                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5383-13T1

STATE OF NEW JERSEY,

     Plaintiff-Respondent,              APPROVED FOR PUBLICATION

                                            January 19, 2016
v.
                                           APPELLATE DIVISION
ERNEST JONES, a/k/a EARNEST
JONES, ERNEST EVERET JONES,
and ERNEST EVERETT JONES,

     Defendant-Appellant.
______________________________

         Argued December 7, 2015 - Decided January 19, 2016

         Before Judges Messano, Carroll, and Sumners.

         On appeal from the Superior Court of New
         Jersey, Law Division, Gloucester County,
         Docket No. 13-06-00635.

         John    Douard,   Assistant    Deputy    Public
         Defender, argued the cause for appellant
         (Joseph    E.   Krakora,    Public    Defender,
         attorney; Mr. Douard, of counsel and on the
         briefs).

         Jeffrey   P.  Mongiello,  Deputy   Attorney
         General, argued the cause for respondent
         (John J. Hoffman, Acting Attorney General,
         attorney; Mr. Mongiello, of counsel and on
         the brief).

     The opinion of the court was delivered by

CARROLL, J.A.D.
      In Riley v. New Jersey State Parole Board, 219 N.J. 270

(2014),   a   divided   Supreme   Court      determined    that      retroactive

application of the monitoring and supervision requirements of

the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.89 to

-123.95, to a convicted sex offender who had completely served

his   sentence   and    was    released      under    no      form   of     parole

supervision, violated the Ex Post Facto Clauses of the United

States and New Jersey Constitutions.               Left unanswered in Riley

was whether those ex post facto provisions similarly apply to a

defendant who was placed on either community supervision for

life (CSL) or parole supervision for life (PSL) prior to the

enactment of SOMA, and who was later subjected to the additional

condition of Global Position Satellite (GPS) monitoring for the

duration of his parole supervision.                Id. at 291.       We address

that unresolved issue in the present appeal.

                                      I.

      In September 1999, defendant Ernest Jones was convicted of

second-degree    sexual     assault,       N.J.S.A.    2C:14-2b.          He    was

sentenced to a five-year term of imprisonment in February 2000.

Additionally,    "Megan's     Law"1   and    CSL    applied    to    defendant's

sentence.


1
  "Megan's Law", L. 1994, c. 127 to 134, established a system of
registration   and  community   notification  for   certain   sex
                                                      (continued)


                                       2                                  A-5383-13T1
       Defendant   was   released   from   prison    in     December   2002.

Following his release, defendant was convicted of violating the

conditions of his CSL eight times prior to the conviction that

is the subject of the present appeal.          On August 14, 2012, while

defendant was serving a one-year prison term for his eighth CSL

conviction, the New Jersey State Parole Board served him with

"Notice of Imposition of Special Condition of Global Positioning

System Monitoring (G.P.S.) Participation."            The notice stated

that   a   determination   had   been   made   to   refer    defendant   for

participation in the GPS program based on the following:

            Since beginning CSL supervision on 12-15-02
            [defendant has] been charged nine times with
            violating the conditions of supervision. Of
            those nine [defendant was] convicted eight
            times with the ninth being merged with the
            eighth.   The violations on those complaints
            resulted from [defendant] not reporting, not
            participating in random drug and alcohol
            screening, not residing at an approved


(continued)
offenders, and set forth various sentencing and community
supervision requirements pertaining to such offenders. N.J.S.A.
2C:43-6.4 was also adopted as part of Megan's Law, and provided
that a judge imposing sentence on a person convicted of certain
designated sexual offenses "shall include" a special sentence of
community supervision for life.   See L. 1994, c. 130.    A 2003
amendment replaced all references to "community supervision for
life" with "parole supervision for life."   See State v. Perez,
220 N.J. 423, 429 (2015) (citing L. 2003, c. 267, § 1, eff. Jan.
14, 2004). Because defendant committed this crime before these
revisions were enacted, he remains under the former designation,
community supervision for life. N.J.A.C. 10A:71-6.11(a).




                                    3                              A-5383-13T1
            residence, admission of alcohol and CDS use
            and [noncompliance] with counseling.

      The notice informed defendant that he had the right to

contest     the    referral        and    to        submit     a    written          statement

explaining his reasons for contesting it.                          It further indicated

that if defendant chose to contest the referral, the matter

would then be reviewed by the Director of the Division of Parole

and the Chairman of the State Parole Board.                              Defendant signed

the notice, and marked the box next to the statement "I contest

the allegation or the basis that supports the rationale for the

referral to the G.P.S. program."                    As the basis for his protest,

defendant    submitted      a   one-line            written    statement         explaining

"[b]ecause    []    the    [c]ourts       didn't       refer[]      me    to    be    on    this

program."

      On   August    22,    2012,        the       Chairman    of    the       Parole      Board

adopted the referral.           In its final decision, the Board noted

defendant's       eight    prior    convictions          for       CSL    violations         and

determined that "GPS offers [defendant] the best chance . . . to

not   re-offend     while     optimizing            public    safety."           The       Board

elaborated that:

                 During his time under CSL supervision,
            [defendant] has repeatedly absconded from
            supervision.   His other violations of CSL
            conditions include failure to report as
            instructed, failure to reside at an approved
            address,   residing   with  minors   without
            approval, failure to refrain from alcohol



                                               4                                      A-5383-13T1
              use, failure to participate in an outpatient
              alcohol   counseling   program,   failure  to
              participate in sex offender counseling and
              failure to participate in alcohol and drug
              screening.     [Defendant's] adjustment to
              community supervision has been poor, and he
              has   not   made   any   progress   toward  a
              successful reentry back into the community.

                   [Defendant] is a flight risk at all
              times while in the community, and should he
              abscond again from supervision, the Division
              of   Parole   would   be   unaware    of his
              whereabouts   and   activities,    which may
              include contact with minors and alcohol use,
              thereby making him a threat to public
              safety.   Therefore, GPS monitoring is being
              recommended as a way to deter [defendant]
              from absconding from supervision, to deter
              him from frequenting areas where minors
              mainly or exclusively congregate, to help
              ensure that [defendant] is residing full-
              time at his approved residence and not at
              locations unknown to and unapproved by the
              Division of Parole and to assist the
              Division of Parole to more effectively
              supervise [defendant] in the community.

    Defendant       did   not     appeal      the     final   agency   decision.

Rather, immediately prior to his release, defendant signed a

notice   of    conditions   for    the       GPS    monitoring   program.     The

November 1, 2012 notice informed defendant that:

              Pursuant to the "Sex Offender Monitoring
              Act," P.L. 2005 c. 189, which was enacted on
              August 6, 2007, you shall be monitored under
              the . . . GPS Monitoring Program.     The GPS
              Monitoring   Program   requires   that   your
              physical location be monitored 24 hours a
              day/7 days a week.    The Division of Parole
              of the State Parole Board administers the
              GPS Monitoring Program. You shall adhere to
              the conditions cited below. Your failure to



                                         5                              A-5383-13T1
            comply with any of the conditions shall
            constitute a crime of the third degree and
            is punishable by up to five (5) years in
            prison and/or a fine of $15,000.

The   notice   went   on    to    set    forth   a   detailed     list   of    eleven

conditions that defendant was required to abide by while on the

GPS program.

      On   November   17,        2012,   defendant     purposely     removed        his

tracking   device.         He    then    remained    at   large    until      he    was

arrested on July 29, 2013.                Consequently, he was charged in

Gloucester County Indictment No. 13-06-00635 with fourth-degree

violation of CSL, N.J.S.A. 2C:43-6.4d, by failing to comply with

the GPS monitoring system.

      At trial, the parties stipulated that

            for all relevant dates in this matter, [CSL]
            had been imposed upon defendant as a
            condition of a sentence, and on November
            1[], 2012, as part of [CSL], [] defendant
            was subject to the GPS Monitoring program.
            [] Defendant knew he was subject to the
            conditions of both [CSL] and the GPS
            Monitoring program.

Following the two-day trial, at which defendant testified, the

jury convicted him of the CSL violation.                    On June 20, 2014,

defendant was sentenced to an eighteen-month prison term, with a

nine-month period of parole ineligibility.




                                          6                                   A-5383-13T1
       In    this   appeal,       defendant        does    not    challenge       the

sufficiency of the evidence supporting his conviction.                      Rather,

he advances two issues for our consideration:

             POINT I

             THE RETROACTIVE APPLICATION OF THE SEX
             OFFENDER MONITORING ACT TO MR. JONES MORE
             THAN TEN YEARS AFTER HIS RELEASE FROM PRISON
             ON COMMUNITY SUPERVISION FOR LIFE VIOLATES
             HIS RIGHTS UNDER THE EX POST FACTO CLAUSES
             OF THE UNITED STATES CONSTITUTION AND NEW
             JERSEY CONSTITUTION (NOT RAISED BELOW)

             POINT II

             MR. JONES'S DUE PROCESS RIGHTS WERE VIOLATED
             WHEN THE STATE PLACED HIM ON CONTINUOUS GPS
             MONITORING WITHOUT PROVIDING ANY BASIS FOR
             THE SURVEILLANCE AND WITHOUT PROVIDING ANY
             HEARING WHERE HE COULD CHALLENGE THE GPS
             MONITORING   THROUGH  CROSS-EXAMINATION  AND
             ASSISTANCE OF COUNSEL

                                         II.

       We begin by reviewing the statutory framework that guides

our    analysis.       "[CSL]    has    its    statutory    source     in   N.J.S.A.

2C:43-6.4, the Violent Predator Incapacitation Act.                    The statute

is    one   component   of   a   series       of   laws   that   are   referred    to

generally as Megan's Law."             State v. Schubert, 212 N.J. 295, 305

(2012).      Unlike the registration and notification requirements

embodied in Megan's Law, which are deemed to be remedial and not

punitive, Doe v. Poritz, 142 N.J. 1 (1995), the CSL statute is




                                          7                                 A-5383-13T1
"punitive rather than remedial at its core."    Schubert, supra,

212 N.J. at 308.

    At the time of defendant's 2000 sentence that subjected him

to CSL, N.J.S.A. 2C:43-6.4 provided in pertinent part:

            (a) Notwithstanding any provision of law
         to the contrary, a court imposing sentence
         on a person who has been convicted of . . .
         sexual assault . . . shall include, in
         addition to any sentence authorized by this
         Code,   a  special   sentence of   community
         supervision for life.

            (b) . . .      Persons serving a special
         sentence of community supervision shall be
         supervised as if on parole and subject to
         conditions appropriate to protect the public
         and foster rehabilitation.

            . . . .

          (d) A person who violates a condition of a
         special sentence of community supervision
         without good cause is guilty of a crime of
         the fourth degree.

         [Violent Predator Incapacitation Act of
         1994, L. 1994, c. 130, § 2, eff. Oct. 31,
         1994.]

    CSL is "designed to protect the public from recidivism by

defendants convicted of serious sexual offenses."   Jamgochian v.

N.J. State Parole Bd., 196 N.J. 222, 237-38 (2008) (quoting

Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181 (App.

Div.), certif. granted, 182 N.J. 140 (2004)).       "To that end,

defendants subject to CSL are supervised by the Parole Board and

face a variety of conditions beyond those imposed on non-sex-



                               8                          A-5383-13T1
offender parolees."              Perez, supra, 220 N.J. at 437.               N.J.A.C.

10A:71-6.11 sets forth the general conditions that attach to sex

offenders        subject    to    CSL.      These       include   approval    of   their

residence and any change of residence, N.J.A.C. 10A:71-6.11(b)5-

6;   and       approval    of    employment       and    notice   of   any   change   in

employment status, N.J.A.C. 10A:71-6.11(b)14-15.                        They are also

subject to random drug and alcohol testing, N.J.A.C. 10A:71-

6.11(b)13;        a   yearly      polygraph       examination,     N.J.A.C.    10A:71-

6.11(b)21; imposition of a curfew, N.J.A.C. 10A:71-6.11(b)17;

and restrictions on the use of a computer and the internet,

N.J.A.C. 10A:71-6.11(b)22.                 See Perez, supra, 220 N.J. at 437;

Schubert, supra, 212 N.J. at 306.

         "In     addition        to   those       general     conditions,      special

conditions may be imposed to meet the individual's particular

situation." Schubert, supra, 212 N.J. at 306. In such instances,

N.J.A.C. 10A:71-6.11(k) provides:

                Additional special conditions may be imposed
                by   the   District   Parole   Supervisor,   an
                Assistant District Parole Supervisor or the
                designated representative of the District
                Parole Supervisor when it is the opinion
                that   such   conditions   would   reduce   the
                likelihood    of    recurrence   of    criminal
                behavior.   The offender and the Board shall
                be given written notice upon the imposition
                of such conditions.

Notably, the regulations specifically authorize the imposition

of   a     special    condition       of    electronic       monitoring      for   those



                                              9                                A-5383-13T1
offenders   serving   a   special   sentence   of   community   or    parole

supervision for life.     N.J.A.C. 10A:72-10.1(a)3-(b).2

    SOMA was enacted effective August 6, 2007, and governs the

continued monitoring of serious and violent sexual offenders.

The legislative findings underlying its adoption are set forth

in the statute, as follows:

               a. Offenders who commit serious and
            violent sex crimes have demonstrated high
            recidivism rates and, according to some
            studies, are four to five times more likely
            to commit a new sex offense than those
            without such prior convictions, thereby
            posing an unacceptable level of risk to the
            community.

               b. Intensive supervision     of serious and
            violent sex offenders is a     crucial element
            in both the rehabilitation     of the released
            inmate and the safety of       the surrounding
            community.

               c.   Technological   solutions currently
            exist to provide improved supervision and
            behavioral    control   of   sex  offenders
            following their release.

               d. These solutions also provide law
            enforcement and correctional professionals
            with new tools for electronic correlation of
            the constantly updated geographic location
            of supervised sex offenders following their
            release with the geographic location of

2
   See also N.J.A.C. 10A:72-2.4(b)3(ii) (authorizing, upon
violation of parole by a regular parolee, the imposition of a
special condition requiring "[a]ssignment to and successful
completion of the electronic monitoring program, wherein
electronic monitoring serves to address violations of conditions
of supervision").



                                    10                               A-5383-13T1
              reported crimes, to possibly link released
              offenders to crimes or to exclude them from
              ongoing criminal investigations.

                 e. Continuous 24 hours per day, seven
              days per week, monitoring is a valuable and
              reasonable requirement for those offenders
              who are determined to be a high risk to
              reoffend,   were  previously   committed   as
              sexually violent predators and conditionally
              discharged, or received or are serving a
              special sentence of community or parole
              supervision for life.   A program to monitor
              these sex offenders should be established.

              [N.J.S.A. 30:4-123.90.]

    SOMA       authorizes      GPS   monitoring       of    those       offenders      whose

"risk    of    re-offense      has   been     determined      to        be   high    [under

Megan's       Law],"3   and    who    have     been     deemed          appropriate       for

continued GPS monitoring by the Chairperson of the State Parole

Board.         N.J.S.A.    30:4-123.91a(1)-(2);             N.J.A.C.         10A:72-11.1.

Additionally, the individual to be monitored must fall into one

of several categories, which include offenders who have been

sentenced to CSL or PSL.             N.J.S.A. 30:4-123.91a(2)(b); N.J.A.C.

10A:72-11.1(a)2ii.            Failure    to    comply      with    SOMA's     monitoring

requirements,       N.J.S.A.     30:4-123.94,         and    interference           with     a

monitoring       device,      N.J.S.A.    30:4-123.95,            are     punishable       as

third-degree crimes.




3
  N.J.S.A. 2C:7-8 describes the factors and considerations that
are relevant to determining the risk of re-offense.



                                          11                                        A-5383-13T1
                                       III.

                                        A.

    Defendant      contends    for     the    first      time   on    appeal      that

retroactive application of SOMA's GPS monitoring program to him

violates the Ex Post Facto Clauses of both the Federal and New

Jersey Constitutions, U.S. Const. art. I, § 10; N.J. Const. art.

IV, § 7, ¶ 3.      Specifically, relying on Riley, supra, defendant

argues that the GPS monitoring program retroactively enhances

the penal consequences of his existing CSL sentence and thereby

violates the ex post facto prohibition.

    "Generally, an appellate court will not consider issues,

even constitutional ones, which were not raised below."                         State

v. Galicia, 210 N.J. 364, 383 (2012).               "[A]ny error or omission

shall be disregarded by the appellate court unless it is of such

a nature as to have been clearly capable of producing an unjust

result."     Id.   at   386   (quoting       R.   2:10-2).       Here,   while      we

address    the   constitutional      issue    now   raised      by   defendant      in

light of the Court's recent ruling in Riley, we nonetheless find

it insufficient to disturb the jury's verdict for the reasons

that follow.

    In Riley, supra, 219 N.J. at 275, the Parole Board sought

to apply the GPS monitoring provisions of SOMA to Riley, who had

committed    a   predicate    sexual    offense     in    1986,      prior   to    the




                                        12                                   A-5383-13T1
enactment of the CSL statute.                 Riley was released from prison in

2009    under        no   form    of     parole    supervision,           although     he     was

required        to    comply      with     the     registration        and       notification

provisions of Megan's Law.                 Id. at 274.          Six months later, and

more than twenty years after he committed his last offense, the

Parole Board advised Riley that he was subject to SOMA's GPS

monitoring program.              Ibid.

       Riley filed an appeal with the Parole Board, arguing that

the retroactive application of SOMA to him, based on his 1986

conviction, violated the bar against ex post facto laws.                                   Ibid.

In   its    analysis,       the    Court     focused       on   "whether         the   law,   as

retrospectively           applied,       imposes     additional        punishment        to   an

already        completed     crime."          Id.     at     285    (citing        Kansas      v.

Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072, 2086, 138 L. Ed.

2d 501, 520 (1997)).               For purposes of its analysis, the Court

"accept[ed] that the Legislature, in passing SOMA, intended to

enact      a    remedial,         regulatory        scheme      that       was     civil      and

nonpunitive in nature."                Id. at 292.         Nonetheless, by a four-to-

three      majority,       the    Court     "conclude[d]           that    SOMA's      adverse

effects are so punitive . . . as to negate the State's intent to

deem it only civil and regulatory."                        Id. at 297 (alteration in

original) (quoting Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct.

1140, 1147, 155 L. Ed. 2d 164, 176 (2003)).




                                              13                                       A-5383-13T1
       The majority noted that "[CSL] and its corollary [PSL] are

merely indefinite forms of parole."                  Id. at 288.    It recognized

that SOMA shares these same essential characteristics.                            "SOMA

looks like parole, monitors like parole, restricts like parole,

and is run by the Parole Board.                 Calling this scheme by another

name    does    not   alter   its    essential        nature."      Id.      at    294.

Accordingly, the Court held that the retroactive application of

SOMA to Riley violated the Ex Post Facto Clauses of the Federal

and State Constitutions, and remanded to the Parole Board for

enforcement of its judgment.          Id. at 298.

       Importantly, the Court noted that the case did not concern

"a defendant who was subjected to the additional condition of

GPS monitoring for the duration of his probation or parole."

Id. at 291.       It further stated: "[w]e do not suggest that GPS

monitoring may not be added as a condition of parole supervision

that is ongoing – that is, while the offender is still serving

his    sentence."      Id.    at    290.        We   view   this   as   a    critical

distinction.

       Unlike   Riley,   in    the    present        case   defendant     was     still

serving his CSL sentence when the Parole Board sought to impose

SOMA's GPS monitoring program as a special condition.                       As noted,

"[a]n offender serving a special sentence of [CSL] shall be

supervised by the Division of Parole as if on parole and subject




                                           14                                A-5383-13T1
to any special conditions established by the appropriate Board

panel," as well as the numerous general conditions set forth in

N.J.A.C.   10A:71-6.11(b).            The    Parole      Board    is    specifically

authorized to impose special conditions of supervision when "it

is [of] the opinion that [they] would reduce the likelihood of

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

Substantially        similar    regulations        also    apply       to    offenders

sentenced to PSL.         See N.J.A.C. 10A:71-6.12.              The Parole Board

can   impose   a     special   condition      of   electronic      monitoring        for

offenders serving a special sentence of CSL or PSL, N.J.A.C.

10A:72-10.1,        separate    and   apart       from    the    regulations       that

authorize enrollment of those offenders in the GPS monitoring

program.   See N.J.A.C. 10A:72-11.1 to -11.6.

      To the extent it may be relevant, we recognize that "CSL

and PSL are distinct special post-sentence supervisory schemes

for certain sex offenders."           See Perez, supra, 220 N.J. at 427-

28 (noting that a defendant subject to CSL who is sentenced to

an extended term is eligible for parole in instances where those

on PSL are not).        Nonetheless, for present purposes, we discern

no    meaningful      distinction.          CSL    and    PSL    are        "corollary"

sentencing schemes, Riley, supra, 219 N.J. at 288, and are penal

in nature, Perez, supra, 220 N.J. at 443.                        As noted above,

offenders sentenced under CSL and PSL are both subject to the




                                        15                                     A-5383-13T1
supervision of the Division of Parole "as if on parole," and

both are subject to substantially similar general and special

parole    conditions.       When   deemed      appropriate,   both    are    also

eligible       to   be   monitored      under    SOMA.        N.J.S.A.      30:4-

123.91a(2)(b); N.J.A.C. 10A:72-11.1(a)2ii.

      Here, unlike the petitioner in Riley, defendant was already

subject to the constraints attendant to parole supervision when

the     special     condition      of    GPS     monitoring    was     imposed.

Additionally, defendant had previously violated CSL eight times,

including periods when he had absconded.             In contrast, Riley had

committed no other offenses.            It is beyond cavil that defendant

was already an eligible candidate for electronic monitoring when

the GPS monitoring condition was imposed.                While arguably the

duration of the period that defendant may be subject to GPS

monitoring is longer than traditional electronic monitoring, 4 we

do not classify any added burden attendant to the GPS program as

sufficiently punitive to constitute an ex post facto violation.

Indeed, in some ways it may prove less onerous than the present

electronic monitoring, as "we have every reason to believe that

the dimensions of the system, while not presently conspicuous,

will    only    become   smaller   and    less   cumbersome    as    technology

progresses."        Doe v. Bredesen, 507 F.3d 998, 1000, 1005 (6th

4
    See N.J.A.C. 10A:72-10.2.



                                         16                              A-5383-13T1
Cir. 2007), reh'g en banc denied, 521 F.3d 680 (6th Cir. 2008),

cert. denied, 555 U.S. 921, 129 S. Ct. 287, 172 L. Ed. 2d 210

(2008) (rejecting an ex post facto challenge to the Tennessee

Serious and Violent Sex Offender Monitoring Pilot Project Act,

which "subject[s] a convicted sexual offender to a satellite-

based monitoring program for the duration of his probation").

      Moreover, the GPS monitoring condition does not increase

the length of defendant's CSL sentence.              Nor does it restrict

defendant's movements or travel in any material manner beyond

the restrictions attendant to his CSL supervision.               Importantly,

defendant was only charged with violating CSL, a fourth-degree

crime, consistent with the punishment established in N.J.S.A.

2C:43-6.4d at the time of his 2000 sentence.              Defendant was not

charged    under     statutes   criminalizing     violations    of   SOMA,   in

which event the result we reach might well be different.                     See

N.J.S.A. 30:4-123.94 (third-degree failure to comply with terms

of GPS monitoring); N.J.S.A. 30:4-123.95 (third-degree tampering

with GPS device).

      We     also    distinguish   this    case    from    Perez.      There,

defendant's CSL sentence was improperly enhanced by application

of post-2003 amendments to N.J.S.A. 2C:43-6.4.                  Perez, supra,

220   N.J.    at    442.   N.J.S.A.   2C:43-6.4(e),       for   example,     now

requires the imposition of a mandatory extended term without




                                      17                              A-5383-13T1
parole if certain enumerated offenses are committed while the

actor is on PSL.          A similarly-situated defendant on CSL status

is not subject to a mandatory extended term sentence and remains

parole-eligible.         Id. at 437-38.            In contrast to Perez, in the

present case, defendant's sentence was not so enhanced.

       Summarizing,       defendant        was     sentenced    to     CSL    in      2000.

Accordingly,        he   fell     within     the    supervision      of      the    Parole

Division, which has the authority to impose general and special

conditions     to    both    ensure       the    protection     of   the     public      and

reduce the likelihood that defendant will re-offend.                          Defendant

demonstrated a virtually uninterrupted pattern of violating his

CSL, including a history of absconding during which absences his

whereabouts      could      not    be     ascertained.         The   GPS      monitoring

program      represents     a     technological      upgrade     over      the     special

condition of electronic monitoring for convicted CSL offenders

that   the    parole     authorities        no   doubt   have    the      authority       to

impose.      We are not persuaded that the GPS monitoring materially

increased defendant's punishment.                  Nor do we conclude that this

special condition is significantly more onerous or punitive than

electronic monitoring or any other regulatory requirement that

may    be     imposed       as     part     of     defendant's       CSL      sentence.

Accordingly, we find no ex post facto violation.




                                            18                                     A-5383-13T1
                                    B.

     As a component of his ex post facto argument, defendant

contends that his counsel was ineffective for failing to move to

dismiss the indictment on such grounds.           He argues that counsel

should have been aware of our September 22, 2011 decision in

Riley5 that formed the basis for such a successful challenge to

the indictment.

     To   prove   ineffective   assistance   of    counsel,   a   defendant

must demonstrate a reasonable likelihood of success under the

test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984).       That is, the defendant must

show: (1) the deficiency of his counsel's performance and (2)

prejudice to his defense.       Id. at 687, 104 S. Ct. at 2064, 80 L.

Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987)

(adopting the Strickland two-pronged analysis in New Jersey).

     Generally, we do not entertain ineffective assistance of

counsel claims on direct appeal "because such claims involve

allegations and evidence that lie outside the trial record."

State v. Preciose, 129 N.J. 451, 460 (1992).             The appropriate

procedure for their resolution commonly is not direct appeal,

but rather a post-conviction relief (PCR) application attended


5
  Riley v. New Jersey State Parole Bd., 423 N.J. Super. 224 (App.
Div. 2011).



                                    19                             A-5383-13T1
by a hearing if a prima facie showing of ineffectiveness is

shown.     Id.     at        460,    463.        Where     defendant's        claim     of

ineffectiveness     relates           solely      to     his     allegation        of     a

substantive legal error contained completely within the trial

record, however, we can consider it.                    See State v. Quezada, 402

N.J. Super. 277, 280 (App. Div. 2008).

      Here, since defendant presents an entirely legal issue, we

opt to address his claim of ineffective assistance of counsel.

Upon doing so, we conclude that defendant is unable to satisfy

Strickland's prejudice prong.               Even had counsel moved to dismiss

the   indictment        on     the    grounds      that        the    GPS     monitoring

requirement constituted an ex post facto violation, such motion

would have been unsuccessful, for the reasons we have expressed

above.

                                            C.

      Finally,   defendant          contends     that    his    due    process    rights

were violated when he was subjected to GPS monitoring without

any advance notice or opportunity to be heard.                       We disagree.

      It is well-settled that "parolees, probationers, and even

prisoners have liberty interests that implicate the commands of

due process."     Jamgochian, supra, 196 N.J. at 240.                       "The minimum

requirements of due process . . . are notice and the opportunity

to be heard."    Doe v. Poritz, supra, 142 N.J. at 106.




                                            20                                   A-5383-13T1
     "[T]he requirements of due process are . . . flexible,

calling      for   such   procedural      protections       as     the     situation

demands.      Simply put, not all situations calling for procedural

safeguards call for the same kind of procedure."                         Jamgochian,

supra, 196 N.J. at 240 (quoting State ex rel. D.G.W., 70 N.J.

488, 502 (1976)).

                  In many cases in which the supervised
             offender wishes to contest the matter, due
             process will be satisfied by giving him both
             specific notice of the claimed misconduct or
             improper behavior and the opportunity to
             respond    by    letter    with    supporting
             attachments,   such  as   certifications   or
             affidavits.     To merit a hearing, the
             supervised    offender    must    deny    the
             allegations or contest the conclusions to be
             drawn from the allegations or the rationale
             supporting the [condition sought to be
             imposed].    A community-supervised-for-life
             offender is not shielded, as is the accused
             in a criminal case, by the presumption of
             innocence.

             [Id. at 247-48.]

A hearing is generally required only when there are material

facts   in    dispute     that    need   to    be    resolved     by     credibility

determinations.      Id. at 248-49.

     In the present case, on August 14, 2012, the Parole Board

served defendant with written notice of its intention to impose

GPS monitoring as a special condition of his CSL.                        The notice

clearly specified that the proposed action was being taken based

on   defendant's      eight      convictions        for   CSL    violations,      and



                                         21                                 A-5383-13T1
detailed    the   nature      of     those   violations.       The   notice    also

clearly advised defendant that he had the right to contest the

proposed monitoring, and set forth the procedure for him to do

so.

      In    accordance       with     the    notice,    defendant    submitted      a

written statement in which he contested implementation of the

GPS monitoring "[b]ecause [] the courts didn't refer [him] to be

on this program."            Defendant did not dispute his eight prior

convictions,      or   the    facts    underlying      those   convictions.        In

short, he raised no factual or credibility dispute that required

a hearing.

      On   August      22,   2012,    the    Parole    Board   issued   its   final

decision imposing GPS monitoring "as a way to deter [defendant]

from absconding" and as a means to ensure compliance with the

other conditions of his CSL.                 Unlike the petitioners in Riley

and   Jamgochian,      defendant      did    not   appeal   the   Parole   Board's

decision.     Rather, by ridding himself of the monitoring device

he chose to engage in self-help, a remedy that is generally

disfavored.       See e.g., State v. Crawley, 187 N.J. 440, 459,

cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563

(2006); State v. Gandhi, 201 N.J. 161, 190 (2010).

      Defendant retains the right to seek administrative relief

from the special condition of his GPS monitoring.                    See N.J.A.C.




                                            22                             A-5383-13T1
10A:72-11.2(h)         (setting     forth     the   procedure    to   challenge        the

basis     for    GPS     monitoring);        N.J.A.C.     10A:72-11.4       (requiring

periodic        review     to   assess       whether     GPS   monitoring       remains

appropriate);            N.J.A.C.      10A:72-11.6         (establishing         appeal

procedure).          Nothing      in   our    decision     should     be    deemed      to

preclude defendant from pursuing any available administrative

remedy.         We   express    no     opinion      on   the   merits      of   such    an

application should it be filed.

    Affirmed.




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