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J.S. v. New Jersey State Parole Board

Superior Court of New Jersey, Appellate Division

September 26, 2017

J.S., Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent.

          Argued May 23, 2017

         On appeal from the New Jersey State Parole Board.

          James 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).

          Before Judges Messano, Espinosa, and Suter.

          OPINION

          SUTER, J.A.D.

         J.S. 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[1] 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.

         In 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.

         J.S. is 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 family ties."

         J.S. 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.

         J.S.'s 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."

         On 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.

         An 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)).

         J.S. 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 ...


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