August 19, 2011
TIVON JAMES, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 19, 2011
Before Judges Sapp-Peterson and Ashrafi.
Inmate Tivon James appeals from a February 17, 2010 decision of a State Parole Board panel, later adopted by the full Parole Board on August 25, 2010, that revoked his sentence of parole supervision under N.J.S.A. 2C:43-7.2 and returned him to confinement at the Adult Diagnostic and Treatment Center for sex offenders at Avenel. We affirm.
In December 2003, James, then twenty-three years old, was charged with sexual crimes against two eleven-year-old cousins. In a statement to detectives, he admitted he had engaged in sexual intercourse with one of the victims several years earlier and he had more recently engaged in other acts of sexual penetration with another cousin. In December 2004, James pleaded guilty to two first-degree charges of aggravated sexual assault and a second-degree charge of attempted aggravated sexual assault, N.J.S.A. 2C:14-2a(1) and 2C:5-1. He was sentenced on April 29, 2005, to six years in custody at Avenel in accordance with N.J.S.A. 2C:47-3, which statute pertains to sentencing for sex offenses characterized by repetitive, compulsive behavior. The sentence was also subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, requiring that James serve eighty-five percent of the sentence before he could be paroled, and additionally imposing a five-year period of parole supervision after his release.
James was released from Avenel on January 21, 2009, and began his five-year term of parole supervision. At the time of his release, James was advised about and given written notice of the conditions of his parole supervision. Among the special conditions, he acknowledged the following:
I shall refrain from using any computer and/or device to create any social networking profile or to access any social networking service or chat room (including but not limited to MySpace, Facebook, Match.com, Yahoo 360) in my own name or any other name for any reason unless expressly authorized by the District Parole Supervisor.
On July 6, 2009, a parole officer visited James at his residence, the home of his sister. The officer saw a desk top computer logged on to the homepage of Yahoo, an internet search engine. The officer warned James about accessing social networking sites and expressed his belief that Yahoo was such a site. James provided his Yahoo email account to the officer, who then conducted a cursory search of the computer and detected that James had visited pornographic sites that may include depictions of minors. He advised James not to turn off or touch the computer until he could get instructions from his supervisor. The supervisor told the officer he would conduct a search of the computer the following day.
The next day, James was not home when the parole officer and his supervisor arrived. They obtained consent from James's sister to search the computer memory. The supervisor found evidence that a social networking site containing pornographic material had been accessed as well as two websites that provide opportunity for social networking and contain material and advertisements involving underage girls. James was arrested and charged with violating the terms of his parole supervision.
On the same day, James signed a handwritten statement in which he wrote:
On the evening of July 6, 2009, I deleted my browsing history which to my knowledge contained the following two websites [names of two websites]. I do not remember being told not to. There may have been more in a similar vein. I honestly cannot remember them. I had no mal/deceptive intent in doing this. I do not own the computer in question nor any external memory units save an Ipod. I have seen websites that contain girls under the age of eighteen partially clothed and cartoon girls under the age of eighteen nude. I have not downloaded or saved any of these sites/images.
An attorney was appointed to represent James for a parole revocation hearing held before a hearing officer on January 13 and 26, 2010. The parole officer and the supervisor testified; James did not testify or present any witnesses. The hearing officer found James had accessed a social networking site and a website that contains "pictures of partially clad females who were advertising their availability to chat with visitors to the website. Subject admitted that he accessed this website." The hearing officer recommended that James's parole be revoked. The Parole Board panel and the full Board voted to adopt the hearing officer's findings and recommendation.
On appeal, James raises the following arguments:
POINT I VIOLATION OF AMENDMENT IV OF THE UNITED STATES CONSTITUTION POINT II EVIDENCE TAMPERING AND ALTERATION OF OFFICIAL DOCUMENTS POINT III FALSE TESTIMONY POINT IV EXCEEDING FEDERAL LAW POINT V VAGUENESS POINT VI FAILURE TO REMAIN IMPARTIAL POINT VII FAILURE TO PROVIDE DUE PROCESS We find no merit in any of these arguments.
The record does not reveal whether James raised an argument at the hearing that his Fourth Amendment rights were violated by the search of his sister's computer, but we find no constitutional violation in the manner that the parole officer examined the computer. At his first visit on July 6, 2009, the officer did not conduct an extensive search of the computer's memory to determine its search or browsing history. The computer was logged on to the Yahoo home page, which caused the officer to seek further advice and eventually the supervisor's participation and search of the computer memory.
James admits he gave the parole officer his yahoo.com email account. The officer did not need his additional consent to conduct a cursory review of the computer to determine if there was any evidence that James had accessed a social networking service. A parole officer may conduct a search of items in a parolee's home if he or she has reasonable and articulable suspicion of a parole violation and receives approval of a supervisor or circumstances warrant an immediate search.
N.J.A.C. 10A:72-6.3(a); State v. Maples, 346 N.J. Super. 408, 412 (App. Div. 2002). The Fourth Amendment does not require more. See Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S. Ct. 3164, 3168, 97 L. Ed. 2d 709, 717 (1987). Here, the officer had reasonable and articulable suspicion for the cursory review of James's account and computer. The full search of the computer memory was conducted with consent of James's sister, who owned the computer.
As to the State's authority to impose a condition prohibiting James from accessing social networking services, the federal legislation cited by James, 42 U.S.C.A. § 16915a(e), does not restrict and, in fact, has nothing to do with conditions imposed on a parolee. Nor does a parolee such as James have a First Amendment right to access and participate in a chat room or social networking service, or to access pornographic websites showing underage girls. See Griffin, supra, 483 U.S. at 874, 107 S. Ct. at 3169, 97 L. Ed. 2d at 718; see also Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972) (a person serving a sentence of parole does not have "absolute liberty to which every citizen is entitled, but only . . . the conditional liberty properly dependent on observance of special parole restrictions"). The condition imposed upon James was not an overbroad prohibition of all access to the internet. See, e.g., U.S. v. Heckman, 592 F.3d 400, 408-09 (3d Cir. 2010). But see, e.g., U.S. v. Love, 593 F.3d 1, 11-13 (D.C. 2010). The restriction here was limited in scope and geared to the nature of his criminal offenses. It was not unconstitutionally broad or vague. See U.S. v. PerazzaMercado, 553 F.3d 65, 73 (1st Cir. 2009); In re Victor L., 106 Cal. Rptr. 3d 584, 603 (Cal. App. 2010).
We reject James's argument that there was insufficient evidence before the hearing officer and the Parole Board to support their conclusions that he had actually accessed a social networking site or chat room. Our standard of review of administrative decisions of the Parole Board is limited and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., ("Trantino V") 166 N.J. 113, 200 (2001). We do not disturb the Parole Board's factual findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." Trantino v. N.J. State Parole Bd. ("Trantino IV"), 154 N.J. 19, 24 (1998).
Testimony was presented by the parole supervisor that he had searched the computer memory and found evidence James had accessed a social networking site and websites with underage pornographic materials and platforms for chat rooms. The hearing officer found the supervisor's testimony to be credible. Furthermore, James admitted he had "seen" such websites. The Parole Board's decision to revoke James's parole was based on substantial credible evidence produced at the hearing.
Finally, we reject without discussion, R. 2:11-3(e), James's arguments that his due process rights were violated, that the parole officer had tampered with evidence, or that the hearing officer was not impartial.
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