On May 30, 2024, a three-judge appellate panel decided the Hudson County case of State v. M.F.L. The principal issue under N.J.S.A. 2C:44-8 concerned whether the framework for Domestic Violence Restraining Orders can apply to motions to modify Sex Offender Restraining Orders (SOROs) issued pursuant to Nicole’s Law.
Judge Firko wrote for the panel in relevant part: Here, the motion judge considered defendant’s request to modify his JOC and amend the SORO under the Carfagno standard for modifying or lifting domestic violence restraining orders. We are satisfied the motion judge appropriately considered the similarities between the domestic violence restraining orders and properly applied the Carfagno factors to the facts before her in considering defendant’s application.
However, as the motion judge indicated, she simply did not have enough information to adequately assess defendant’s application and therefore, the motion to modify the SORO was properly denied. In light of defendant’s recent release from prison, he may choose to renew his motions to modify the JOC and SORO based on his changed circumstances, providing the judge with pertinent information. If the State opposes the application, it must present appropriate certifications or testimony from A.M. and the children, not the hearsay statements it conveyed by letter. The judge will exercise his or her discretion whether the application can be decided on the submissions or if an evidential hearing is required.
We briefly consider and reject defendant’s remaining arguments. We find no merit in defendant’s contention that his constitutionally protected parental rights were violated by the SORO. Defendant’s parental rights were not terminated with the imposition of the SORO. Moreover, Nicole’s Law clearly provides that individuals–such as defendant’s biological children–may be included on a SORO even if they are not victims.
Regarding defendant’s evidential arguments–that the victims and biological children were not contacted by the motion judge or prosecutor, and the motion judge failed to obtain his treatment records–we reiterate that defendant failed to meet his prima facie burden of showing good cause existed for modification of the SORO. See G.M. v. C.V. (2018). It is defendant’s burden to demonstrate good cause. However, as stated, hearsay statements are not sufficient for the judge to consider the Carfagno factors.
As stated above, we conclude the motion judge appropriately considered the Carfagno factors in the context of an application to vacate an SORO and ultimately found defendant failed to meet his prima facie burden because he did not provide the relevant information to fully analyze the factors. The motion judge noted there are “simply too many unanswered questions.”
The defendant pursued this appeal and presumably the motion before the trial court pro se. Had an attorney handled the matter, the prosecutor would have been more likely to provide sworn statements to support their position as opposed to hearsay.
