RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1042-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RANDY A. HOWARD,

Defendant-Appellant.

________________________

Submitted February 23, 2021 – Decided June 11, 2021

Before Judges Fisher and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Accusation No. 19-07-1166.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Ruth E. Hunter, Designated Counsel, on the 

brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Debra G. Simms, Deputy Attorney 

General, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2

A-1042-19

Defendant pleaded guilty to failing to register under Megan's Law1 when 

he relocated to New Jersey after he was convicted of second-degree rape in 

North Carolina and ordered as part of his sentence to register as a sex offender.

Defendant argues he is entitled to a vacation of the failure-to-register charge and 

guilty plea pursuant to In re A.A., 461 N.J. Super. 385 (App. Div. 2019). 

Because the determination that defendant had to register as a sex offender was 

made by a North Carolina judge as part of a sentence for a North Carolina 

conviction and not by a New Jersey prosecutor, we affirm. 

In 2019, defendant was charged with third-degree failure to register under 

Megan's Law, contrary to N.J.S.A. 2C:7-2(c)(3), which provides that a person 

required to register as a sex offender who moves to New Jersey from another 

jurisdiction must register within ten days of residing in the State. 

 During a plea hearing, the State advised the court, pursuant to a 

negotiated plea agreement, defendant was pleading guilty to the charge and the 

State was seeking non-custodial probation. The State told the court defendant 

had been convicted of second-degree rape in 2008 in North Carolina and was 

required to register as a sex offender in New Jersey. Defense counsel confirmed 

1 N.J.S.A. 2C:7-1 to -23. 
3

A-1042-19

defendant had been convicted in 2008 and did not dispute he was required to 

register as a sex offender. 

Before defendant testified, the court explained, with no objection or 

correction, its understanding that defendant was pleading guilty for a thirddegree crime of failing to register "due to a conviction for a sexual assault in 

North Carolina in 2008." Defendant confirmed under oath (1) he had been 

convicted out of state in 2008 for a crime he committed in 1998; (2) his

conviction obligated him to register when he relocated to New Jersey; and (3) 

he had not registered until five or six months after he relocated. After testifying, 

defendant pleaded guilty to the third-degree crime of failure to register.

Defendant's presentence report contained a description of his North 

Carolina criminal history, including: 

In 2002, [defendant] was found guilty by jury of 

statutory rape. He was sentenced to 16 to 21 years 

prison with sex offender registration. In 2008, he was 

resentenced to 70-93 months prison with 2,263 days 

credit for the lesser offense of second degree rape with 

sex offender registration. It is unclear why [defendant] 

was resentenced. The offense involves [defendant], at 

28 years old, having a sexual relationship with a 15 year 

old mildly retarded female. They later married, but 

after divorcing during her pregnancy, the police 

reopened the case and charged him with statutory rape. 

[(Emphasis added).] 
4

A-1042-19

According to the report, a representative of "North Carolina's Megan's Law 

Division" advised police officers that defendant "was still an active registrant." 

At the sentencing hearing, the court reviewed the information in the

presentence report. Defense counsel confirmed everything in the presentence 

report was accurate. Defendant declined the opportunity to speak or to ask any 

questions. The court again stated defendant had pleaded guilty to a third-degree 

crime of failing to register and had been convicted "in 2008 for sexual assault 

in North Carolina." Defendant did not object to that characterization. The court 

sentenced defendant to one-year probation, subject to seven days' imprisonment, 

which defendant already had served. The court subsequently entered a judgment 

of conviction, which defendant now appeals. 

On appeal, defendant argues he was entitled, pursuant to A.A., 461 N.J. 

Super. 385, to notice of "the State's determination that he was required to register 

under Megan's Law" as a sex offender and to a judicial review of that

determination.

2

2

 In making this argument, defendant does not contend the North Carolina crime 

for which he was ultimately convicted and sentenced, second-degree rape, falls

outside the list of sex offenses contained in Megan's Law. See N.J.S.A. 2C:7-

2(b). 
5

A-1042-19

Defendant's reliance on A.A. is misplaced. The defendant in A.A. was a 

New Jersey resident who had been arrested in New York and charged in New 

York with second-degree disseminating indecent material to a minor, in 

violation of New York Penal Law § 235.21(3) (Consol. 2019). A.A., 461 N.J. 

Super. at 391. The defendant pleaded guilty to that charge and was sentenced 

to five years' probation. Id. at 392. His pre-sentence investigation report stated 

(1) defendant had to remain in New York until and unless an interstate transfer 

was approved; and (2) his offense in New York did not require registration under 

New York's Sex Offender Registration Act, N.Y. Corr. Law § 168 (Consol. 

2019). Ibid.

New York requested transfer of A.A.'s probation to New Jersey; a New 

Jersey probation officer submitted documentation regarding A.A.'s conviction 

to an assistant prosecutor, requesting a determination as to whether A.A. would 

be required to register in New Jersey under Megan's Law. Ibid. In making that 

determination, the assistant prosecutor had to consider whether A.A.'s New 

York offense was "similar to" one of the sex offenses enumerated in Megan's 

Law. See N.J.S.A. 2C:7-2(b)(3). The assistant prosecutor advised the probation 

officer the crime for which A.A. had been convicted in New York would fall 

under Megan's Law and he was required to be registered if he was living in New 
6

A-1042-19

Jersey. Ibid. New Jersey accepted the transfer of the defendant's probation and 

required him to register. Id. at 393.

Nine years later, A.A. moved to terminate ab initio his Megan's Law 

registration requirement. Ibid. We held, under those circumstances, the 

defendant was entitled to notice of and the opportunity to challenge in court the

assistant prosecutor's determination that A.A.'s New York crime, which did not 

require registration in New York, was "similar to" a crime listed in Megan's 

Law, requiring registration in New Jersey. Id. at 395. 

Those circumstances are not present here. The determination that 

defendant was required to register as a sex offender was not made by a New 

Jersey prosecutor but by a North Carolina judge as part of the sentence defendant

received in North Carolina, pursuant to North Carolina law. See N.C.G.S.A. §

14-208.9(b). The presentencing report stated defendant was sentenced to a term 

of imprisonment "with sex offender registration" for both his statutory-rape and 

second-degree rape convictions in North Carolina. Defense counsel confirmed 

the accuracy of the presentence report. The requirement that defendant register 

as a sex offender was not the result of a New Jersey prosecutor analyzing 

whether the crime for which defendant was convicted in North Carolina, seconddegree rape, was "similar to" one of the sex offenses enumerated in Megan's 
7

A-1042-19

Law under N.J.S.A. 2C:7-2(b)(3). Defendant knew when he left North Carolina 

based on the sentence he received there he was required to register as a sex 

offender.3 

Affirmed.

3

 Defendant argues in the alternative his judgment of conviction should be 

amended to set forth a fourth-degree crime instead of a third-degree crime. He 

bases that argument on our decision in State v. Timmendequas, 460 N.J. Super. 

346 (App. Div. 2019). After defendant filed his appeal, our Supreme Court 

issued its decision in State v. Brown, 245 N.J. 78, 96 (2021), "disapprov[ing]" 

our analysis in Timmendequas and rejecting the argument, which defendant 

makes here, that an ex post facto violation occurs when, pursuant to a 2007 

Megan's Law amendment, a third-degree charge for failure to register is imposed 

on a defendant who was convicted of a sex offense before the 2007 amendment.

Accordingly, we reject defendant's argument that his conviction should be 

reduced to a fourth-degree crime.