STATE v. GYORI

COBURN, J.A.D.

The primary goal of Megan's Law, N.J.S.A. 2C:7-1 to -19, is protection of the public from the dangers of recidivism posed by sex offenders. To achieve that goal the Legislature enacted a system of registration that requires defendants to keep the police informed of where they reside by registration, re-registration, notification, and verification. We granted defendant's motion for leave to appeal to decide whether a defendant's failure to annually verify his address with the local police department with which he had registered is a crime under Megan's Law. Because we believe that Megan's Law gives fair notice that a failure to verify annually is a crime, we affirm the trial court's decision denying defendant's motion to dismiss the indictment.

The Grand Jury minutes reveal the following facts. In 1994, a judgment was entered adjudicating defendant delinquent for an aggravated sexual assault. He was placed on probation and thereafter registered under Megan's Law with the Washington Township Police Department. He later moved, apparently to another county, and in 2002, he returned to live in Washington Township. On January 29, 2002, he re-registered with the Washington Township Police Department. At that time he signed a standard form acknowledging that his next verification date was January 29, 2003. Although the form was not marked in evidence before the Grand Jury, defendant does not deny that it includes this statement:

7. I understand that I may be charged with a fourth degree crime subjecting me to 18 months in prison (Pursuant to N.J.S.A. 2C:7-2) if I fail to register, re-register, verify my address, or provide correct information, as required by law.

Defendant failed to verify his address with the Washington Township Police Department until March 14, 2003, and did so at that time only in response to a police inquiry.

The Morris County Grand Jury indicted defendant for failure to register under N.J.S.A. 2C:7-2a, a fourth-degree crime. Defendant moved for dismissal, arguing that his conduct, a failure to verify his address one year after re-registering, is not a failure to register. He claimed that although the statute expressly makes failure to register and re-register a crime, it provides no penal consequence for a defendant's failure to annually verify his address. The State argued that under a proper construction of the statute, a failure to verify on an annual basis is a crime. The trial court agreed with the State and denied the motion to dismiss.

We begin our analysis with a description of the relevant provisions of Megan's Law, which contain four critical and interrelated requirements: registration, re-registration, notification, and verification. The central role played by all of those requirements is explained in the statute's opening section:

The Legislature finds and declares:

a. The danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children, and the dangers posed by persons who prey on others as a result of mental illness, require a system of registration that will permit law enforcement officials to identify and alert the public when necessary for public safety.

b. A system of registration of sex offenders and offenders who commit other predatory acts against children will provide law enforcement with additional information critical to preventing and promptly resolving incidents involving abuse and missing persons.

[ N.J.S.A. 2C:7-1 (emphasis added).]

The next subsection begins with the statement that an included defendant "shall register as provided in subsections c. and d. of this section." N.J.S.A. 2C:7-2a (emphasis added). We note that the specific references to subsections c and d are critical to defendant's argument because he claims that it is only a failure to follow the dictates of those sections that results in commission of the fourth-degree crime. But subsection N.J.S.A. 2C:7-2a(2) speaks more generally. After giving certain initial registration requirements for persons registered as sex offenders in another state, it concludes with these words: "A person who fails to register as required under this act shall be guilty of a crime of the fourth degree." Ibid. (emphasis added).

After detailing the sex offenses requiring registration, N.J.S.A. 2C:7-2b, the statute then describes the requirements for registration, indicating when, with whom, and how various categories of defendants are to register. N.J.S.A. 2C:7-2c (emphasis added). Subsection 2d then states what a defendant must do on a change of address, employment, or school enrollment by way of re-registration, if another municipality becomes involved, and notification in all instances. Because its specific language is important, we quote it in full:

Upon a change of address, a person shall notify the law enforcement agency with which the person is registered and shall re-register with the appropriate law enforcement agency no less than 10 days before he intends to first reside at his new address. Upon a change of employment or school enrollment status, a person shall notify the appropriate law enforcement agency no later than five days after any such change. A person who fails to notify the appropriate law enforcement agency of a change of address or status in accordance with this subsection is guilty of a crime of the fourth degree.

[ N.J.S.A. 2C:7-2d (emphasis added).]

The next subsection, the one that defendant specifically violated, concerns address verification. And it reads as follows:

A person required to register under paragraph (1) of subsection b. of this section or under paragraph (3) of subsection b. due to a sentence imposed on the basis of criteria similar to the criteria set forth in paragraph (1) of subsection b. shall verify his address with the appropriate law enforcement agency every 90 days in a manner prescribed by the Attorney General. A person required to register under paragraph (2) of subsection b. of this section or under paragraph (3) of subsection b. on the basis of a conviction for an offense similar to an offense enumerated in paragraph (2) of subsection b. shall verify his address annually in a manner prescribed by the Attorney General. One year after the effective date of this act, the Attorney General shall review, evaluate and, if warranted, modify pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.) the verification requirement.

[ N.J.S.A. 2C:7-2e.]

Defendant relies, in part, on the absence in subsection 2e of a declaration that a failure to verify is a crime. He sees this as significant because, by contrast, in subsection 2d the Legislature declared that failure to notify is a crime. But in Doe v. Poritz, 142 N.J. 1 , 662 A.2d 367 (1995), which upheld the constitutionality of Megan's Law, the Court noted that "[d]espite complexities of detail, the Registration Law is basically simple." Id. at 20, 662 A.2d 367. In the following paragraph, concerning what "[r]egistration requires," after describing initial registration under N.J.S.A. 2C:7-2c, the Court observed that "[r]egistrants whose conduct was repetitive and compulsive must verify their addresses with the local law enforcement agency quarterly, [while] other registrants must do so annually." Id. at 21, 662 A.2d 367. The Court concluded its description of registration by summarizing N.J.S.A. 2C:7-2d, which then concerned re-registration on moving to another municipality, and now requires, as well, notification to the appropriate law enforcement agency of a change of address, employment or school enrollment within any municipality. Ibid. After noting that "[a]ll of these are lifetime requirements," the Court said that "[f]ailure to comply with the Registration Law is a fourth-degree crime." Id. at 21-22, 662 A.2d 367.

In In re Registrant J.G., 169 N.J. 304 , 777 A.2d 891 (2001), the Court again said that "[r]egistrants other than those whose conduct was repetitive and compulsive annually must verify their address with the local enforcement agency, and provide notice of any change of address. N.J.S.A. 2:7-2d to -2e." Id. at 319, 777 A.2d 891. Quoting Doe, the Court re-affirmed in broad terms that failure to comply with "the Registration Law is a fourth-degree crime." Id. at 320, 777 A.2d 891. And in State v. S.R., 175 N.J. 23 , 811 A.2d 439 (2002), the Court held that "Megan's Law should be construed broadly to achieve its goal of protecting the public. . . ." Id. at 36, 811 A.2d 439.

If defendant's interpretation of the statute is correct, what the Court in Doe and J.G. considered and described as mandatory, a concept that only has meaning if backed up by a penalty, would be merely precatory, a result that would substantially undercut the purposes of Megan's Law, as expressed in N.J.S.A. 2C:7-1, quoted above. Since those cases did not involve the precise arguments offered here, the quoted statements can be viewed as dictum and therefore not binding. But, the Court offered the statements as deliberate interpretations of the statute, and therefore, absent extraordinary circumstances, we should abide by them. Cf. State v. Rush, 46 N.J. 399, 416, 217 A.2d 441 (1966).

In addition to rejecting defendant's interpretation as inconsistent with what the Court said in Doe and J.G., we are ourselves satisfied that it is not called for by the rules of statutory construction, to which we now turn.

Since a criminal law is involved, we take note of the "doctrine that penal statutes must be strictly construed." State v. Valentin, 105 N.J. 14 , 17, 519 A.2d 322 (1987) (citations omitted). There, after pointing out that the doctrine is designed to serve the requirement of due process by insuring that no one will be punished criminally unless the crime and its punishment are clearly described by legislation, the Court said this:

Penal laws cannot be extended by implication or intendment. Where more than one reasonable interpretation may be made, or where the language is ambiguous — and the ambiguity is not manufactured by the defendant — the construction must be drawn against the state.

[ Id. at 18, 519 A.2d 322 (citations omitted).]

Our understanding of that statement is enhanced by an earlier discussion of the principle of strict construction of penal laws in In re Suspension of De Marco, 83 N.J. 25 , 414 A.2d 1339 (1980). Writing for the Court, Chief Justice Wilentz said that "[i]t does not invariably follow, however, that every time someone can create an argument as to the meaning of a penal sanction, the statute is impermissibly vague. . . ." Id. at 36, 414 A.2d 1339. He then described the applicable principles in this way:

The question ultimately is one of fairness, given the statute and its provisions, and given the situation of the defendant. Should he have understood that his conduct was proscribed. . . . The test is whether the statute gives a person of ordinary intelligence fair notice that his conduct is forbidden and punishable by certain penalties. That test, however, does not consist of a linguistic analysis conducted in a vacuum. It includes not simply the language of the provision itself, but related provisions as well, and especially the reality to which the provision is to be applied.

[ Id. at 37, 414 A.2d 1339 (emphasis added).]

The next year, again writing for the Court, Chief Justice Wilentz observed, that "the Code itself has its own principles of construction which do not mention any rule of `strict construction' but rather, provide that where `the language [of the Code] is susceptible of differing constructions it shall be interpreted to further the general purposes' stated in section 2C:1-2 and the special purposes of the particular provision involved." State v. Maguire, 84 N.J. 508 , 514 n. 6, 423 A.2d 294 (1980).

Although one of the general purposes is "[t]o give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction," N.J.S.A. 2C:1-2a(4), other purposes include preventing conduct that "unjustifiably and inexcusably . . . threatens serious harm to individual or public interests," N.J.S.A. 2C:1-2a(1), and subjecting "to public control persons whose conduct indicates that they are disposed to commit offenses." N.J.S.A. 2C:1-2a(3). While no purpose is to be achieved at the expense of another, "[t]he provisions of the code shall be construed according to the fair import of their terms," N.J.S.A. 2C:1-2c, and "when language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this section and the special purposes of the particular provision involved." Ibid.

Construing Megan's Law as providing that failure to verify under subsection 2e is a failure to register obviously serves its special purpose, close supervision of registrants to protect the public, and the general public safety purposes noted above. It also accords with the Legislative history, which indicates an understanding that verification would be mandatory, not precatory. Senate Law and Public Safety Committee, Statement to A.84 at 2 (September 26, 1994).

The remaining question is whether this construction is fair. Defendant argues that it is not because N.J.S.A. 2C:7-2a(1) specifically refers to subsections 2c and 2d, and not to subsection 2e, and because 2d says that failure to notify is a crime while 2e does not say the same respecting failure to verify. But it is not subsection 2a(1) that defines the crime; it merely directs a defendant's attention to the sections governing registration and re-registration, respectively. The critical language appears in subsection 2a(2), which provides in broad terms that "[a] person who fails to register as required under this act shall be guilty of a crime of the fourth degree." N.J.S.A. 2C:7-2a(2) (emphasis added).

In our view, registration "as required under this act" includes verification under N.J.S.A. 2C:7-2e. We reach that conclusion not because it is the only plausible reading of the legislation but because, given the law's overarching purpose, it is the only reading that makes sense.

When all is said and done, the matter of statutory construction here will not justly turn on literalisms, technisms or so-called formal rules of interpretation; it will justly turn on the breadth of the objectives of the legislation and commonsense of the situation.

[ Jersey City Chapter of Property Owner's Protective Ass'n v. City Council of Jersey City, 55 N.J. 86 , 100, 259 A.2d 698 (1969).]

We are not constrained to a "linguistic analysis conducted in a vacuum." De Marco, supra, 83 N.J. at 37, 414 A.2d 1339 . We are obliged to consider the defendant's situation and "especially the reality to which the provision is to be applied." Ibid. Certainly, the statute in no uncertain terms tells defendants that they must verify their addresses, either quarterly or annually, depending on their precise status. No reasonable defendant would think that a requirement of this sort, expressed in mandatory terms, was merely a request. Therefore, he would know that a failure to verify was proscribed and punishable as a fourth-degree crime; indeed, as the crime of failing to register "as required" under the act.

Affirmed.