Justice Fasciale concluded with the following in relevant part: Furthermore, we do not foreclose the possibility that the State may satisfy its burden of proof by relying solely on an Avenel report that found the registrant’s conduct to be a pattern of repetitiveness and compulsiveness for purposes of sentencing. Whether an Avenel report alone provides clear and convincing evidence that a registrant’s conduct was repetitive and compulsive is to be determined on a case-by-case basis by the Megan’s Law judge. See In re Brady (2020) (“Clear-and-convincing evidence is that which produces a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the precise facts at issue.” (alterations and omission in original) (quoting In re Williams (2001))).
Under those circumstances, the State is not required to produce more evidence to meet its burden, but the Megan’s Law judge must make specific factual findings and conclusions about whether the State has met its clear and convincing burden of proof. In other words, the Megan’s Law judge may not rely simply on the Avenel expert’s conclusion in the report to support a finding that the registrant’s conduct was compulsive and repetitive. Instead, the Megan’s Law judge must identify aspects of the report on the record that support the judge’s independent findings and conclusions. See R. 1:7-4(a).
We therefore vacate the judgment of the Appellate Division as to the single issue before us, and we remand for further proceedings consistent with this opinion. Internet publication remains stayed pending remand.
Courts will almost certainly be justified in finding clear and convincing evidence when they can point to aspects of the Avenel report that are substantially like published opinions upholding Megans Law classifications. The State’s experts will likely track the language of these published opinions in writing their reports to avoid evidentiary hearings.
