RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4628-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANKLIN JACK BURR, II,

Defendant-Appellant.

_________________________

Submitted September 27, 2021 – Decided October 27, 2021

Before Judges Rothstadt, Mayer, and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 04-05-

0726.

Evelyn F. Garcia, attorney for appellant.

Yolanda Ciccone, Middlesex County Prosecutor, 

attorney for respondent (David M. Liston, Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.
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Franklin Jack Burr, II (Registrant) appeals from the Law Division's July 

16, 2020 denial of his motion for reconsideration of a January 24, 2020 order 

that denied his motion to terminate his obligations under Community 

Supervision for Life (CSL),1 N.J.S.A. 2C:43-6.4, and the Registration and 

Community Notification Law, N.J.S.A. 2C:7-1 to -23, also known as Megan's 

Law,

2 which were imposed at his sentencing in 2010, after he was tried for a 

1

 "A 2003 amendment replaced all references to '[CSL]' with 'parole supervision 

for life [(PSL)].'" In re J.S., 444 N.J. Super. 303, 306 n.2 (App. Div. 2016) 

(quoting State v. Perez, 220 N.J. 423, 429 (2015) (quoting L. 2003, c. 267, § 1)). 

And, as amended, the statute imposed a higher burden of proof on registrants 

seeking to be terminated from PSL. N.J.S.A. 2C:43-6.4(c) (2004). In this case, 

registrant was not subjected to that higher burden of proof.

"CSL is a component of the Violent Predator Incapacitation Act, which is also 

a component of a series of laws, enacted in 1994, commonly referred to as 

'Megan's Law.'" Perez, 220 N.J. at 436-37 (quoting State v. Schubert, 212 N.J. 

295, 305 (2012)). "CSL is designed to protect the public from recidivism by 

sexual offenders. To that end, defendants subject to CSL are supervised by the 

Parole Board and face a variety of conditions beyond those imposed on non-sexoffender parolees." Id. at 437. PSL's "restrictions . . . monitor every aspect of 

the daily life of an individual convicted of a qualifying sexual offense and 

expose that individual to parole revocation and incarceration on the violation of 

one, some, or all conditions." In the Matter of H.D., 241 N.J. 412, 421 (2020)

(quoting State v. Hester, 233 N.J. 381, 441 (2018)). The term of CSL "follows 

immediately after the parolee's release from incarceration, if applicable." J.B. 

v. N.J. State Parole Bd., 433 N.J. Super. 327, 336-37 (App. Div. 2013). 

2

 "Megan's Law requires 'prescribed categories of sex offenders [to] register 

with law enforcement agencies through a central registry maintained by the 
3

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second time for offenses he committed in 2004. On appeal, registrant argues the 

following points:

POINT I

THE [MOTION] JUDGE ERRED BY RELYING ON 

THE CURRENT AMENDMENT OF LAW TO 

SUPPORT HER DECISION TO DENY THE 

REGISTRANT'S PETITION FOR TERMINATION

OF CSL AND MEAGAN'S [SIC] LAW 

REGISTRATION, INSTEAD OF THE LAW THAT 

WAS IN EFFECT ON THE DATE OF THE OFFENSE.

POINT II

[REGISTRANT] HAS BEEN CONTINUOUSLY

UNDER COMMUNITY SUPERVISION SINCE 2004.

POINT III

TO DENY [REGISTRANT'S] PETITION TO BE 

RELEASED FROM CSL AND MEGAN'S LAW 

REQUIREMENTS CONSTITUTES CRUEL AND 

UNUSUAL PUNISHMENT. [(Not Raised Below).]

POINT IV

THE [MOTION] JUDGE ERRED IN RELYING ON 

STATUTORY LANGUAGE THAT DID NOT EXIST 

AT THE TIME OF THE OFFENSE.[3]

Superintendent of State Police. N.J.S.A. 2C:7-2(a)(1), 4(d).'" J.S., 444 N.J. 

Super. at 306 n.1 (quoting In re Registrant N.B., 222 N.J. 87, 89 (2015)).

3

 Additionally, registrant argues a new issue in his reply brief, contending that 

if we "accept[] the State's position, then the State is exposed to a double jeopardy 
4

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We are not persuaded by registrant's arguments and affirm, substantially 

for the reasons stated by Judge Diane Pincus in her January 24, 2020 and July 

16, 2020 written decisions. 

The salient facts are generally undisputed and are summarized from the 

motion record as follows. On August 2, 2001, registrant was arrested and 

eventually charged with 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). He pled 

guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), 

and, on April 22, 2002, was sentenced to two-years-probation. This sentence 

did not include the imposition of CSL or Megan's Law requirements. 

On January 14, 2004, registrant was arrested for an offense committed on 

or about January 7, 2004. He was eventually charged with 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). After a jury trial, registrant was convicted of 

violation." Because registrant raised this argument for the first time before us 

in his reply brief, we do not consider it properly before us and is deemed waived. 

State v. Amboy Nat'l Bank, 447 N.J. Super. 142, 148 n.1 (App. Div. 2016) (citing

Drinker Biddle & Reath, LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super.

489, 496 n.5 (App. Div. 2011); Pressler and Verniero, Current N.J. Court Rules, 

comment 4 on R. 2:6-2 (2016)). Moreover, registrant raised a substantially 

similar argument before us in his appeal from the denial of his motion to correct 

an illegal sentence. See State v. Burr, No. A-1255-13 (App. Div. Oct. 31, 2016) 

(slip op. at 5-6).
5

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

endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On April 22, 2005, 

registrant was sentenced to a six-year term, Megan's Law registration, and CSL.4 

Registrant was taken into custody pursuant to that sentence..

Registrant successfully appealed the April 2005 conviction, which we 

vacated on May 8, 2007, and remanded for a new trial. State v. Burr, 392 N.J. 

Super. 538, 576 (App. Div. 2007), aff'd as modified, 195 N.J. 119 (2008). 

Registrant posted bond and was released from prison on August 29, 2007, 

pending the State's unsuccessful appeal to the New Jersey Supreme Court and 

his new trial. 

After a new jury trial, registrant was convicted of third-degree 

endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On August 20, 2010, 

he was sentenced to a three-year term, Megan's Law registration and CSL, and 

he was remanded to State prison. A judgment of conviction reflecting his 

sentence was entered on August 26, 2010. The next day, registrant was released 

from incarceration based upon the jail credits he received for the time he served 

4

 Registrant was subjected to CSL rather than PSL because his crime occurred 

days before the effective date of the amendment that created PSL.
6

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before his original conviction was vacated. On September 10, 2010, registrant 

signed an acknowledgment of his obligations under Megan's Law and CSL.

5

Registrant then appealed from his 2010 conviction. We affirmed, the New 

Jersey Supreme Court denied certification, and the United States Supreme Court 

rejected his petition for certiorari. State v. Burr, No. A-2671-10 (App. Div. May 

13, 2013) (slip op. at 3-10), certif. denied, 216 N.J. 365 (2013), cert. denied, 574 

U.S. 995 (2014).

In 2016, registrant unsuccessfully appealed from the denial of a motion to 

correct an illegal sentence that challenged, among other things, his being placed 

under CSL and Megan's Law. We held his arguments were without merit to the 

extent they were not otherwise moot. State v. Burr, No. A-1255-13 (App. Div. 

Oct. 31, 2016) (slip op. at 3). The New Jersey Supreme Court denied his petition 

for certification. State v. Burr, 229 N.J. 583 (2017). 

5

 Neither party has included in their appendix a copy of the Megan's Law 

registration form, but Judge Pincus referred to it in her July 2020 decision. 

Neither party indicated on appeal that the judge was wrong about her 

observation. In fact, as mentioned infra, registrant claims the judge should not 

have considered the form, which was part of the court's record. 
7

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On November 4, 2019, registrant filed a motion to terminate his Megan's 

Law and CSL obligations.6 On January 24, 2020, after hearing oral argument, 

Judge Pincus denied registrant's motion, setting forth her reasons in a 

comprehensive written decision. 

According to the judge's decision, registrant's argument was that he met 

the requirements for being relieved of his CSL and Megan Law's obligations 

because "he has been offense free for fifteen years since October 28, 2004, and 

is unlikely to pose a threat to the safety of others." The judge rejected that 

contention and explained that under Megan's Law, N.J.S.A. 2C:7-2(f), registrant 

had to prove "that [he] ha[d] not committed an offense within [fifteen] 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." And, under CSL, that he could "petition the Superior Court 

for release from [CSL and be released]" "upon proof by clear and convincing 

evidence that [he] ha[d] not committed a crime for [fifteen] years since the last 

conviction, and that [he was] not likely to pose a threat to the safety of others if 

released." 

6

 Neither party has included in their appendix a copy of the motion or the 

supporting documents or those filed in opposition.
8

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Judge Pincus then applied the eligibility requirements to registrant's 

situation and rejected his contention that the fifteen-year time period began with 

his August 2004 conviction that was ultimately vacated. Relying on our opinion 

in J.S., the judge stated that "the [fifteen]-year time frame does not begin until 

after the registration requirements are imposed." The judge concluded by stating

the following:

In this case, the Registrant was incarcerated for 

343 days from June 14, 2004 until August 30, 2007, 

when he posted bail subsequent to the Appellate 

Division's reversal of his conviction. Prior to August 

30, 2007, the Registrant was not in a position to register 

for Megan's law and CSL because he was incarcerated.

Moreover, when he was released on August 30, 2007, 

his conviction had already been reversed by the 

Appellate Division, therefore nullifying his obligation 

to register for Megan's Law and CSL. It was not until 

the registrant was convicted, sentenced, and discharged 

from the [Department of Corrections] in 2010 that his 

Megan's Law and CSL obligations were properly 

imposed upon him. As such, August 27, 2010 is the 

appropriate date from which to calculate the [fifteen]-

year offense free period. Therefore, the registrant has 

not satisfied the provisions of N.J.S.A. 2C:7-2(f) and 

N.J.S.A. 2C:43-6.4(c).

On February 3, 2020, registrant filed a motion for reconsideration in 

which, according to Judge Pincus, he asserted numerous arguments that 

continued to rely upon his contention that the beginning of the fifteen-year 
9

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period was before August 2010.7 According to registrant, his August 2010 

judgment of conviction acknowledged that he completed his sentence on August 

30, 2007; his August 2010 date of release was from an illegal sentence that could 

not be used as the commencement date for the fifteen-year term; the judge 

improperly relied upon documents from the court's file which were not admitted 

into evidence by either party, including his 2010 Megan's Law registration form; 

the judge's January 2020 order improperly held that the State had the right to 

hold him past his max date to complete the CSL and Megan's Law forms; and 

the same order was entered in reliance upon N.J.S.A. 2C:43-6.4 which, as 

applied to registrant, was an ex post facto law.8 Moreover, according to

7

 Again, we were not provided with a copy of the motion, any of its supporting 

documents or those filed in opposition.

8

 As we have previously explained:

The Ex Post Facto Clause of the U.S. Constitution 

prohibits "any statute which punishes . . . an act

previously committed, which was innocent when done; 

which makes more burdensome the punishment for a 

crime, after its commission, or which deprives one 

charged with crime of any defense available . . . at the 

time when the act was committed."

[State v. F.W., 443 N.J. Super. 476, 487 (App. Div. 

2016) (emphasis omitted) (quoting Perez, 220 N.J. at 

438-39).]
10 A-4628-19

registrant, he was actually placed on Megan's Law and CSL in 2004, while he

was serving his initial sentence, but he did not provide any documents that 

substantiated that claim.

On July 16, 2020, after considering oral argument, Judge Pincus denied 

registrant's motion, setting forth her reasons in an eleven-page written decision

that she incorporated into her order. The judge explained that "because no 

evidence has been presented to the [c]ourt which otherwise demonstrates that 

[registrant] was subjected to registration requirements [before] beginning in 

2010, the [c]ourt continues to find that [r]egistrant has not met the [fifteen]-year 

offense-free period necessary for the termination of his Megan's Law and CSL 

obligations." And, because the judge concluded the correct date to begin 

calculating the fifteen-year offense free period was in 2010, not 2004, she held 

the registrant's argument that she had not applied the correct version of Megan's 

Law and CSL was moot. The judge also disagreed with his argument that 

probation officers subjected him to Megan's Law requirements immediately 

after his arrest in January 2004, because no evidence was presented to support 

that contention. 

Ultimately, the judge denied the motion for reconsideration because her 

January 24, 2020 order was not based on "palpably incorrect or irrational basis;" 
11 A-4628-19

she did not "fail[] to appreciate the significance of probative, competent 

evidence;" and "[r]egistrant ha[d] not presented [her] with new or previously 

unobtainable evidence which would not have been available to him prior to 

January 24, 2020 Order." Registrant later filed this appeal from the judge's order

denying reconsideration. 

At the outset, we initially observe that Judge Pincus correctly applied Rule

4:49-2 to registrant's motion for reconsideration. Under Rule 4:49-2, a court 

"may reconsider final judgments or orders." Lee v. Brown, 232 N.J. 114, 126 

(2018). Although Rule 4:49-2 does not expressly apply to criminal practice, 

courts have nevertheless applied its standards to motions for reconsideration in

criminal actions. State v. Wilson, 442 N.J. Super. 224, 233 n.3 (App. Div. 

2015), rev'd on other grounds, 227 N.J. 534 (2017); see State v. Puryear, 441 

N.J. Super. 280, 294-95 (App. Div. 2015) (applying Rule 4:49-2 and Rule 1:7-

4(b) to a trial court's decision to grant reconsideration of its earlier decision on 

a motion to suppress).

We review orders denying reconsideration for an abuse of discretion. 

Granata v. Broderick, 446 N.J. Super. 449, 468 (App. Div. 2016), aff'd, 231 N.J. 

135 (2017); Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) 

(stating reconsideration is "a matter within the sound discretion of the [c]ourt")
12 A-4628-19

(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). A court 

abuses its discretion "when a decision is 'made without a rational explanation, 

inexplicably departed from established policies, or rested on an impermissible 

basis.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 

378, 382 (App. Div. 2015) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 

561, 571 (2002)).

Applying that standard, we conclude that Judge Pincus did not abuse her 

discretion by denying registrant's motion, substantially for the reasons expressed 

in her written decisions filed in response to registrant's two motions. We only 

add the following comments.

The relevant provision of Megan's Law that existed at the time of 

registrant's offense in 2004 is as follows: 

Except as provided in subsection g. of this section, 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 [fifteen] 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) (2003) (emphasis added).] 
13 A-4628-19

Since 2003, N.J.S.A. 2C:7-2 has been amended on six occasions, yet subsection 

(f), regarding eligibility for a registrant to terminate Megan's Law obligations 

remained unchanged. Compare L. 2003, c. 34, § 1 with L. 2017, c. 141, § 3. 

The relevant provision of the CSL statute that existed in 2004 when 

registrant committed his offenses, contained a similar requirement for 

termination. It stated: 

A person sentenced to a term of community supervision 

for life may petition the Superior Court for release from 

community supervision. The court shall grant a petition 

for release from a special sentence of community 

supervision only upon proof that the person has not 

committed a crime for [fifteen] years since 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 supervision. 

[N.J.S.A. 2C:43–6.4(c) (2003) (emphasis added).] 

The Legislature amended this law on several occasions, but always left the 

fifteen-year provision unchanged. Compare L. 1994, c. 130, § 2 with L. 2017, 

c. 333, § 1.

In J.S., we clarified when the fifteen-year period commences. Relying on 

the unaltered language of the statute, we held "the fifteen-year period for 

termination of Megan's Law and CSL compliance commences upon imposition 

of the registration requirements." J.S., 444 N.J. Super. at 313. And, registration 
14 A-4628-19

requirements are imposed when the registrant is released from incarceration or 

when a judgment of conviction is entered, whichever is later. Ibid.

Later, the Supreme Court, in H.D., 241 N.J. at 420-23, discussed Megan's 

Law's fifteen-year period, described it as "unambiguous," and explained that it 

"plainly refers to the conviction or release that triggers the registration 

requirement." Id. at 421. The Court held that "[u]nder the plain language of 

subsection (f), the fifteen-year period during which an eligible registrant must 

remain offense-free to qualify for registration relief commences upon his or her 

conviction or release from confinement for the sex offense that gave rise to his 

or her registration requirement." Id. at 423 (emphasis added). The Court made 

clear that "the fifteen-year clock will not start until release, no matter how long 

or short the period of imprisonment." Id. at 421. 

Registrant became subject to Megan's Law and CSL upon his conviction 

and release from prison in 2010. Contrary to registrant's main contention before 

Judge Pincus and now before us, he was not resentenced in 2010 on his 2005 

conviction, because his original conviction was not left intact. See State v. 

Biegenwald, 106 N.J. 13, 67 (1987). His 2005 conviction and sentence became 

void upon our vacating them in 2007, placing registrant in the position that he 

had been in before the first trial began—without a conviction or sentence. See
15 A-4628-19

State v. Williams, 30 N.J. 105, 110-11, 124 (1959). When he was retried and 

convicted in 2010, it was the first conviction for an offense that required him to 

register under Megan's Law and be subject to CSL, now PSL. Although he was 

incarcerated for only a few days following his conviction and release, his 

obligations under Megan's Law and CSL commenced at that time and triggered 

the period during which he had to remain conviction free for fifteen years in 

order to be eligible for termination of both laws' requirements. Here, registrant's 

application for termination was simply premature, and the judge correctly 

determined that he was not entitled to relief. Registrant failed to demonstrate 

that determination was based on a mistake or other reason that would support a 

reconsideration of the judge's January 2020 order. We have no reason to disturb 

the judge's denial of registrant's reconsideration motion.

As to registrant's remaining arguments about CSL and Megan's Law, we 

conclude that they were either not raised before Judge Pincus, and therefore not 

properly before us, see State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. 

Robinson, 200 N.J. 1, 20 (2009)) ("For sound jurisprudential reasons, with few 

exceptions, 'our appellate courts will decline to consider questions or issues not 

properly presented to the trial court when an opportunity for such a presentation 
16 A-4628-19

is available.'"), or they are without sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(2).

Affirmed.