IN THE MATTER OF REGISTRANT B.B. (ML-99-07-0140, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5376-16T1
IN THE MATTER OF REGISTRANT B.B.
________________________________
Argued June 26, 2018 – Decided July 25, 2018
Before Judges Simonelli and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. ML-99-
07-0140.
James H. Maynard argued the cause for
appellant B.B. (Maynard Law Office, LLC,
attorneys; James H. Maynard, on the briefs).
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent State of New Jersey
(Robert D. Laurino, Acting Essex County
Prosecutor, attorney; Frank J. Ducoat, of
counsel and on the brief).
PER CURIAM
Appellant B.B. appeals from the denial of his motion to
terminate his community supervision for life (CSL) imposed after
he pled guilty on December 17, 1996 to two counts of second-degree
sexual assault, N.J.S.A. 2C:14-2(c), and third-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(a). We reverse.
The charges against B.B. stemmed from his sexual assault of
his two eight-year-old half-sisters and his attempt to engage in
sexual contact with his eleven-year-old female neighbor. B.B. was
seventeen years old when he committed these offenses. A
psychologist examined B.B. at the Adult Diagnostic and Treatment
Center (ADTC), and concluded he met "the statutory criteria for
compulsive and repetitive deviant sexual behavior[,]" and was
"clearly eligible for sentencing under the purview of the New
Jersey Sex Offender Act."
On May 16, 1997, the trial court imposed concurrent five-year
terms of imprisonment on the sexual assault counts, and a
concurrent four-year term on the endangering the welfare of a
child count, to be served at the ADTC. The court also required
B.B. to register under Megan's Law, N.J.S.A. 2C:7-2(g), and imposed
CSL upon his release from incarceration pursuant to N.J.S.A. 2C:43-
6.4(b).
In a November 3, 1999 termination report, a psychologist from
the ADTC found B.B. was "at low to moderate risk to reoffend." On
March 15, 2000, he was released from ADTC. It is undisputed that
he has not committed any offenses since his release.
2 A-5376-16T1
In April 2017, James R. Reynolds, Ph.D., performed a
psychosexual evaluation–actuarial risk assessment of B.B.
Reynolds used the Registrant Risk Assessment Scale (RRAS) to assess
B.B.'s recidivism risk level, and the STATIC-99-R, ACUTE-2007, and
STABLE-2007 assessments to assess his sexual offense recidivism
risk level. Reynolds noted that B.B. "was apportioned a total of
[forty-one] points, entirely on static factors which places him
within the moderate risk on the RRAS[.]" However, Reynolds
explained that although the RRAS is used for Tier consideration,
it is "is one of the least experimentally supported actuarial
instruments[,]" and it "was never empirically validated for use
with persons who committed the offense so many years in the past."
According to Reynolds, the RRAS
demonstrated good validity and reliability
when used at the time of sentencing to
probation or when a registrant is released
from prison, but the long[-]term predictive
validity of the RRAS has not been
scientifically supported. Interpreting the
RRAS in this situation must be done with
caution, due to the possibility for increased
measurement error.
Reynolds used the STATIC-99-R, ACUTE-2007, and STABLE-2007
to assess B.B. "due to the substantial support the instruments
have received in the professional, peer-reviewed literature." He
explained that these "instruments were developed to assist those
who work with sexual offenders by assessing the stability of the
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offender's overall functioning, using domains that implicate
whether the offender's recidivism risk is increasing, decreasing,
or remaining the same" and that "the risk level for all persons
under [CSL] is calculated yearly on these instruments."
Reynolds found B.B. "present[ed] with no risk factors on the
STATIC-99-R, as the victims were female relatives. [B.B.'s] age
and the length of time remaining sexual re-offense free in the
community are considered protective factors." Reynolds also found
no risk factors on the STABLE-2007 or ACUTE-2007. He concluded
that "[i]ntegrating the results of all three instruments results
in placing [B.B] within an offender group [that] presents a 0.7%
- 2% recidivism risk over the next [four] years." Reynolds opined
within a reasonable degree of psychological certainty that "[B.B.]
is not likely to commit another sexual offense and he does not
present a risk of harm to others in the community . . . and
removing him from CSL [is] clinically supported and
recommended[.]"
B.B. filed a motion pursuant to N.J.S.A. 2C:43-6.4(c) to
terminate his CSL.1 The motion judge denied the motion, finding
the RRAS was presumptively valid and Reynolds placed considerably
more weight on the STATIC-99-R, ACUTE-2007, and STABLE-2007
1
B.B. also moved pursuant to N.J.S.A. 2C:7-2(f) to terminate his
obligation to register under Megan's Law. He does not challenge
the motion judge's denial of that request.
4 A-5376-16T1
without citing specific support for his assertion that these
instruments have substantial support in professional and peer-
reviewed literature. The judge also noted Reynolds did not account
for the third non-relative female victim. The judge found there
was a discrepancy between the RRAS, which placed B.B. at a moderate
risk for re-offense, and Reynolds' reliance on the STATIC-99-R,
ACUTE-2007, AND STABLE-2007 to find B.B. had a low level of risk.
The judge determined that given this discrepancy, he was "not
firmly convinced that B.B. is not likely to pose a threat to the
safety of others if released from CSL." The judge concluded that
B.B. failed to prove otherwise by clear and convincing evidence.
Reynolds reassessed B.B.'s RRAS and STATIC-99-R scores based
on the third non-relative female victim. Reynolds noted that B.B.
"was apportioned a total of [fifty] points, entirely on static
factors, which placed him within the moderate risk level on the
RRAS." Reynolds reiterated his concerns about the RRAS, and
explained that:
the instrument for Tier considerations in the
[S]tate of New Jersey, the [RRAS], is one of
the least experimentally supported actuarial
instruments. Additionally, the instrument was
never empirically validated for use with
persons who committed the offense so many
years in the past. It has demonstrated good
validity and reliability when used at the time
of sentencing to probation when a registrant
is released from prison, but the long term
predictive validity of the RRAS has not been
scientifically supported. Interpreting the
5 A-5376-16T1
RRAS in this situation must be done with
caution, due to the possibility for increased
measurement error.
Reynolds found that the information regarding the non-
relative female victim
does not change the estimates of [B.B's]
sexual re-offense risk. Moreover, his score
will never be within the low risk range on
[the RRAS] due to static factors. Estimating
[B.B.'s] risk level as always being at least
moderate is not scientifically supported, as
research clearly demonstrates that a
registrant's risk for sexually re-offending
decreases by approximately [fifty percent] for
every [five]-year term they remain sexual re-
offense free while at liberty in the
community[.]
He also found B.B. presented one risk factor, the non-relative
female victim, which placed him in the low risk range on the
STATIC-99-R. He determined the ACUTE-2007 and STABLE-2007 did not
identify any risk factors and concluded "based on the adjustments
made to the RRAS and the STATIC-99-R, [B.B.] remain[ed] placed
within an offender group that presents a 0.7% - 2% recidivism risk
over the next [four] years." He provided support for his findings,
and opined within a reasonable degree of psychological certainty
that B.B was not likely to commit another sexual offense and did
not present a risk of harm to others in the community.
B.B. filed a second motion to terminate his CSL, arguing, in
part, that the preponderance of the evidence standard applied, not
the clear and convincing evidence standard. The judge found that
6 A-5376-16T1
re-scoring of the RRAS resulted in an elevation of B.B's score
from forty-one to fifty, and still placed him in the moderate risk
level. The judge applied the clear and convincing evidence
standard and concluded that even under the preponderance of the
evidence standard, defendant failed to show he posed no threat to
the safety of others.
On appeal, B.B. contends the preponderance of the evidence
standard applies to termination from CSL, and the application of
the clear and convincing evidence standard violated the ex post
facto clause. B.B. also contends the judge misapplied the use of
the RRAS and abused his discretion in rejecting Reynolds'
undisputed finding he was a low risk to reoffend. We need not
address the standard of proof issue, as we find that under either
standard, defendant was entitled to termination of CSL.
We review the court's determination on a motion to terminate
CSL for abuse of discretion. See In re J.W., 410 N.J. Super. 125,
130 (App. Div. 2009) (evaluating risk of re-offense under an abuse
of discretion standard). An "abuse of discretion only arises on
demonstration of 'manifest error or injustice[,]'" Hisenaj v.
Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J.
554, 572 (2005)), and occurs when the trial judge's "decision is
made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis." Jacoby
7 A-5376-16T1
v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
We "may find an abuse of discretion when a decision 'rest[s]
on an impermissible basis' or was 'based upon a consideration of
irrelevant or inappropriate factors.'" State v. S.N., 231 N.J.
497, 515 (2018) (alteration in original) (quoting State v. C.W.,
449 N.J. Super. 231, 255 (App. Div. 2017)). We "can also discern
an abuse of discretion when the trial court fails to take into
consideration all relevant factors and when its decision reflects
a clear error in judgment." Ibid. (quoting C.W., 449 N.J. Super.
at 255). Similarly, "when the trial court renders a decision
based upon a misconception of the law, that decision is not
entitled to any particular deference and consequently will be
reviewed de novo." Ibid. (quoting C.W., 449 N.J. Super. at 255).
Thus, under the abuse of discretion standard, we "generally give[]
no deference to a trial court decision that fails to 'provide
factual underpinnings and legal bases supporting [its] exercise
of judicial discretion.'" Ibid. (alterations in original)
(quoting C.W., 449 N.J. Super. at 255). Applying the above
standards, we conclude the judge mistakenly exercised his
discretion in finding the RRAS was presumptively valid and relying
on it to deny B.B.'s motion.
8 A-5376-16T1
The RRAS was "designed to provide prosecutors with an
objective standard on which to base the community notification
decision mandated by [Megan's Law] and to assure that the
notification law is applied in a uniform manner throughout the
State." In re Registrant, C.A., 146 N.J. 71, 100-01 (1996). The
RRAS "is used to assess whether a registrant's risk of reoffending
is low, moderate or high." In re A.D., 441 N.J. Super. 403, 407
(App. Div. 2015). "[T]he Attorney General developed the RRAS and
the Registrant Risk Assessment Manual to implement the legislative
directive to provide three levels of notification depending upon
the risk of re-offense." Id. at 420 (citing N.J.S.A. 2C:7-8).
The RRAS
was rationally derived by a panel of mental
health and legal experts by the following
process: 1) the selection of risk assessment
criteria that have empirical support; 2) the
[weighing] of these pertinent risk assessment
criteria; and 3) the use of sample cases to
assist in the setting of numerical cutoff
points for low, moderate and high risk scores.
[Ibid. (alteration in original) (citation
omitted).]
"By analyzing the scientific literature on valid and reliable
predictors of recidivism, the Committee . . . created a useful and
rational scale that can be used as a tool for deciding tier
classification." In re Registrant, C.A., 146 N.J. at 107.
"Although the Scale has not been empirically validated through
9 A-5376-16T1
scientific field studies, the factors that compromise the Scale
have been shown to be the best indicators of risk of re-offense."
Ibid.The RRAS "is sufficiently probative and reliable to fulfill
the State's burden of presenting a prima facie case." In re
Registrant G.B., 147 N.J. 62, 81 (1996) (citing In re Registrant,
C.A., 146 N.J. at 107). "[I]t is . . . a useful guide to determine
the amount of notification that a community should receive." Id.
at 69. "Thus, the Scale is presumptively accurate and is to be
afforded substantial weight--indeed it will even have a binding
effect--unless and until a registrant 'presents subjective
criteria that would support a court not relying on the tier
classification recommended by the Scale.'" Id. at 81 (quoting In
re Registrant, C.A., 146 N.J. at 109). "Moreover, '[a]ny
classification that is inconsistent with the classification based
on the Scale is subject to judicial review by either side through
appeal and any finding will have to be supported on the record.'"
Ibid. (alteration in original) (quoting In re Registrant, C.A.,
146 N.J. at 109).
Thus, the RRAS was developed to assist prosecutors and judges
in determining a defendant's initial tier classification and
notification requirements under Megan's Law, not for termination
of CSL. See In re Registrant, C.A., 146 N.J. at 100-01. There
10 A-5376-16T1
is no authority confirming the RRAS should be presumptively valid
for termination of CSL. Although the RRAS may be helpful as part
of a judge's determination of whether a defendant should be
terminated from CSL because the scale indicates "risk of re-
offense[,]" Id. at 107, a court should take a more holistic
approach in evaluating whether a defendant no longer poses a risk
to the community pursuant to N.J.S.A. 2C:43-6.4(c). The RRAS is
a scale, which contains many stagnant factors, and a defendant's
RRAS score will not change significantly despite how much time has
passed re-offense free from the date of his conviction. Id. at
103-04. If we were to hold that the RRAS was presumptively valid
for determining the termination of a registrant's CSL, then the
termination guidelines under N.J.S.A. 2C:43-6.4(c) would be
effectively null, as no registrant would ever be able to
rehabilitate himself sufficiently to change his RRAS score and
have his CSL terminated.
We also conclude the judge mistakenly exercised his
discretion in rejecting Reynolds' undisputed finding that B.B. was
a low risk to reoffend. The judge failed to consider Reynolds'
findings on B.B.'s low risk score on the STATIC-99-R and no risk
scores on the ACUTE-2007 and STABLE-2007. The judge also failed
to consider Reynolds' explanations as to why the ACUTE-2007 and
STABLE-2007 were more appropriate tests to evaluate whether B.B.
11 A-5376-16T1
should be terminated from CSL. The judge ignored Reynolds'
opinions that B.B.'s RRAS score will never be in the low risk
range due to static factors, and that estimating B.B.'s risk level
as always being at least moderate was not scientifically supported.
The judge failed to appropriately and fully consider Reynolds'
amended findings and reasoning as to his opinion that B.B was not
likely to commit another sexual offense, did not present a risk
of harm to others in the community, and should be terminated from
CSL.
Reversed and remanded for entry of an order terminating
defendant from CSL.
12 A-5376-16T1