May 23, 2017
appeal from the New Jersey State Parole Board.
H. Maynard argued the cause for appellant (Maynard &
Sumner, LLC, attorneys; Mr. Maynard, on the brief).
Christopher C. Josephson, Deputy Attorney General, argued the
cause for respondent (Christopher S. Porrino, Attorney
General, attorney; Lisa A. Puglisi, Assistant Attorney
General, of counsel; Mr. Josephson, on the brief).
Judges Messano, Espinosa, and Suter.
appeals the December 16, 2015 final agency decision of the
New Jersey State Parole Board (Board) that denied his
"Petition for International Parole Transfer" to the
country of Sweden. J.S. is subject to the special sentence of
community supervision for life (CSL) required under the
Violent Predator Incapacitation Act, N.J.S.A. 20:4
3-6.4 for certain offenses. We reverse the
Board's denial because it did not consider whether it
could supervise or monitor J.S.'s compliance with the
conditions of CSL or impose special conditions, but
incorrectly concluded that J.S. requested to terminate CSL,
which was error.
2002, when he was then twenty-three-years old, J.S. had sex
with a fifteen-year-old, although he alleged not to be aware
of her age. He pled guilty in January 2 003, to third-degree
endangering the welfare of a child by engaging in sexual
conduct which would impair or debauch the morals of a child,
N.J.S.A. 2C:24-4(a). J.S. was sentenced to three years of
probation, to the registration and notification provisions
under Megan's Law, N.J.S.A. 2C:7-1 to -23, and to CSL,
N.J.S.A. 2C:43-6.4. He has completed probation, but as a Tier
One Megan's Law offender, he is required to register and
also remains subject to CSL requirements.
now married to a Swedish citizen and together they have two
children. His wife's family owns a small business in
Sweden. J.S. and his wife want to move to Sweden to manage
the business for "a better quality of life for their
young children" and to earn more income. J.S. requested
a permanent residence permit from Sweden. He alleges that he
gave the Swedish Migration Board and the Swedish Embassy
"full-disclosure of [his] offense history, and the terms
of [his] supervision." The Swedish Migration Board
granted him "a permanent residence permit . . . based on
filed a Petition for International Parole Transfer with the
Board. On July 8, 2015, the Adult Panel of the Board denied
the application. It asserted that if J.S. were
"permitted to reside in the country of Sweden, [he] will
not be under supervision and will not be under any
restrictions which he . . . [is] subject to under the present
conditions of supervision." The effect would be to
"terminate the special sentence of community supervision
for life" which is contrary to the legislature's
intent and beyond the Board's authority to order.
appeal to the full Board was denied on December 16, 2015. The
Board agreed with J.S. that he "[was] not requesting to
be transferred to another state, the rules of the Interstate
Compact for Adult Supervision d[id] not apply and that there
[were] no rules that exist[ed] for the international transfer
of parolees." However, the Board observed, "CSL is
an essential component of the sentence to ensure the
protection of the public for at least a period of 15 years
since the last conviction or release from incarceration,
whichever is later." It "recognize[d] the statutory
mandate that offenders ... be supervised." The Board
found that permitting J.S. to reside outside of New Jersey
and the United States and in Sweden "without any ability
of any supervision or law enforcement authority to monitor
[J.S's] compliance with the conditions of his CSL is in
contravention of the statute." The Board noted that J.S.
had the ability to "petition the court for a release
from CSL in January 2 018."
appeal, J.S. contends the Board erred because the
legislature's purpose in establishing CSL was to
"(1) protect the public and (2) foster rehabilitation,
" and his relocation to Sweden with his family would
further the legislative intent behind CSL and was not in
conflict with it. He alleges the Board erred in treating his
request as if he were requesting termination of the CSL
requirements. He acknowledged he would "resume" his
"duty to report and be supervised" if he moved back
to New Jersey.
administrative agency's final decision is sustained
unless it is arbitrary, capricious, or unreasonable,
unsupported by substantial credible evidence in the record,
or contrary to express or implied legislative policies.
Saccone v. Bd. of Tr. of Police and Firemen's Ret.
Sys., 219 N.J. 369, 380 (2014); Lavezzi v.
State, 219 N.J. 163, 171 (2014). We are not "bound
by [the] agency's interpretation of a statute or its
determination of a strictly legal issue[.]" Id.
at 173 (quoting Norfolk S. Ry. Co. v. Intermodel Props.,
LLC, 215 N.J. 142, 165 (2013)).
was sentenced to CSL. "Community supervision for life
was 'designed to protect the public from recidivism by
defendants convicted of serious sexual offenses.'"
J.B. v. N.J. State Parole Bd., 433 N.J.Super. 327,
336 (App. Div. 2013), affd in part and mod, in part,
229 N.J. 21 (2017) (quoting Jamqochian v. N.J. State
Parole Bd., 196 N.J. 222, 237-38 (2008)). CSL was
enacted in 1994 as part of the Violent Predator
Incapacitation Act, N.J.S.A. 2C:43-6.4, known as
"Megan's Law." State v. Hester, 449
N.J.Super. 314, 319 (App. Div. 2017). CSL is a "special
sentence" and as such, it is punitive in nature, not
remedial. Ibid.; see State v. Schubert, 212
N.J. 295, 308 (2012) (concluding "we are satisfied that
N.J.S.A. 2C:43-6.4 is punitive rather than remedial at its
core"); see also State v. Perez, 220 N.J. 423,
441 (2015). "Persons who have been convicted between
1994 and 2004 of certain sexual offenses enumerated within
N.J.S.A. 2C:43-6.4(a) must serve in addition to any existing