R.R. v. N.J. State Parole Bd.

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R.R.,^[1] Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.

No. A-2236-21

Superior Court of New Jersey, Appellate Division

March 29, 2023

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Submitted February 8, 2023

On appeal from the New Jersey State Parole Board.

R.R appellant pro se.

Matthew J. Platkin, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

Before Judges Accurso and Firko.

PER CURIAM

Following a parole revocation hearing, appellant R.R., a convicted sex offender, was found guilty of failing to comply with court-imposed restrictions on his internet access. R.R. now appeals from a February 23, 2022 final agency decision of respondent New Jersey State Parole Board (Board) finding he violated the terms of his parole supervision for life (PSL) under N.J.S.A. 2C:43-6.4, and ordering him to serve a twelve-month term of incarceration.^[2] R.R. does not attack his guilty plea to the underlying charges or seek to withdraw it. Nor does he argue his original sentence was illegal.

In his self-authored merits and reply briefs, appellant raises the following points for our consideration:

POINT I

THE "NO INTERNET" SPECIAL CONDITION IMPOSED IS UNCONSTITUTIONAL BECAUSE IT IS OPPRESSIVELY OVERBROAD ARBITRARY, CAPRICIOUS, AND IS NOT REASONABLY TAILORED TO THE NEEDS OF PUBLIC SAFETY AND THE REHABILITATIVE NEEDS OF THE OFFENDER.

POINT II

[PSL] IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THE SEPARATION OF POWERS DOCTRINE.

POINT III

THE ADDITIONAL SPECIAL CONDITIONS IMPOSED BY THE [BOARD] ARE UNCONSTITUTIONAL BECAUSE THEY ARE PROCEDURALLY BARRED BECAUSE THEY VIOLATE APPELLANT'S DOUBLE JEOPARDY RIGHTS.

For the reasons that follow, we affirm the Board's revocation of parole and the constitutionality of PSL. We, however, remand to the Board for reconsideration of R.R.'s internet and social media ban to comport with our federal and State constitutions and recent case law.

I.

We set forth the following procedural history to give context to the Board's decision. On January 27, 2014, R.R. pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and second-degree sexual assault, N.J.S.A. 2C:14-2(b). R.R. sexually assaulted his neighbor's eight-year-old son and admitted showing the child "gay websites" on his phone. R.R. informed investigators he had child pornography on his desktop computer depicting "six and seven" year-old girls in explicit poses.

After his plea allocution hearing, R.R. violated a restraining order issued against him and in favor of the victim, his mother, K.K., and their family. In 2014, while K.K. was driving down her street, R.R. was driving in the opposite direction, turned around, and drove up to K.K. and her children. He yelled, "fuck you, you fucking bitch." K.K. reported R.R.'s actions to the police, who arrested him, and charged him with fourth-degree contempt, N.J.S.A. 2C:29-9(a). R.R. was referred for a psychological evaluation under the Sex Offenders Act, N.J.S.A. 2C:47-1, to the Adult Diagnostic and Treatment Center (ADTC) in Avenel, to determine his eligibility for sentencing under the Act.

The psychologist's report concluded R.R.'s sexual behavior "represents an escalating pattern of sexual misconduct involving children." On July 11, 2014, R.R. was sentenced to eight years' imprisonment on the sexual assault convictions, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and PSL. He was also sentenced to a concurrent twelve-month term on the contempt charge. R.R.'s guilty plea included registration under Megan's Law, N.J.S.A. 2C:7-1 to -23.

Following R.R.'s release from prison on November 26, 2020, and the commencement of his PSL term, he signed a form acknowledging the imposition of a special condition to his PSL, stating:

I am 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 district parole supervisor or designated representative. If the district parole supervisor or designated representative permits use of a computer and/or device that is capable of accessing the internet, I understand that I am subject to the following restrictions and conditions concerning my use:

(1) I am to refrain from accessing the internet from any computer and/or device at any time or for any reason unless authorized by the district parole supervisor or designated representative;

(2) I am prohibited from possessing or using any data encryption techniques and/or software programs that conceal, mask, alter, eliminate and/or destroy information and/or data from a computer and/or device;

(3) I agree to install on the computer and/or device, at my expense, one or more hardware or software system(s) to monitor my computer and/or device use if such hardware or software system(s) is (are) determined to be necessary by the district parole supervisor or designated representative;

(4) I agree to permit the monitoring of my computer and/or device activity by a parole officer and/or computer/device specialist through the use of electronic means;

(5) I am subject to periodic unannounced examinations of the computer and/or device by a parole officer or designated computer/device specialist, including the retrieval and copying of all data from the computer and/or device and any internal or external peripherals and removal of such equipment to conduct a more thorough inspection;

(6) I am to disclose all passwords used by me to access any data, information, image, program, signal or file on my computer/device.

R.R. also agreed to, refrain from purchasing, viewing, downloading, possessing, and/or creating a picture, photograph, negative, film, movie, videotape, Blu-ray, DVD, CD, CD-ROM, streaming videos, video game, computer generated or virtual image or other representation, publication, sound recording or live performance that is predominately oriented for description or depictions of sexual activity.

The Board reasoned that defendant is on mandatory PSL due to his guilty plea to sexual assault and his admission to having an eight-year-old boy perform oral sex on him. Defendant also admitted he touched the victim's penis and showed the victim internet pornography on his cellular phone on at least three separate occasions. Defendant scored above average risk for reoffending, and admitted to exploring his sexual attraction to children and habitually viewing child pornography, which escalated to sexually assaulting his victim to satisfy his deviant sexual urges.

Defendant's counselor identified his sexual behavior as part of a significant pattern of sexually acting out in a compulsive manner despite potential risks to his physical health, freedom, and reputation. Defendant was not recommended to use the internet upon release from ADTC. The imposition of this special condition was to provide defendant a more structured form of supervision and to reduce the likelihood that he will engage in behavior that could lead to reoffending.

On August 17, 2021, a parole officer conducted a routine home visit at R.R.'s home. The parole officer observed a fire stick connected to a television and to the internet. R.R. admitted he had a smartphone in his bathroom and another smartphone and laptop computer in his vehicle, all with access to the internet. After conducting a search, the parole officer uncovered these items as well as an external hard drive. After the parole officer transported R.R. to the district office, the devices were searched and revealed pornographic pictures and a pornographic video depicting adult males. R.R. admitted to accessing the internet and signed a voluntary statement acknowledging misuse of his smart phones and laptop, and utilizing social media.

R.R. was arrested and served with a notice of probable cause hearing. The notice advised R.R. of his rights and the parole conditions he was charged with violating. R.R. waived the probable cause hearing, and the matter proceeded as a final parole revocation hearing.

Senior parole officer Harper testified at the hearing about R.R.'s parole violations. Harper outlined R.R.'s criminal and supervision history and testified that R.R. admitted during his ADTC evaluation to using his cellular phone to access the internet and show the victim gay websites on at least three occasions. R.R. pled guilty to the violations and explained he purchased a smartphone to search for employment, and housing, and that he forgot about the other smartphone, which he purchased prior to his incarceration. He maintained he used the smartphones to listen to music and store photographs of himself and other adult males. According to R.R., he "made a good faith effort" to comply with the conditions of his parole, but without access to the internet, it was difficult to complete his college degree, apply for employment online, renew his driver's license, and conduct banking transactions.

The hearing officer found by clear and convincing evidence that R.R. violated the conditions of his supervision, which were serious, and thus warranted revocation of PSL. R.R. filed an appeal of the hearing officer's decision. On November 10 2021, a two-member Board panel agreed with the hearing officer's recommendation, revoked R.R.'s PSL, and imposed a twelvemonth term of incarceration. R.R. filed an administrative appeal of his PSL revocation and the twelve-month prison term. The Board affirmed the decision, finding R.R. had pictures of a sexual nature on one cellular phone...