                                NOT FOR PUBLICATION WITHOUT THE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-0916-18T3

JOSEPH ELCHIN,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
____________________

                   Submitted March 25, 2020 – Decided June 29, 2020

                   Before Judges Koblitz and Whipple.

                   On appeal from the New Jersey State Parole Board.

                   Alissa D. Hascup, attorney for appellant (Jeff Edward
                   Thakker, of counsel; Alissa D. Hascup, on the briefs).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Christopher Josephson, Deputy
                   Attorney General, on the briefs).

PER CURIAM
      Joseph Elchin appeals from a September 26, 2018 Final Agency Decision

of the New Jersey Parole Board revoking his Parole Supervision for Life (PSL)

and imposing a twelve-month future eligibility term (FET) for violating PSL

Special Conditions that required he refrain from: 1) using any computer or

device to create any social networking profile or to access any social networking

service or chatroom and 2) destroying information or data from a computer or

device.

      Elchin pled guilty in 2006 to luring or enticing a child, N.J.S.A. 2C:13-6;

attempted endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and

purchasing a firearm without a permit, N.J.S.A. 2C:58-3, after he engaged in

online chats and telephone conversations with a detective from the Passaic

County Sherriff's Department who was posing as a minor. He was sentenced to

five years in prison and PSL under Megan's Law, N.J.S.A. 2C:43-6.4. Upon

completion of his custodial sentence, in 2008, Elchin was committed to the

Special Treatment Unit (STU) pursuant to the New Jersey Sexually Violent

Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Elchin was conditionally

discharged from SVPA commitment and ordered to abide by conditions of PSL

in 2017.




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      At the time of his civil commitment, he signed two PSL certificates

acknowledging his receipt of the PSL conditions of supervision.            These

conditions included certain special conditions, pre-approved by a Board panel

under N.J.A.C. 10A:71-6.12(k), that required him to notify his parole officer

before purchasing, possessing, or utilizing any computer or device that

permitted access to the Internet and to refrain from possessing or using any data

encryption techniques or software programs that conceal, mask, alter, eliminate

or destroy information or data from a computer or device. In addition, Elchin's

PSL certificate included a social networking condition initially imposed by the

Board in 2007 on all PSL offenders as a "special condition," regardless of the

individual offender's underlying offense and criminal history.

      On March 2, 2018, during a routine home visit, Elchin's parole officer

searched his phone and discovered he had created a social networking profile

under his name on the website "Classmates.com."         The profile showed he

engaged in online conversations with at least one person and had attempted to

engage two others. The parole officer also discovered Elchin deleted most of

the web browsing history from his phone. When questioned, Elchin denied

creating the profile but he later admitted to engaging in the online chats and

deleting his web browsing history.


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                                       3
      Elchin was served with a Notice of Probable Cause Hearing which set

forth the parole conditions Elchin was charged with violating. Elchin waived

the probable cause hearing and proceeded to a final parole revocation hearing.

The parole officer and Elchin both testified.

      Elchin pleaded not guilty to the violation that he was using his computer

to create a social networking profile and accessing a social networking service.

He asserted he never intended to utilize online social media websites and only

clicked on a link from a Classmates.com email he received. Elchin further

asserted he did not believe Classmates.com was a social networking website and

when he clicked the link, embedded in the email, the site "auto filled" his

personal information into an account. He acknowledged having conversations

with one person and admitted to engaging two others. Elchin's parole officer

testified, however, a person cannot engage others in conversation on

Classmates.com without first creating a profile.

      Regarding the second alleged violation, deleting his web browsing

history, Elchin pleaded guilty with an explanation. He asserted he did not

intentionally delete his browsing history in order to hide anything. Instead,

Elchin testified that he would periodically delete the browsing history, "just like

someone would delete their email history."


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                                        4
      The hearing officer found by clear and convincing evidence that Elchin

violated the conditions of his supervision, the violations were serious , and that

they warranted parole revocation. On May 2, 2018, a two-member Board Panel

reviewed the record, concurred with the hearing officer's decision, and imposed

a twelve-month FET. Elchin filed an administrative appeal and on September

26, 2018, the full Board affirmed the two-member Panel's decision. Elchin filed

this appeal.

      On appeal Elchin argues the social media restrictions violated his First

Amendment right to free speech and his PSL should not have been revoked. He

also argues there was insufficient evidence to establish Elchin violated the

condition that required he refrain from destroying information or data from a

computer or device.

      While this appeal was pending we asked the parties for supplemental

briefs to address State v. R.K., __ N.J. Super. __, __ (App. Div. 2020) (slip op.

at 31-37), where we held that a condition of parole imposing a blanket

prohibition on online social networking is both unconstitutional on its face and

as it was applied to R.K. In its supplemental brief, the Board conceded that

Elchin was subject to the same social networking condition that we deemed




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                                        5
unconstitutional. Thus, the Board's determination that Elchin violated the social

networking conditions of PSL is invalid.

      Nevertheless, the Board also found Elchin violated his conditions of PSL

because he admitted he did not refrain from possessing or using any data

encryption techniques or software program that conceals, masks, alters,

eliminates and or destroys information. Our review of the record supports the

finding that Elchin violated the terms of PSL because he failed to refrain from

possessing or using any data encryption techniques or software program that

conceals, masks, alters, eliminates or destroys information or data from a

computer or device, as evidenced by Elchin's use of the history tool on his cell

phone web browser to delete his web browsing history. Because Elchin has

purportedly completed his sanction, we do not reach any discussion of whether

this violation, standing alone, would have merited the imposition o f the same

sanction.

      Affirmed.




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