The opinion of the court was delivered by
SIMONELLI, J.A.D.
Appellant J.I. is a convicted sex offender who is monitored by respondent New Jersey State Parole Board (Board) as an offender subject to community supervision for life (CSL), N.J.S.A. 2C:43-6.4.
We begin our analysis with a review of the pertinent authority and factual background. "CSL is a component of the Violent Predator Incapacitation Act, which is also a component of a series of laws, enacted in 1994, commonly referred to as `Megan's Law.'" State v. Perez, 220 N.J. 423, 436-37, 106 A.3d 1212 (2015). CSL is a special sentence imposed on sex offenders "to protect the public from recidivism by sexual offenders." Id. at 437, 106 A.3d 1212. Accordingly, offenders sentenced to CSL are supervised by the Division of Parole as if on parole and may be subject to "conditions appropriate to protect the public and foster rehabilitation," N.J.S.A. 2C:43-6.4, and special conditions deemed reasonable by the Board "in order to reduce the likelihood of recurrence of criminal or delinquent behavior, including a requirement that the parolee comply with the Internet access conditions set forth in [N.J.S.A. 30:4-123.59(b)(2)]." N.J.S.A. 30:4-123.59(b); see also N.J.A.C. 10A:71-6.4 and -6.11(b). In addition, the District Parole Supervisor (DPS) may impose special conditions if he or she determines that "such conditions would reduce the likelihood of recurrence of criminal behavior." N.J.A.C. 10A:71-6.11(k); see also N.J.S.A. 30:4-123.59(b). If an offender violates a condition, he or she may be subject to the imposition of additional special conditions. N.J.S.A. 30:4-123.60(a) and -123.61(b). There should be "a reasonable relationship between the special condition and the prior criminal acts of the particular parolee." Pazden v. N.J. State Parole Bd., 374 N.J.Super. 356, 367, 864 A.2d 1136 (App.Div.2005).
An offender is entitled to constitutional due process protections of notice and an opportunity to object to the conditions. J.B. v. N.J. State Parole Bd., 433 N.J.Super. 327, 338, 79 A.3d 467 (App.Div. 2013), certif. denied sub nom, B.M. v. N.J. State Parole Bd., 217 N.J. 296, 88 A.3d 192
We have recognized that convicted sex offenders are "generally subject to a constitutionally-permissible degree of continued governmental oversight and diminished personal autonomy when they are on parole or some other form of post-release supervision." Id. at 337, 79 A.3d 467. Subject to certain "recognized limitations," which include an offender's right to procedural fairness, freedom of speech, and freedom of association, "the State has a strong interest in assuring that parolees adhere to the conditions of their parole." Id. at 337-39, 79 A.3d 467. Thus, constitutional challenges to conditions of a CSL sentence "must be examined in the context of [the challengers'] distinctive status as sex offenders who have been released into the community after serving their custodial sentences, and who are now under the Parole Board's continued supervision through CSL[.]" Id. at 336, 79 A.3d 467.
There are statutory and regulatory mechanisms that permit an offender to obtain modification or removal of a condition. See N.J.S.A. 30:4-123.59(c) (permitting the Board panel to relieve an offender of a parole condition); N.J.S.A. 30:4-123.61(c) (permitting an offender to apply to the Board's designated representative for modification of the conditions of parole); N.J.A.C. 10A:71-6.6 (permitting the Board panel or Board to modify or vacate a condition of parole); and N.J.A.C. 10A:71-6.11(b)(22) (permitting an offender serving a CSL sentence to apply to the DPS to modify the condition prohibiting use of a computer and/or device with Internet capabilities to access social networking websites). A modification or removal of a condition must be consistent with the offender's rehabilitative efforts. See Pazden, supra, 374 N.J.Super. at 366-67, 864 A.2d 1136.
The record in this case reveals that in October 2003, J.I. was convicted on one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The charges stemmed from his repeated sexual molestation of his daughters, who were between the ages of six and fourteen. The trial court imposed a seven-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court determined that J.I.'s conduct was characterized by a pattern of repetitive and compulsive behavior and recommended that he be committed to the Adult Diagnostic and Treatment Center (ADTC) in Avenel. The court also ordered J.I. to comply with the post-release requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23, imposed a three-year term of mandatory
In November 2007, the Board decided to impose a general condition on all sex offenders under supervised release that prohibited them from engaging in social networking on the Internet. Thereafter, in December 2007, the Legislature amended N.J.S.A. 2C:43-6.4, effective February 25, 2008, to add a provision permitting the Board to impose a special condition on offenders serving a CSL sentence prohibiting them
The statute specifies other special computer conditions, including requiring the offender to submit to periodic unannounced examinations of his or her computer, install a monitoring device on his or her computer, and disclose all passwords. N.J.S.A. 2C:43-6.4(f)(1)-(5).
In October 2009, J.I. was released from the ADTC, commenced serving his MPS, and received notice that he could not engage in social networking on the Internet. Three months later, on January 7, 2010, J.I.'s parole officer visited his home, searched his computer, and found that he had visited multiple pornography and nudism Internet websites that depicted minor females in the nude. The parole officer also found alcohol and several "barely legal" DVDs, and a book depicting nude pre-teen and underage teen females. J.I. admitted that he had been searching the Internet for pictures, videos, and books showing nude minor females between ten and twelve years of age.
J.I.'s sex offender treatment provider determined that the discovered items were not conducive to J.I.'s rehabilitation and reintegration into society. As a result, in March 2010, the DPS imposed the following special conditions:
In September 2010, the Board adopted a new regulation, N.J.A.C. 10A:71-6.11(b)(22), effective December 6, 2010, which added a general condition prohibiting all offenders serving a CSL sentence "from using any computer and/or device to create any social networking profile or to access any social networking service or chat room in the offender's name or any other name for any reason unless expressly authorized by the [DPS]" (the social networking condition).
In October 2010, while he was still on MPS, J.I. was found to be in possession of a cellular phone with Internet capabilities and found to have accessed a social networking website without the DPS's permission. These violations, along with J.I.'s prior admission to accessing the Internet to view nude photographs of minor females, resulted in a revocation of his MPS and referral to the ADTC for a psychological evaluation. After reviewing the results of the psychological evaluation, the Board panel imposed a twelve-month future eligibility term (FET) for J.I.'s MPS.
In October 2012, J.I. was released from MPS and commenced serving his CSL sentence. Prior thereto, he received a written notice of general and special CSL conditions, which included the social networking condition, and his parole officer orally advised him that he was subject to the computer/Internet special condition. J.I. later acknowledged receipt of the written computer/Internet, pornography and alcohol special conditions.
J.I. asked the DPS for permission to use a computer to access social networking websites for employment and work purposes. The DPS granted the request and modified the social networking condition and computer/Internet special condition to permit J.I. to use a computer and access social networking websites for employment and work purposes only, subject to J.I. installing monitoring software. The DPS declined to permit J.I. to access any non-employment/work-related social networking websites, citing the Board panel's April 2010 affirmance of the computer/Internet special condition imposed during J.I.'s MPS term and the fact that J.I. viewed pornographic material on the Internet and possessed alcohol, which were found to be non-conducive to his rehabilitation and reintegration into society. The DPS determined that the computer/Internet, pornography and alcohol special conditions would reduce the likelihood of J.I.'s recidivism and therefore protect the public safety and welfare. The Board panel affirmed the special conditions.
Less than two months after receiving the modified conditions, J.I. violated them by accessing non-employment/work-related websites. Despite repeated warnings and admonitions from the DPS, J.I. violated the modified conditions on three separate occasions. After the fourth violation, the DPS revoked the modified conditions and prohibited J.I. from using any device having Internet capabilities and accessing any social networking websites and the Internet.
J.I. ultimately appealed to the Board. In an October 29, 2014 written decision, the Board made detailed factual findings and concluded that the social networking condition and the computer/Internet, pornography and alcohol special conditions
The Board also found that the revocation of J.I.'s MPS for violating the social networking condition and computer/Internet special condition, and his admission to searching the Internet for nude pictures, videos and books of minor females between the ages of ten and twelve, were "both serious and concerning in light of the circumstances of his commitment offense."
The Board noted that the DPS granted J.I.'s request to modify the social networking condition and computer/Internet special condition to permit J.I. to use a computer and access the Internet and social networking websites for employment/work-related purposes, but revoked them because J.I. violated them on four separate occasions. Thus, the Board concluded that J.I.'s "failure to comply with the privilege of being permitted to utilize the Internet only for employment/work purposes and his willful disregard to limit his Internet use solely for employment/work purposes despite being warned and admonished on multiple occasions is both serious and concerning." Accordingly, the Board upheld the revocation of the modified conditions and the prohibition on J.I.'s use of a device having Internet capabilities and accessing social networking websites and the Internet. The Board permitted J.I. to regain access in the future if his rehabilitation improved.
The Board rejected J.I.'s argument that the social networking condition and computer/Internet special condition were too restrictive, noting there was a mechanism for him to request permission to use a computer and access the Internet and social networking websites. The Board stated,
The Board also rejected J.I.'s request for a hearing, finding that pursuant to Jamgochian, supra, the conditions did not constitute an infringement on his liberty interest that would warrant a hearing.
On appeal, J.I. contends that N.J.A.C. 10A:71-6.11(b)(22), the social networking condition, is unconstitutional on
We rejected similar facial challenges in J.B., supra, where two appellants challenged the social networking restriction. 433 N.J.Super. at 335, 79 A.3d 467. In J.B., we analyzed both N.J.A.C. 10A:71-6.11(b)(22), which the Board imposes on all offenders, and the computer/Internet restrictions in N.J.S.A. 2C:43-6.4(f), which the Board may impose on an offender, and determined that
Moreover, after evaluating comparable Internet restrictions in other jurisdictions, we found that "the Internet restrictions adopted here by the Parole Board have been constitutionally tailored to attempt to strike a fair balance" and "are reasonably crafted on their face to promote important State interests." Id. at 344-46, 79 A.3d 467. Therefore, we held that N.J.A.C. 10A:71-6.11(b)(22) and N.J.S.A. 2C:43-6.4(f) were facially valid under the First Amendment, the Due Process Clause, and the New Jersey Constitution, "subject to the right of appellants or other offenders who are subject to a CSL ... condition to pursue permission from a parole official to gain access to a specified website for a benign purpose." Id. at 344, 346, 79 A.3d 467. We declined to presume, in the abstract, that the Board or an individual DPS would respond to an offender's request for a modification "rigidly or unfairly." Id. at 344, 79 A.3d 467. Thus, we concluded that "this procedural avenue should be exhausted first, subject to the right of an offender to bring a future as-applied constitutional challenge if necessary." Ibid.
J.I. argues that J.B. does not apply because it only involved a ban on access to social networking websites not, as here, an absolute ban from using any Internet-capable device and accessing any social networking websites or the Internet imposed on offenders, like him, whose crimes were not Internet-related.
Nonetheless, an offender is entitled to constitutional due process protections of notice and an opportunity to object to the conditions and request broader Internet access. Id. at 338, 79 A.3d 467. Here, J.I. received notice of the social networking condition and computer/Internet special condition. He requested, and was granted, modifications to use an Internet-capable device and access social networking websites for employment/work-related purposes. He challenged the conditions and revocation of the modified conditions in his various administrative appeals. The Board also afforded him the opportunity to regain Internet access in the future if he could show such access is consistent with his rehabilitative efforts. Based on the record, we are satisfied there was no due process violation in this case.
J.I. also raises as-applied challenges to N.J.A.C. 10A:71-6.11(b)(22). He argues that the 2010 amendment to the regulation violates the Ex Post Facto Clause because the amendment was enacted after the trial court imposed his CSL sentence. This contention lacks merit.
The Ex Post Facto Clause of the United States Constitution prohibits "any statute which punishes ... an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available ... at the time when the act was committed[.]" Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 68, 70 L.Ed. 216, 217 (1925). The Ex Post Facto Clause is "aimed at laws that `retroactively alter the definition of crimes or increase the punishment for criminal acts.'" Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588, 594 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30, 39 (1990)). To constitute an ex post facto penal law, a change in the law "`must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.'" State v. Natale, 184 N.J. 458, 491, 878 A.2d 724 (2005) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23 (1981)). "There is `no ex post facto violation ... if the change in the law is merely procedural and does not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.'" Ibid. (quoting Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 2452-53, 96 L.Ed.2d 351, 362 (1987)) (internal quotation marks omitted). "New Jersey's ex post facto jurisprudence follows the federal jurisprudence." Perez, supra, 220 N.J. at 439, 106 A.3d 1212.
In making this inquiry, the Court noted its holding in Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), that the imposition of the post-release registration and notification requirements of Megan's Law did not constitute punishment and, therefore, did not violate ex post facto prohibitions. Ibid. In contrast, in State v. Schubert, 212 N.J. 295, 53 A.3d 1210 (2012), the Court recognized "the punitive nature of CSL" and "determined that a trial court could not modify a previously imposed sentence to include CSL once the defendant had completed his sentence." Perez, supra, 220 N.J. at 440, 106 A.3d 1212.
As the defendant in Perez was already sentenced to CSL at the time N.J.S.A. 2C:43-6.4 was amended, id. at 436, 106 A.3d 1212 the Court considered whether the change to his CSL sentence "enhance[d] the punitive consequences of the special sentence of CSL to his detriment" so as to "violate[] the federal and state prohibition of ex post facto legislation." Id. at 442, 106 A.3d 1212. Ultimately, because application of the amendment would have required the defendant "to spend many additional years in prison," the Court concluded it was punitive and, thus, violated the Ex Post Facto Clause. Ibid.
Here, at the time N.J.A.C. 10A:71-6.11(b)(22) was enacted, J.I. was not serving his CSL sentence and was not subject to any CSL conditions. In fact, no CSL conditions could have been imposed until J.I.'s CSL sentence commenced in 2012. See N.J.A.C. 10A:71-6.11(b) (providing that the special sentence of CSL commences upon completion of the offender's sentence). Thus, the amendment raised no ex post facto concerns because it did not change the conditions of J.I.'s CSL sentence. More importantly, the amendment is remedial in purpose and effect, not punitive. It is aimed at protecting the public from sex offenders, fostering rehabilitation, and reducing the likelihood of recidivism. The amendment, therefore, poses no ex post facto concerns. See Poritz, supra, 142 N.J. at 43-44, 662 A.2d 367.
The non-punitive nature of the amendment is clear in this case. The Board's purpose in imposing the social networking condition was to protect society from a person who sexually molested his own children and to facilitate J.I.'s rehabilitation and reintegration into society, not to punish him. It is for this latter reason that the Board permitted J.I. to continue to seek to modify or remove the condition, and such future requests would be evaluated in light of whether they are consistent with his rehabilitative efforts. We, therefore, conclude that N.J.A.C. 10A:71-6.11(b)(22) does not violate the Ex Post Facto Clause.
J.I. contends that the Board's decision to uphold all of the conditions was arbitrary, capricious and unreasonable.
Our review of the Board's decisions is limited. Hare v. N.J. State Parole Bd., 368 N.J.Super. 175, 179, 845 A.2d 684 (App.Div.), certif. denied, 180 N.J. 452, 852 A.2d 189 (2004). "Parole Board decisions are highly individualized discretionary appraisals, and should only be reversed if found to be arbitrary or capricious." Id. at 179-80, 845 A.2d 684 (citations and internal quotation marks omitted). As directed by our Supreme Court, our task is to determine
Thus, where the Board has applied the correct legal standard, our role is limited to determining whether the decision was arbitrary, capricious or unreasonable. McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563, 790 A.2d 974 (App. Div.2002). We "must determine whether the factual finding could reasonably have been reached on sufficient credible evidence in the whole record." Hare, supra, 368 N.J.Super. at 179, 845 A.2d 684. In making this determination, we "may not substitute [our] judgment for that of the agency, and an agency's exercise of its statutorily-delegated responsibilities is accorded a strong presumption of reasonableness." McGowan, supra, 347 N.J.Super. at 563, 790 A.2d 974 (citation omitted). Accordingly, "[t]he burden of showing that an action was arbitrary, unreasonable or capricious rests upon the appellant." Ibid.
Applying these standards, we discern no reason to disturb the Board's decision. J.I. repeatedly sexually assaulted his minor daughters for many years and the court deemed him a repetitive and compulsive sex offender. Despite serving a lengthy sentence at the ADTC, less than three months after his release, and knowing he was subject to the social networking condition, J.I. accessed multiple pornography sites to view minor females in the nude. He also possessed DVDs and a book depicting nude pre-teen and underage teen females and possessed alcohol. The computer/Internet, pornography and alcohol special conditions were imposed as a result of a determination by J.I.'s sex offender treatment providers that the discovered items were not conducive to his rehabilitation and reintegration into society. Thus, there was a reasonable relationship between the special conditions and J.I.'s prior criminal acts, and the conditions were reasonable in order to reduce the likelihood of his recidivism and consistent with protecting the public safety and welfare and fostering his rehabilitation.
In addition, J.I.'s post-release conduct and repeated violations of the modified social networking condition and computer/Internet special condition indicate he has not rehabilitated and continues to pose a risk to public safety and welfare. We conclude that the record more than amply supports the Board's decision to uphold the ban on J.I.'s use of an Internet-capable device and access to the Internet and the
J.I. contends that the Board violated his right to due process by denying him discovery and a hearing. We have considered this contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). A convicted sex offender is entitled to constitutional due process protections of notice and an opportunity to object to the conditions and request broader Internet access, J.B., supra, 433 N.J.Super. at 338, 79 A.3d 467 not the full panoply of rights available to a citizen in a criminal trial. Jamgochian, supra, 196 N.J. at 242, 952 A.2d 1060. J.I. received all the due process to which he was entitled.
Affirmed.
