RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1387-16T1

IN THE MATTER OF 

REGISTRANT N.F.,

Appellant.

_______________________________________

Argued April 24, 2018 – Decided

Before Judges Yannotti, Mawla and DeAlmeida.

On appeal from Superior Court of New Jersey, 

Law Division, Hudson County, Docket No. 

16090004.

Michael C. Woyce argued the cause for 

appellant N.F. (Murphy & Woyce, attorneys; 

Michael C. Woyce, on the brief).

Kristen L. Brewer, Assistant Prosecutor, 

argued the cause for respondent State of New 

Jersey (Esther Suarez, Hudson County 

Prosecutor, attorney; Kristen L. Brewer, on 

the brief).

PER CURIAM

N.F. appeals from an order entered by the Law Division on 

November 30, 2016, which designated him as a Tier II sex offender 

under the Registration and Community Notification Laws, N.J.S.A. 

2C:7-1 to -11 (Megan's Law), and as subject to Tier II community 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

June 11, 2018
2 A-1387-16T1

notification and inclusion on the Sex Offender Internet Registry 

(Internet Registry), N.J.S.A. 2C:7-12 to -19. We affirm. 

I.

This appeal arises from the following facts. On or about 

November 28, 2011, the North Bergen Police Department (NBPD) 

received an anonymous phone call alleging possible child abuse.

NBPD detectives located the witness, J.D., who reported that a man 

(later identified as N.F.) had shown her a video depicting a man 

engaging in sexual activity with a young female child named 

"Jackie."

According to J.D., N.F. claimed he was the man in the video.

The NBPD referred the matter to the Special Victims Unit (SVU) in 

the Hudson County Prosecutor's Office (HCPO). J.D. also met with

investigators from the New Jersey Division of Youth and Family 

Services (the Division) and described what she had seen.1

SVU Detective Kristen Fusiak interviewed J.D., who provided

a statement under oath. J.D. explained that on November 26, 2011, 

she was driving around with a female friend. They picked up N.F.,

whom she had never met before. They then drove to N.F.'s home, but 

only J.D. and N.F. went inside. While sitting in the living room, 

J.D. and N.F. discussed their childhoods and previous incidents 

 

1 The Division is now known as the Division of Child Protection 

and Permanency.
3 A-1387-16T1

of sexual assault. N.F. then began discussing a girl named 

"Jackie." He retrieved a laptop computer and showed J.D. 

approximately five minutes of a video depicting a man receiving 

oral sex from a young female who appeared to be between the age 

of seven and ten years old.

According to J.D., N.F. claimed to be the man in the video, 

although his face was not shown. He also identified the minor as 

"Jackie," a ten-year-old "neighbor" he sees regularly. N.F. said 

he engaged in oral and anal sex with the minor. J.D. stated that 

N.F. also showed her other child pornographic videos in which he 

was not involved, and asked J.D. if she would like to engage in 

sexual relations with him and the minor. J.D. left N.F.'s home. 

On November 30, 2011, Fusiak showed J.D. approximately 

sixteen photographs of fourth, fifth, and sixth grade classes at 

a North Bergen elementary school. J.D. did not identify any of the 

females as the minor in N.F.'s pornographic video. On December 2, 

2011, J.D. was shown a photograph of J.B. She stated she was 

eighty-percent sure that it was the photograph of the female child 

shown in the pornographic video that N.F. had shown to her.

On December 2, 2011, members of the SVU and NBPD executed 

multiple search warrants at N.F.'s addresses in North Bergen and 

another municipality, and communications-data warrants for any 

items seized at those locations. The searches yielded, among other 
4 A-1387-16T1

things, several computers, a digital camera, and one unmarked 

video tape. Numerous videos and images of child pornography were 

found on the electronic devices. The video that J.D. had described 

was not located.

However, among the videos recovered was a homemade 

pornographic video depicting N.F. and a female he refers to as his 

"cousin." On the video, N.F. discussed sodomizing a young girl 

with a broomstick, and then stated "let's see like I'd wanna [sic] 

do that to like, like a girl that's a little under developed like 

someone like [A.], like [ten] years old going on [eleven]." N.F.

and his "cousin" then discussed engaging in sexual activity with 

a juvenile.

One of the Division's workers spoke with N.F.'s children, and 

one of the children advised her that he has an eight-year-old 

playmate named "Jackie" who lives nearby. J.B., who goes by the 

name of "Jackie," and her mother, Ja.B., were brought to the HCPO

to give a statement. Ja.B. stated that N.F. was a friend of her 

ex-husband. 

Ja.B. said J.B. spent a lot of time at N.F.'s home playing 

with his children and slept over at N.F.'s house approximately 

three times. N.F. was there two of those times. Ja.B. stated that 

on one occasion J.B. returned from N.F.'s home and was "acting 

weird" in the bathroom. J.B. told Ja.B. that she was bleeding from 
5 A-1387-16T1

her vaginal area and had a pinkish discharge. However, J.B. denied 

that anyone touched her.

Fusiak spoke with J.B. and had her identify certain body 

parts on anatomically-detailed drawings. Fusiak asked J.B. if 

there was any place on her body that no one was permitted to touch. 

J.B. responded that no one was supposed to touch her "private 

part" and "butt." J.B. initially hesitated in answering, but then 

said no one was allowed to touch her chest. When asked why she 

hesitated, J.B. responded that she had to think if anyone had 

touched her. She denied ever seeing male genitals. She acknowledged 

she spends time at N.F.'s home and has slept over there.

Fusiak and J.B. next discussed the incident in the bathroom. 

J.B. initially claimed she did not remember the incident but then 

said "it was kind of at two places" – once at her house and once 

at another house where she lived at times. She stated that at her 

house, her private part hurt and she did not know why. She also 

said nothing came out, and she did not know what Ja.B. saw when 

she examined her. J.B. stated she told her mother that no one had

touched her. J.B. said, however, that blood came out of her private 

part at the other house. 

When asked about N.F., J.B. said she did not like him because 

he is "weird." J.B. stated that she did not think N.F. was cute 

and she denied having a crush on him. When asked if N.B. had a 
6 A-1387-16T1

crush on her, J.B. said she was not sure. J.B. answered "no" to 

nearly every question about sexual matters that Fusiak asked. 

However, when asked if N.F. touched her butt, J.B. initially said 

yes and then quickly said no. J.B. also denied N.F. had ever 

recorded her on video. Eventually, J.B. began crying and said she 

did not want to continue the discussion.

Shortly thereafter, J.B. returned to the interview room, and 

Fusiak questioned her about a Facebook conversation J.B. had with

N.F. The messages read as follows:

J.B.: I waz up im so bored

N.F.: It's late baby girl. Get ready for bed. 

Love you.

J.B.: reallyyyyyyyyyy

N.F.: Really really (with a smiley face)

J.B.: yesss

J.B.: Jookie!!!!

J.B.: wat[sic]!!!!!!!!!

Fusiak explained to J.B. that the conversation could be 

interpreted as a boyfriend-girlfriend relationship. J.B. said she 

did not like N.F. and continued to deny that anyone ever touched 

her body parts, specifically N.F. Fusiak told J.B. she saw the 

video of her and N.F., but J.B. denied ever touching male genitals.

J.B. acknowledged the videotaping by stating that the incidents 
7 A-1387-16T1

happened in the living room and sometimes the other children were 

in another room.

She said N.F. touched her belly and demonstrated a chopping 

motion. When asked what sexual touching happened in the living 

room, J.B. denied that any such touching occurred and said she did 

not remember anything. Several days later, Ja.B. called Fusiak to 

inform her that J.B. claimed N.F. had promised her an iPod.

On December 7, 2011, N.F.'s ex-wife, T.F., was interviewed. 

N.F. and T.F. have three children together. Among other things, 

T.F. said four neighborhood children frequented their home to play 

with her children, and one of the children was named "Jackie."

T.F. told Fusiak that either she, N.F., or a babysitter would be 

home when the children would play together. 

T.F. denied that any other neighborhood children frequented 

her home. T.F. also said there was a laptop computer in the home 

that recently broke when her son spilled juice on it. The last 

time she saw the laptop was November 30, 2011. T.F.'s children 

were also interviewed. They acknowledged there was another laptop 

in the home, but stated they had not seen it recently.

N.F. was charged with first-degree aggravated sexual assault, 

N.J.S.A. 2C:14-2(a) (count one); second-degree endangering the 

welfare of a child, N.J.S.A. 2C:24-4(a) (count two); fourth-degree 

abuse, cruelty and neglect of a child, N.J.S.A. 9:6-1 and -3 (count 
8 A-1387-16T1

three); first-degree endangering the welfare of a child (creation 

of child pornography), N.J.S.A. 2C:24-4(b)(3) (count four); 

second-degree endangering the welfare of a child (distribution of 

child pornography), N.J.S.A. 2C:24-4(b)(5)(i) (count five); and 

fourth-degree endangering the welfare of a child (possession of 

child pornography), N.J.S.A. 2C:24-4(b)(5)(ii) (count six).

On October 1, 2013, N.F. pled guilty to count five. On January 

24, 2014, he was sentenced to five years in state prison, and 

required to register as a sex offender under Megan's Law, N.J.S.A. 

2C:7-2. After his release from custody, N.F. registered as 

required. The HCPO filed a notice of proposed Tier II 

classification, Tier II notification to the community, and 

inclusion on the Internet Registry. N.F. filed an objection to the 

proposed classification and requested an evidentiary hearing. 

On November 18, 2016, the Law Division judge conducted a 

hearing in the matter. N.F. presented the testimony of Dr. James 

R. Reynolds, a psychologist and expert in the field of sex offender

treatment and risk assessment. Dr. Reynolds opined that N.F. was 

a low risk for involvement in future criminal behavior. Dr. 

Reynolds scored N.F. as having an overall total of five points on 

the Registrant Risk Assessment Scale (RRAS). He gave N.F. three

points for history of anti-social acts and two points for substance 

abuse that is in remission. Dr. Reynolds gave N.F. zero points for 
9 A-1387-16T1

all other factors on the RRAS. In his report, Dr. Reynolds opined 

that the available records indicated that allegations N.F. 

sexually abused an underage child were not substantiated. 

On November 30, 2016, the judge heard oral argument and 

rendered a decision from the bench, finding N.F. subject to Tier 

II classification, Tier II community notification, and inclusion 

on the Internet Registry. The judge memorialized his findings in 

an order dated November 30, 2016, and granted an oral motion for 

stay of placement on the Internet Registry pending appeal. This 

appeal followed.

On appeal, N.F. raises the following arguments: (1) the trial 

court incorrectly applied the RRAS in evaluating his risk by 

applying inappropriate factors regarding his offense; (2) 

notwithstanding his RRAS score, he should be subject to Tier I 

community notification without placement on the Internet Registry; 

(3) the State did not prove by clear and convincing evidence that 

he committed an act of sexual penetration with a minor female; and 

(4) the RRAS is being applied differently in certain counties, 

with the potential for arbitrary results.

II.

We begin our consideration of the appeal by summarizing the 

relevant provisions of Megan's Law and the tier classification 

process. Depending on the type and time of offense, Megan's Law 
10 A-1387-16T1

requires certain sex offenders to register with local law 

enforcement agencies and notify the community. In re T.T., 188 

N.J. 321, 327 (2006) (citing N.J.S.A. 2C:7-2). Because 

registration and community notification under Megan's Law has a 

significant impact upon a registrant's personal liberties, the 

trial court must balance the 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). In applying this balancing 

test, the RRAS is a reliable tool. Id. at 81–82.

The RRAS is an instrument used to determine whether a sex 

offender's risk of re-offense is low (Tier I), moderate (Tier II), 

or high (Tier III). State v. C.W., 449 N.J. Super. 231, 260 (2017) 

(citing In re V.L., 441 N.J. Super. 425, 429 (App. Div. 2015)).

In assigning a tier rating to a registered sex offender, the court

considers thirteen factors across four categories: (a) seriousness 

of the offense; (b) the offender's history; (c) community support 

available; and (d) the characteristics of the offender. Ibid.

(citing V.L., 441 N.J. Super. at 429).

"Seriousness of offense" includes: (1) degree of force; (2) 

degree of contact; and (3) age of victim. In re Registrant C.A., 

146 N.J. 71, 103 (1996). "Offender's history" includes: (4) victim 

selection; (5) number of offenses/victims; (6) duration of 
11 A-1387-16T1

offensive behavior; (7) length of time since last offense; and (8)

any history of anti-social acts. Ibid.

"Support available" and "characteristics of offender" are 

considered "dynamic categories, because they are evidenced by 

current conditions." Ibid. "Characteristics of offender" includes: 

(9) response to treatment and (10) substance abuse. Id. at 103–

04. "Support available" includes: (11) therapeutic support, (12) 

residential support; and (13) employment/educational stability. 

Id. at 104.

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 

category." Ibid. A registrant who receives a total factor score 

below thirty-seven is considered Tier I and a low risk for reoffense. Id. at 83. A registrant who receives a total factor score 

of more than thirty-seven, but less than seventy-four, is deemed

Tier II and a moderate risk for re-offense. Ibid. Finally, a 

registrant who receives a total factor score of seventy-four or 

higher is considered Tier III and a high risk for re-offense. 

Ibid.

N.J.S.A. 2C:7-8(c)(1) provides that when risk of re-offense 

is low, "law enforcement agencies likely to encounter the 

[registrant]" must be notified. When risk of re-offense is 
12 A-1387-16T1

moderate, "organizations in the community including schools, 

religious and youth organizations" must be notified in addition 

to the notice to law enforcement agencies. N.J.S.A. 2C:7-8(c)(2).

When risk of re-offense is high, public notice "designed to reach 

members of the public likely to encounter the [registrant]" is 

required, in addition to the other notice required. N.J.S.A. 2C:7-

8(c)(3). Additionally, "where public access . . . [is] warranted, 

based on the relative risk posed by the particular offender," some 

offenders will be subject to the Internet Registry. N.J.S.A. 2C:7-

13(b).

The RRAS is, however, "only one possible consideration" of 

many in determining a registrant's risk of re-offense. G.B., 147 

N.J. at 78. Although the RRAS is a "useful tool to help prosecutors 

and courts determine whether a registrant's risk of re-offense is 

low, high, or moderate," it is "not a scientific device." C.A., 

146 N.J. at 108. 

"[I]t is impossible to create an all-inclusive scale," and 

thus, "any classification based on the [RRAS] should not be viewed 

as absolute." Id. at 109. Judicial determinations regarding tier 

classification and community notification should be made "on a 

case-by-case basis" within the discretion of the court and based 

on all of the evidence available, not simply by following the 

"numerical calculation provided by the [RRAS]." G.B., 147 N.J. at 
13 A-1387-16T1

78–79 (quoting C.A., 146 N.J. at 109). Ultimately, "a value 

judgment" is required. Id. at 78 (citing C.A., 146 N.J. at 109).

Moreover, all judicial determinations regarding tier 

classification and community notification "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)). Clear and convincing evidence has been 

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 Matter of Purrazella, 134 N.J. 228, 240 (1993)).

In challenging a tier designation, a registrant may argue 

that: (1) the RRAS score was erroneously calculated; (2) the case 

falls outside the "heartland" of Megan's Law cases; and (3) the 

extent of community notification required is excessive due to 

"unique" aspects of the registrant's case. T.T., 188 N.J. at 330 

(quoting G.B., 147 N.J. at 85). In presenting such a challenge, 

the registrant must introduce evidence showing the RRAS "did not 

accurately weigh certain factors" or "take into account certain 

peculiar factors" relevant in determining a registrant's risk of 

re-offense. G.B., 147 N.J. at 82.
14 A-1387-16T1

III.

N.F. argues that the State failed to establish by clear and 

convincing evidence that he engaged in sexual penetration with 

anyone other than consenting adults. N.F. therefore argues his 

score of fifteen (high risk) in factor two of the RRAS (degree of 

contact) was erroneous. We disagree.

When calculating a registrant's score on the RRAS, "the State 

is free to rely on hearsay statements to support its assertions 

and does not need to base its calculations surrounding the 

underlying offense solely on the facts of conviction." G.B., 147 

N.J. at 79 (citing C.A., 146 N.J. at 88–93). The trial court then 

may consider "all reliable information" including "[s]exual 

offenses, not the subject of a conviction" and supported by 

admissions, police reports, and psychiatric reports. In re J.W.,

410 N.J. Super. 125, 130–31 (App. Div. 2009) (citing In re 

Registrant C.A., 285 N.J. Super. 343, 347–48 (App. Div. 1995)). 

The trial court may rely on the evidence it considers relevant and 

trustworthy in making its determination. C.A., 285 N.J. Super. at

343.

On appeal, we must accord substantial deference to the trial 

court's factual determinations if supported by "adequate, 

substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 

411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 
15 A-1387-16T1

65 N.J. 474, 484 (1974)). "Deference is especially appropriate 

'when the evidence is largely testimonial and involves questions 

of credibility.'" Id. at 412 (quoting In re Return of Weapons to 

J.W.D., 149 N.J. 108, 117 (1997)). We must defer to the trial 

court's factual findings "regardless of whether the evidence is 

live testimony, a videotaped statement, or documentary evidence."

State v. S.N., 231 N.J. 497, 514 (2018) (citing State v. S.S., 229 

N.J. 360, 379 (2017)).

In this case, the trial judge found that the State had proven 

by clear and convincing, if not overwhelming, evidence that N.F. 

had committed an act of sexual penetration upon the female minor, 

J.B. The judge found that J.D.'s statements on this issue were 

"completely credible" and, for this reason, N.F. would receive a 

score of fifteen (high risk) on factor two of the RRAS (degree of 

contact). There is sufficient credible evidence in the record to 

support the judge's finding. 

As the judge pointed out in his decision, J.D. stated under 

oath that N.F. showed her a video of a man receiving oral sex from 

a young female victim who appeared to be between the ages of seven 

and ten years old. Furthermore, N.F. identified himself as the man 

depicted in the pornographic video. N.F. also identified the young 

female victim as "Jackie," a ten-year-old "neighbor" whom he sees 

regularly. 
16 A-1387-16T1

As noted previously, when they executed the search warrants, 

the investigators could not locate the video that J.D. described.

The judge found, however, that this did not mean the video did not 

exist on the night J.D. said she saw it. Moreover, N.F. told J.D. 

that he engaged in oral and anal sex with the young female victim, 

and he invited J.D. to engage in sexual relations with him and the 

victim. The judge found J.D.'s statement was "completely credible 

and reliable."

We note that J.D.'s statement was corroborated by other 

evidence, including the significant amount of child pornography 

recovered from N.F.'s home, his inappropriate Facebook 

conversation with a female minor nicknamed "Jackie" who lived 

nearby, and the numerous similarities between N.F.'s conversation 

with J.D. and his conversation with his "cousin" in a homemade 

pornographic video that was recovered later. In that video, N.F. 

is seen telling his "cousin" he wanted to sexually penetrate a 

named ten-year-old female.

Accordingly, we conclude there is sufficient credible 

evidence in the record to support the judge's finding that N.F. 

sexually penetrated a young female victim who was about ten years 

old. The record supports the judge's determination that N.F.'s

score in factor two of the RRAS (degree of contact) was fifteen.
17 A-1387-16T1

IV.

Next, N.F. argues that the judge erroneously scored his RRAS, 

resulting in an inaccurate and inflated risk assessment. As stated 

previously, the judge placed N.F. in Tier II, the moderate level 

of risk of re-offense for Megan's Law community notification, 

based on a final score of sixty-three on the RRAS. 

In the category of "seriousness of offense," the judge found 

that N.F. had a total score of thirty. This score consisted of

fifteen points (high risk) for factor two (degree of contact)

based on the aforementioned finding of penetration. It also 

included fifteen points (high risk) for factor three (age of the 

victim), since the victim was under the age of thirteen.

In the category of "offense history," the judge found N.F. 

also had a total score of thirty. This score consisted of nine 

points (high risk) for factor four (victim selection), nine points 

(high risk) for factor five (number of offenses/victims), three 

points (moderate risk) for factor seven (length of time since last 

offense), and nine points (high risk) for factor eight (history 

of anti-social acts). 

In addition, in the category of "characteristics of 

offender," the judge found that N.F. had a score of two (moderate 

risk) for factor ten (substance abuse). The judge also found that 
18 A-1387-16T1

N.F. had a score of one (moderate risk) in factor thirteen 

(education/employment stability). 

On appeal, N.F. argues that factors one through five of the 

RRAS should not be scored for child pornography offenders. He

contends these factors are designed primarily for "contact 

offenses," and should be left un-scored in cases involving child 

pornography offenders.

We note, however, that N.F. did not receive a score for factor 

one (degree of force). Moreover, N.F.'s score for factor two 

(degree of contact) was based on the finding that he committed an 

act of sexual penetration upon the female victim, who was about 

ten years old. Factor three (age of the victim) was based in part 

on the age of the victim, who was under thirteen years of age, and 

the many other victims who appear in the child pornography videos.

The scores on factors four (victim selection) and five (number of 

offenses/victims) also were based on the victims depicted in the 

numerous child pornography videos found in N.F.'s house.

Notwithstanding N.F.'s arguments to the contrary, we are not 

convinced that it was inappropriate for the court to consider his 

possession and distribution of child pornography for purposes of 

scoring factors three, four, and five. The courts have recognized 

that children depicted in child pornography are, in fact, victims. 
19 A-1387-16T1

In New York v. Ferber, 458 U.S. 747, 759 n.10 (1982), the Court 

observed that

Pornography poses an even greater threat to 

the child victim than does sexual abuse or 

prostitution. Because the child's actions are 

reduced to a recording, the pornography may 

haunt him [or her] in future years, long after 

the original misdeed took place. A child who 

has posed for a camera must go through life 

knowing that the recording is circulating 

within the mass distribution system of child 

pornography. 

See also In re Cohen, 220 N.J. 7, 12 (2014) (noting that each time

someone views child pornography, the child depicted therein is 

again victimized). 

Here, N.F. was subject to registration and community 

notification under Megan's Law because he was found guilty of 

endangering the welfare of a child through the distribution of 

child pornography to J.D. See N.J.S.A. 2C:7-2(a)(2); N.J.S.A. 

2C:24-4(b)(5)(a)(i). The fact that a registrant has possessed 

numerous child pornography videos is an appropriate consideration 

in determining whether there is a risk that the registrant will 

re-offend in this manner. Therefore, in scoring factors three, 

four, and five of the RRAS, it was appropriate for the court to 

consider the many victims depicted in the child pornography videos 

N.F. possessed.
20 A-1387-16T1

In support of his argument that child pornography offenders 

should not be scored in factors one through five of the RRAS, N.F. 

relies upon In re Registrant P.B., 427 N.J. Super. 176 (App. Div. 

2012). In that case, the registrant was charged with third-degree 

endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a) and 

(b), for possession of child pornography on his home computer, and 

he pled guilty to third-degree child endangerment under N.J.S.A. 

2C:24-4(a). Id. at 180. On the RRAS, the registrant received a 

total score of seventy-two, placing him in the category of persons 

who pose a moderate risk to re-offend. Ibid. On appeal, the 

registrant argued this tiering was incorrect. Id. at 179.

We "reject[ed] the notion" that a "high" risk level under 

factor two (degree of contact) could be "satisfied by a showing 

that a registrant merely possessed depictions of penetrative 

sexual activity with children, without any concomitant indication 

that [the registrant] played a role in the penetrative activity 

either as a participant or a producer." Id. at 183. We explained 

it seems evident from N.J.S.A. 2C:7-1 to -23 

and authoritative interpretive materials 

developed to implement the legislation that, 

under the very terms of Megan's Law alone, the 

accused must have engaged in some kind of 

participation in penetrative activity before 

he or she can be deemed to be responsible for 

it on any level. 

Ibid.
21 A-1387-16T1

N.F. argues that P.B. holds that factors one and two of the 

RRAS should not be scored for child pornography offenders. However, 

in P.B., the court only addressed factor two and held that it 

should not be scored for the "mere possession and viewing of child 

pornography." Id. at 181. As we have explained, however, this case 

does not involve the mere possession of child pornography because 

the evidence shows that N.F. "played a role in the penetrative 

activity either as a participant or a producer." Id. at 183. 

Therefore, N.F.'s reliance upon P.B. is misplaced.

Furthermore, in determining N.F.'s risk of re-offense it was 

entirely appropriate for the court to consider the numerous victims 

depicted in N.F.'s child pornography videos when scoring factors 

three, four, and five of the RRAS. 

In view of our decision, that N.F. was correctly scored under 

the RRAS, we need not address the issue of whether other 

registrants, who have only been convicted of endangering the 

welfare of a child through the possession of child pornography, 

should be scored in factors one, three, four, and five. 

V.

Next, N.F. argues that regardless of his score on the RRAS, 

he should only be subject to Tier I scope of community notification 

without placement on the Internet Registry, because his risk of 

re-offense is allegedly low, and he has made some progress in sex 
22 A-1387-16T1

offender treatment. N.F. argues that his case falls outside the 

"heartland" of Megan's Law cases and that the extent of 

notification ordered is excessive because of "unique" aspects of 

his case. Again, we disagree.

Generally, in challenging a registrant's RRAS score or the 

scope of community notification, "expert testimony will be neither 

necessary nor helpful." G.B. 147 N.J. at 85. However, "in limited 

circumstances, expert testimony may be introduced . . . to 

establish the existence of unique aspects of a registrant's offense 

or character that render the [RRAS] score suspect." Id. at 68. 

The court has "the ultimate authority to decide what weight to 

attach to the [RRAS] and what weight to attach to expert 

testimony." Id. at 85. "The final determination of dangerousness 

lies with the courts, not the expertise of psychiatrists and 

psychologists." Id. at 86 (quoting In re D.C., 146 N.J. 31, 59 

(1996)).

Moreover, there is a presumptive scope of community 

notification concerning Tier II offenders. In re Registrant M.F., 

169 N.J. 45, 62 (2001). "Unless limiting circumstances affecting 

the nature of a [Tier II] registrant's risk of re-offense are 

presented, the State is entitled to give effect to the legislative 

preference, indeed presumption, of the need for notice to the 

specified schools and community organizations located in the area 
23 A-1387-16T1

frequented by a registrant." Ibid. This presumption "logically 

advances the legislative goal of public protection, specifically 

the protection of children and women vulnerable to a sex offender 

with a moderate risk of re-offending." Ibid.

In this case, although N.F. apparently has made some progress

in his sex offender treatment while at the Adult Diagnostic 

Treatment Center, N.F. has failed to present any unique aspects 

of his offense or his character that would render the RRAS score 

suspect or warrant departure from the community notification 

recommendations pursuant to the Guidelines adopted by the New 

Jersey Attorney General. N.F. relies in large part on the testimony 

and report of Dr. Reynolds, who opined that N.F. should be tiered 

as a "low risk" offender. The record shows, however, that Dr. 

Reynolds did not consider all of the available evidence when 

evaluating N.F. Dr. Reynolds did not have any progress reports of 

N.F.'s current treatment. In formulating his opinion, Dr. Reynolds 

did not include any conduct that did not result in a criminal 

conviction. He chose not to consider J.D.'s statements, claiming 

it was only an allegation "that was not proved."

We therefore conclude there is sufficient credible evidence 

to support the trial court's finding that N.F. should be classified 

in Tier II, and subject to Tier II community notification and 

placement in the Internet Registry. 
24 A-1387-16T1

VI.

N.F. also argues for the first time on appeal that factors 

three, four, and five of the RRAS are being scored differently by 

certain counties when scoring child pornography offenders. N.F.

maintains that the lack of uniformity between the counties raises 

the possibility of arbitrary and county-specific scoring on the 

RRAS. 

"[I]ssues not raised below will ordinarily not be considered 

on appeal unless they are jurisdictional in nature or substantially 

implicate the public interest." N.J. Div. of Youth and Family 

Servs. v. M.C. III, 201 N.J. 328, 339 (2010). Although N.F. 

contends at least one county does not score victim characteristics 

for persons convicted of child-pornography-related offenses, we 

do not have a sufficient record concerning that matter, or any 

record regarding how other counties score the RRAS for persons 

convicted of offenses involving child pornography. Therefore, we 

cannot address the issue.

We note again that this case does not involve child 

endangerment through the possession of child pornography. It 

involves a registrant convicted of endangering the welfare of a 

child through the distribution of child pornography. Moreover, 

this case involves a registrant who engaged in penetrative activity 

with a young female victim, as a participant and producer of a 
25 A-1387-16T1

child pornography video. We hold that under these circumstances, 

it is not arbitrary or capricious for the court to consider the 

registrant's possession of numerous child pornography videos, with 

a multiplicity of victims depicted therein, when scoring factors 

three, four, and five of the RRAS.

Affirmed.