M.M v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.M.,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

___________________

September 21, 2015

Submitted June 16, 2015 Decided

Before Judges Alvarez and Simonelli.

On appeal from the New Jersey State Parole Board.

M.M., appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant M.M. is a convicted sex offender who is monitored by respondent New Jersey State Parole Board (Board) as an offender subject to parole supervision for life (PSL), N.J.S.A. 2C:43-6.4.1 M.M. challenges a condition of his PSL sentence that prohibits him from using, possessing and purchasing alcohol. For the reasons that follow, we affirm.

We begin our analysis with a review of the pertinent authority and factual background. PSL is a special sentence imposed on sex offenders "'to protect the public and foster rehabilitation.'" J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327, 337 (App. Div. 2013) (quoting N.J.S.A. 2C:43-6.4(b)), certif. denied sub nom, B.M. v. N.J. State Parole Bd., 217 N.J. 296 (2014). Accordingly, offenders sentenced to PSL "are supervised by the Division of Parole of the State Parole Board as if on parole and may be subject to conditions appropriate to protect the public and foster rehabilitation." Ibid. (citations and internal quotation marks omitted); see also N.J.A.C. 10A:71-6.12(c).

In addition to general conditions of parole, N.J.A.C. 10A:71-6.12(d), offenders sentenced to PSL are subject to additional special conditions imposed by the appropriate Board panel or sentencing court. N.J.A.C. 10A:71-6.12(c). A special condition prohibiting an offender from purchasing, using, and possessing alcohol must be imposed

[i]f the sentencing court determines that the conduct of the [offender] was characterized by a pattern of repetitive and compulsive behavior and if upon release from confinement the appropriate county prosecutor determines pursuant to N.J.S.A. 2C:7-8 that the offender is a high risk to re-offend and the appropriate court affirms the determination of the county prosecutor[.]

[N.J.A.C. 10A:71-6.12(h).]

Additional special conditions, including an alcohol special condition, may be imposed if it is determined that "such conditions would reduce the likelihood of recurrence of criminal behavior." N.J.A.C. 10A:71-6.12(n). If an offender violates a general or special 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).

An offender is entitled to constitutional due process protections of notice and an opportunity to object to the conditions. J.B., supra, 433 N.J. Super. at 338. However, the offender's 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 337-39. Thus, constitutional challenges to conditions of a PSL 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 . . . PSL." 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:71-6.12(n)(2) (permitting the DPS to modify or vacate a special condition). A modification or removal of a condition must be consistent with the offender's rehabilitative efforts. See Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 366-67 (App. Div. 2005).

The record in this case reveals that in October 2007, M.M. was convicted of one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), and one count third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The charges stemmed from his sexual assault of two females under sixteen years of age who he met via the Internet. The trial court did not find that M.M.'s conduct was characterized by a pattern of repetitive and compulsive behavior, and sentenced him to an aggregate four-year term of imprisonment to be served in State prison. The court also ordered M.M. to comply with the post-release requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23, and imposed a special sentence of PSL to commence upon his release from custody.

M.M. was granted parole prior to the expiration of his custodial term. In June 2009, he was released from custody and commenced serving his discretionary parole and PSL. Prior to his release, he received and signed a written notice of general and special PSL conditions, which included a special condition prohibiting him from using, possessing, and purchasing alcohol (the alcohol special condition). Upon his release, he also received and signed a certificate of parole, which contained the alcohol special condition.

The Adult Panel had imposed the alcohol special condition based on M.M.'s admission during his psychological evaluation at the Adult Diagnostic and Treatment Center (ADTC) that at age eighteen, he consumed alcohol approximately two to three times a week, became intoxicated at least once a week, and continued using alcohol thereafter, although less frequently. The evaluation also indicated that alcohol had caused problems in M.M.'s life, including interpersonal relationships and problems at work, and that he used alcohol to relieve and reduce stress.

In May 2012, M.M. admitted that he violated the alcohol condition by regularly consuming alcohol while on PSL. In July 2012, his PSL was revoked based on this violation as well as his violation of several other PSL conditions. An August 2012 psychological evaluation concluded that M.M. had a history of alcohol abuse beginning when he was eighteen years old.

In December 2012, M.M. requested the removal of the alcohol special condition, arguing that alcohol played no role in the commission of the offenses; he had no history of alcohol abuse; and there was no indication that continuing the condition would result in a decreased likelihood of future criminal behavior. In March 2013, the Board Panel denied M.M.'s request and affirmed the alcohol special condition based on M.M.'s violation, his admission to regularly consuming alcohol while on PSL, and the ADTC and August 2012 psychological evaluations.

M.M. appealed to the Board. In a May 29, 2013 written decision, the Board found that M.M.'s "failure to comply with supervision and [his] blatant disregard of conditions of supervision, specifically [his] consuming alcohol as evidenced by [his] admission to having used alcohol, . . . is both serious and concerning." The Board concluded that the alcohol special condition was appropriate in fostering M.M.'s rehabilitation and protecting the public. This appeal followed.

On appeal, raises the following contentions

I. SINCE THERE WAS NO PROSECUTOR'S DETERMINATION, NOR ANY AFFIRMANCE BY THE "APPROPRIATE COURT," THE REQUIREMENTS FOR IMPOSING THE NO-ALCOHOL "SPECIAL CONDITION" DO NOT EXIST; THE BOARD'S FINAL AGENCY DECISION SHOULD BE REVERSED, AND THE NO-ALCOHOL SPECIAL CONDITION SHOULD BE REMOVED.

II. THE BOARD HAS ALREADY ADMITTED THAT THE 'SPECIAL' NO-ALCOHOL CONDITION IS REALLY A "STANDARD" NO-ALCOHOL CONDITION; THE COURT SHOULD REVERSE THE AGENCY DECISION, EXSCIND THE NO-ALCOHOL CONDITION, AND ADMONISH THE AGENCY THAT IT CANNOT IMPOSE "STANDARD" SPECIAL CONDITIONS.

III. THE BOARD'S DENIAL OF [M.M.'s] APPEAL OF THE NO-ALCOHOL "STANDARD SPECIAL CONDITION" IS JUST AS ARBITRARY, CAPRICIOUS AND UNREASONABLE AS THE BOARD'S DECISION TO IMPOSE THE CONDITION IN THE FIRST PLACE.

IV. THE ASSERTED 'CONFIDENTIALITY' OF A 'CONFIDENTIAL' DOCUMENT, FOR 'CONFIDENTIALITY' VIS- -VIS THAT WHICH IS 'CONFIDENTIAL,' SERVES ONLY TO FURTHER UNDERMINE 'CONFIDENCE' IN THE BOARD'S ARBITRARY DECISION ON AN ILLEGAL CONDITION; AT [A] MINIMUM, THE BOARD SHOULD REMAND WITH A SPECIFIC DIRECTIVE TO RELASE THE AUGUST 29, 2012 EVALUATION ('CONFIDENTIAL' ITEM #4).

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 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 an action was arbitrary, unreasonable or capricious rests upon the appellant." Ibid.

We have considered M.M.'s contentions in light of the record and applicable legal principles and conclude there is sufficient credible evidence in the record as a whole supporting the Board's decision. R. 2:11-3(e)(1)(D). We affirm substantially for the reasons expressed by the Board in its May 29, 2013 final decision. We also conclude that M.M.'s arguments to the contrary are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). However, we make the following brief comments.

N.J.A.C. 10A:71-6.12(h) does not restrict or prohibit the Parole Board from imposing, in its discretion, the alcohol special condition. N.J.S.A. 2C:43-6.4(b) and N.J.A.C. 10A:71-6.12(c) and (n) grant the Parole Board the authority, in its discretion, to impose that special condition.

Affirmed.

1 In 2003, the Legislature amended N.J.S.A. 2C:43-6.4 to change community supervision for life to PSL, effective January 14, 2004. L. 2003, c. 267, 1. Because M.M. was convicted of sexual offenses after January 14, 2004, he was sentenced to PSL.