J.I. v. New Jersey State Parole Board

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1293-14T2

J.I.,
APPROVED FOR PUBLICATION
Appellant,
August 11, 2015
v.
APPELLATE DIVISION

NEW JERSEY STATE PAROLE BOARD,

Respondent.
________________________________

Argued telephonically April 15, 2015 –
Decided August 11, 2015

Before Judges Sabatino, Simonelli and
Guadagno.

On appeal from the New Jersey State Parole
Board.

Joseph S. Murphy argued the cause for
appellant (Murphy & Woyce, attorneys; Mr.
Murphy and Michael C. Woyce, on the briefs).

Christopher C. Josephson, Deputy Attorney
General, argued the cause for respondent (John
J. Hoffman, Acting Attorney General, attorney;
Lisa A. Puglisi, Assistant Attorney General,
of counsel; Mr. Josephson, on the brief).

The opinion of the court was delivered by

SIMONELLI, J.A.D.

Appellant J.I. is a convicted sex offender who is monitored

by respondent New Jersey State Parole Board (Board) as an
offender subject to community supervision for life (CSL),

N.J.S.A. 2C:43-6.4.1 J.I. challenges the constitutionality of

conditions of his CSL sentence that prohibit him from using any

device having Internet capabilities, accessing any social

networking websites or the Internet, viewing or possessing

pornography, and using, possessing and purchasing alcohol. J.I.

also challenges the Board's denial of his request for a hearing.

For the reasons that follow, we reject J.I.'s challenges and

affirm.

I.

We begin our analysis with a review of the pertinent

authority and factual background. "CSL is a component of the

Violent Predator Incapacitation Act, which is also a component

of a series of laws, enacted in 1994, commonly referred to as

'Megan's Law.'" State v. Perez, 220 N.J. 423, 436-37 (2015).

CSL is a special sentence imposed on sex offenders "to protect

the public from recidivism by sexual offenders." Id. at 437.

Accordingly, offenders sentenced to CSL are supervised by the

Division of Parole as if on parole and may be subject to

1
In 2003, the Legislature amended N.J.S.A. 2C:43-6.4 to change
CSL to parole supervision for life (PSL), effective January 14,
2004. L. 2003, c. 267, § 1. Because J.I. was convicted of
sexual offenses prior to January 14, 2004, he was sentenced to
CSL. See N.J.A.C. 10A:71-6.11(a).

2 A-1293-14T2
"conditions appropriate to protect the public and foster

rehabilitation," N.J.S.A. 2C:43-6.4, and special conditions

deemed reasonable by the Board "in order to reduce the

likelihood of recurrence of criminal or delinquent behavior,

including a requirement that the parolee comply with the

Internet access conditions set forth in [N.J.S.A. 30:4-

123.59(b)(2)]." N.J.S.A. 30:4-123.59(b); see also N.J.A.C.

10A:71-6.4 and -6.11(b). In addition, the District Parole

Supervisor (DPS) may impose special conditions if he or she

determines that "such conditions would reduce the likelihood of

recurrence of criminal behavior." N.J.A.C. 10A:71-6.11(k); see

also N.J.S.A. 30:4-123.59(b). If an offender violates a

condition, he or she may be subject to the imposition of

additional special conditions. N.J.S.A. 30:4-123.60(a) and -

123.61(b). There should be "a reasonable relationship between

the special condition and the prior criminal acts of the

particular parolee." Pazden v. N.J. State Parole Bd., 374 N.J.

Super. 356, 367 (App. Div. 2005).

An offender is entitled to constitutional due process

protections of notice and an opportunity to object to the

conditions. J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327,

338 (App. Div. 2013), certif. denied sub nom, B.M. v. N.J. State

Parole Bd., 217 N.J. 296 (2014). However, the offender's

3 A-1293-14T2
special status "[does] not entitle him to the 'full panoply of

rights' available to a citizen in a criminal trial." Ibid.

(quoting Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 242

(2008)). The offender "[is] nonetheless constitutionally

protected from 'arbitrary government action.'" Ibid. (quoting

Jamgochian, supra, 196 N.J. at 241-42). As we have held,

in this context, due process and procedural
fairness must be applied flexibly, for the
Constitution does not mandate a regime that
will make it impractical to impose a
necessary . . . provision to protect the
public or rehabilitate the offender.
Moreover, [d]iscretion must be invested in
the Parole Board, which has the agency
expertise and authority to implement a
scheme that can address the unique
circumstances of each case.

[Ibid. (alteration in original) (quoting
Jamgochian, supra, 196 N.J. at 246, 250)
(internal quotation marks omitted).]

We have recognized that convicted sex offenders are

"generally subject to a constitutionally-permissible degree of

continued governmental oversight and diminished personal

autonomy when they are on parole or some other form of post-

release supervision." Id. at 337. Subject to certain

"recognized limitations," which include an offender's right to

procedural fairness, freedom of speech, and freedom of

association, "the State has a strong interest in assuring that

parolees adhere to the conditions of their parole." Id. at 337-

4 A-1293-14T2
39. Thus, constitutional challenges to conditions of a CSL

sentence "must be examined in the context of [the challengers']

distinctive status as sex offenders who have been released into

the community after serving their custodial sentences, and who

are now under the Parole Board's continued supervision through

CSL[.]" Id. at 336.

There are statutory and regulatory mechanisms that permit

an offender to obtain modification or removal of a condition.

See N.J.S.A. 30:4-123.59(c) (permitting the Board panel to

relieve an offender of a parole condition); N.J.S.A. 30:4-

123.61(c) (permitting an offender to apply to the Board's

designated representative for modification of the conditions of

parole); N.J.A.C. 10A:71-6.6 (permitting the Board panel or

Board to modify or vacate a condition of parole); and N.J.A.C.

10A:71-6.11(b)(22) (permitting an offender serving a CSL

sentence to apply to the DPS to modify the condition prohibiting

use of a computer and/or device with Internet capabilities to

access social networking websites). A modification or removal

of a condition must be consistent with the offender's

rehabilitative efforts. See Pazden, supra, 374 N.J. Super. at

366-67.

The record in this case reveals that in October 2003, J.I.

was convicted on one count of second-degree sexual assault,

5 A-1293-14T2
N.J.S.A. 2C:14-2(b), and two counts of second-degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(a). The charges

stemmed from his repeated sexual molestation of his daughters,

who were between the ages of six and fourteen. The trial court

imposed a seven-year term of imprisonment with an eighty-five

percent period of parole ineligibility pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2. The court determined that

J.I.'s conduct was characterized by a pattern of repetitive and

compulsive behavior and recommended that he be committed to the

Adult Diagnostic and Treatment Center (ADTC) in Avenel. The

court also ordered J.I. to comply with the post-release

requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23, imposed a

three-year term of mandatory parole supervision (MPS) to

commence upon his release from imprisonment, and imposed a

special sentence of CSL to commence upon his release from MPS.

In November 2007, the Board decided to impose a general

condition on all sex offenders under supervised release that

prohibited them from engaging in social networking on the

Internet. Thereafter, in December 2007, the Legislature amended

N.J.S.A. 2C:43-6.4, effective February 25, 2008, to add a

provision permitting the Board to impose a special condition on

offenders serving a CSL sentence prohibiting them

from accessing or using a computer or any
other device with Internet capability

6 A-1293-14T2
 without the prior written approval of the
court except the person may use a computer
or any other device with Internet capability
in connection with that person's employment
or search for employment with the prior
approval of the person's parole officer[.]

[N.J.S.A. 2C:43-6.4(f); see also L. 2007, c.
219, § 3.]

The statute specifies other special computer conditions,

including requiring the offender to submit to periodic

unannounced examinations of his or her computer, install a

monitoring device on his or her computer, and disclose all

passwords. N.J.S.A. 2C:43-6.4(f)(1)-(5).

In October 2009, J.I. was released from the ADTC, commenced

serving his MPS, and received notice that he could not engage in

social networking on the Internet. Three months later, on

January 7, 2010, J.I.'s parole officer visited his home,

searched his computer, and found that he had visited multiple

pornography and nudism Internet websites that depicted minor

females in the nude. The parole officer also found alcohol and

several "barely legal" DVDs, and a book depicting nude pre-teen

and underage teen females. J.I. admitted that he had been

searching the Internet for pictures, videos, and books showing

nude minor females between ten and twelve years of age.

J.I.'s sex offender treatment provider determined that the

discovered items were not conducive to J.I.'s rehabilitation and

7 A-1293-14T2
reintegration into society. As a result, in March 2010, the DPS

imposed the following special conditions:

1. [J.I.] is to refrain from the
possession and/or utilization of any
computer and/or device that permits
access to the Internet unless
specifically authorized by the [DPS]
and that if the DPS permits the use of
a computer and/or device that is
capable of accessing [the Internet]
that [J.I.] is subject to certain
conditions, including that [J.I.] is to
refrain from accessing the Internet
from any computer and/or device at any
time or for any reason [(the
computer/Internet special condition)];

2. [J.I.] is to refrain from viewing or
possessing a picture, photograph,
negative film, movie, videotape, DVD,
CD, CD-ROM, streaming video, computer
generated or virtual image or other
representation, publication, sound
recording or live performance that is
predominantly oriented to descriptions
or depictions of sexual activity [(the
pornography special condition)]; and

3. [J.I.] is to refrain from the use,
possession and purchase of alcohol;
[J.I.] is to refrain from frequenting
establishments whose primary purpose is
the sale of alcohol (i.e., bars and
liquor stores); and [J.I.] is to
participate in random alcohol
monitoring acceptable to the District
Parole Office until discharged [(the
alcohol special condition)].

The Board panel affirmed these special conditions.

In September 2010, the Board adopted a new regulation,

N.J.A.C. 10A:71-6.11(b)(22), effective December 6, 2010, which

8 A-1293-14T2
added a general condition prohibiting all offenders serving a

CSL sentence "from using any computer and/or device to create

any social networking profile or to access any social networking

service or chat room in the offender's name or any other name

for any reason unless expressly authorized by the [DPS]" (the

social networking condition).2 See also 42 N.J.R. 2960(a) (Dec.

6, 2010). The new regulation permitted an offender to apply to

the DPS to modify this condition. N.J.A.C. 10A:71-6.6; see also

N.J.A.C. 10A:71-6.11(b)(22).

In October 2010, while he was still on MPS, J.I. was found

to be in possession of a cellular phone with Internet

capabilities and found to have accessed a social networking

website without the DPS's permission. These violations, along

with J.I.'s prior admission to accessing the Internet to view

nude photographs of minor females, resulted in a revocation of

his MPS and referral to the ADTC for a psychological evaluation.

After reviewing the results of the psychological evaluation, the

Board panel imposed a twelve-month future eligibility term (FET)

for J.I.'s MPS.

In October 2012, J.I. was released from MPS and commenced

serving his CSL sentence. Prior thereto, he received a written

2
A 2012 amendment to N.J.A.C. 10A:71-6.11(b)(22) provided
certain definitions, including the definition of "social
networking service." See 44 N.J.R. 30(a) (Jan. 3, 2012).

9 A-1293-14T2
notice of general and special CSL conditions, which included the

social networking condition, and his parole officer orally

advised him that he was subject to the computer/Internet special

condition. J.I. later acknowledged receipt of the written

computer/Internet, pornography and alcohol special conditions.

J.I. asked the DPS for permission to use a computer to

access social networking websites for employment and work

purposes. The DPS granted the request and modified the social

networking condition and computer/Internet special condition to

permit J.I. to use a computer and access social networking

websites for employment and work purposes only, subject to J.I.

installing monitoring software. The DPS declined to permit J.I.

to access any non-employment/work-related social networking

websites, citing the Board panel's April 2010 affirmance of the

computer/Internet special condition imposed during J.I.'s MPS

term and the fact that J.I. viewed pornographic material on the

Internet and possessed alcohol, which were found to be non-

conducive to his rehabilitation and reintegration into society.

The DPS determined that the computer/Internet, pornography and

alcohol special conditions would reduce the likelihood of J.I.'s

recidivism and therefore protect the public safety and welfare.

The Board panel affirmed the special conditions.

10 A-1293-14T2
 Less than two months after receiving the modified

conditions, J.I. violated them by accessing non-employment/work-

related websites. Despite repeated warnings and admonitions

from the DPS, J.I. violated the modified conditions on three

separate occasions. After the fourth violation, the DPS revoked

the modified conditions and prohibited J.I. from using any

device having Internet capabilities and accessing any social

networking websites and the Internet.

J.I. ultimately appealed to the Board. In an October 29,

2014 written decision, the Board made detailed factual findings

and concluded that the social networking condition and the

computer/Internet, pornography and alcohol special conditions

were consistent with protecting the public and fostering J.I.'s

rehabilitation. Specifically, the Board found as follows:

[J.I.'s] commitment [of the] offenses . . .
involved him sexually molesting his . . .
daughters; that [J.I.] was determined to be
a repetitive and compulsive sex offender;
and that just after three months of serving
a lengthy sentence in the [ADTC] [J.I.] was
found to be in possession of multiple
"barely legal" DVDs and a book depicting
pre-teen and underage teen females in the
nude, as well as alcohol; that a search of
[J.I.'s] computer revealed he had been
visiting multiple pornography and nudism
sites on the Internet, which depicted minors
in the nude; and that [J.I.] admitted in a
voluntary statement that he was searching
the Internet to find nude pictures, videos
and books of minor females between the ages
of ten . . . and twelve[.]

11 A-1293-14T2
The Board also found that the revocation of J.I.'s MPS for

violating the social networking condition and computer/Internet

special condition, and his admission to searching the Internet

for nude pictures, videos and books of minor females between the

ages of ten and twelve, were "both serious and concerning in

light of the circumstances of his commitment offense."

The Board noted that the DPS granted J.I.'s request to

modify the social networking condition and computer/Internet

special condition to permit J.I. to use a computer and access

the Internet and social networking websites for employment/work-

related purposes, but revoked them because J.I. violated them on

four separate occasions. Thus, the Board concluded that J.I.'s

"failure to comply with the privilege of being permitted to

utilize the Internet only for employment/work purposes and his

willful disregard to limit his Internet use solely for

employment/work purposes despite being warned and admonished on

multiple occasions is both serious and concerning."

Accordingly, the Board upheld the revocation of the modified

conditions and the prohibition on J.I.'s use of a device having

Internet capabilities and accessing social networking websites

and the Internet. The Board permitted J.I. to regain access in

the future if his rehabilitation improved.

12 A-1293-14T2
 The Board rejected J.I.'s argument that the social

networking condition and computer/Internet special condition

were too restrictive, noting there was a mechanism for him to

request permission to use a computer and access the Internet and

social networking websites. The Board stated,

the Division of Parole requires [J.I.] to
provide the nature and purpose of each
request for computer/Internet use or social
networking. Such a process allows the
Division of Parole to review each request on
a case-by-case basis and to review the
supporting documentation submitted to
determine whether the request is consistent
with [J.I.'s] rehabilitative efforts.
Therefore, the Board finds [J.I.'s]
contentions to be without merit and advises
that such requests for approval to engage in
computer/Internet or social networking usage
should be directed by [J.I.] to the Division
of Parole in order for the Division . . . to
determine whether the request is consistent
with [J.I.'s] rehabilitative efforts.

The Board also rejected J.I.'s request for a hearing, finding

that pursuant to Jamgochian, supra, the conditions did not

constitute an infringement on his liberty interest that would

warrant a hearing.

II.

On appeal, J.I. contends that N.J.A.C. 10A:71-6.11(b)(22),

the social networking condition, is unconstitutional on its

face. He argues that the absolute ban on using any device with

Internet capabilities and on accessing any social networking

13 A-1293-14T2
websites and the Internet for an offender who never committed an

Internet-related offense is overbroad and violates his right to

due process and to freedom of speech and association under the

First Amendment.3

We rejected similar facial challenges in J.B., supra,

where two appellants challenged the social networking

restriction. 433 N.J. Super. at 335. In J.B., we analyzed both

N.J.A.C. 10A:71-6.11(b)(22), which the Board imposes on all

offenders, and the computer/Internet restrictions in N.J.S.A.

2C:43-6.4(f), which the Board may impose on an offender, and

determined that

[t]he manifest objective of the Internet
restrictions in the authorizing statute and
the Parole Board's regulations is not to
eliminate the ability of released offenders
on PSL or CSL to access the Internet in its
entirety. Instead, the provisions are
legitimately aimed at restricting such
offenders from participating in unwholesome
interactive discussions on the Internet with
children or strangers who might fall prey to
their potential recidivist behavior.

[Id. at 341.]

Moreover, after evaluating comparable Internet restrictions

in other jurisdictions, we found that "the Internet restrictions

adopted here by the Parole Board have been constitutionally

tailored to attempt to strike a fair balance" and "are

3
U.S. Const. amend. I.

14 A-1293-14T2
reasonably crafted on their face to promote important State

interests." Id. at 344-46. Therefore, we held that N.J.A.C.

10A:71-6.11(b)(22) and N.J.S.A. 2C:43-6.4(f) were facially valid

under the First Amendment, the Due Process Clause, and the New

Jersey Constitution, "subject to the right of appellants or

other offenders who are subject to a CSL . . . condition to

pursue permission from a parole official to gain access to a

specified website for a benign purpose." Id. at 344, 346. We

declined to presume, in the abstract, that the Board or an

individual DPS would respond to an offender's request for a

modification "rigidly or unfairly." Id. at 344. Thus, we

concluded that "this procedural avenue should be exhausted

first, subject to the right of an offender to bring a future as-

applied constitutional challenge if necessary." Ibid.

J.I. argues that J.B. does not apply because it only

involved a ban on access to social networking websites not, as

here, an absolute ban from using any Internet-capable device and

accessing any social networking websites or the Internet imposed

on offenders, like him, whose crimes were not Internet-related.4

4
Relying on United States v. Albertson, 645 F.3d 191 (3d Cir.),
cert. denied, ___ U.S. ___, 131 S. Ct. 3045, 180 L. Ed. 2d 862
(2011), United States v. Heckman, 592 F.3d 400 (3d Cir. 2010),
and United States v. Voelker, 489 F.3d 139 (3d Cir. 2007), J.I.
argues that the absolute ban is unconstitutional. Rulings by
federal circuit courts of appeals are not binding upon us.
(continued)

15 A-1293-14T2
We disagree with this argument. First, the two appellants in

J.B. who challenged the social networking condition were not

convicted of Internet-related crimes and we upheld the condition

as to them nonetheless. Id. at 331, 333, 335-36. Second,

although those two appellants only challenged the social

networking condition, see id. at 332, 334, we analyzed the

computer and Internet restrictions in N.J.S.A. 2C:43-6.4(f) as

well and upheld the facial validity of both provisions. Id. at

341, 344-46. Thus, our affirmance of the Internet-access

restrictions should not be narrowly construed as to only apply

to the social networking restriction. Accordingly, we reject

J.I.'s facial challenges to N.J.A.C. 10A:71-6.11(b)(22) and

confirm our decision in J.B. that both the regulation and

N.J.S.A. 2C:43-6.4(f) are constitutionally valid on their face.

We make clear that our holding here applies to all offenders

serving a CSL sentence, regardless of the nature of their

crimes.

(continued)
Young v. Prudential Ins. Co. of Am., 297 N.J. Super. 605, 622
(App. Div.), certif. denied, 149 N.J. 408 (1997). In any event,
the cases do not apply, as they were not decided on
constitutional grounds, but rather, on federal statutory grounds
not raised here, and do not involve a sex offender, such as
J.I., who viewed pornography on the Internet while on parole.
See Albertson, supra, 645 F.3d at 194, 197; Heckman, supra, 592
F.3d at 404, 409; Voelker, supra, 489 F.3d at 143-44.

16 A-1293-14T2
 Nonetheless, an offender is entitled to constitutional due

process protections of notice and an opportunity to object to

the conditions and request broader Internet access. Id. at 338.

Here, J.I. received notice of the social networking condition

and computer/Internet special condition. He requested, and was

granted, modifications to use an Internet-capable device and

access social networking websites for employment/work-related

purposes. He challenged the conditions and revocation of the

modified conditions in his various administrative appeals. The

Board also afforded him the opportunity to regain Internet

access in the future if he could show such access is consistent

with his rehabilitative efforts. Based on the record, we are

satisfied there was no due process violation in this case.

III.

J.I. also raises as-applied challenges to N.J.A.C. 10A:71-

6.11(b)(22). He argues that the 2010 amendment to the

regulation violates the Ex Post Facto Clause because the

amendment was enacted after the trial court imposed his CSL

sentence. This contention lacks merit.

The Ex Post Facto Clause of the United States Constitution

prohibits "any statute which punishes . . . an act previously

committed, which was innocent when done; which makes more

burdensome the punishment for a crime, after its commission,

17 A-1293-14T2
or which deprives one charged with crime of any defense

available . . . at the time when the act was committed[.]"

Beazell v. Ohio, 269 U.S. 167, 169, 46 S. Ct. 68, 68, 70 L. Ed.

216, 217 (1925). The Ex Post Facto Clause is "aimed at laws

that 'retroactively alter the definition of crimes or increase

the punishment for criminal acts.'" Cal. Dep't of Corr. v.

Morales, 514 U.S. 499, 504, 115 S. Ct. 1597, 1601, 131 L. Ed. 2d

588, 594 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43,

110 S. Ct. 2715, 2719, 111 L. Ed. 2d 30, 39 (1990)). To

constitute an ex post facto penal law, a change in the law

"'must be retrospective, that is, it must apply to events

occurring before its enactment, and it must disadvantage the

offender affected by it.'" State v. Natale, 184 N.J. 458, 491

(2005) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct.

960, 964, 67 L. Ed. 2d 17, 23 (1981)). "There is 'no ex post

facto violation . . . if the change in the law is merely

procedural and does not increase the punishment, nor change the

ingredients of the offence or the ultimate facts necessary to

establish guilt.'" Ibid. (quoting Miller v. Florida, 482 U.S.

423, 433, 107 S. Ct. 2446, 2452-53, 96 L. Ed. 2d 351, 362

(1987)) (internal quotation marks omitted). "New Jersey's ex

post facto jurisprudence follows the federal jurisprudence."

Perez, supra, 220 N.J. at 439.

18 A-1293-14T2
 In Perez, the Court noted that the 2003 amendment to

N.J.S.A. 2C:43-6.4 changed CSL to PSL and increased the

punishment for a CSL offender who commits a sex offense while

serving a CSL sentence by eliminating the possibility of parole

and requiring him or her to serve a mandatory extended term with

no parole eligibility. Id. at 437-38. The Court considered

whether the amendment could be retroactively applied to such an

offender. Id. at 436-38. The Court found that resolution of

this issue "turn[ed] on whether the . . . amendment [made] more

burdensome the punishment of a crime after its commission.

[This] inquiry turn[ed] on whether the special sentencing

condition of CSL [was] considered penal or remedial." Id. at

440.

In making this inquiry, the Court noted its holding in Doe

v. Poritz, 142 N.J. 1 (1995), that the imposition of the post-

release registration and notification requirements of Megan's

Law did not constitute punishment and, therefore, did not

violate ex post facto prohibitions. Ibid. In contrast, in

State v. Schubert, 212 N.J. 295 (2012), the Court recognized

"the punitive nature of CSL" and "determined that a trial court

could not modify a previously imposed sentence to include CSL

once the defendant had completed his sentence." Perez, supra,

220 N.J. at 440.

19 A-1293-14T2
 As the defendant in Perez was already sentenced to CSL at

the time N.J.S.A. 2C:43-6.4 was amended, id. at 436, the Court

considered whether the change to his CSL sentence "enhance[d]

the punitive consequences of the special sentence of CSL to his

detriment" so as to "violate[] the federal and state prohibition

of ex post facto legislation." Id. at 442. Ultimately, because

application of the amendment would have required the defendant

"to spend many additional years in prison," the Court concluded

it was punitive and, thus, violated the Ex Post Facto Clause.

Ibid.

Here, at the time N.J.A.C. 10A:71-6.11(b)(22) was enacted,

J.I. was not serving his CSL sentence and was not subject to any

CSL conditions. In fact, no CSL conditions could have been

imposed until J.I.'s CSL sentence commenced in 2012. See

N.J.A.C. 10A:71-6.11(b) (providing that the special sentence of

CSL commences upon completion of the offender's sentence).

Thus, the amendment raised no ex post facto concerns because it

did not change the conditions of J.I.'s CSL sentence. More

importantly, the amendment is remedial in purpose and effect,

not punitive. It is aimed at protecting the public from sex

offenders, fostering rehabilitation, and reducing the likelihood

of recidivism. The amendment, therefore, poses no ex post facto

concerns. See Poritz, supra, 142 N.J. at 43-44.

20 A-1293-14T2
 The non-punitive nature of the amendment is clear in this

case. The Board's purpose in imposing the social networking

condition was to protect society from a person who sexually

molested his own children and to facilitate J.I.'s

rehabilitation and reintegration into society, not to punish

him. It is for this latter reason that the Board permitted J.I.

to continue to seek to modify or remove the condition, and such

future requests would be evaluated in light of whether they are

consistent with his rehabilitative efforts. We, therefore,

conclude that N.J.A.C. 10A:71-6.11(b)(22) does not violate the

Ex Post Facto Clause.

IV.

J.I. contends that the Board's decision to uphold all of

the conditions was arbitrary, capricious and unreasonable. He

argues there was no reasonable basis for the absolute ban on his

use of an Internet-capable device or access to any social

networking website and the Internet, and the pornography and

alcohol special conditions are unrelated to his rehabilitation

or public safety and welfare. We disagree.

Our review of the Board's decisions is limited. Hare v.

N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div.),

certif. denied, 180 N.J. 452 (2004). "Parole Board decisions

are highly individualized discretionary appraisals, and should

21 A-1293-14T2
only be reversed if found to be arbitrary or capricious." Id.

at 179-80 (citations and internal quotation marks omitted). As

directed by our Supreme Court, our task is to determine

(1) whether the agency's action violates
express or implied legislative policy, 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., 166 N.J.
113, 172 (2001).]

Thus, where the Board has applied the correct legal standard,

our role is limited to determining whether the decision was

arbitrary, capricious or unreasonable. McGowan v. N.J. State

Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). We "must

determine whether the factual finding could reasonably have been

reached on sufficient credible evidence in the whole record."

Hare, supra, 368 N.J. Super. at 179. 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, supra, 347 N.J. Super. at 563

(citation omitted). Accordingly, "[t]he burden of showing that

22 A-1293-14T2
an action was arbitrary, unreasonable or capricious rests upon

the appellant." Ibid.

Applying these standards, we discern no reason to disturb

the Board's decision. J.I. repeatedly sexually assaulted his

minor daughters for many years and the court deemed him a

repetitive and compulsive sex offender. Despite serving a

lengthy sentence at the ADTC, less than three months after his

release, and knowing he was subject to the social networking

condition, J.I. accessed multiple pornography sites to view

minor females in the nude. He also possessed DVDs and a book

depicting nude pre-teen and underage teen females and possessed

alcohol. The computer/Internet, pornography and alcohol special

conditions were imposed as a result of a determination by J.I.'s

sex offender treatment providers that the discovered items were

not conducive to his rehabilitation and reintegration into

society. Thus, there was a reasonable relationship between the

special conditions and J.I.'s prior criminal acts, and the

conditions were reasonable in order to reduce the likelihood of

his recidivism and consistent with protecting the public safety

and welfare and fostering his rehabilitation.

In addition, J.I.'s post-release conduct and repeated

violations of the modified social networking condition and

computer/Internet special condition indicate he has not

23 A-1293-14T2
rehabilitated and continues to pose a risk to public safety and

welfare. We conclude that the record more than amply supports

the Board's decision to uphold the ban on J.I.'s use of an

Internet-capable device and access to the Internet and the

decision is not arbitrary, capricious or unreasonable.

V.

J.I. contends that the Board violated his right to due

process by denying him discovery and a hearing. We have

considered this contention in light of the record and applicable

legal principles and conclude it is without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). A

convicted sex offender is entitled to constitutional due process

protections of notice and an opportunity to object to the

conditions and request broader Internet access, J.B., supra, 433

N.J. Super. at 338, not the full panoply of rights available to

a citizen in a criminal trial. Jamgochian, supra, 196 N.J. at

242. J.I. received all the due process to which he was

entitled.

Affirmed.

24 A-1293-14T2