On appeal from the New Jersey State Parole Board, No. P308758.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and C.S. Fisher.
Upon his release from prison in 2001, appellant Ronald Jamgochian began serving a term of community supervision for life, N.J.S.A. 2C:43-6.4(b). Four years later, his parole officer imposed a curfew, which required Jamgochian's confinement to his residence every day from 8:00 p.m. to 7:00 a.m., for an indefinite period of time. We agree with Jamgochian's contention that N.J.A.C. 10A:71-6.11(l) provides an inadequate procedural framework upon which to rest this limitation on his liberty interests and deprived him of a meaningful opportunity to be heard. We remand for further proceedings consistent with due process.
In 1979, Jamgochian was convicted of kidnapping and various sex offenses, and sentenced to a twelve-year term of imprisonment. Neither the 1979 judgment of conviction nor any other information regarding this conviction can be found in the record except for a brief recitation of some of the alleged details, which is contained in a November 1998 confidential report prepared by the Adult Diagnostic and Treatment Center. It is not clear whether or to what extent these 1979 convictions and the underlying circumstances were considered in the proceedings relevant to the present appeal.
In 1998, defendant was convicted of committing a second-degree sexual assault on S.S. According to a pre-sentence report contained in the record,*fn1 Jamgochian initially approached S.S., stating that his uncle had seen her photographs and wanted to know if she would be interested in modeling for him. After speaking with S.S. on a few occasions, Jamgochian arranged for her to travel to New Jersey from California for a test shoot. In February 1997, S.S. arrived in New Jersey and posed for Jamgochian.
Following S.S.'s return to California, Jamgochian inquired about her interest in posing for the cover of a romance novel. After she indicated her willingness, Jamgochian arranged to have S.S. return to New Jersey on June 7, 1997. Upon arriving at Jamgochian's studio, S.S. was presented with a contract, which referred to a "music video," and contained phrases such as "exposed in a sexual manner," "exploit," and "Internet," causing S.S. to balk and begin asking questions. Because Jamgochian assuaged all her concerns, and also offered to revise the contract, S.S. later indicated that she felt "stupid and uncomfortable" for hesitating, and signed the contract.
Jamgochian photographed S.S. wearing a bra and panty leopard suit. He then said he was going to photograph her wearing "restraints." He chained her wrists and ankles together, and then fastened her arms and legs to the bed. S.S. later reported that she was in fear and felt completely helpless. Jamgochian left the room but returned with a document, which indicated what he wanted S.S. to do. He also told S.S. that she had two options. The first was that he would go and contact two other men he had waiting nearby and she would have to have sex with them, which he would videotape, or she would have to do anything he wanted while he videotaped it. She acceded to the latter demand.
Jamgochian then released S.S. from all restraints except the handcuffs. He retrieved a twenty-two page script, and told S.S. that they were going to "act out" the scenes, which he would videotape. When S.S. began to cry, Jamgochian told her that if she did not stop, he would call the two other men. She agreed to cooperate and gave in to Jamgochian's demands for her to perform various sex acts, which did not terminate until S.S. began acting as if she was hyperventilating. She was then permitted to dress and they went for a ride. When they returned to Jamgochian's studio, S.S. ran from his vehicle and into a nearby convenience store, shouting for help.
On September 2, 1997, Jamgochian was indicted and charged with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), third-degree criminal restraint, N.J.S.A. 2C:13-2(b), third-degree criminal coercion, N.J.S.A. 2C:13-5(a)(1), and third-degree terroristic threats, N.J.S.A. 2C:12-3(a). On April 22, 1998, he was charged in another indictment with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1), and second-degree being a person not permitted to possess weapons, N.J.S.A. 2C:39-7. On July 27, 1998, Jamgochian pled guilty to the second-degree sexual assault count in the first indictment and the second-degree being a person not permitted to possess weapons count in the second indictment.
On February 5, 1999, the trial judge imposed a four-year term of imprisonment on the second-degree sexual assault conviction, and directed that Jamgochian comply with all requirements of Megan's Law, N.J.S.A. 2C:7-2. The judge also imposed a special sentence of parole supervision for life, N.J.S.A. 2C:43-6.4.
Jamgochian was released from incarceration on October 4, 2001. At that time, by operation of law, he began serving the community supervision for life term. See N.J.S.A. 2C:43-6.4(b); State v. Williams, 342 N.J. Super. 83, 92 (App. Div. 2001).
A sentence of community supervision for life means that the offender "shall remain in the legal custody of the Commissioner of Corrections, shall be supervised by the Division of Parole of the State Parole Board, shall be subject to the provisions and conditions set forth in [N.J.S.A. 30:4-123.51(b); N.J.S.A. 30:4-123.59 through 30:4-123.63; and N.J.S.A. 30:4-123.65], and shall be subject to conditions appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4(b). We have held that, as a general matter, the Legislature did not violate the separation of powers doctrine by delegating to the Parole Board the authority to promulgate conditions and other procedures applicable to persons placed on community supervision for life. State v. Bond, 365 N.J. Super. 430, 442 (App. Div. 2003).
Upon his release from prison, Jamgochian executed a document containing the general conditions applicable to the community supervision for life term. This document included Jamgochian's acknowledgement that he would "comply with any curfew established by the assigned parole officer." When released, however, Jamgochian was not subjected to a curfew of any sort. Instead, on April 15, 2005 -- nearly four years after his release from incarceration -- he was advised by his parole officer that because of some contact or communication Jamgochian had with a young woman (hereinafter "Jane Doe") he was to "comply with a curfew and be at [his] approved residence between the hours of 8:00 pm and 7:00 am daily."*fn2
The parole officer's April 15, 2005 letter presented the following justification for his imposition of this curfew:
Jamgochian contacted [Jane Doe] after obtaining her personal information from an unknown source and attempted to arrange a meeting to discuss employment. As described by Jamgochian, this employment would be for a short time period and pay an inordinately large sum of money. Jamgochian has a history of sexual offenses involving victimization of women he lured by offering them modeling work. The current behavior of Jamgochian towards [Jane Doe] fits his identified offense cycle/modus operandi. This Special Condition will curtail Jamgochian's ability to commit further acts of victimization.
In response, Jamgochian's attorney wrote to the Chairman of the Parole Board on April 27, 2005, complaining of the imposition of the special conditions. Relying upon a certification executed by his client, the attorney claimed that the factual reasons given for the parole officer's imposition of the special conditions were erroneous, and, also, that the special conditions had been championed by a parole officer who had "acted unprofessionally, and perhaps even unethically, in his investigation and pursuit" of Jamgochian. He requested that the conditions be vacated and, failing that, the entry of a stay of the special conditions pending an appeal to this court.
On May 5, 2005, the Chairman wrote to Jamgochian's attorney advising that, on May 4, 2005, "the Adult Panel reviewed the cited special conditions, chronological supervision reports and attendant police investigation reports from the Hanover and Rockaway Township Police Departments" and that, "[b]ased upon such review," the panel had affirmed the imposition of all the special conditions. The Chairman further indicated that the Adult Panel found that Jamgochian's "adherence to the special conditions will reduce the likelihood of recurrence of criminal behavior."
The factual basis for the imposition of all three special conditions was expressed by the Chairman in the following way:
On 4/15/05, [Jane Doe] reported to the Hanover PD that Mr. Jamgochian contacted her by cell phone and in person; that he engaged her in conversations that made her feel uncomfortable; that he offered to engage her in employment for unknown services; and that based upon the nature and circumstances of Mr. Jamgochian's current and past offenses wherein Mr. Jamgochian also engaged young females to his employ resulting in him sexually assaulting the victims, [a special condition of no contact with Jane Doe] will lessen the likelihood of his return to criminal activity.
In 1980 and 1999, Mr. Jamgochian was convicted of crimes involving the luring of females for the purpose of engaging in deviant sexual conduct. The Adult Panel notes that the recent incident involving [Jane Doe] is alarmingly similar to the precursors employed by Mr. Jamgochian prior to engaging in his past criminal conduct. Accordingly, participation in sex-offender specific mental health counseling will assist Mr. Jamgochian in exploring any underlying issues as they relate to his poor judgment, lack of insight and apparent inability to desist from the repetitive behavior that he has engaged in that led to his two prior convictions, as well as, the present situation with [Jane Doe]. . . .
Based upon Mr. Jamgochian's recent conduct involving [Jane Doe,] compliance with the above-noted curfew will allow the Division of Parole to better monitor his whereabouts and activities and, thus, will seek to lessen the likelihood of Mr. Jamgochian's return to criminal activity.
The Chairman also instructed the Division of Parole to "re-draft" the special conditions utilizing the justification for those conditions quoted above. He lastly indicated that Jamgochian's allegations of his parole officer's misconduct had been forwarded to the Director of the Division of Parole.
On May 23, 2005, the special condition that required Jamgochian to comply with a curfew was amended, pursuant to the Chairman's directions, by eliminating the factual basis contained in the April 15, 2005 notice, and replacing it only with the following conclusory statement:
Based upon your recent conduct involving [Jane Doe,] compliance with the above noted curfew will allow the Division of Parole to better monitor your whereabouts and activities and thus, will seek to lessen the likelihood of your return to criminal activity.
Gone were the prior findings that Jamgochian had contacted Jane Doe, and that he arranged to meet with her to discuss employment "for a short time period and pay an inordinately large sum of money," and gone was the Adult Panel's conclusion that this alleged conduct "fits [Jamgochian's] identified offense cycle/modus operandi."
Following this revision in the special conditions, Jamgochian's attorney requested copies of the reports and information reviewed and relied upon by the Adult Panel. The Parole Board provided copies of: the handwritten notes of Jamgochian's parole supervisor; a police report regarding the information provided by Jane Doe; and other police reports memorializing attempts to determine whether the person Jane Doe referred to as "Ron" was Jamgochian. Also provided was a memorandum, dated April 18, 2005, written by an assistant district supervisor, which summarized: the police reports; his discussions with a police detective regarding Jane Doe; his instruction to the parole officer to advise Jamgochian that he both have no further contact with Jane Doe or her place of employment and that he thereafter comply with a curfew; and his direction that the parole officer search Jamgochian's home. If the Adult Panel relied on anything else, it was not revealed.
On November 4, 2005, Jamgochian's attorney wrote to the Chairman, claiming that the imposition of the curfew was unlawful and inappropriate. He provided a certification executed by Jamgochian, and requested that the letter be considered as Jamgochian's appeal to the full Parole Board. In asserting that the procedures utilized in imposing the curfew were insufficient, Jamgochian argued in this letter that there had not been "the slightest nod to due process" and that the special conditions were imposed without any hearing, without Mr. Jamgochian being given the right: to view the evidence against him, without giving him any discovery, and without giving him the right to confront witnesses against him. It was based upon reports and writings that were not sworn to and were full of hearsay and vague accusations. There was no competent legal evidence introduced to support those accusations.
Invoking, among other things, the constitutional rights guaranteed by the federal constitution, U.S. Const., amend. VI and XIV, and our state constitution, N.J. Const. art. I, ¶s 1 and 10, Jamgochian requested a hearing at which he would be permitted the right "to cross examine any witnesses, have an attorney present, obtain discovery, receive copies of all materials submitted to the board, and subpoena witnesses in order to confront his accusers and mount a defense."
On February 24, 2006, the Chief of the Parole Board's Appeals Unit wrote to Jamgochian's attorney to advise that the full Parole Board had considered the issues raised in his appeal. He stated that the Board "noted that the Adult Panel was not required by [N.J.A.C. 10A:71-6.11(l)] to conduct a hearing or provide your client with documentation prior to affirming the imposition of the special conditions for community supervision for life." According to this letter, the Parole Board also rejected Jamgochian's contention that there was an insufficient factual basis for the imposition of a curfew, indicating that the Board had considered the police report, which incorporated Jane Doe's assertion that Jamgochian made telephone calls to her that made her "feel uncomfortable."
Jamgochian filed a notice of appeal, seeking our review of this final agency decision.
While this appeal was pending, the Board placed the curfew in abeyance. The Board has since moved for dismissal, claiming that the appeal is now moot. We turn first to the question of mootness.
Jamgochian has argued that his appeal has not been rendered moot because the Board recently placed the curfew in "abeyance." He argues that this recent action regarding the curfew contains no guarantee that the Board will not lift that restraint and again require Jamgochian's adherence to the curfew at some future time. He argues that the Board's power to unilaterally turn on and off the application of the curfew should not be permitted to control or preclude this court's review of the proceedings that led to the imposition of the curfew and the sufficiency of the regulations that formed the basis for the Board's determination.
We agree that this appeal raises issues of substantial importance that are likely to recur but evade review, Coyle v. Bd. of Chosen Freeholders, 170 N.J. 260, 263 (2002); Zirger v. General Acc. Ins. Co., 144 N.J. 327, 330 (1996), and that we should therefore consider the merits of the appeal.
Jamgochian argues that the principles of due process required greater protections than were permitted here. In concluding that the procedures utilized in imposing the curfew were flawed: (a) we reject Jamgochian's argument that the Parole Board has no authority to impose a curfew; (b) but we agree with Jamgochian that, notwithstanding the Board's power to impose a curfew, it could not validly exercise that authority without providing greater procedural safeguards and, thus, deprived him of due process of law; (c) alternatively, we conclude that the doctrine of fundamental fairness requires more extensive procedures than permitted here; and (d) we find that the absence of any ...