts, but currently, if an individual is deserving of relief from the statute, any one count/multiple offense objection by the State should be vigorously contested.
How Can I Get Removed from CSL/PSL and or Megan’s Law?
In order to file make an application, a motion needs to be filed in Superior court, and the county prosecutor’s office has to be place on notice. Even if you have moved out of county or out of the State of New Jersey, you can still make a motion to terminate your requirements. The common practice is for the motion to be heard by the County who originally sentenced the application to Megan’s Law and Community Supervision for Life although the statute does not mandate it.
The burden of proof remains on the applicant, and the standard of review is proof by clear and convincing “evidence that the person has not committed a crime for 15 years since the last conviction or release from prison, whichever is later and that the person is not likely to pose a threat to the safety of others if released from parole supervision.” N.J.S.A. 2C:43-6.4c.
The Burden of Proof For Removal in New Jersey
This is one of the highest standards in our criminal justice system. In order to prove to the court that an application has met this burden it is also recommended that any application be examined by an expert in the field and submit an expert report as part of the report. This is critical to a successful motion. It is equally important that you obtain an expert who is respected in their field, and respected by the prosecutor. Great weight will be placed on this report, and if the report meets all of these requirements then oftentimes, the prosecutor does not object to the motion to terminated CSL and Megan’s Law obligations.
While the burden is substantial, proof of 15 years of compliant parole supervision, with evidence of counseling, stable employment, stable residence, and family/community support, will present a compelling argument for the relief that the law provides. At some point it just makes sense to remove the special conditions and let a person live out his or her life as a functioning participant in regular society. In fact, I have found that many times their own parole officers or police officers are suggesting to the applicant that they make this motion.
What If I Have Prior Offenses?
If you have a prior offense then you may be ineligible to get off Megan’s law. In two recent unpublished New Jersey Appellate Division cases, Megan’s Law registrants tried to argue that, in keeping with the purpose behind the statute to reduce recidivism, the use of the word “offense” or “crime” in those statutes should be limited only to “sexual offenses,” and not criminal offenses in general. In In the Matter of Registrant N.W., No. A-1695-10T1 (App. Div. May 19, 2011), the registrant had amassed two convictions for failing to properly register under Megan’s Law as well as multiple convictions for shoplifting, drugs, and robbery. In In the Matter of Registrant F.F., Jr., No. A-6073-10T1 (App. Div. Sept. 29, 2011), the registrant’s subsequent criminal history was limited to only one conviction for failure to register under Megan’s Law when his family was in the process of moving.
The court held in both of these cases that the definition of “offense” or “crime” by definition any crime, disorderly offense or petty disorderly offense, not just sexual offenses. The courts explained that this definition of “offense” or “crime” is consistent with the recognition in Registrant Risk Assessment Scaling (RRAS) of the significance of criminal offenses other than sexual in connection with the risk of recidivism. As such, the courts found that both registrants were ineligible for removal from Megan’s Law.
How Can I Be Removed from New Jersey’s Megan’s Law?
Yes, a person who has been sentenced to Megan’s Law can make a motion to terminate from Megan’s Law if they are eligible. Under N.J.S.A.2C:7-2, a person required to register on Megan’s Law may make an application to the Superior Court of New Jersey to terminate their obligation under Megan’s Law upon proof that the person has not committed an offense within fifteen (15) years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others. N.J.S.A. 2C:7-2(f).
What Does the Court Look at When Deciding the Motion to Terminate From Megan’s Law?
First, a person needs to be 15 years offense free to be eligible. That means no convictions of any kind in New Jersey or other jurisdictions since the time when the person was sentenced to the Megan’s Law offense. Prosecutors may even object to the motion even if an individual has had charges dismissed.
Regardless of the prosecutor’s position, the court will decide the motion based upon the brief submitted by your lawyer and the relevant case law. In order to demonstrate that an individual is “not likely to pose a threat to the safety of others,” it is critical to provide the court with a report from an expert in the field to demonstrate that the individual meets these requirements. It is not recommended that merely making statements that an individual is a low tier or tier one will not be compelling evidence sufficient to convince the court to remove an individual from Megan’s Law.
How Long Does the Termination Process Take?
The process may take a few months. You must first make sure that you are eligible to make such motion. Your attorney should obtain records including:
- Judgement of conviction
- Probation records
- Tiering records
- Police reports, and all discovery
- Any other records that will assist the court in making its decision
The motion should include a notice of motion, brief, order, and an expert opinion. Your attorney will need to ensure that the motion is filed in the correct jurisdiction. The jurisdiction is not where you currently reside but the county where the offense took place.
Are There Certain Crimes That You Cannot Get ff Megan’s Law?
Yes, there are certain crimes that make you ineligible to get off Megan’s Law. Some individuals pled to offenses believing that they could be removed from the register but the law has changed since it was passed, and now are unable to make a motion to be terminated from Megan’s Law. One such offense is aggravated sexual assault. It is important before making the motion in Superior Court to make sure you are eligible.
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