Justice Fasciale continued in relevant part: Similarly, in the post-conviction context, a defendant seeking post-conviction relief (PCR) may be entitled to an evidentiary hearing upon a showing that “there are material issues of disputed fact that cannot be resolved by reference to the existing record.” In fact, “a court shall not grant an evidentiary hearing if the defendant’s allegations are too vague, conclusory or speculative.”
Those principles generally strike a balance between a party’s “opportunity to fully expose [its] case” and “reserving judicial manpower and facilities.” We find no reason why those legal principles are not equally appropriate when a Megan’s Law registrant facing internet publication under N.J.S.A. 2C:7-13(b)(2) seeks an evidentiary hearing to challenge the State’s characterization that a registrant’s conduct constituted repetitive and compulsive behavior, especially given that the State and Attorney General agree that Megan’s Law registrants who adequately challenge material facts, whether in an Avenel report or otherwise, are entitled to proffer evidence at a hearing.
We further hold that, for Tier classification purposes, the State may rely on a psychological report prepared earlier pursuant to N.J.S.A. 2C:47-3. We emphasize, however, that the independent findings by a Megan’s Law judge as to compulsivity and repetitiveness must be made based on clear and convincing evidence.
When the State relies upon an Avenel report to meet its burden by clear and convincing evidence, the registrant is not automatically entitled to cross-examine the expert who authored the report. The State and Attorney General both agree that a registrant may always challenge the State’s proofs that the registrant’s conduct established a pattern of compulsiveness and repetitiveness by introducing their own evidence. But registrants who wish not to introduce their own evidence but only to cross-examine an Avenel expert must articulate with particularity the reasons they need such an opportunity. That is, the registrant must point to a genuine issue of material fact with the expert’s report. Once that prerequisite showing has been made, which we anticipate will be rare, the Megan’s Law judge has discretion over the scope of the limited evidentiary hearing. We stress that the focus must be on identified disputed issues of material facts — those applicable to the State’s characterization that the registrant’s conduct constituted compulsive and repetitive behavior — which “cannot be resolved by reference to the existing record.” See R. 3:22-10(b), (d) (outlining when a PCR evidentiary hearing is necessary and providing that when such a hearing is granted, the scope “shall be limited to the issue of whether the defendant was improperly convicted”).
Here, the Court stacks the odds against petitioners obtaining relief through “rare” evidentiary hearings. The requirement that they point to specific points in the experts reports and reveal how they will challenge those points allows the prosecutor and their expert to prepare for the defense strategy and to object if the defense deviates from that strategy.
