                        NOT FOR PUBLICATION WITHOUT THE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.

                                    2                            A-1679-16T1
      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

                                          3                                  A-1679-16T1
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

                                  5                           A-1679-16T1
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]


                                6                           A-1679-16T1
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

                                     8                             A-1679-16T1
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.



                                11                           A-1679-16T1
             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

                                     12                                A-1679-16T1
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.




                                        16                                        A-1679-16T1
