The Court continued in relevant part: As for the first prong, defendant initially was charged with: (i) four counts of second degree sexual assault on a minor in violation of N.J.S.A. 2C:14-2(b), each a crime in the second degree; (ii) one count of child endangerment in violation of N.J.S.A. 2C:24-4(a)(1), a crime of the second degree; and (iii) one count of child endangerment in violation of N.J.S.A. 2C:24-4(a)(1), a crime of the third degree. Certainly, the nature of the initial charges against defendant are serious, and, if defendant ultimately would have been convicted on those charges, implicate a presumption of material incarceration even though defendant had no prior criminal history. N.J.S.A. 2C:44-1(d). See State v. Hodge (1984); State v. Whidby (App. Div. 1985).
However, the special circumstances of this case confirm that the State entered into a plea agreement with defendant that required that he plead guilty to only two counts of criminal sexual contact in violation of N.J.S.A. 2C:14-3(b), both crimes of the fourth degree. Based upon the terms of the negotiated plea agreement and defendant’s lack of criminal history, there would be a presumption against defendant’s incarceration. N.J.S.A. 2C:44-1(e). While the plea agreement contemplates Megan’s Law registration, the State’s plea offer calls for defendant to serve only a term of non-custodial probation conditioned on a 364-day jail sentence at the MCCF, which jail sentence was to be suspended.
Since the competency evaluations have concluded that defendant is not a danger to himself or to others and that the State’s plea offer calls for defendant to plead guilty to only two fourth degree crimes without any mandatory period of confinement, this court cannot conclude that the State has established by clear and convincing evidence that an important governmental interest is at stake in this case.
A fair counter-point from the State is that Megan’s Law registration is arguably more onerous than 364 days in the county jail. Many defendants would prefer less than a year in jail to a lifetime of Megan’s Law restrictions that can ultimately lead to years in prison.
