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NOT FOR PUBLICATION WITHOUT THE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-3203-18T2
J.K.,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_____________________
Argued December 17, 2019 – Decided January 8, 2020
Before Judges Fisher and Gilson.
On appeal from the New Jersey State Parole Board.
James H. Maynard argued the cause for appellant
(Maynard Law Office, LLC, attorneys; James H.
Maynard, on the briefs).
Christopher Josephson, Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Christopher
Josephson, on the brief).
PER CURIAM
Defendant was sentenced in 2005 to a three-year probationary term as a
result of attempting to lure a twelve-year-old girl into a motor vehicle. The
sentencing judge also imposed community supervision for life (CSL) pursuant
to Megan's Law, N.J.S.A. 2C:43-6.4. Defendant, who is a dual citizen of Poland
and the United States, applied for a transfer of the CSL portion of his sentence
to Polish authorities, so he could move there. The Parole Board denied that
application and, in an earlier appeal, we adhered to another decision – J.S. v.
N.J. State Parole Board, 452 N.J. Super. 1 (App. Div. 2017) – in remanding to
the Board because it had "mistakenly failed to consider whether [it] could
supervise or monitor J.K.'s compliance with the conditions of CSL or impose
special conditions if he was permitted to relocate to Poland." J.K. v. N.J. State
Parole Bd., No. A-3522-15 (App. Div. Sept. 27, 2017) (slip op. at 3). We
explained our ruling by referring to what we said in J.S.:
It may be that there are adequate procedures to
supervise J.S. consistent with his level of risk and the
manner in which he is currently supervised, but the
record is devoid of any information about his level of
supervision or how that may or may not be able to
continue because the Board simply assumed his petition
was one for termination and not for permission to
transfer residence and supervision. The Board has the
ability to impose conditions appropriate for the
protection of the public and for rehabilitation. It
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certainly had the ability to require J.S. to suggest
appropriate conditions.
[452 N.J. Super. at 7.]
And we concluded by repeating that, as it had in J.S., the Board failed to
"undertake an informed consideration of any conditions that might be
appropriate" before simply denying the application. J.K., slip op. at 3 (quoting
J.S., 452 N.J. Super. at 7).
After we remanded, J.K. inquired about the status of his application. The
Board's director of the legal support unit (the director) responded in October
2017 that it required an updated application that would include sworn statements
from those who would house and employ J.K. in Poland, as well as an
explanation about "how" supervision of a variety of the CSL conditions
delineated "is to be maintained" if J.K. were permitted to move to Poland.
In August 2018, J.K. submitted a renewed application that the Board also
found deficient because it too lacked the information sought. The director
explained that J.K. had attached "basically the same letters" provided in the 2015
application and that these letters were deficient because they did not qualify as
either certifications or affidavits. The director observed that the letter from the
intended employer was "not on formal letterhead of the named company," and
she emphasized and explained in detail J.K.'s failure to include information "as
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to how supervision in accordance with the established conditions of supervision
was to be maintained."
J.K.'s counsel responded in September 2018, advising that no additional
information would be provided and requesting that the new application be
submitted to the Board in its existing form. Counsel also observed that the
Board had "not published and adopted regulations governing international
transfers of residence while subject to CSL," and that the director had failed to
provide any legal authority supporting the view that J.K. was required to provide
further information about how the CSL conditions would be met if J.K. were to
reside in Poland.
A month later, a Board panel reviewed and denied the application. J.K.
filed an administrative appeal, and the Board affirmed the panel's determination,
concluding that the record lacked:
any information on which to assess the supervising or
monitoring of [J.K.'s] compliance with the [CSL]
conditions . . . or the imposition of special conditions if
he was permitted to relocate to Poland.
With that determination, the administrative proceedings ended.
J.K. appeals the Board's final agency decision, arguing the denial of the
new application "was arbitrary and capricious" and that "under controlling court
precedent, denial of a request to reside in another country cannot be based on
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4
that country's ability or willingness to supervise[.]" These arguments are
without sufficient merit to warrant further discussion in a written opinion. R.
2:11-3(e)(1)(E). We add only a few additional comments.
J.K. relies, first, on Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181,
185 (App. Div. 2004), which involved an interstate transfer – Sanchez sought to
move from New Jersey to New York – and the impact of New York's refusal to
permit a transfer under the applicable Interstate Compact for Adult Offender
Supervision in light of New Jersey's inability to assure New York that CSL
offenders would be returned to New Jersey if found to have violated the
conditions of supervision. In that context, we held that "[a]nother state's refusal
to supervise such individuals provides an insufficient reason for keeping" an
individual subject to CSL in New Jersey. Id. at 188. In J.S., we adhered to the
spirit of Sanchez and implicitly found arbitrary a blanket refusal to allow an
individual under CSL to move outside the United States. 452 N.J. Super. at 7.
We there acknowledged the Board's "ability to impose conditions appropriate
for the protection of the public and for rehabilitation." Ibid. And, more
importantly in the present setting, we concluded that the Board "certainly had
the ability to require J.S. to suggest appropriate conditions." Ibid. In short, the
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5
burden was placed on the individual under CSL to demonstrate that there would
be sufficient monitoring or supervision while outside the jurisdiction.
As noted, and in following our mandate – based on J.S. – the Board sought
an explanation as to how supervision would occur if J.K. were permitted to move
to Poland. J.K. expressly refused to provide that information. So, more than
two years after we last considered J.K.'s arguments, both the factual record and
his arguments remain essentially unchanged. J.K. has eschewed the opportunity
to further support his application by providing the information sought by the
Board. In these circumstances, we conclude the Board did not act arbitrarily,
capriciously or unreasonably in denying J.K.'s application. See Saccone v. Bd.
of Trs., Police and Firemen's Ret. Sys., 219 N.J. 369, 380 (2014).
Affirmed.
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