C.D.R. VS. NEW JERSEY STATE PAROLE BOARD (STATE PAROLE BOARD) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-2901-16T3
C.D.R.,
Appellant,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent.
______________________________
Argued October 3, 2018 – Decided January 14, 2019
Before Judges Koblitz, Ostrer and Mayer.
On appeal from the New Jersey State Parole Board.
Stefan J. Erwin, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Stefan J. Erwin, of counsel
and on the briefs).
Christopher C. Josephson, Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Christopher C.
Josephson, on the brief).
PER CURIAM
C.D.R., who was sentenced to Community Supervision for Life (CSL)
after pleading guilty in 1998 to sexual acts with his seven-year-old daughter,
appeals from the State Parole Board’s (Board) final decision to affirm a special
condition of his supervision. The special condition requires C.D.R. to notify his
current or prospective employer of his crime and CSL status. It is based on
evidence that C.D.R. has violated a parole condition repeatedly. On appeal,
C.D.R. argues the Megan's Law tier system preempts the Board from mandating
notification that was not already required under his tier. C.D.R. also argues the
Board's decision was arbitrary because there was no evidence C.D.R. was at risk
of reoffending. We affirm.
I.
C.D.R.'s daughter disclosed in 1996 that while staying at a hotel with her
father in 1994, when she was seven years old, he had touched and licked her
genitals and put her mouth on his own genitals while he was intoxicated. C.D.R.
later pleaded guilty to third-degree endangering the welfare of a child, although
he had denied his guilt after his arrest and throughout the pendency of his case.
He was sentenced to five years of probation. He was later designated a Tier I
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offender under N.J.S.A. 2C:7-8(c)(1), requiring he register as a sex offender and
notify "law enforcement agencies likely to encounter" him.
Pursuant to the law at the time, C.D.R. was also sentenced to CSL. Among
other restrictions, CSL forbids C.D.R. from living in the same home as a minor,
absent a District Parole Supervisor's approval. N.J.A.C. 10A:71-6.11(c)(3). It
also requires that he "obtain permission of his assigned parole officer prior to
securing, accepting or engaging in any employment or business activity and
prior to a change in employment." N.J.A.C. 10:71-6.11(b)(16). Besides the
statutory restrictions on liberty for CSL parolees, the Board may impose
additional "special conditions" to deter the parolee from repeating the initial
offense. N.J.S.A. 30:4-123.59(b)(1). For most of the duration of his CSL,
C.D.R. has been employed, often by home improvement companies, although
he has also worked in commercial or manufacturing workplaces.
After eleven years of CSL, C.D.R. wished to move in with his girlfriend,
her children, and their infant daughter. He engaged a psychologist to evaluate
his risk of reoffending in the hope of obtaining permission to reside in the same
house as a minor. The psychologist, who did not ask for the Division of Parole's
input for his evaluation, concluded C.D.R. was unlikely to commit another sex
offense. The Division of Parole, however, denied C.D.R. permission to reside
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with the children, explaining "the evaluation was based solely on self-reports by
[C.D.R.] and his girlfriend." However, on January 20, 2015, a court ordered that
C.D.R. be permitted to live with his girlfriend and the children. 1
A year later, in August 2016, C.D.R. told his parole officer that he had
been working for three days as a house painter for a painting company, which
he identified; he was an "independent contractor"; and he used Craigslist.org to
find work. His parole officer reminded C.D.R. that he needed the parole officer's
permission before accepting a new job, and that C.D.R. could not work as an
independent contractor because he lacked the requisite license.
Following this interaction, the Division of Parole reviewed C.D.R.'s
employment history, which it concluded demonstrated a need for heightened
monitoring of C.D.R.'s work. C.D.R. was instructed orally to inform his
employer or would-be employer of his crime and his CSL status; if C.D.R. did
not, his parole officer would be authorized to do so.
C.D.R.'s attorney wrote to the Board in September 2016, objecting to the
new condition. Two days later, the Board sent C.D.R. a "Notice of Imposition
of Special Condition" verifying the new employer-notification condition. It
noted that C.D.R.'s offense involved sexual conduct with a child, and his current
1
The parties have not included the court order in the appellate record.
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employment required him to enter private homes. The special condition, the
Board explained, "would aid [C.D.R.'s] employer in providing a safe
environment while helping [him] avoid any high risk situations," and it would
"provide a safeguard for the community while aiding [him] in remaining in
compliance with the conditions of [his] supervision."
C.D.R. requested a stay of the special condition pending the Board's final
decision. He certified that his current employment did not place him near
children and that he always works with several other employees. He also stated
he had often worked as a house painter between 2001 and 2010, and during 2014
and 2015, without incident. C.D.R. said he would lose his current job if his boss
learned of C.D.R.'s criminal history. The Board denied the stay.
A panel of the Board affirmed the special condition. The panel explained
that its investigation had revealed that C.D.R. had been, in fact, unsupervised
for periods of time while on CSL. He had lived in Florida during 2009 without
registering as a sex offender; he was arrested in 2010 and served over two years
in a Florida prison. He had also participated in the Stages to Enhance Parolee
Success (STEPS) program for less than three months in 2013, and had served
ten days in a county jail later in 2013.
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The panel also noted C.D.R. had changed jobs frequently while under
supervision, and that some of the jobs he reported were unverified. It stated
C.D.R. had "always been mandated to ensure that while working as a house
painter he cannot be alone and he must be with co-workers"; and the same
requirement "continues to appear to be necessary." C.D.R. appealed the panel's
decision.
The same day, C.D.R. informed his parole officer that he had left the
painting company he initially disclosed, and accepted a job with another one.
His parole officer again reminded him that he could not accept new employment
without the parole officer's permission. When C.D.R. could not demonstrate to
his parole officer's satisfaction that the new painting firm was licensed by the
New Jersey Department of Consumer Affairs, he quit his job with the company.
Two weeks later, he reported accepting a new job as a forklift operator.
However, the next month, C.D.R. informed his parole officer he was no longer
employed as a forklift operator; he had resumed working for the first painting
company, as a house painter. His parole officer again reminded him he must
obtain permission before accepting new employment, and C.D.R. was ordered
to inform his employer of his criminal record and CSL status. When his parole
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officer contacted the firm's owner two weeks later to confirm C.D.R. had
notified him, the owner denied having an employee by C.D.R.'s name.
In December 2016, the Board affirmed the special condition, reiterating
its concerns based on C.D.R.'s offense and his need to enter private homes to
work as a house painter. The Board further noted C.D.R. had "misrepresented
his employment . . . on multiple occasions, which generates concerns as to
whether he has been completely forthcoming regarding his employment."
This appeal followed.
II.
The Parole Board's decisions will be upheld unless arbitrary or capricious.
Trantino v. New Jersey State Parole Bd., 166 N.J. 113, 173 (2001). As with all
agency decisions, this court's review has three prongs:
(1) whether the [Board]'s action violates express or
implied legislative policies, i.e., did the agency follow
the law; (2) whether the record contains substantial
evidence to support the findings on which the agency
based its action; and (3) whether in applying the
legislative policies to the facts, the agency clearly erred
in reaching a conclusion that could not reasonably have
been made on a showing of the relevant factors.
[Trantino v. N.J. State Parole Bd. (Trantino IV), 154
N.J. 19, 24 (1998) (citing Brady v. Dep't of Personnel,
149 N.J. 244, 256 (1997)).]
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The appellant bears "[t]he burden of showing the agency's action was arbitrary,
unreasonable or capricious." Bowden v. Bayside State Prison, 268 N.J. Super.
301, 304 (App. Div. 1993).
The first prong, whether the Board "followed the law," asks if the Board
"applied the correct legal standard" – one that effectuates the legislative policies
behind the statute – and complied with required procedure. Trantino IV, 154
N.J. at 24; see also ibid. (quoting Beckworth v. State Parole Bd., 62 N.J. 348,
368 (1973) (Sullivan, J., concurring) ("observing that 'judicial review of Parole
Board matters is limited to a consideration of whether guidelines and principles
have been substantially satisfied'")).
The policies CSL is meant to effectuate are "reducing the likelihood of
recidivism and fostering public protection and rehabilitation." J.I. v. N.J. State
Parole Bd., 228 N.J. 204, 221 (2017). The Board has broad authority to impose
conditions so long as the conditions are "deemed reasonable in order to reduce
the likelihood of recurrence of criminal or delinquent behavior." N.J.S.A. 30:4-
123.59(b)(1).
As for factual findings, the court may not "substitute [its] judgment for
that of the agency." Bowden, 268 N.J. Super. at 304. An appellant must show
that the Board's conclusion was not reasonably based on "sufficient credible
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evidence in the whole record." Trantino IV, 154 N.J. at 24 (quoting N.J. State
Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div. 1988)).
A court will reverse only if it has "a definite conviction" that the Board's
decision "went so far wide of the mark that a mistake must have been made."
Clowes v. Terminix Intern., Inc., 109 N.J. 575, 589 (1988) (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)).
A.
C.D.R. argues that the Megan's Law registry and notice requirements
preclude the Board from requiring he notify his employer of his crime and CSL
status. We disagree.
The statute authorizes the Board to impose a special condition on a CSL
offender "appropriate to protect the public and foster rehabilitation." J.I., 228
N.J. at 222 (quoting N.J.S.A. 2C:43-6.4(b) (1994)). Apart from this broad
discretion, the Board's regulations expressly authorize it to require a parolee to
notify his employer about his criminal history and parole status. See N.J.A.C.
10A:71-6.4(f)-(h).
Although this regulation governs parolees in general, it applies to CSL
offenders as well, who are subject to the same regulations governing all
parolees. N.J.A.C. 10A:71-6.11(b) (stating that a CSL parolee "shall be
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supervised by the Division of Parole as if on parole and subject to any special
conditions established by the appropriate Board panel"); State v. Bond, 365 N.J.
Super. 430, 438-39 (App. Div. 2003) (explaining "the only reasonable
construction of the language that they 'shall be supervised as if on parole'" is to
treat CSL parolees according to "the laws and regulations pertaining to paroled
persons").
Further, this administrative regulation does not exceed the Board's
statutory authority. C.D.R. has presented no legislative history to indicate that
the Legislature intended the registry and notice laws to preempt the Board's
ability to require notification of other private individuals.
We will infer a legislative intent to preempt regulation where a statute
creates a comprehensive regime governing an area of law. G.H. v. Township of
Galloway, 401 N.J. Super. 392, 400-01, 414 (App. Div. 2008), aff'd o.b., 199
N.J. 135 (2009). Registry and notice under Megan's Law comprise a uniform
civil regulatory system aimed at alerting law enforcement or the public –
depending on the offender's risk level – to the offender's presence. N.J.S.A.
2C:7-1(a). In contrast, a parole condition of employer notification, like other
CSL conditions, is a deterrent, tailored to a specific offender's risk of
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reoffending; its purpose is not only to protect the public but to reduce recidivism
and rehabilitate the offender. See J.I., 228 N.J. at 221.
In Galloway, we recognized the complementary functions of registry and
notice on the one hand, and Board-imposed special conditions on the other. We
held there that Megan's Law preempted municipalities from imposing additional
strictures on convicted sex offenders beyond the statute's requirements. 401 N.J.
Super. at 399-400. We noted the Legislature intended Megan's Law to establish
a "comprehensive system" governing sex offenders who have served their
sentences, and that comprehensive system was incompatible with an additional
layer of municipal regulation of Megan's Law offenders. Id. at 399-400, 413.
In contrast to municipal activity in the field, Board supervision of CSL
parolees is not a supplement to Megan's Law; it is part of it. Megan's Law
imposes "sweeping restrictions on the lives of" convicted sex offenders by
limiting their rights, such as their right to leave the state and own a firearm, and
against warrantless searches and curfews. Id. at 404 (citing N.J.A.C. 10A:71-
6.11, -6.12). We specifically noted, as a component of this "comprehensive
system," that "parole officers are empowered to impose additional 'special
conditions' deemed appropriate to reduce the likelihood of recurrence of the
[offenders'] criminal behavior." Id. at 404-05 (citing N.J.A.C. 10A:71-6.11).
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In sum, the whole of Megan's Law, including the Board's authority to
impose special conditions on supervisees, creates a comprehensive regime for
regulating post-incarceration sex offenders. The registry and notice provisions
complement, rather than preempt, the Board's special conditions.
B.
C.D.R. also contends that requiring him to notify current and potential
employers is arbitrary and capricious. We are unpersuaded.
A special condition on a CSL offender "must bear a reasonable
relationship to reducing the likelihood of recidivism and fostering public
protection and rehabilitation." J.I., 228 N.J. at 221. A special condition is
unreasonable if is it "not tied to criminal conduct, rehabilitation or public
safety." Id. at 230.
The Board's appraisal of the risk of reoffending must rely on more than
the gravity of the original offense. See id. at 230. Rather, the factual basis of a
special condition should include the original offense, the offender's likelihood
of reoffending, other public safety risks unique to the offender, and the
offender's past behavior and compliance with parole conditions. See ibid.
Here, the Board asserts the employer notice condition is reasonable based
on the following findings: (a) C.D.R.'s commitment offense "involv[ed]
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numerous instances and various types of sexual contact with" his seven-year-old
daughter; (b) C.D.R.'s work in house painting and home improvement could
place him in homes with unsupervised minors; (c) C.D.R. failed, several times,
to obtain his parole officer's permission before accepting new employment; and
(d) C.D.R. had apparently lied that he was employed by the painting company
he identified.
These facts provide a reasonable basis for the employer-notification
condition, as they demonstrate C.D.R.'s unreliability and a heightened risk of
reoffending. Notifying an employer will facilitate communication between his
employer and his parole officer, who can closely monitor C.D.R.'s conduct at
work – a potentially high-risk situation when in the vicinity of children. While
C.D.R. has not committed an offense involving minors since his conviction, his
inconsistent compliance with the requirements of supervision undermines both
his trustworthiness and understanding of his crime.
Further, the fact that C.D.R. was originally designated a low-risk offender
for Megan's Law purposes after he was convicted does not settle the issue; the
Board must reconsider his current risk status based on his parole history. Nor
does the long stretch between the start of C.D.R.'s CSL status and the Board's
decision render the decision arbitrary. Though C.D.R. has worked for home
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improvement companies since his parole began, the Board only recently learned
that he failed to inform his parole officer multiple times about changing
employment.
Under our deferential standard of review, we cannot conclude that the
Board's decision "went so far wide of the mark that a mistake must have been
made." Clowes, 109 N.J. at 589.
Affirmed.
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