### RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1008- 22 IN THE MATTER OF REGISTRANT M.L. 1

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Argued February 13, 2024 2

– Decided August 16, 2024 Before Judges Gooden Brown, 3 Natali and Puglisi. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. ML

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- 0038. Fletcher C. Duddy, Assistant Public Defender, argue d the cause for appellant M.L. (Jennifer Nicole Selli tti , Public Defender, attorney; Fletcher C. Duddy, of counsel and on the briefs; Christina John, Assistan t Deputy Public Defender, on the briefs ). Tara Carlin, Assistant Prosecutor, argued the cause for respondent State of New Jersey (LaChia L. Bradshaw, Burlington County Prosecutor, attorney; Tara Carlin , of counsel and on the briefs ).

1 We use initials to protect the confidentiality of t he proceedings in accordance with Rule 1:38 -3(c)(11).

2 On February 22, 2024, we granted M.L.'s motion for a stay pending the Law Division's resolution of his subsequent motion to reclassify. On April 18, 2024, we received supplemental briefings in which the parties advised us the outcome of that motion did not resolve the issues raised in this appeal.

3 Judge Gooden Brown did not participate in oral argu ment but joins the decision with counsel's consent. R. 2:13 -2(b). APPROVED FOR PUBLICATION

August 16 , 2024 APPELLATE DIVISION2 A- 1008

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The opinion of the court was delivered by PUGLISI, J.S.C. (temporarily assigned). In this appeal, as a matter of first impression, w e consider whether the State may move to expand the scope of notification under Megan's Law, N.J.S.A. 2C:7-1 to -23, based on an increased risk of harm to the community not otherwise accounted for in the Registrant Risk Asse ssment Scale (Scale).
I. Megan's Law is intended "to protect the community f rom the dangers of recidivism by sexual offenders." In re Registrant C.A., 146 N.J. 71, 80 (1996) (citing N.J.S.A. 2C:7-1(a)). To that end, it requi res certain sex offenders to register with law enforcement agencies, N.J.S.A. 2C :7-2 to -4, which are then authorized " to release relevant and necessary information regardi ng sex offenders to the public when the release of the inf ormation is necessary for public protection," in accordance with the AG Guide lines. 4 In re Registrant N.B., 222 N.J. 87, 95 (2015) (quoting N.J.S.A. 2C:7 -5(a)), citing N.J.S.A. 2C:7- 8(a).

4 Attorney General Guidelines for Law Enforcement for the Implementation of Sex Offender Registration and Community Notificatio n Laws (rev. Feb. 2007).3 A- 1008

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The scope of community notification is primarily d etermined by a registrant' s designation as a Tier I, II or III offender. N.J.S.A. 2C:7-8(a), (c)(1) to (3). A registrant' s tier designation indicates the risk of re-offense, as determined by the consideration of thirteen factors or criteria in the Scale, which are weighted and totaled. In re Registrant J.G., 4 63 N.J. Super. 263, 273- 74 (App. Div. 2020). Offenders who score between zero and thirty-six points are deemed Tier I (low risk) , and only "law enforcement agencies likely to encoun ter" the registrant are notified. N.J.S.A. 2C:7-8(c)(1). O ffenders who score between thirty-seven and seventy-three points are deemed Ti er II (moderate risk) and, in addition to Tier I notification, schools and organi zations in the community are also notified. N.J.S.A. 2C:7-8(c)(2). Offenders w ho score seventy-four points or higher are deemed Tier III ( high risk) and, in addition to Tier I and II notification, "members of the public who are likely to encounter" the registrant are also notified. N.J.S.A. 2C:7-8(c)(3). Depending on tier designation and other statutory requirements, offenders are also su bject to inclusion on the internet registry. N.J.S.A. 2C:7- 13. A registrant's due process is satisfied by way of a tiering hearing, during which the State must demonstrate by clear and convi ncing evidence both the4 A- 1008

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registrant' s level of risk to the community and the scope of not ification necessary to protect the community. In re Registrant R.F., 3 17 N.J. Super. 379, 383

- 84 (App. Div. 1998). Although it is not scientific evidence, the Scale is a "reliable and useful tool that the State can use to establish its prima facie case concerning a registrant's tier classification and manner of no tification." In re Registrant C.A., 146 N.J. at 1 10

. While a tier classification made on the basis of th e Scale score should be afforded deference , it is not absolute; a Megan's Law judge must conduct an independent review of the merits of the case and not rely solely on the Scale sc ore. Id. at 108- 09

. Our Supreme Court has permitted limited challenges to a registrant's Scale

score: In most cases, we expect that the tier classificati on

suggested by the Scale will be the same classificat ion recommended by the prosecutor and approved by the court. However, there may be cases in which the registrant presents subjective criteria that would support a court not relying on the tier classificat ion recommended by the Scale. In those cases, we do no t expect the court to blindly follow the numerical calculation provided by the Scale, but rather to en ter the appropriate tier classification. We recognize that subjective accomplishments, such as an individual registrant's positive response to treatment, may war rant a lower classification than the Scale recommends. However, we believe that those determinations are best made on a case- by -case basis within the discretion of the court.5 A- 1008

- 22 [Id. at 109]. In In re Registrant G.B., 147 N.J. 62, 69 (1996), our Supr eme Court again acknowledged the Scale is not immune from challenge . "The Scale is only a tool, albeit a useful one. It does not graduate to an irrebuttable presumption simply because it is properly and accurately comput ed." Id. at 80- 81 . There, the Court identified three types of challenges a regis trant may lodge:

First, a registrant may introduce evidence that the calculation that led to the Scale score was incorre ctly performed either because of a factual error, because the registrant disputes a prior offense, because the va riable factors were improperly determined, or for similar reasons. Second, a registrant may introduce eviden ce at the hearing that the Scale calculations do not properly encapsulate his specific case; or phrased differently, a registrant may maintain that his case fal ls outside the "heartland" of cases and, therefore, th at he deserves to be placed in a tier other than that cal led for by the prosecutor's Scale score. Finally, a regist rant may introduce evidence that the extent of notificat ion called for by his tier categorization is excessive because of unique aspects of his case. [Id. at 85]. The Court opined "few cases" would present facts th at would undermine the Scale score as calculated for a registrant. Id. at 82. It is "[ o]nly in the unusual case where relevant, material, and reliable facts exist for which the Scale does not account, or does not adequately acco unt, should the Scale score6 A- 1008

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be questioned. Those facts must be sufficiently un usual to establish that a particular registrant's case falls outside the 'hea rtland' of cases." I bi d. The Court provided two examples where a heartland motion may lie : whe n the registrant's sexual offenses were limited to within the family h ome, and a "more common" scenario concerning a registrant's psychological st ate. Id. at 82

- 83. "In some instances, an expert evaluating a registrant may be lieve that the registrant' s psychological profile makes him substantially less likely to reoffend than the general sex offender." Id. at 83. Because the Scale does not "consider positive psychiatric profiles and positive post-sentence beh avior as true mitigating factors that can reduce the projected risk of reoff ense, expert testimony may be essential for an accurate tier designation, even to the point of overriding the Scale score." I bid. In addition to a heartland motion challenging the S cale score itself, the Court recognized "[a] separate challenge that poten tially could be raised to the Scale score concern[ing] the scope of community notification," referring to " a registrant whose Scale score was properly computed and whose case does not fall outside the 'heartland' of cases in terms of h is risk of reoffense" but nevertheless "s eek [s] to narrow the scope of community notification." Id. at 84. The Court foresaw "few cases in which such a challe nge will be successful"7 A- 1008

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because "the scope of notification for each tier ca tegorization has been strictly defined by the Attorney General" in the AG Gu idelines. Ibid. The Court concluded that "in the unusual case, facts may exis t that warrant a narrowing of the notification (or, perhaps, even the expansion o f the notification)." Ibid. M.L. argues the Court's holding in G.B. leads to th e ineluctable conclusion that a Megan's Law judge must be bound by the tier designation determined by the Scale unless the registrant, and not the State, presents support to depart from the Scale score; and that only the court, and not t he State, may use psychological evidence to justify a departure from the Scale scor e. We are unpersuaded by this cramped interpretation of Megan's Law and hold that the State may, in certain limited circumstances, request an upward ad justment of notification. Because we are also satisfied that M.L.'s case pres ented one of those limited circumstances, we affirm.
I I. On the night of June 26, 1987, then nineteen-year- old M.L., fifteen-yearold R.C. and three other individuals attended a party , where M.L. dra nk alcohol heavily. They left the party shortly after midnight to go swimming i n a wooded

area. Upon arrival, M.L. led R.C. into the woods where he sexually assaulted her and then strangled her to death with her bra. He left her body and rejoined8 A- 1008

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the rest of the group, telling them R.C. had gone to t he bathroom and he could

not find her. After feigning a search for ten minutes, M.L. drove the other individuals home except for A.M., who had passed out in the car . M.L. drove back to the woods , retrieved R.C.'s body and clothing, placed them in the trunk of the car , and continued driving around. When A.M. awoke arou nd 7:00 a.m., M.L. pulled the car into a motel parking lot and sho wed him R.C.'s body in the trunk. The car did not restart, so t he two left it and took public transportation back to their respective homes. That evening, A.M. reported the murder to law enforcement. M.L. hid in the woods for two days until another fr iend convinced him to turn himself in to the State Police. M.L. was indicted for two counts of murder (capital offense), N.J.S.A. 2C:11-3(a)(1) and (2) (counts one and two) ; first-degree murder, N.J.S.A. 2C:11-3(a)(3) (count three) ; two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) and (6) (counts fou r and five); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (cou nt six); and fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4(a) (count seven). On March 22, 1989, a jury found M.L. guilty of all cou nts.9 A- 1008

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At sentencing, counts two and three merged with cou nt one, and count seven merged with count five. M.L. was sentenced t o life imprisonment with a thirty-year parole ineligibility period on count on e; a consec utiv e fifteen-year term on count five; and a four-year consecutive ter m on count six. M.L. was paroled on April 9, 2021, and moved to Cam den County. The State served him with notice of proposed tiering as a Tier II with inclusion on the internet registry, and Tier III community notif ication

. After conducting the tiering hearing on February 10, 2022, the Camden Co unty Megan's Law judge entered an order the next day confirm ing M.L.' s Scale score of sixty -four, which placed him in Tier II , with inclusion on the internet registry. The judge also granted the State's application for Tier III door

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- door community notification within a 1,000-foot radius of M.L.'s residence. M.L. appealed the order but subsequently withdrew it because he moved from Camden County. On August 8, 2022, M.L. relocated to and registered in Burlington County. On September 12, 2022, he was again served with notice of proposed tiering a s a Tier II with inclusion on the internet registry, and Tier III door

- to -door notification within a half-mile radius of his resid ence. 5

5 The Tier III notification radius increased based on M.L.'s move to a less densely populated area

. See In re Registrant E.A., 285 N.J. Super. 554 (1995).10 A- 1008

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The Burlington County Megan's Law judge conducted the tiering hearing on November 30, 2022. In considering the State's m otion for Tier III notification, the judge expressed doubt that the Sc ale's consideration of "significant victim harm" encompassed the facts of this case, which had resulted
in the "ultimate harm" of R.C.'s death. The judge then considered th ree psychological evaluations administered to M.L. The first, dated January 6, 2021, by Richa rd Mucowski, Ph

. D. , was an in -depth psychological evaluation prepared for purpos es of determining M.L.' s suitability for parole release. Dr. Mucowski noted M.L. admitted he forced himself on R.C. and strangled her because she refus ed to perform oral sex on
him

. 6 He expressed concerns about M.L.'s sexual and emo tional abuse as a child, substance abuse and prior self-injurious beh avior. Dr. Mucowski noted M.L. had not had any treatment for his sex offense or his own s exual abuse. He concluded M.L. presented a medium risk for reoffend ing if released on parole and recommended "close supervision" if that occurre d.

6 Dr. Mucowski noted this statement contradicted M.L. 's prior statement to Dr. Greenberg that he had consensual sex with R.C., dur ing which R.C. said something about his "manhood . . . not being big en ough." He told Dr. Greenberg this made him think of his mother, who had made a similar comment to him a few years prior, and "he went into a blind rage and strangled [R.C.]."11 A- 1008

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The second evaluation, dated September 5, 2022, by Leland D. Mosby, Ed .D., was conducted at the request of the State Paro le Board after M.L. had been released on parole, to determine hi s suitability for future treatment. Dr. Mosby concluded M.L. presented a "higher moderate c ategory for violence and sexual recidivism" and recommended he continue with therapy. The third evaluation, dated November 1, 2022, by Ke nneth L. McNiel,
Ph .D., was conducted at M.L.'s request to assess his psychosexual health and risk to the community in connection with the State' s application for Tier III notification. Dr. McNiel noted there were "minor d iscrepancies" in M.L.' s prior accounts of the murder and the "[c]omprehensive ris k assessment provide[d] a mixed picture." He found M.L.'s "significant histo rical risks" were improved or stable and his dynamic risks were minimal based on his positive adjustment in the community, and therefore M.L. presented a low moderate risk of sexual or other violence. He concluded the risk could be "re asonably managed under [parole] supervision, and that a Tier [III] notific ation including door- to -door notifications would more likely increase the risk o f residential and/or employment instability than decrease his overall ri sk to the community." In weighing this case, the judge noted the positive aspects of M.L.'s progress, including his adherence to parole conditi ons, community support,12 A- 1008

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gainful employment and participation in counseling. He also discussed risk factors, including the short time M.L. had been on parole release in the community and the potential for his provocation to anger, particularly with alcohol or drug use. 7 The judge found that, given the type of harm inflic ted, which was "the death of another human being," the risk of harm to the community outwei gh ed M.L.'s privacy interest. On December 2, 2022, the judge entered an order confirming M.L. 's Scale score of fifty-eight, 8 which placed him in Tier II with inclusion on the internet registry, and granted the State' s application for Tier III door

- to -door notification. On consent of the State, the Tier III notification has been stayed pending the resolution of this appeal

. III. We review a trial court's conclusions regarding a M egan' s Law registrant's tier designation and scope of comm unity notification for

7 The judge also expressed his concerns regarding M.L .'s reconnecting with his mother, given the fact that he identified her as a trigger for his strangling R.C. , but noted they "don't talk about the past" and we re "living for today, trying to enjoy today and going forward together." Contrary to M.L.'s contention, this concern does not appear to be a primary factor in t he judge's decision.

8 The State consented to a reduction in criteria nine (response to treatment), eleven (therapeutic support) and twelve (residentia l support).13 A- 1008

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an abuse of discretion. See In re Registrant A.I., 3 03 N.J. Super. 105, 114 (App. Div. 1997). "[A]n abuse of discretion arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." State v. R.Y., 242 N.J . 48, 65 (2020) (internal quotation marks omitted) (quoting Flagg v. Essex Cn ty. Prosecutor, 171 N.J. 561, 571 (2002)). The trial court's findings will be upheld so long as they are supported by sufficient evidence in the record and we find "no basis for disturbing those factual findings." In re Registra nt J.G., 463 N.J. Super. at 277. "A trial court's interpretation of the law and th e legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. o f Manalapan, 140 N.J. 366, 378 (1995). We first address whether the State may bring a hear tland motion seeking to expand the scope of notification, and note that the record before us is unclear whether M.L. raised this issue before the Megan's L aw judge. Ordinarily, we will decline consideration of an issue not properly raised before the trial court, unless the jurisdiction of the court is implicated or the matter concerns an issue of great public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 23414 A- 1008

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(1973). Because we recognize the important public safety implications presented by this appeal, we will consider the issu e. Having reviewed precedent concerning heartland appl ications, we are satisfied the State may, in limited circumstances, request notification more expansive than indicated by a registrant's confirme d Scale score. As with a registrant's heartland application, the State may o nly request an expansion of notification in the "unusual case where relevant, material, and re liable facts exist for which the Scale does not account, or does not a dequately account . . . . Those facts must be sufficiently unusual to establish tha t a particular registrant's case falls outside the 'heartland' of cases." In re Reg istrant G.B., 147 N.J. at 82. We agree this case, which resulted in the "ultimat e harm" of death to the victim, presented the facts not taken into account by the Scale. The AG Guidelines define criteria one, degree of force, as "related to the seriousness of the potential harm to the community if reoffense oc curs." AG Guidelines , Exhibit E. The example provided for high risk is where the "offender causes lasting or substantial physical damage to [the] vic tim, or offender uses or is armed with a weapon." Ibid. Although "[t]hese examples are in no way intended to be exclusive," they nevertheless reflect the Sca le does not account for a sexual assault that resulted in the victim's murder.15 A- 1008

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While M.L.'s Scale score was properly computed, th e judge nevertheless ha d the obligation to determine whether, given the in dividual facts of the case, the notification attendant to that tier wa s appropriate:

The final determination of dangerousness lies with the courts, not the expertise of psychiatrists and psychologists. Courts must balance society's inter est in protection from harmful conduct against the individual 's interest in personal liberty and autonomy. The ultimate decision on dangerousness is, therefor e, a legal one, not a medical one, even though it is gui ded by medical expert testimony. [In re D.C., 146 N.J. 31, 59 (1996).]
Because Megan’s Law was enacted to enable the public to pro tect itself against the dangers posed by sex offenders, the "le vel of notification required for the public to protect itself varies according t o what crime the public must guard against." In re Registrant C.A., 146 N.J. at 102 (citing Doe v. Po ritz, 142 N.J. 1, 73 ( 1994) ). "The need for greater or lesser notification is directly related to the gravity of the offense to be re-committed al ong with the risk that the registrant will re-commit whatever crime the regist rant committed before." Ibid.
Fo r this reason, we reject M.L.'s contention the Stat e's application in this case was required to be supported by expert testimony. Here, the upward adjustment was not grounded in a reassessment of the level of risk based on a psychological evaluation, but on the type of harm at risk of bein g inflicted

.16 A- 1008

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We recognize that Megan's Law is intended to protec t the public from recidivism of those convicted of sex offenses, and our Legislature has not enacted similar registration and notification requi rements for other types of violent crimes. We note that here, in either of M. L.'s explanations for his motivation, his murder of R.C. was inextricably int ertwined with his sexual assault of her. Our decision should not be constru ed to require Tier III notification in every case where a sexual assault r esulted in the death of the victim. This determination must still be made on a case by case, fact-specific basis. Given our deferential standard of review and the pa rticular facts of this case, we are satisfied the judge's decision here di d not constitute an abuse of dis cretion. Affirmed.