Transfer of Probation for a New Jersey Sex Offense Conviction

One of the biggest concerns for a defendant facing a sex related criminal offense in New Jersey is whether Megan’s Law Registration will be imposed as a result of conviction. In New Jersey, there are certain sex related offenses that require registration and some that do not. For example, a conviction for 4th degree lewdness does not expose the defendant to the registration requirement in New Jersey. However, although New Jersey may not require it, if you reside in another state that is a member if the interstate compact, you may be required to register in your home state.

Due process dictates that the resident be given a hearing to determine if the registration requirement is to be imposed. But there are some real bureaucratic nightmares that can arise in these situations. For example, if you are convicted of a sex related offense in New Jersey,  sentenced to non-custodial probation, and your home state is a member of the compact,  it is highly likely that you will be required to remain in New Jersey for 5 days after sentencing while your probation is transferred, and the home state determines if you are subject to its registration laws. In some cases, even if it is clear that the offense that you were convicted of in New Jersey would not subject you to Megan’s Law in this or any other state, the receiving state, or home state may still take 5 days to OK your return.

The problem is that no one, including most lawyers, is aware of this. The only individuals that really deal with the transfer issues are probation. And although probation conducts the pre-sentence interview and knows with almost complete certainty what the imposed sentence will be, they fail to warn the defendant of this “glitch” in the system. Therefore, the defendant is not aware of it until the very last minute, typically after the sentencing and during the post sentencing probation meeting that same day.

The problem is that I am not sure how uniformly the various New Jersey Counties (including Essex County)  implement this procedure, particular for a 4th degree lewdness offense. The reason I question its application is because after dealing with a situation such as this, I contacted a number of experienced New Jersey criminal defense attorneys who routinely handle sex offense cases, and not one of them was aware of the compact regulations and transfer rules.

What never ceases to surprise me is the never ending government regulations that have absolutely no rational basis. Particularly in this scenario, the defendant will frequently be out on bail pending sentencing. This means that the defendant is already convicted and awaits sentencing for a period that usually exceeds thirty days, during which time the defendant returns to his home state. It is not until after he is sentenced that the compact kicks in. Think about this for a second. The public policy behind the transfer protocol  is to protect the residents of the home state from a potentially dangerous sexual deviant. But they allow the convicted felon to return to the state immediately following a guilty plea in many instances. Does the defendant only become dangerous after sentencing? This makes ABSOLUTELY no sense.

One good thing to come out of this whole experience has been that this further confirms my belief that NJ lawyers should probably specialize in only one or two areas of law. I say this because of the constantly changing legal landscape in connection with all areas of the law. The changes are too numerous and to frequent for an attorney to keep up with all of them. Limiting the practice to one area, such as criminal and municipal court practice allows me to keep current and provide my clients with the type of representation I would want if standing in their shoes.

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