On appeal from the Final Agency Decision of the New Jersey State Parole Board, PN: 283002.
Before Judges A. A. Rodríguez, Weissbard and Hoens.
The opinion of the court was delivered by: Hoens, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Michael Pazden appeals from the decision of the New Jersey State Parole Board denying his application for a modification of the special conditions of his parole. He challenges the special conditions on statutory and constitutional grounds, asserting that the conditions exceed the authority of the Parole Act, see N.J.S.A. 30:4-123.45 to -123.76, and, in the alternative, that they are void for vagueness. While we do not agree with Pazden's statutory challenge to the special conditions of his parole, we conclude that in general conditions of parole are subject to constitutional limitations and that in particular the conditions imposed on Pazden cannot withstand constitutional scrutiny. We therefore reverse and remand.
The essential facts of Pazden's underlying offense and conviction are not in dispute, but an explanation of those facts is necessary for an understanding of our analysis of his challenge to the special conditions. In short, Pazden and his brother were engaged in a business venture in the late 1980's and early 1990's as a part of which they planned to build a condominium complex in Clifton. As a means to that end, they created Riverview Village, Inc. (Riverview), a corporation which would be the vehicle for the construction and marketing of the units in the condominium complex. Riverview entered into an agreement for an option to purchase a fourteen-acre parcel where the project was to be built.
After entering into the option agreement, Riverview began to market units in the project to prospective purchasers. Those contracts required payment of a 10% deposit by the purchasers toward the price of each unit. Purchasers who desired certain upgrades to their units were required to make additional deposits to cover a portion of those costs. The contracts represented that the deposit money, including the additional deposits for upgrades, would be held by Riverview in an escrow account pending completion of the project. Between March 1989 and April 1990, Riverview entered into numerous contracts with individuals for purchase of units in the project.
According to the State's evidence, the Public Offering Statement (POS) utilized by Pazden was not approved by the Department of Community Affairs and was not accurate. Among other things, the deposit money was not held in escrow as required, but was instead used by Pazden to make payments to the owner of the land in furtherance of the continuation of the option contract. In addition, to the extent that the POS represented that Riverview was already the owner of the land on which the condominium project was to be built, it was false. While Pazden made significant payments to the landowner to preserve the option to purchase the parcel, eventually the project failed and none of the condominium units was ever built. Moreover, when the project failed, because the deposit money had not been held in an escrow account as promised, there were insufficient funds to reimburse all of those who had contracted to purchase units. Forty-three of the purchasers lost the money they had paid for their units.
Following a lengthy investigation, Pazden was named in two indictments. In the first, Indictment No. 93-12-1353-I, Pazden was charged with offenses including one count of second-degree theft by deception, N.J.S.A. 2C:20-4, forty-three counts of third-degree theft by deception, N.J.S.A. 2C:20-4, one count of second-degree theft by failure to make required disposition, N.J.S.A. 2C:20-9, forty-three counts of third-degree theft by failure to make required disposition, N.J.S.A. 2C:20-9, and forty-three counts of third-degree misapplication of entrusted property, N.J.S.A. 2C:21-15. In the second, Indictment No. 96-01-0016-I, he was named in two counts of fourth-degree uttering a forged instrument, N.J.S.A. 2C:21-1a(3). Part of the State's proofs at trial related to its assertion that in furtherance of the scheme, Pazden had intentionally used an unapproved and inaccurate version of the POS. The State's evidence also demonstrated that in an effort to cover the fact that the funds had not been repaid to purchasers, Pazden had issued reimbursement checks from Riverview payable to two purchasers and then had forged endorsements on those checks.
In 1996 a jury found Pazden guilty of 119 of the counts in Indictment No. 93-12-1353-I and of both counts of uttering a forged instrument contained in Indictment No. 96-01-0016-I. When interviewed in connection with the pre-sentence report, Pazden denied that he was guilty, acknowledged that many people had lost their money, and blamed that loss on his poor business decisions rather than on any criminal intent on his part.
Thereafter, Pazden was sentenced to a term of eight years, with a three-year period of parole ineligibility for second degree theft by deception, with which all of the third-degree theft by deception counts were merged. He was sentenced as well to a concurrent term of eight years with a three-year period of parole ineligibility for the second-degree failure to make required disposition, with which all of the third-degree failure to make required disposition counts merged. He was also sentenced to consecutive four-year terms on each of two of the misapplication of funds counts, with which all of the other counts for misapplication of funds merged. On the separate charges for uttering forged instruments, Pazden was sentenced to a one-year term to be served concurrently with the previously imposed terms. Therefore, Pazden was sentenced to an aggregate sentence of sixteen years with a three-year period of parole ineligibility. This court affirmed Pazden's conviction on direct appeal, State v. Pazden, No. A-7013-95T4 (App. Div. June 17, 1999), but remanded for further consideration of whether it was appropriate to impose consecutive sentences for the misappropriation of funds counts.*fn1
Pazden served approximately four years of his sentence in prison and was released on parole. The original Certificate of Parole, issued December 28, 2000, subjected Pazden to standard conditions of parole, namely, that he obey all laws, that he report to his parole officer on a regular basis, that he notify his parole officer if he were arrested, if he were the subject of a criminal complaint, if he moved or changed his employment, and other similar but standard conditions. That original certificate also imposed special conditions on Pazden's parole, including that he adhere to a restitution payment plan, that he submit to random urine testing and alcohol monitoring, that he refrain from contact with any of the victims of the crimes or with his co-defendant, and that he undergo thirty-six months of intensive supervision. The December 2000 Certificate of Parole also contained the following special condition:"You are to attempt to gain and maintain steady employment. If not working, participate in vocational training/educational program."
Following his release on parole, Pazden advised his parole officer that he had secured employment as a construction superintendent with TWC, Inc., and that the work involved renovating a restaurant. He reported that he was then earning a salary of $1000 per week and that he was receiving reimbursement for expenses in addition to his weekly salary. In that position, Pazden had no responsibility for any of the financial aspects of the work and was not engaged in dealing with the general public. That job ended late in May 2001. Early in July 2001, Pazden advised his parole officer that he had started working for his son, David, who had hired him as an independent contractor to design and build a home. That letter further advised that David was then residing in Japan where he could be reached by telephone.
A year later, Pazden's employment status changed. On July 12, 2002, his son David sent correspondence to Pazden's parole officer which advised that Pazden was then working as a construction superintendent for David's company, Who Land & Development, L.L.C., at a salary of $500 per week together with expenses. In or about October 2002, a new parole officer was assigned to Pazden's supervision. That officer became concerned about Pazden's employment in light of the nature of the offenses for which Pazden had originally been sentenced. In particular, the officer questioned whether Pazden's duties as a construction supervisor for Who Land might place him in a position in which he had actual, apparent or implied authority to receive money or deposits on behalf of that company. In part that concern was based on the fact that the correspondence from David utilized a New Jersey mailing address while David was employed overseas. In addition, the officer was concerned about certain of the evidence relating to Pazden's employment, in particular, Pazden's assertion that he was paid in cash and on an irregular basis. At about the ...