RECORD IMPOUNDED

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 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-5376-16T1

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. 
3 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 
4 A-5376-16T1

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.
5 A-5376-16T1

without citing specific support for his assertion that these 

instruments have substantial support in professional and peerreviewed 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 
6 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 nonrelative 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 reoffense 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
7 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 
8 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. 
9 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 
10 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 
11 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 reoffense[,]" 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. 
12 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.