NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2203-15T1
J.S.,
Appellant, APPROVED FOR PUBLICATION
v. September 26, 2017
NEW JERSEY STATE PAROLE BOARD, APPELLATE DIVISION
Respondent. ______________________________________
Argued May 23, 2017 – Decided September 26, 2017
Before Judges Messano, Espinosa, and Suter.
On appeal from the New Jersey State Parole Board.
James H. Maynard argued the cause for appellant (Maynard & Sumner, LLC, attorneys; Mr. Maynard, on the brief).
Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
J.S. appeals the December 16, 2015 final agency decision of
the New Jersey State Parole Board (Board) that denied his "Petition
for International Parole Transfer" to the country of Sweden. J.S. is subject to the special sentence of community supervision for
life (CSL) required under the Violent Predator Incapacitation Act,
N.J.S.A. 2C:43-6.4,1 for certain offenses. We reverse the Board's
denial because it did not consider whether it could supervise or
monitor J.S.'s compliance with the conditions of CSL or impose
special conditions, but incorrectly concluded that J.S. requested
to terminate CSL, which was error.
In 2002, when he was then twenty-three-years old, J.S. had
sex with a fifteen-year-old, although he alleged not to be aware
of her age. He pled guilty in January 2003, to third-degree
endangering the welfare of a child by engaging in sexual conduct
which would impair or debauch the morals of a child, N.J.S.A.
2C:24-4(a). J.S. was sentenced to three years of probation, to
the registration and notification provisions under Megan's Law,
N.J.S.A. 2C:7-1 to -23, and to CSL, N.J.S.A. 2C:43-6.4. He has
completed probation, but as a Tier One Megan's Law offender, he
is required to register and also remains subject to CSL
requirements.
J.S. is now married to a Swedish citizen and together they
have two children. His wife's family owns a small business in
1 Effective January 14, 2004, N.J.S.A. 2C:43-6.4 was amended. It now provides for "parole supervision for life." L. 2003, c. 267, § 1 (codified at N.J.S.A. 2C:43-6.4(a)).
2 A-2203-15T1 Sweden. J.S. and his wife want to move to Sweden to manage the
business for "a better quality of life for their young children"
and to earn more income. J.S. requested a permanent residence
permit from Sweden. He alleges that he gave the Swedish Migration
Board and the Swedish Embassy "full-disclosure of [his] offense
history, and the terms of [his] supervision." The Swedish
Migration Board granted him "a permanent residence permit . . .
based on family ties."
J.S. filed a Petition for International Parole Transfer with
the Board. On July 8, 2015, the Adult Panel of the Board denied
the application. It asserted that if J.S. were "permitted to
reside in the country of Sweden, [he] will not be under supervision
and will not be under any restrictions which he . . . [is] subject
to under the present conditions of supervision." The effect would
be to "terminate the special sentence of community supervision for
life" which is contrary to the legislature's intent and beyond the
Board's authority to order.
J.S.'s appeal to the full Board was denied on December 16,
2015. The Board agreed with J.S. that he "[was] not requesting
to be transferred to another state, the rules of the Interstate
Compact for Adult Supervision d[id] not apply and that there [were]
no rules that exist[ed] for the international transfer of
parolees." However, the Board observed, "CSL is an essential
3 A-2203-15T1 component of the sentence to ensure the protection of the public
for at least a period of 15 years since the last conviction or
release from incarceration, whichever is later." It "recognize[d]
the statutory mandate that offenders . . . be supervised." The
Board found that permitting J.S. to reside outside of New Jersey
and the United States and in Sweden "without any ability of any
supervision or law enforcement authority to monitor [J.S's]
compliance with the conditions of his CSL is in contravention of
the statute." The Board noted that J.S. had the ability to
"petition the court for a release from CSL in January 2018."
On appeal, J.S. contends the Board erred because the
legislature's purpose in establishing CSL was to "(1) protect the
public and (2) foster rehabilitation," and his relocation to Sweden
with his family would further the legislative intent behind CSL
and was not in conflict with it. He alleges the Board erred in
treating his request as if he were requesting termination of the
CSL requirements. He acknowledged he would "resume" his "duty to
report and be supervised" if he moved back to New Jersey.
An administrative agency's final decision is sustained unless
it is arbitrary, capricious, or unreasonable, unsupported by
substantial credible evidence in the record, or contrary to express
or implied legislative policies. Saccone v. Bd. of Tr. of Police
and Firemen's Ret. Sys., 219 N.J. 369, 380 (2014); Lavezzi v.
4 A-2203-15T1 State, 219 N.J. 163, 171 (2014). We are not "bound by [the]
agency's interpretation of a statute or its determination of a
strictly legal issue[.]" Id. at 173 (quoting Norfolk S. Ry. Co.
v. Intermodel Props., LLC, 215 N.J. 142, 165 (2013)).
J.S. was sentenced to CSL. "Community supervision for life
was 'designed to protect the public from recidivism by defendants
convicted of serious sexual offenses.'" J.B. v. N.J. State Parole
Bd., 433 N.J. Super. 327, 336 (App. Div. 2013), aff'd in part and
mod. in part, 229 N.J. 21 (2017) (quoting Jamgochian v. N.J. State
Parole Bd., 196 N.J. 222, 237-38 (2008)). CSL was enacted in 1994
as part of the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-
6.4, known as "Megan's Law." State v. Hester, 449 N.J. Super.
314, 319 (App. Div. 2017). CSL is a "special sentence" and as
such, it is punitive in nature, not remedial. Ibid.; see State
v. Schubert, 212 N.J. 295, 308 (2012) (concluding "we are satisfied
that N.J.S.A. 2C:43-6.4 is punitive rather than remedial at its
core"); see also State v. Perez, 220 N.J. 423, 441 (2015).
"Persons who have been convicted between 1994 and 2004 of certain
sexual offenses enumerated within N.J.S.A. 2C:43-6.4(a) must serve
in addition to any existing sentence, 'a special sentence' of
'community supervision for life . . . .'" J.B., supra, 433 N.J.
Super. at 336. After 2004, the special sentence is "parole"
supervision for life. Ibid.
5 A-2203-15T1 Under the 1994 Act, an offender sentenced to CSL is
"supervised as if on parole and subject to conditions appropriate
to protect the public and foster rehabilitation." L. 1994, c.
130, § 2(b). The Board promulgated regulations setting forth
general conditions for CSL "subject to any special conditions
established by the appropriate Board panel." N.J.A.C. 10A:71-
6.11(b).
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2203-15T1
J.S.,
Appellant, APPROVED FOR PUBLICATION
v. September 26, 2017
NEW JERSEY STATE PAROLE BOARD, APPELLATE DIVISION
Respondent. ______________________________________
Argued May 23, 2017 – Decided September 26, 2017
Before Judges Messano, Espinosa, and Suter.
On appeal from the New Jersey State Parole Board.
James H. Maynard argued the cause for appellant (Maynard & Sumner, LLC, attorneys; Mr. Maynard, on the brief).
Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
J.S. appeals the December 16, 2015 final agency decision of
the New Jersey State Parole Board (Board) that denied his "Petition
for International Parole Transfer" to the country of Sweden. J.S. is subject to the special sentence of community supervision for
life (CSL) required under the Violent Predator Incapacitation Act,
N.J.S.A. 2C:43-6.4,1 for certain offenses. We reverse the Board's
denial because it did not consider whether it could supervise or
monitor J.S.'s compliance with the conditions of CSL or impose
special conditions, but incorrectly concluded that J.S. requested
to terminate CSL, which was error.
In 2002, when he was then twenty-three-years old, J.S. had
sex with a fifteen-year-old, although he alleged not to be aware
of her age. He pled guilty in January 2003, to third-degree
endangering the welfare of a child by engaging in sexual conduct
which would impair or debauch the morals of a child, N.J.S.A.
2C:24-4(a). J.S. was sentenced to three years of probation, to
the registration and notification provisions under Megan's Law,
N.J.S.A. 2C:7-1 to -23, and to CSL, N.J.S.A. 2C:43-6.4. He has
completed probation, but as a Tier One Megan's Law offender, he
is required to register and also remains subject to CSL
requirements.
J.S. is now married to a Swedish citizen and together they
have two children. His wife's family owns a small business in
1 Effective January 14, 2004, N.J.S.A. 2C:43-6.4 was amended. It now provides for "parole supervision for life." L. 2003, c. 267, § 1 (codified at N.J.S.A. 2C:43-6.4(a)).
2 A-2203-15T1 Sweden. J.S. and his wife want to move to Sweden to manage the
business for "a better quality of life for their young children"
and to earn more income. J.S. requested a permanent residence
permit from Sweden. He alleges that he gave the Swedish Migration
Board and the Swedish Embassy "full-disclosure of [his] offense
history, and the terms of [his] supervision." The Swedish
Migration Board granted him "a permanent residence permit . . .
based on family ties."
J.S. filed a Petition for International Parole Transfer with
the Board. On July 8, 2015, the Adult Panel of the Board denied
the application. It asserted that if J.S. were "permitted to
reside in the country of Sweden, [he] will not be under supervision
and will not be under any restrictions which he . . . [is] subject
to under the present conditions of supervision." The effect would
be to "terminate the special sentence of community supervision for
life" which is contrary to the legislature's intent and beyond the
Board's authority to order.
J.S.'s appeal to the full Board was denied on December 16,
2015. The Board agreed with J.S. that he "[was] not requesting
to be transferred to another state, the rules of the Interstate
Compact for Adult Supervision d[id] not apply and that there [were]
no rules that exist[ed] for the international transfer of
parolees." However, the Board observed, "CSL is an essential
3 A-2203-15T1 component of the sentence to ensure the protection of the public
for at least a period of 15 years since the last conviction or
release from incarceration, whichever is later." It "recognize[d]
the statutory mandate that offenders . . . be supervised." The
Board found that permitting J.S. to reside outside of New Jersey
and the United States and in Sweden "without any ability of any
supervision or law enforcement authority to monitor [J.S's]
compliance with the conditions of his CSL is in contravention of
the statute." The Board noted that J.S. had the ability to
"petition the court for a release from CSL in January 2018."
On appeal, J.S. contends the Board erred because the
legislature's purpose in establishing CSL was to "(1) protect the
public and (2) foster rehabilitation," and his relocation to Sweden
with his family would further the legislative intent behind CSL
and was not in conflict with it. He alleges the Board erred in
treating his request as if he were requesting termination of the
CSL requirements. He acknowledged he would "resume" his "duty to
report and be supervised" if he moved back to New Jersey.
An administrative agency's final decision is sustained unless
it is arbitrary, capricious, or unreasonable, unsupported by
substantial credible evidence in the record, or contrary to express
or implied legislative policies. Saccone v. Bd. of Tr. of Police
and Firemen's Ret. Sys., 219 N.J. 369, 380 (2014); Lavezzi v.
4 A-2203-15T1 State, 219 N.J. 163, 171 (2014). We are not "bound by [the]
agency's interpretation of a statute or its determination of a
strictly legal issue[.]" Id. at 173 (quoting Norfolk S. Ry. Co.
v. Intermodel Props., LLC, 215 N.J. 142, 165 (2013)).
J.S. was sentenced to CSL. "Community supervision for life
was 'designed to protect the public from recidivism by defendants
convicted of serious sexual offenses.'" J.B. v. N.J. State Parole
Bd., 433 N.J. Super. 327, 336 (App. Div. 2013), aff'd in part and
mod. in part, 229 N.J. 21 (2017) (quoting Jamgochian v. N.J. State
Parole Bd., 196 N.J. 222, 237-38 (2008)). CSL was enacted in 1994
as part of the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-
6.4, known as "Megan's Law." State v. Hester, 449 N.J. Super.
314, 319 (App. Div. 2017). CSL is a "special sentence" and as
such, it is punitive in nature, not remedial. Ibid.; see State
v. Schubert, 212 N.J. 295, 308 (2012) (concluding "we are satisfied
that N.J.S.A. 2C:43-6.4 is punitive rather than remedial at its
core"); see also State v. Perez, 220 N.J. 423, 441 (2015).
"Persons who have been convicted between 1994 and 2004 of certain
sexual offenses enumerated within N.J.S.A. 2C:43-6.4(a) must serve
in addition to any existing sentence, 'a special sentence' of
'community supervision for life . . . .'" J.B., supra, 433 N.J.
Super. at 336. After 2004, the special sentence is "parole"
supervision for life. Ibid.
5 A-2203-15T1 Under the 1994 Act, an offender sentenced to CSL is
"supervised as if on parole and subject to conditions appropriate
to protect the public and foster rehabilitation." L. 1994, c.
130, § 2(b). The Board promulgated regulations setting forth
general conditions for CSL "subject to any special conditions
established by the appropriate Board panel." N.J.A.C. 10A:71-
6.11(b). Under the regulations, the offender is to "[r]eside at
a residence approved by the assigned parole officer" and must
"[o]btain the permission of the assigned parole officer prior to
any change of residence." Moreover, permission must be obtained
"prior to leaving the state of the approved residence for any
purpose." Ibid. There are no provisions that address international
travel.2
When J.S. committed the offense, the statute provided that a
"person sentenced to a term of community supervision for life may
petition the Superior Court for release from community
supervision." L. 1994, c. 130, § 2(c). The court could grant the
application "only upon proof that the person has not committed a
crime for [fifteen] years since last conviction or release from
incarceration, whichever is later, and that person is not likely
2 Other Board regulations address the state-to-state transfer of parole supervision, which is not an issue here. See N.J.A.C. 10A:71-6.10.
6 A-2203-15T1 to pose a threat to the safety of others if released from
supervision." Ibid.
The Board treated J.S's petition as if he were asking to
terminate CSL. We agree with the Board that CSL may be terminated
only upon application to the Superior Court and not by the Board.
However, we also agree with J.S. that his petition was to transfer
supervision based on a proposed change in residence and not to
terminate CSL.
The Board's decision assumed that because J.S. requested to
reside in Sweden, he would be residing there "without any ability
of any supervision or law enforcement authority to monitor [J.S.'s]
compliance with the conditions of his CSL . . . in contravention
of the statute" that requires supervision for at least fifteen
years. However, the level of actual supervision to which J.S. is
subject is unclear, including the frequency in which he is required
to report to or meet with a parole officer, to take a polygraph
or the means utilized to ensure his compliance with the conditions
of his CSL.
It was error not to consider if appropriate supervision of
J.S. could continue. In Sanchez v. N.J. State Parole Bd., 368
N.J. Super. 181 (App. Div.), certif. granted, 182 N.J. 140 (2004),
appeal dismissed, 187 N.J. 487 (2006), we reversed a decision by
the Parole Board denying petitioner's request to live in New York
7 A-2203-15T1 State. New York declined the Board's request to accept supervision
of petitioner because of our Board's limitation in enforcement if
the petitioner violated conditions of his release or supervision.
In reversing the Board, we held that if the petitioner has "good
cause" to move to another state and that state will not accept
supervision, this was "an insufficient reason for keeping a CSL
defendant here." Id. at 188. "The spirit of the original Megan's
Law is best served by interpreting it to permit CSL defendants who
otherwise qualify for residence in another state under [the then
current parole transfer rules] to live in that state even if that
state declines supervision." Ibid. We held that "the Parole
Board may make the change in residence subject to conditions
appropriate to protect the public and foster rehabilitation." Id.
at 188-89.
It may be that there are adequate procedures to supervise
J.S. consistent with his level of risk and the manner in which he
is currently supervised, but the record is devoid of any
information about his level of supervision or how that may or may
not be able to continue because the Board simply assumed his
petition was one for termination and not for permission to transfer
residence and supervision. The Board has the ability to impose
conditions appropriate for the protection of the public and for
rehabilitation. It certainly had the ability to require J.S. to
8 A-2203-15T1 suggest appropriate conditions. However, on this record, the
Board did not undertake an informed consideration of any conditions
that might be appropriate before denying J.S.'s application. We
deem arbitrary the Board's decision to reject summarily J.S.'s
request by treating it as an application to terminate CSL without
considering the merits of his application.
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
9 A-2203-15T1