RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1243-16T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

PAUL TIMMENDEQUAS,

Defendant-Respondent.

_____________________________

Argued February 4, 2019 – Decided July 22, 2019

Before Judges Messano, Fasciale and Gooden Brown.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Middlesex 

County, Indictment No. 15-11-1377.

Jennifer E. Kmieciak, Deputy Attorney General, 

argued the cause for appellant (Gurbir S. Grewal, 

Attorney General, attorney; Jennifer E. Kmieciak, of 

counsel and on the brief).

James K. Smith, Jr., Assistant Deputy Public 

Defender, argued the cause for respondent (Joseph E. 

Krakora, Public Defender, attorney; James K. Smith, 

Jr., of counsel and on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

APPROVED FOR PUBLICATION

July 22, 2019

APPELLATE DIVISION
A-1243-16T2 2

In 1998, defendant Paul Timmendequas pled guilty to second-degree 

sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the 

welfare of a child, N.J.S.A. 2C:24-4(a). The judge sentenced defendant in 

1999 to two concurrent seven-year terms of imprisonment at the Adult 

Diagnostic and Treatment Center, the registration requirements of Megan's 

Law, N.J.S.A. 2C:7-1 to -23, and community supervision for life (CSL), 

pursuant to the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-6.4(a), a 

"component" of Megan's Law. State v. Schubert, 212 N.J. 295, 305 (2012). 

N.J.S.A. 2C:7-2(a) criminalizes the failure to register as required by 

subsections (c) and (d) of the statute. Subsection (c) governs the obligations to 

initially register, and subsection (d) specifically criminalizes the failure to 

notify the appropriate authorities and re-register upon relocation. When 

defendant was convicted, a person committed a fourth-degree crime if he 

failed to register as a sex offender or failed to notify the appropriate authorities 

and re-register upon relocating. N.J.S.A. 2C:7-2(a) and (d) (1999). Similarly, 

violating conditions of CSL was a fourth-degree crime. N.J.S.A. 2C:43-6.4(d) 

(1999). The Legislature increased the penalty for failing to register as a sex 

offender under subsection (a) to a third-degree crime in 2007. L. 2007, c. 19. 

It increased the penalties for failing to notify and re-register upon relocation, 
A-1243-16T2 3

and for violating conditions of CSL, to third-degree crimes in 2014. L. 2013, 

c. 214.1

In 2015, a Middlesex County grand jury indicted defendant for thirddegree violation of conditions of CSL, N.J.S.A. 2C:43-6.4(d) (count one); 

third-degree absconding from parole, N.J.S.A. 2C:29-5(b) (count two); two 

counts of third-degree failure to register as a sex offender and to notify law 

enforcement of relocation and re-register, N.J.S.A. 2C:7-2(a) and (d) (counts 

three and four); and third-degree theft, N.J.S.A. 2C:20-9 (count five).2 

Defendant moved to dismiss counts one, three and four, arguing that when he 

was convicted of the underlying sex offenses, see N.J.S.A. 2C:7-2(b), the 

crimes charged in those counts were not third-degree offenses. Defendant 

 

1

 Earlier, in 2004, the Legislature replaced CSL with parole supervision for 

life (PSL). L. 2003, c. 267. In State v. Perez, 220 N.J. 423, 442 (2015), the 

Court held that applying the PSL amendments to defendants previously 

sentenced to CSL violated the Ex Post Facto Clauses of the federal and state 

constitutions. See U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3.

 

2

 Counts three and four charged defendant with violating N.J.S.A. 2C:7-2(a) 

and (d) twice on the same day, once when he failed to notify the Edison Police 

Department ten days before he intended to relocate from his Edison residence, 

and again when he failed to notify the Bridgewater Police Department and reregister within ten days of his intention to move to that town. 
A-1243-16T2 4

contended that increasing his potential sentence exposure violated the Ex Post 

Facto Clauses.3

In a thoughtful written opinion, Judge Colleen M. Flynn agreed. She 

entered an order dismissing counts one, three and four without prejudice to the 

State's ability to re-indict defendant "with appropriate grading of the charges." 

We granted the State leave to appeal.

We stayed this appeal and several others because the Court had granted 

certification in State v. Hester, 233 N.J. 115 (2017). There, the defendant, 

who was convicted prior to the 2014 amendment to N.J.S.A. 2C:43-6.4(d), 

argued the increased penalty for violating the conditions of CSL ran afoul of 

the Ex Post Facto Clauses. The Court agreed. State v. Hester, 233 N.J. 381, 

385 (2018) ("[T]he Federal and State Ex Post Facto Clauses bar the retroactive 

application of the 2014 Amendment to defendants' CSL violations."). As a 

result, the State withdrew its appeal of that part of Judge Flynn's order 

dismissing count one. 

The State now contends:

POINT I

THERE IS NO EX POST FACTO VIOLATION 

WHEN A SEX OFFENDER WHO FAILS TO 

 

3

 Defendant also argued this violated principles of double jeopardy. The 

judge rejected that claim, and defendant has not raised the issue before us.
A-1243-16T2 5

REGISTER AFTER MARCH 1, 2007 IS CHARGED 

WITH A THIRD[-]DEGREE CRIME.

The State's primary argument is that charging defendant with a third-degree 

offense does not violate the Ex Post Facto Clauses because "the amended 

statute applies only prospectively to defendant's new crimes of failing to 

register after March 1, 2007[,]" and "does not retroactively increase the 

penalties for defendant's 1999 . . . convictions." The State contends that 

Hester does not compel a contrary result. 

Defendant's counter-argument is simple. He contends that registration 

was a condition of his 1999 sentence. Increasing the penalties for failing to 

register or notify and re-register upon relocation, therefore, imposes additional 

punishment after he committed his crime, in violation of the Ex Post Facto 

Clauses.4

I.

 In Hester, the defendants were sentenced to CSL prior to the 2014 

amendment that increased the penalty for a violation of CSL from a fourth- to 

a third-degree crime punishable by a presumptive prison term, and converted 

CSL to PSL with additional restrictions and consequences in case of such a 

 

4

 Because defendant is charged with conduct that occurred after the 2007 

amendment to N.J.S.A. 2C:7-2(a), and the 2014 amendment to subsection (d), 

even though the parties cite to and refer to only the 2007 amendment, we refer 

to both generically as "the amendments" for the balance of the opinion.
A-1243-16T2 6

violation. 233 N.J. at 385. The trial judges concluded that applying the 

amended statute to the defendants violated the Ex Post Facto Clauses, and we 

affirmed on appeal. Id. at 390. 

Before the Court, the State argued, "[b]ecause [the] defendants 

committed their CSL violations after the effective date of the [a]mendment, 

. . . they committed new crimes subject to new statutory punishments and 

therefore the [a]mendment did not relate back or increase the punishment for 

[the] defendants' predicate sex offenses." Id. at 390-91. According to the 

State, because the defendants' offenses were new offenses, prosecuting them as 

third-degree offenses was not an ex post facto violation. 

The Court rejected the argument. Justice Albin wrote:

An ex post facto law is defined by two critical 

elements. "[F]irst, the law 'must be retrospective, that 

is, it must apply to events occurring before its 

enactment'; and second, 'it must disadvantage the 

offender affected by it.'" A retroactive law that 

merely effects a procedural change to a statutory 

scheme will fall outside of the constitutional 

prohibition. In contrast, a law that retroactively 

"imposes additional punishment to an already 

completed crime" disadvantages a defendant, and 

therefore is a prohibited ex post facto law. 

The State contends that the "completed crime" is 

the CSL violation, whereas [the] defendants assert that 

the "completed crime" is the predicate offense. Here, 

because the additional punishment attaches to a 

condition of [the] defendants' sentences, the 
A-1243-16T2 7

"completed crime" necessarily relates back to the 

predicate offense.

[Id. at 392 (first alteration in original) (citations 

omitted).] 

Focusing on the precise issue before it, the Court noted that "[p]arole 

and probation are punishments imposed for the commission of a crime." Id. at 

393 (citing Riley v. N.J. State Parole Bd., 219 N.J. 270, 288 (2014)). "A 

statute that retroactively imposes increased 'postrevocation penalties [on a 

scheme of supervised release] relate[s] to the original offense,' raising the 

issue of whether the defendant is 'worse off' for ex post facto purposes." Ibid.

(alterations in original) (quoting Johnson v. United States, 529 U.S. 694, 701 

(2000)). As a result, 

the 2014 [a]mendment materially altered [the] 

defendants' prior sentences to their disadvantage —

increasing to a third-degree crime a violation of the 

terms of their supervised release and converting their 

CSL to PSL . . . . The 2014 [a]mendment effected not 

a simple procedural change but rather one that offends 

the very principles animating the Ex Post Facto 

Clauses of our Federal and State Constitutions.

[Id. at 398.]

II.

Employing similar reasoning, we might conclude that the amendments to 

N.J.S.A. 2C:7-2 that increased penalties for failing to register and for failing to 

notify law enforcement and re-register upon relocation were both retroactive in 
A-1243-16T2 8

their application and disadvantaged defendant. Id. at 392. The additional 

punishment attached to a "completed crime," because the community 

registration provisions of Megan's Law are "condition[s] of defendant['s] 

sentence[]." Ibid. 

Recognizing the potential impact of Hester, the State alternatively 

asserts that this case is different "for at least three critical reasons." It 

contends that Hester only dealt with violations of CSL, and the Court made no 

mention of a "completely separate statute, N.J.S.A. 2C:7-2." The argument is 

unpersuasive because there is no indication that the defendants in Hester raised 

the issue, and therefore it was not before the Court.5

The State also argues that the United States Supreme Court has already 

held that because registration is not "punitive," "[a] sex offender who fails to 

 

5

 Nor did the defendants raise the issue before us. See State v. Hester, 449 

N.J. Super. 314 (App. Div. 2017). Although we stated that the defendants 

"faced the mandatory imposition of extended prison terms and PSL which, 

unlike the remedial registration and notification requirements of Megan's Law, 

is considered to be a penal post-sentence supervisory scheme," id. at 320, we 

made that statement, not to resolve whether retrospective increased 

punishment for failure to register violates the Ex Post Facto Clause, but rather, 

to acknowledge the remedial purposes of Megan's Law. See Doe v. Poritz, 

142 N.J. 1, 73 (2015) (concluding Megan's Law was "clearly and totally 

remedial in purpose" and "designed simply and solely to enable the public to 

protect itself from the danger posed by sex offenders"). We were never asked 

to address the constitutionality of retrospective increased punishment for the 

failure to register or to notify and re-register upon relocation.
A-1243-16T2 9

comply with the reporting requirement may be subjected to a criminal 

prosecution for that failure, but any prosecution is a proceeding separate from 

the individual's original offense." Smith v. Doe, 538 U.S. 84, 101-02 (2003).

However, the sole issue before the Court in Smith was the 

constitutionality of Alaska's registration and community notification statute as 

applied to sex offenders convicted prior to its passage.6 Id. at 89-91. Here, the 

State seeks to extend the import of the single sentence cited above by 

removing it from its context in the opinion:

A sex offender who fails to comply with the reporting 

requirement may be subjected to a criminal 

prosecution for that failure, but any prosecution is a 

proceeding separate from the individual's original 

offense. Whether other constitutional objections can 

be raised to a mandatory reporting requirement, and 

how those questions might be resolved, are . . . beyond 

the scope of this opinion. It suffices to say the 

registration requirements make a valid regulatory 

program effective and do not impose punitive 

restraints in violation of the Ex Post Facto Clause.

[Id. at 101-02.]

Several federal courts have recognized the limits of Smith's holding. 

See, e.g., Doe v. Snyder, 834 F.3d 696, 703 (6th Cir. 2016) ("Smith . . . 

 

6

 Coincidentally, the Alaska Supreme Court held the registration statute at 

issue in Smith was punitive, and its retroactive application to previously 

convicted sex offenders violated the state constitution. Doe v. State, 189 P.3d 

999, 1018-19 (Alaska 2008). 
A-1243-16T2 10

involved nothing more than reporting requirements . . . ."); United States v. 

Young, 582 F. Supp. 2d 846, 851 (W.D. Tex. 2008) ("The Supreme Court did 

not determine whether prosecution of retroactively applied registration 

requirements, which impose criminal penalties, violate the ex post facto 

clause."); United States v. Gillette, 553 F. Supp. 2d 524, 528 (V.I. 2008) 

("Smith does not even remotely stand for the proposition that retrospective 

punishment for failure to register . . . is permissible under the Ex Post Facto 

Clause."); United States v. Stinson, 507 F. Supp. 2d 560, 565 (S.D. W. Va. 

2007) ("It is clear in reading Smith that the primary focus of the Supreme 

Court was whether the registry and notification requirements themselves 

violated the Ex Post Facto Clause."). 

Here, defendant did not challenge, nor could he, the constitutionality of 

Megan's Law, including its imposition of criminal penalties for those who fail 

to register or notify and re-register upon relocation. Poritz, 142 N.J. at 21-22; 

see also id. at 43 (holding Megan's Law "does not constitute punishment even 

though . . . it may indirectly and adversely affect, potentially severely, some of 

those subject to its provisions"). Defendant's challenge is to the amendments, 

which, he contends, "materially altered defendant['s] prior sentence[] to [his] 

disadvantage." Hester, 233 N.J. at 398.
A-1243-16T2 11

We come then to the State's final and most persuasive argument. It notes 

that N.J.S.A. 2C:7-2 requires all sex offenders to register, including those who 

are not on any form of supervised release under CSL or PSL, either because 

their crimes pre-dated the passage of Megan's Law, or because their particular 

sex offense does not require a mandatory PSL sentence under N.J.S.A. 2C:43-

6.4(a). The State contends the holding in Hester is limited, therefore, because 

it was "premised on the Court's finding that the amended version of N.J.S.A. 

2C:43-6.4 enhanced the penalties for a violation of 'supervised release[,]'" an 

obvious penal consequence of the defendants' original conviction. See Hester, 

233 N.J. at 385 ("Community supervision for life was a punishment imposed 

on defendants at the time they were sentenced."); see also Schubert, 212 N.J. at 

307 (distinguishing the consequences of registration and notification from "the 

significant restrictions that are attendant to [CSL]"). Because registration is 

not punishment imposed at the time of sentencing, Poritz, 142 N.J. at 43, 

increasing the penalty for failing to register or notify and re-register upon 

relocation was not "additional punishment [that] attache[d] to a condition of 

defendant['s] sentence[]." Hester, 233 N.J. at 392.7 While there is intuitive 

appeal to the argument, we reject it.

 

7

 The Sixth Circuit concluded that Michigan's pervasive registration 

requirements and restrictions, combined with enforcement by criminal 

(continued)
A-1243-16T2 12

Initially, the Legislature could have chosen an alternative method to 

compel compliance with Megan's Law's registration requirements, but, instead 

it elected to impose potential penal consequences upon those who failed to 

register or provide notification and re-register upon relocation. Thus, while 

the Court in Poritz held the overall purpose of Megan's Law is remedial in 

nature, the method chosen to enforce its registration requirements is not. See, 

e.g., Gillette, 553 F. Supp. 2d at 528 (recognizing that although the federal 

registration statute "may be considered a civil regulatory scheme, there [was] 

no justification for viewing" an amendment that imposed a harsher sentence 

for failing to register as "civil in nature []or nonpunitive"). The Committee 

statement reporting favorably on the proposed legislation that became L. 2007, 

c. 19 makes clear it was intended to increase the punitive consequences for 

those who violated Megan's Law's registration obligations. Assemb. Judiciary 

Comm. Statement to S. 716 & 832 (Oct. 23, 2006). Because the Legislature 

enacted the amendments "to impose punishment[,]" the statutes "had a punitive 

intent." Riley, 219 N.J. at 285 (quoting Smith, 538 U.S. at 92). That alone 

compels ex post facto analysis. Ibid. 

 

(continued)

penalties for violations, "resemble[] the punishment of parole/probation" and 

made the entire scheme punitive. Snyder, 834 F.3d at 703. The District Court 

of Colorado reached a similar result regarding that state's registration 

requirements. Millard v. Rankin, 265 F. Supp. 3d 1211, 1231 (D. Colo. 2017).
A-1243-16T2 13

Along these lines, some federal courts have conducted ex post facto 

analyses when amendments to otherwise remedial federal sexual offender 

notification statutes imposed additional punitive consequences, for example, 

increasing sentencing exposure when the sex offender travelled interstate and 

failed to register. In Gillette, the district court concluded that it was a 

violation of the ex post facto clause to apply increased penalties for failing to 

register to the defendant, who traveled interstate and failed to register before 

the effective date of the amendment. 553 F. Supp. 2d at 533; accord Stinson, 

507 F. Supp. 2d at 569. 

Additionally, many federal and state courts have concluded that 

subsequent amendments to an otherwise constitutional remedial registration 

scheme, which make obligations more onerous than when the crime was 

committed or when registration was initially imposed, may result in ex post 

facto violations, even though the amendments did not increase the direct penal 

consequence for non-compliance. See, e.g., Snyder, 834 F.3d at 698, 705-06 

(concluding retroactive application of more restrictive registration 

requirements in amended Michigan law were punitive and violated ex post 

facto clause); Commonwealth v. Muniz, 164 A.3d 1189, 1193, 1218 (Pa. 2017) 

(more onerous lifetime registration enacted after the defendant committed the 

crime, but before he was sentenced, violated ex post facto clause); Doe v. 
A-1243-16T2 14

State, 111 A.3d 1077, 1100 (N.H. 2015) (aggregate effects of amendments to 

previously constitutional regulatory scheme, including lifetime registration 

without review, made the legislation punitive); Starkey v. Okla. Dep't of Corr., 

305 P.3d 1004, 1030 (Okla. 2013) (finding retroactive application of lifetime 

registration was punitive and violated ex post facto clause); State v. Williams, 

952 N.E.2d 1108, 1113 (Ohio 2011) (amendment that increased length of 

registration period violated state ex post facto prohibition when applied to a 

defendant who committed the crime before effective date of amendment); 

Commonwealth v. Baker, 295 S.W.3d 437, 446-47 (Ky. 2009) (residency 

restriction too punitive when applied retroactively); State v. Letalien, 985 A.2d 

4, 26 (Me. 2009) (retroactive application of lifetime registration violated ex 

post facto clause).

We are persuaded that defendant's original 1999 sentence required him 

to comply ostensibly for the rest of his life with Megan's Law's registration 

requirements, which, in themselves, were not punitive but were enforced 

through decidedly punitive means. The amendments increased the punishment 

for defendant's non-compliance with that portion of his 1999 sentence. As 

such, the amendments "materially altered defendant['s] prior sentence[] to [his] 

disadvantage." Hester, 233 N.J. at 398. We therefore agree with Judge Flynn 
A-1243-16T2 15

that the State may not prosecute the crimes charged in counts three and four as 

third-degree crimes. 

However, we see no reason why the judge dismissed the counts without 

prejudice, thereby forcing the State to return to the grand jury if it sought to reindict defendant based on the same proofs it originally adduced. The only 

consequence of that effort would be essentially to amend the charges to 

properly designate them as fourth-degree offenses. Our Court Rules already 

permit such an amendment without re-presentation. Compare R. 3:7-4 

(permitting amendment of the indictment "to correct an error in . . . the 

description of the crime . . . or to charge a lesser included offense provided 

that the amendment does not charge another or different offense . . . and the 

defendant will not be prejudiced . . . in his or her defense"), with State v. Dorn, 

233 N.J. 81, 93-94 (2018) (explaining constitutional right to indictment and 

limits upon subsequent amendment). On the record before us, defendant never 

challenged the sufficiency of the evidence before the grand jury, nor could he 

claim any prejudice resulted from having to defend now against crimes that 

required proof of the same elements but carried lesser penalties. On the State's 

motion, the court may amend the indictment to reflect the proper grading of 

the charges. 

Affirmed as modified.