RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1293-14T2
J.I., APPROVED FOR PUBLICATION Appellant, August 11, 2015 v. APPELLATE DIVISION
NEW JERSEY STATE PAROLE BOARD,
Respondent. ________________________________
Argued telephonically April 15, 2015 – Decided August 11, 2015
Before Judges Sabatino, Simonelli and Guadagno.
On appeal from the New Jersey State Parole Board.
Joseph S. Murphy argued the cause for appellant (Murphy & Woyce, attorneys; Mr. Murphy and Michael C. Woyce, on the briefs).
Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).
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:43-6.4.1 J.I. challenges the constitutionality of
conditions of his CSL sentence that prohibit him from using any
device having Internet capabilities, accessing any social
networking websites or the Internet, viewing or possessing
pornography, and using, possessing and purchasing alcohol. J.I.
also challenges the Board's denial of his request for a hearing.
For the reasons that follow, we reject J.I.'s challenges and
affirm.
I.
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 (2015).
CSL is a special sentence imposed on sex offenders "to protect
the public from recidivism by sexual offenders." Id. at 437.
Accordingly, offenders sentenced to CSL are supervised by the
Division of Parole as if on parole and may be subject to
1 In 2003, the Legislature amended N.J.S.A. 2C:43-6.4 to change CSL to parole supervision for life (PSL), effective January 14, 2004. L. 2003, c. 267, § 1. Because J.I. was convicted of sexual offenses prior to January 14, 2004, he was sentenced to CSL. See N.J.A.C. 10A:71-6.11(a).
2 A-1293-14T2 "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 (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 (App. Div. 2013), certif. denied sub nom, B.M. v. N.J. State
Parole Bd., 217 N.J. 296 (2014). However, the offender's
3 A-1293-14T2 special status "[does] not entitle him to the 'full panoply of
rights' available to a citizen in a criminal trial." Ibid.
(quoting Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 242
(2008)). The offender "[is] nonetheless constitutionally
protected from 'arbitrary government action.'" Ibid. (quoting
Jamgochian, supra, 196 N.J. at 241-42). As we have held,
in this context, due process and procedural fairness must be applied flexibly, for the Constitution does not mandate a regime that will make it impractical to impose a necessary . . . provision to protect the public or rehabilitate the offender. Moreover, [d]iscretion must be invested in the Parole Board, which has the agency expertise and authority to implement a scheme that can address the unique circumstances of each case.
[Ibid. (alteration in original) (quoting Jamgochian, supra, 196 N.J. at 246, 250) (internal quotation marks omitted).]
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. 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-
4 A-1293-14T2 39. 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.
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.
The record in this case reveals that in October 2003, J.I.
was convicted on one count of second-degree sexual assault,
5 A-1293-14T2 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 parole supervision (MPS) to
commence upon his release from imprisonment, and imposed a
special sentence of CSL to commence upon his release from MPS.
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
from accessing or using a computer or any other device with Internet capability
6 A-1293-14T2 without the prior written approval of the court except the person may use a computer or any other device with Internet capability in connection with that person's employment or search for employment with the prior approval of the person's parole officer[.]
[N.J.S.A. 2C:43-6.4(f); see also L. 2007, c. 219, § 3.]
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
7 A-1293-14T2 reintegration into society. As a result, in March 2010, the DPS
imposed the following special conditions:
1. [J.I.] is to refrain from the possession and/or utilization of any computer and/or device that permits access to the Internet unless specifically authorized by the [DPS] and that if the DPS permits the use of a computer and/or device that is capable of accessing [the Internet] that [J.I.] is subject to certain conditions, including that [J.I.] is to refrain from accessing the Internet from any computer and/or device at any time or for any reason [(the computer/Internet special condition)];
2. [J.I.] is to refrain from viewing or possessing a picture, photograph, negative film, movie, videotape, DVD, CD, CD-ROM, streaming video, computer generated or virtual image or other representation, publication, sound recording or live performance that is predominantly oriented to descriptions or depictions of sexual activity [(the pornography special condition)]; and
3. [J.I.] is to refrain from the use, possession and purchase of alcohol; [J.I.] is to refrain from frequenting establishments whose primary purpose is the sale of alcohol (i.e., bars and liquor stores); and [J.I.] is to participate in random alcohol monitoring acceptable to the District Parole Office until discharged [(the alcohol special condition)].
The Board panel affirmed these 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
8 A-1293-14T2 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).2 See also 42 N.J.R. 2960(a) (Dec.
6, 2010). The new regulation permitted an offender to apply to
the DPS to modify this condition. N.J.A.C. 10A:71-6.6; see also
N.J.A.C. 10A:71-6.11(b)(22).
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
2 A 2012 amendment to N.J.A.C. 10A:71-6.11(b)(22) provided certain definitions, including the definition of "social networking service." See 44 N.J.R. 30(a) (Jan. 3, 2012).
9 A-1293-14T2 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.
10 A-1293-14T2 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
were consistent with protecting the public and fostering J.I.'s
rehabilitation. Specifically, the Board found as follows:
[J.I.'s] commitment [of the] offenses . . . involved him sexually molesting his . . . daughters; that [J.I.] was determined to be a repetitive and compulsive sex offender; and that just after three months of serving a lengthy sentence in the [ADTC] [J.I.] was found to be in possession of multiple "barely legal" DVDs and a book depicting pre-teen and underage teen females in the nude, as well as alcohol; that a search of [J.I.'s] computer revealed he had been visiting multiple pornography and nudism sites on the Internet, which depicted minors in the nude; and that [J.I.] admitted in a voluntary statement that he was searching the Internet to find nude pictures, videos and books of minor females between the ages of ten . . . and twelve[.]
11 A-1293-14T2 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.
12 A-1293-14T2 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 Division of Parole requires [J.I.] to provide the nature and purpose of each request for computer/Internet use or social networking. Such a process allows the Division of Parole to review each request on a case-by-case basis and to review the supporting documentation submitted to determine whether the request is consistent with [J.I.'s] rehabilitative efforts. Therefore, the Board finds [J.I.'s] contentions to be without merit and advises that such requests for approval to engage in computer/Internet or social networking usage should be directed by [J.I.] to the Division of Parole in order for the Division . . . to determine whether the request is consistent with [J.I.'s] rehabilitative efforts.
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.
II.
On appeal, J.I. contends that N.J.A.C. 10A:71-6.11(b)(22),
the social networking condition, is unconstitutional on its
face. He argues that the absolute ban on using any device with
Internet capabilities and on accessing any social networking
13 A-1293-14T2 websites and the Internet for an offender who never committed an
Internet-related offense is overbroad and violates his right to
due process and to freedom of speech and association under the
First Amendment.3
We rejected similar facial challenges in J.B., supra,
where two appellants challenged the social networking
restriction. 433 N.J. Super. at 335. 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
[t]he manifest objective of the Internet restrictions in the authorizing statute and the Parole Board's regulations is not to eliminate the ability of released offenders on PSL or CSL to access the Internet in its entirety. Instead, the provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussions on the Internet with children or strangers who might fall prey to their potential recidivist behavior.
[Id. at 341.]
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
3 U.S. Const. amend. I.
14 A-1293-14T2 reasonably crafted on their face to promote important State
interests." Id. at 344-46. 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. 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. 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.4
4 Relying on United States v. Albertson, 645 F.3d 191 (3d Cir.), cert. denied, ___ U.S. ___, 131 S. Ct. 3045, 180 L. Ed. 2d 862 (2011), United States v. Heckman, 592 F.3d 400 (3d Cir. 2010), and United States v. Voelker, 489 F.3d 139 (3d Cir. 2007), J.I. argues that the absolute ban is unconstitutional. Rulings by federal circuit courts of appeals are not binding upon us. (continued)
15 A-1293-14T2 We disagree with this argument. First, the two appellants in
J.B. who challenged the social networking condition were not
convicted of Internet-related crimes and we upheld the condition
as to them nonetheless. Id. at 331, 333, 335-36. Second,
although those two appellants only challenged the social
networking condition, see id. at 332, 334, we analyzed the
computer and Internet restrictions in N.J.S.A. 2C:43-6.4(f) as
well and upheld the facial validity of both provisions. Id. at
341, 344-46. Thus, our affirmance of the Internet-access
restrictions should not be narrowly construed as to only apply
to the social networking restriction. Accordingly, we reject
J.I.'s facial challenges to N.J.A.C. 10A:71-6.11(b)(22) and
confirm our decision in J.B. that both the regulation and
N.J.S.A. 2C:43-6.4(f) are constitutionally valid on their face.
We make clear that our holding here applies to all offenders
serving a CSL sentence, regardless of the nature of their
crimes.
(continued) Young v. Prudential Ins. Co. of Am., 297 N.J. Super. 605, 622 (App. Div.), certif. denied, 149 N.J. 408 (1997). In any event, the cases do not apply, as they were not decided on constitutional grounds, but rather, on federal statutory grounds not raised here, and do not involve a sex offender, such as J.I., who viewed pornography on the Internet while on parole. See Albertson, supra, 645 F.3d at 194, 197; Heckman, supra, 592 F.3d at 404, 409; Voelker, supra, 489 F.3d at 143-44.
16 A-1293-14T2 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.
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.
III.
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,
17 A-1293-14T2 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
(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.
18 A-1293-14T2 In Perez, the Court noted that the 2003 amendment to
N.J.S.A. 2C:43-6.4 changed CSL to PSL and increased the
punishment for a CSL offender who commits a sex offense while
serving a CSL sentence by eliminating the possibility of parole
and requiring him or her to serve a mandatory extended term with
no parole eligibility. Id. at 437-38. The Court considered
whether the amendment could be retroactively applied to such an
offender. Id. at 436-38. The Court found that resolution of
this issue "turn[ed] on whether the . . . amendment [made] more
burdensome the punishment of a crime after its commission.
[This] inquiry turn[ed] on whether the special sentencing
condition of CSL [was] considered penal or remedial." Id. at
440.
In making this inquiry, the Court noted its holding in Doe
v. Poritz, 142 N.J. 1 (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 (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.
19 A-1293-14T2 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, 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. 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.
20 A-1293-14T2 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.
IV.
J.I. contends that the Board's decision to uphold all of
the conditions was arbitrary, capricious and unreasonable. He
argues there was no reasonable basis for the absolute ban on his
use of an Internet-capable device or access to any social
networking website and the Internet, and the pornography and
alcohol special conditions are unrelated to his rehabilitation
or public safety and welfare. We disagree.
Our review of the Board's decisions is limited. Hare v.
N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div.),
certif. denied, 180 N.J. 452 (2004). "Parole Board decisions
are highly individualized discretionary appraisals, and should
21 A-1293-14T2 only be reversed if found to be arbitrary or capricious." Id.
at 179-80 (citations and internal quotation marks omitted). As
directed by our Supreme Court, our task is to determine
(1) whether the agency's action violates express or implied legislative policy, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001).]
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 (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. 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
(citation omitted). Accordingly, "[t]he burden of showing that
22 A-1293-14T2 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
23 A-1293-14T2 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
decision is not arbitrary, capricious or unreasonable.
V.
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
conditions and request broader Internet access, J.B., supra, 433
N.J. Super. at 338, not the full panoply of rights available to
a citizen in a criminal trial. Jamgochian, supra, 196 N.J. at
242. J.I. received all the due process to which he was
entitled.
Affirmed.
24 A-1293-14T2