BRIAN NAMETKO VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1679-16T1
BRIAN NAMETKO,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_______________________
Argued May 10, 2018 – Decided August 9, 2018
Before Judges Simonelli and Rothstadt.
On appeal from the New Jersey State Parole
Board.
James H. Maynard, Designated Counsel, argued
the cause for appellant (Maynard Law Office,
LLC, attorneys; James H. Maynard, on the
briefs).
Christopher C. Josephson, Deputy Attorney
General, argued the cause for respondent
(Gurbir S. Grewal, Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Christopher C. Josephson,
on the brief).
PER CURIAM
Brian Nametko appeals from the New Jersey State Parole Board's
(Board) final determination revoking his parole. For the reasons
that follow, we affirm.
The facts leading to Nametko's conviction are set forth in
detail in our opinion affirming his sentence and need not be
repeated at length here. See State v. Nametko, No. A-3939-12
(App. Div. Feb. 5, 2014) (slip op. at 1-3). Suffice it to say,
his conviction arose from having sexual relations with a fourteen-
year-old girl that he met on the internet when he was twenty-five
years old. As discussed in our earlier opinion, he pled guilty
to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(a), and the court sentenced him to four years of incarceration,
and upon release, parole supervision for life (PSL), N.J.S.A.
2C:43-6.4(a). Id. at 1, 4. When Nametko was released from prison
in August 2015, his parole was subject to the conditions of PSL
that included obtaining permission from his parole officer if he
were to leave the state (A7);1 prohibiting him from using social
networking profiles (A24); and refraining from actually or
attempting to initiate, establish or maintain contact with a minor
(B1 and B2).
1
See N.J.A.C. 10A:71-6.12(d) and (e). The conditions are
referred to as A7, A24, B1 and B2 based upon their designation as
such in the four-page "Conditions of Supervision" document Nametko
signed upon his release from prison.
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The condition restricting his access to social media did not
include a total ban against internet use. Instead, Nametko was
only restricted from using social networking services unless he
received permission to use them from his district parole
supervisor.
Despite the conditions of his PSL, after being released from
prison, Nametko left the state without obtaining permission from
his parole officer, used social networking applications, and
initiated and established contact with some minors while
attempting to contact others. Nametko's violations were brought
to the attention of his parole officers on October 9, 2015, when
they received a telephone call from the Netcong Police Chief asking
about Nametko and the conditions of his supervision. The police
chief informed them that he received reports that Nametko had been
texting girls at the high school, which he confirmed by speaking
to several high school students who received texts from Nametko.
On October 13, 2015, Nametko's parole Officers, Daron Be and
Peter Yasuk, met with the police chief, various members of his
police department, the Morris County Prosecutor's Office (MCPO),
and representatives of Lenape Valley High School, who had
information that Nametko sent messages through Instagram to
several minor females at the school. The parole officers were
given copies of the messages. They were also informed that Nametko
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had taken two male juveniles from the school to Manhattan in his
car.
Based upon Nametko's apparent violation of his PSL
conditions, Be issued a parole warrant, which ultimately led to
Nametko being detained at the MCPO, where Be and another officer
interviewed Nametko on October 27, 2015.2 During the interview,
Nametko admitted to going to New York City with the two boys, who
are seniors in high school, and stated that he traveled to New
York City once or twice a week. Also, Nametko stated that one of
the boys logged into Facebook on his phone, chatted with other
minors and downloaded sexual photos of them.
At the interview, the parole officers told Nametko that no
criminal charges were being brought against him. Nevertheless,
although no Miranda3 warning was given at the beginning of the
interview, one of the officers interviewing Nametko read him his
Miranda rights approximately fifteen minutes into the interview.
When asked if he understood them, Nametko replied that he did, but
when asked if he would sign a waiver and continue speaking to
them, Nametko asked the parole officers if he should have his
2
After his release to PSL, Nametko was involuntarily committed
to St. Clare's hospital. He was released from the hospital on
October 27, 2015, at which point Be issued and executed the parole
warrant for Nametko that resulted in his detention.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4 A-1679-16T1
attorney present. The officers stated they could not give him
advice, but told him that he was not facing any new charges, and
the interview only concerned the status of Nametko's parole.
Nametko debated out loud whether he should obtain an attorney, and
decided if no new charges were being brought, then he would waive
his rights. He signed the form and continued speaking with the
parole officers.
After being charged with parole violations and re-
incarcerated pending a hearing, on February 5, 2016, Nametko filed
a motion to suppress his statements to his parole officers. He
relied upon their "[f]ailure to provide [him with] the Miranda
[w]arning in a timely manner during a custodial interrogation;
and" because he "was incapable of knowingly waiving his Miranda
[r]ights due to his 'diminished capacity.'"
Nametko elected to waive his scheduled probable cause hearing
and consented to its conversion to a final hearing, which was held
before a hearing officer on February 11, 2016. Be, Nametko and
his father, Joseph Nametko, testified at the hearing.
Be testified about Nametko's violation of PSL Condition A7
that restricted him from leaving the state without permission. He
primarily relied upon an October 3, 2015 parking ticket that was
issued to a vehicle in New York City belonging to Nametko; an
October 7, 2015 Netcong Police Department report that indicated
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Nametko took two juvenile males to New York City; an October 27,
2015 report detailing his interview of Nametko on that date; 4 and
4
Over Nametko's objection at the hearing, Be read from the October
7, 2015 police report and referred to information contained in the
October 27, 2015 report. The October 27, 2015 report contained
the following:
Miranda was signed voluntarily as Nametko
agreed to speak with us. The basis of the
interview consisted of the following: Nametko
claims that he is in a relationship with [a
young girl] who he believes to be of age. He
states that he met her through a friend and
that she is the Creative Artistic Director for
his company –Nametko Financial, LLC. He
claims that she attends Las Vegas University
and is from the State of Oregon. He admitted
to having booked a trip to Las Vegas for the
end of October to be with her. Nametko
admitt[ed] to Social Networking, stat[ing]
since [the girl] was running it, it would be
ok. He admitted that he spends his time
hanging out with his friends: [the two boys.]
He admitted to having social networking apps
/ encryption apps on [his] phone such as
[F]acebook / Signal. He claimed he gave [his]
phone to [the boys] which according to him are
both [eighteen] years old, for a period of
[forty-eight] hours in which they downloaded
the app. He admitted to NYC out of state
travel. He admitted to having pictures of his
victim in which he claimed [the boys]
downloaded the pictures when they used his
phone. Nametko willingly provided the
passcode to his Apple Iphone as 5653. Nametko
also provided [his parole officer (PO)] with
contact information that he had written down
for [the two boys and the one girl]. Towards
the end of the interview PO stepped out of the
interview room to speak with [police
detectives]. [One d]etective provided [the]
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photographs posted on Nametko's Instagram account after he was
released from prison, which depicted him with the two boys in New
York City, in front of a specific New York hotel, and his car
parked on West 57th Street in New York City.
As to PSL Condition A24, Be referred to various documents
that showed Nametko had conversations with minors on Instagram
and that Nametko maintained several social media accounts in his
name. Be also referenced the October 7, 2015 police report that
discussed an interview of a female minor and the fact that Nametko
tried to contact five young girls through Snapchat.
Addressing PSL Condition B2, Be relied upon the police report
to confirm Nametko's contact with the two young boys he took to
New York and another female minor. Be also testified about the
meeting he attended on October 13, 2015 with the Netcong Police
Department, the Morris County Prosecutor Office detectives, a
member of the State Parole Board, and personnel from Lenape Valley
High School regarding Nametko's interactions with children. In
addition, Be relied upon statements from female minors indicating
Nametko attempted to contact them through the internet. Other
PO with new social networking documentation
from "Instagram" which was provided to her by
a [different female] juvenile which shows a
conversation [between] the juvenile . . . and
Nametko.
7 A-1679-16T1
photographic evidence also established that Nametko contacted and
was dating a minor.
At the hearing, Nametko's father testified that after his
son's release from prison, Nametko engaged in manic behavior that
was directly attributable to his mental illness. According to
medical records, Nametko suffered from bi-polar disorder for which
he was not always taking his prescribed medication. During the
six weeks following his release, Nametko's father testified that
Nametko attempted to spend large amounts of money on suits,
multiple cars, and on "partial ownership of a jet."
After the hearing, the hearing officer found that the evidence
did not establish that Nametko's behavior attributable to his bi-
polar condition excused his violation of the conditions of his
PSL. He stated:
While it was argued [Nametko] had a
"diminished capacity" because of his mental
health issues, . . . he can distinguish
between []appropriate and inappropriate
behavior and this defense should not excuse
him from the calculated and reckless decision-
making he exhibited on this PSL trial.
Displaying manic behavior coupled with bouts
of financial extravagance is one matter but
having prolonged, inappropriate
communications with those who are underage is
yet another concern and one that must not be
overlooked or let gone unnoticed.
The hearing officer specifically found the evidence of
Nametko's violations included proof that he "traveled outside the
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State of New Jersey without the permission of [his] parole
[supervisor] and also utilized an electronic device to contact
minors in a consistent and sustained manner[,]" and considered it
in light of the "circumstances surrounding [Nametko]'s commitment
offense[,] where he used an electronic device to contact a female
minor, share graphic imagery, and ultimately have sex with her at
his parent's home and in New York." The hearing officer concluded
that Nametko's "criminal history [was] exclusively sex crimes-
related[,]" and therefore, under the circumstances he was "not a
suitable candidate for a return to the community" and his parole
should be revoked for a period of twelve months.
After Nametko challenged the hearing officer's determination,
a Board Panel issued a decision on March 2, 2016, concurring with
the hearing officer's findings that Nametko violated PSL
Conditions A7, A24, and B2,5 and recommended revocation of parole
for a period of twelve months. The Board Panel relied upon the
finding that after being paroled, Nametko "proceeded to leave the
State of New Jersey, use an electronic device to social network,
and had contact with underage females," and revoked Nametko's
parole for twelve months.
5
After Nametko appealed from the Board Panel's decision, the
panel amended its decision to remove its finding that Nametko
violated PSL Condition B1.
9 A-1679-16T1
Nametko appealed the Board Panel's decision to the Board,
which, on November 23, 2016, issued a written final decision,
affirming the Board Panel's March 2, 2016 decision as amended.
The Board found that "clear and convincing evidence exist[ed] that
[Nametko] has seriously and persistently violated the terms and
conditions of his [PSL] status and that revocation of that status
is desirable." In its decision, the Board addressed Nametko's
contention that "his constitutional rights not to incriminate
himself" were violated with the admission of his October 27, 2015
statement and the hearing officer's reliance on hearsay
statements. It also addressed his argument that "at the time of
the charged parole violations, . . . Nametko was suffering from
severe [b]i-[p]olar disorder that disabled his capacity to know
correct from incorrect behavior." It concluded that contrary to
Nametko's contentions, "the Board panel reviewed and considered
all relevant facts, evidence and testimony pertaining to . . .
Nametko's violations of the conditions of his [PSL] and determined
that there was clear and convincing evidence that he violated the
conditions of his [PSL] status."
The Board confirmed that Nametko was provided all of the
required due process safeguards to which he was entitled, which
included, a "hearing before a neutral and detached hearing officer,
. . . represent[ation] by [an attorney,] . . . the opportunity
10 A-1679-16T1
to testify on his own behalf, to cross examine witnesses, to argue
against the violations charged, and to [present] evidence and
witness testimony." It observed that both Nametko and the parole
officer presented evidence about "Nametko's personal, criminal,
and mental health histories, his history on [PSL], and the parole
violations, charged against him."
The Board described the evidence as follows:
The hearing record and summary included . . .
testimony and evidence [about] Nametko's
mental health episodes prior to the charged
violations, his having been "fired" from his
job, his parent's desire to have him removed
from their home, his alleged threats of
violence to medical personnel, his having
travelled to New York in the company of
minors, his use of and presence on, electronic
social networking sites, and his actual and/or
attempted virtual and/or actual, contact with
minors for both sexual and non-sexual
purposes. Included in the evidence submitted
by the Division of Parole, was a traffic
citation placing . . . Nametko in New York
City on October 3, 2015; information from
other law enforcement authorities (including
photographic evidence) indicating that . . .
Nametko had taken two juveniles into New York
City; investigative reports from other law
enforcement authorities (together with
testimony of discussions between said
authorities and parole officers) and
supporting documentation, showing maintenance
and use by . . . Nametko of several electronic
social networking accounts and showing actual
and/or virtual contact with minor females
resulting from use of said social networking
accounts.
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The record and summary also included reference
to [Nametko's counsel's] written and oral pre-
, at-, and post-hearing submissions regarding
the necessity for the hearing officer to
disallow and disregard statements and evidence
elicited from . . . Nametko in alleged
violation of his right against self-
incrimination; testimony and evidence
demonstrating the fact that [he] was, during
the times relevant to the charged parole
violations, suffering from a severe mental
health disorder that seriously disabled his
ability to know and judge correct from
incorrect behavior; and testimony and argument
regarding the unreliability of twice- and
three-times removed, hearsay evidence alleged
to have been presented by the Division of
Parole. Such evidence included close
questioning of . . . Nametko's parole officer
concerning the basis or purported basis for
the conclusions he derived from investigative
reports from other law enforcement
authorities.
The Board concluded that the hearing officer properly
considered all of the evidence and the parties' arguments before
reaching his conclusion. It similarly found the Board Panel
considered the entire record and correctly reached the conclusion
that "Nametko violated the . . . terms and conditions of his [PSL],
that the violations were serious and persistent, and that
revocation of his [PSL] status is warranted and desirable."
On appeal to us, Nametko argues that the Board should not
have considered the statements he made to his parole officers
without receiving Miranda warnings or any of the double and triple
hearsay statements testified to by Be. He also contends that
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regardless of that evidences' admission, it did not establish
clearly and convincingly that Nametko had the mental capacity to
commit the PSL violations. Additionally, he argues that his PSL's
ban on his accessing social media is unconstitutional. We
disagree.
Our review of the Board's decision is limited. Hare v. N.J.
State Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004).
"'Parole Board decisions are highly individualized discretionary
appraisals,' and should only be reversed if found to be arbitrary
or capricious." Id. at 179-80 (citations omitted). We "must
determine whether the factual finding could reasonably have been
reached on sufficient credible evidence in the whole record." Id.
at 179 (citations omitted). In making this determination, we "may
not substitute [our] judgment for that of the agency, and an
agency's exercise of its statutorily-delegated responsibilities
is accorded a strong presumption of reasonableness." McGowan v.
N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)
(citations omitted). Accordingly, "[t]he burden of showing that
an action was arbitrary, unreasonable or capricious rests upon the
appellant." Ibid. (citing Barone v. Dep't of Human Servs., Div.
of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App.
Div. 1986), aff'd, 107 N.J. 355 (1987)).
13 A-1679-16T1
Applying this deferential standard, we find no merit to
Nametko's contentions and affirm substantially for the reasons
expressed by the Board in its final decision, which we conclude
was "supported by sufficient credible evidence on the record as a
whole[.]" R. 2:11-3(e)(1)(D). We add only the following comments
as to each of Nametko's arguments.
We first reject Nametko's contention that he should have
received Miranda warnings before being interviewed on October 27,
2015. Nametko was not entitled to those warnings before making
statements about his parole violations because he was not
confronted with "a formal arrest." J.B. v. N.J. State Parole Bd.,
229 N.J. 21, 36 (2017) (quoting Minnesota v. Murphy, 465 U.S. 420,
430 (1984)). "[T]he revocation of parole is not part of a criminal
prosecution and thus the full panoply of rights due a defendant
in such a proceeding does not apply to parole revocations."
Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (citation omitted);
see also State v. Davis, 67 N.J. 222, 226 (1975) ("It is clear
that the Miranda rule is not applicable to the routine parole
interview between a parole officer and a parolee."). Absent any
evidence that Nametko was confronted with new charges, Miranda
simply did not apply.
We also find to be without merit Nametko's argument that "no
legally competent evidence remains in support of the charges
14 A-1679-16T1
against him[,]" because the only evidence adduced at his hearing,
other than his admissions, came from inadmissible hearsay
testimony. Contrary to Nametko's position, hearsay is admissible
in parole revocation hearings, as long as there is "some legally
competent evidence [that] support[s] each ultimate finding of
fact[.]" Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 250
(2008) (citing N.J.A.C. 1:1-15.5); N.J.S.A. 52:14B-10(a)(1)
(stating "[t]he parties shall not be bound by rules of
evidence . . . [and a]ll relevant evidence is admissible");
N.J.R.E. 101(a)(3). We conclude that the Board's decision was
amply supported by substantial competent, credible evidence of
Nametko's parole violations, even without considering his
statements to his parole officer on October 27, 2015.
Next, we also reject Nametko's contention that the condition
to his PSL requiring that he not use social media without
permission is unconstitutional, and find inapposite his reliance
on J.I. v. N.J. State Parole Bd., 228 N.J. 204 (2017), which
addresses a total ban on a parolee's access to the internet, as
well as his reliance on Packingham v. North Carolina, 582 U.S.
___, 137 S. Ct. 1730 (2017), which considers the constitutionality
of a criminal statute. Here, Nametko was not subjected to a
complete ban on his use of a computer or on his access to the
internet. Rather, he was required to comply with a permissible
15 A-1679-16T1
limited condition related to his offense. See J.B. v. N.J. State
Parole Bd., 433 N.J. Super. 327 344 (App. Div. 2013); see also
Packingham, 582 U.S. ___, 137 S. Ct. at 1737 ("[T]he First
Amendment permits a State to enact specific, narrowly tailored
laws that prohibit a sex offender from engaging in conduct that
often presages a sexual crime, like contacting a minor or using a
website to gather information about a minor."). The challenged
condition was wholly permissible.
Last, we address Nametko's contention, that under the
criminal code's provisions addressing mens rea, see, e.g.,
N.J.S.A. 2C:2-2; N.J.S.A. 2C:4-2, he suffered from a diminished
capacity due to his mental health issues and, as a result, the
Board failed to meet its burden to establish by clear and
convincing evidence that he knowingly and purposefully engaged in
the conduct giving rise to the violations. We conclude again that
his argument is without merit, as the mens rea requirements Nametko
cites are inapplicable to parole violation matters that are guided
only by the inquiry of whether clear and convincing evidence
established Nametko violated the conditions of his PSL. See
N.J.S.A. 30:4-123.63(d).
Affirmed.
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