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MESSANO, P.J.A.D.
because they present the same legal issue. G.H. and G.A. were
convicted of sexual offenses, see N.J.S.A. 2C:7-2(b), prior to
[(Emphasis added).]
66 (2018).
than fifteen years since his release from custody. Prior to the
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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.
[Ibid.]
G.A. were not eligible for and did not seek relief under
(g), and therefore the trial courts did not apply subsection (g)
I.
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N.J.S.A. 2C:7-2 are significant and trigger additional
itself from the danger posed by sex offenders." Doe, 142 N.J.
at 73.
1
The Legislature increased the penalty for failing to register
from a fourth-degree to a third-degree crime in 2007. L. 2007,
c. 19.
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Subsection (g) was enacted to comply with 1996 amendments
and ensure continued federal funds for New Jersey. C.K., 233
N.J. at 61; In re L.E., 366 N.J. Super. 61, 65-66 (App. Div.
it with the Adam Walsh Child Protection and Safety Act. C.K.,
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for sex offender registration and requires that states receiving
omitted).
1994. State v. Schubert, 212 N.J. 295, 305 (2012). The VPIA
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Legislature subsequently amended the statute, replacing CSL with
N.J. Super. 303, 312 (App. Div.), certif. denied, 225 N.J. 339
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foreclosing them any relief from lifetime registration and
II.
recidivate.
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In an oral opinion following argument, the judge concluded
subsection (g). However, the judge also concluded that G.H. had
followed.
condition that G.A. serve 364 days in the county jail, CSL and
2
Before the Law Division judge, G.A. asserted that the offense
was not one listed in subsection (g). Although the transcript
of G.A.'s guilty plea was unavailable, the judge found G.A. pled
guilty to N.J.S.A. 2C:14-2(c)(1), a crime listed in subsection
(g). G.A. does not challenge this finding on appeal.
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In December 2016, the judge granted G.A.'s motion to
III.
post facto laws. U.S. Const. art. I, § 10, cl. 1; N.J. Const.
3
We assume appellants chose not to argue subsection (g) violates
ex post facto prohibitions because the Doe Court concluded the
registration requirements, as enacted in 1994, which notably
permitted relief under subsection (f), were remedial and not
punitive. 142 N.J. at 40-75. Indeed, "[t]he majority of state
courts . . . have found that retroactive application of their
respective sex offender registries to offenders with convictions
that pre-date the statute's enactment is not punitive and/or
does not violate the prohibition against ex post facto laws."
Starkey v. Okla. Dep't of Corr., 305 P.3d 1004, 1037-39 n.10
(Okla. 2013) (Winchester, J., dissenting) (outlining state
decisions regarding retroactive application of sex offender
registration and notification statutes).
10 A-2388-16T1
statutory construction make clear that the Legislature never
(continued)
amendments to an otherwise constitutional registration scheme
that retroactively increase the time of required registration,
eliminate potential relief from registration or otherwise impose
additional burdens, violate ex post facto prohibitions. Compare
Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009) (residency
restriction too punitive when applied retroactively), State v.
Letalien, 985 A.2d 4 (Me. 2009) (retroactive application of
lifetime registration violated ex post facto clause), Doe v.
State, 111 A.3d 1077 (N.H. 2015) (concluding aggregate effects
of amendments to previously constitutional regulatory scheme, in
particular lifetime registration without review, made the
legislation punitive), State v. Williams, 952 N.E.2d 1108 (Ohio
2011) (amendment that increased length of registration period
violated state ex post facto prohibition when applied to a
defendant who committed the crime before effective date of
amendment), and Starkey, 305 P.3d 1004 (Okla. 2013) (finding
retroactive application of lifetime registration was punitive
and violated ex post facto clause), with Lemmon v. Harris, 949
N.E.2d 803 (Ind. 2011) (amendment to registry imposing lifetime
requirements for "sexually violent predators" does not violate
the ex post facto clause), and State v. Rocheleau, 415 P.3d 422
(Kan. 2018) (retroactive application of amendment that increased
registration from ten years to lifetime registration did not
violate ex post facto clause).
Because the issue is not before us, we do not consider
whether the retroactive application of subsection (g) violates
the ex post facto clauses of either the United States or New
Jersey Constitutions.
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and to give effect to that intent." In re N.B., 222 N.J. 87, 98
with the language of the statute, and the words chosen by the
A.
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punishment for violations of CSL.4 They were indicted after the
(citing State v. Hester, 449 N.J. Super. 314, 318 (App. Div.
328-31).
4
Because Hester was decided after the parties argued these
appeals, we gave them an opportunity to file supplemental briefs
addressing what if any impact Hester had on the issues raised,
and what would be the effect on New Jersey's compliance with
SORNA if we accorded the relief sought by appellants.
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"[B]ecause the additional punishment attaches to a condition of
pleas G.H. and G.A. entered prior to its enactment. At the time
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to the safety of others[,]" N.J.S.A. 2C:7-2(f), does not change
U.S. 289, 293 (2001), the Supreme Court considered the effect of
substance.
the class of aliens who could apply for deportation relief. The
Ibid.
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whether a statute operates retroactively demands a commonsense,
N.J. at 285.
events if St. Cyr "would have been eligible for § 212(c) relief
at the time of [his] plea under the law then in effect." Id. at
omitted).
B.
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(citing Gibbons v. Gibbons, 86 N.J. 515, 521 (1981)).
process.'" James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563
F. Kennedy Hosp., 258 N.J. Super. 380, 385 (App. Div. 1992),
James, 216 N.J. at 563 (quoting D.C., 146 N.J. at 50). The
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reason not to do so." Ibid. (citing Nobrega v. Edison Glen
5
A statute also may be applied retroactively if it is
"curative," that is, designed to address some imperfection in
the existing statue, or if the parties' expectations warrant
retroactive application. James, 216 N.J. at 564-65 (citations
omitted). "The[se] latter two categories of potential
retroactive application are not implicated in this appeal." NL
Industries, Inc. v. State, 228 N.J. 280, 295 (2017). We only
note that the trial judge in G.A. erred to the extent she found
subsection (g) was "curative."
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located' is the present perfect tense, which expresses an action
Co., 121 N.J. 69, 95 (1990) (emphasis added); e.g., Johnson, 226
176, 194 (1996); Phillips v. Curiale, 128 N.J. 608, 617 (1992).
at 310-11 (citing Doe, 142 N.J. at 25, 73). Subsection (f) was
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(App. Div. 2015) (quoting Doe, 142 N.J. at 25), aff'd o.b. 227
statements in both the Assembly and the Senate make clear that
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Sponsor's Statement to A. 3987 (Dec. 6, 2001); Assembly Law and
Shoulder, 738 F.3d 948, 950 (9th Cir. 2013) (quoting Final
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"Retroactive legislation that impairs or destroys a 'vested
470.
Nelson v. Bd. of Educ. of Tp. of Old Bridge, 148 N.J. 358, 371
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(1997)). "In the modern context, a key element in evaluating
upon G.H.'s and G.A.'s own conduct, but also upon their ability
omitted).
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adequately served by subsection (f) prior to the passage of
(3) and (4). SORNA also increased the time of registration for
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Offender Registration and Notification, 73 Fed. Reg. 38,030
application.
6
We note that at least two state courts — Maine and New
Hampshire — have specifically concluded the retroactive
application of a lifetime registration requirement violated
their state constitutions. See Letalien, 985 A.2d at 26
(retroactive lifetime ban without any ability to seek relief as
before violated ex post facto clause); Doe, 111 A.3d at 1093-
1100 (lifetime registration without relief, along with other
amendments, violated ex post facto clause).
7
The Legislature has not acted on two bills introduced in the
Assembly in 2012 and 2014. See S.850/A.764 (2012); S.
1702/A.3832 (2014).
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because it does not comply with SORNA, and granting appellants
certain offenders, like G.H. and G.A., meets SORNA's Tier III
requirements.
review noted:
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days to verify registration information; and
2) lifetime registrants who are required to
report to local law enforcement each year to
verify registration information.
[Id. at 3.]
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from registration, is a fundamental reason why New Jersey is not
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