for endangering beyond the sexual assault. State v. Still,
257 N.J. Super. 255, 259 (App. Div.1992); State v. Clark,
324 N.J. Super. 178 (App. Div. 1999), rev’d o.g. 162 N.J.
201 (2000). In contrast, second degree burglary conviction
does not merge into second degree attempted aggravated
sexual assault, and fourth degree criminal sexual contact
conviction does not merge into second-degree attempted
aggravated sexual assault. State v. Adams, 227 N.J. Super.,
51 (App. Div.), certif. denied 113 N.J. 642 (1988); State v.
Mosch, 214 N.J. Super. 457 (App. Div.), certif. denied 107
N.J. 131 (1987) (third degree burglary did not merge with
third degree sexual contact).
The “No Early Release Act” (NERA), N.J.S.A. 2C:43-
7.2, which requires a defendant to serve 85% of sentence
for violent crime, will not to apply to second degree sexual
assault when there is only the possibility that the actor used
physical force. State v. Thomas, N.J. (2001).
VII. MEGAN’S LAW
A. Generally
N.J.S.A. 2C:7-1 et. seq., the Registration and
Community Notification Laws, commonly known as
Megan’s Law, provides that offenders who have been
convicted of one of the enumerated sexual offenses listed in
the statute must register by completing a Registration Form
and providing a primary residential address prior to release
from a correctional facility to parole, probation, work
release, furlough or a “similar program”, or release into the
community with no supervision. Following registration,
the County Prosecutor’s Office has the obligation to
determine the risk of reoffense posed by the offender. That
risk, delineated by “tier”, (as in low: Tier One; moderate:
Tier Two; and high: Tier Three), forms the basis for a
determination, based upon geographic proximity to the
home address of the offender, as to what members of the
community will be notified of the offenders location, so
that the public can be protected. N.J.S.A. 2C:7-1a.
Additionally, the registration assists law enforcement in
resolving crimes involving sexual abuse and missing
persons. N.J.S.A. 2C:7-1b.
B. Constitutionality
In Doe v. Poritz, 142 N.J. 1 (1995), the New Jersey
Supreme Court upheld the general constitutionality of
N.J.S.A. 2C:7-1. The Court mandated that a trial court
must hold a hearing to determine if the prosecutor properly
classified the registrant when he challenges the tier
classification and manner of notification. The Court
struck down the provision of N.J.S.A. 2C:7-1 et. seq. which
provides for public disclosure of the sex offender’s home
address and other information. In Paul P. v. Verniero, 170
F.3d 396 (3d Cir. 1999), the Third Circuit similarly
upheld the general constitutionality of this statutory
scheme, remanding only for consideration of whether the
procedures for notification of protected information were
adequate. See Paul P. v. Farmer, 80 F.Supp. 320 (D.N.J.)
(ruling that the guidelines for these procedures did not
reasonably limit disclosure to those entitled to receive it),
judgment vacated, 92 F.Supp.2d 320, 325 (D.N.J.)
(upholding redrafted guidelines), aff’d Paul P. Farmer, 227
F.3d 98 (3d Cir. 2000).In In re C.A., 146 N.J. 71 (1996), the New Jersey
Supreme Court upheld the Attorney General’s sex offender
classification guidelines, know as the Registrant Risk
Assessment Scale (RRAS). The Court noted that the RRAS
is entitled to deference but is not immune to challenges.
The Court characterized the RRAS as a “useful guide” in
determining the amount of notification that a community
should receive.C. CaselawIn In re G.B., 147 N.J. 62 (1996), the New Jersey
Supreme Court held that the RRAS score given to a
registrant by the prosecutor is presumptively reliable.
However, a registrant can enter a challenge to his tier
classification under the following circumstances: (1) when
the registrant is challenging the calculation utilized on the
basis that there was a factual error, or because he disputes
the prior offense, because there was variable factors that
were not considered by the prosecutor, or for “similar
reasons”; (2) when the registrant wants to introduce
evidence that the RRAS “calculations do not properly
encapsulate his specific case” and he should be placed in a
different tier than the one given him by the prosecutor; and
(3) when the registrant wants to introduce expert testimony
to demonstrate that there are “unique aspects” of his case
which necessitate him receiving a lower classification than
he received from the prosecutor. Expert testimony may be
used by a registrant during the hearing to demonstrate the
“unique aspects” of the case. However, expert testimony is
to be utilized on a limited basis. See Matter of A.B., 285
N.J. Super. 399 (App. Div. 1995) (registrant not strictly
held to deadline to challenge tier classification if fairness
requires some latitude).In Matter of J.M., ___ N.J. ___ (2001), the New Jersey
Supreme Court held that in determining a sex offender’s
classification under the RRAS, all prior sexual offenses are
appropriate for consideration and weighting under the