On August 16, 2024, a three-judge appellate panel decided the Burlington County case of I.M.O Registrant M.L. The principal issue under N.J.S.A. 2C:7-8 concerned whether the State could request a modification to the sex offender notification tier when the assessment scale did not account for the fact that the victim died because of the sexual assault.
Judge Puglisi, temporarily assigned from the Ocean County Criminal Division, wrote for the panel in relevant part: In this appeal, as a matter of first impression, we 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 Assessment Scale (Scale).
Having reviewed precedent concerning heartland applications, we are satisfied the State may, in limited circumstances, request notification more expansive than indicated by a registrant’s confirmed Scale score. As with a registrant’s heartland application, the State may only request an expansion of notification in the “unusual case where relevant, material, and reliable facts exist for which the Scale does not account, or does not adequately account. Those facts must be sufficiently unusual to establish that a particular registrant’s case falls outside the ‘heartland’ of cases.”
We agree this case, which resulted in the “ultimate harm” of death to the victim, presented the facts not considered 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 re-offense occurs.” AG Guidelines, Exhibit E. The example provided for high risk is where the “offender causes lasting or substantial physical damage to the victim, or offender uses or is armed with a weapon.” Ibid. Although “these examples are in no way intended to be exclusive,” they nevertheless reflect the Scale does not account for a sexual assault that resulted in the victim’s murder.
By “heartland”, the Court appears to mean “typical.” This holding should lend itself to the inverse argument by the defense in atypical cases. In cases in which there are atypical mitigating factors, the defense should be able to petition for a similar modification to the notification tier in which the scope of notification is reduced.
