                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2203-15T1

J.S.,

     Appellant,                          APPROVED FOR PUBLICATION

v.                                          September 26, 2017

NEW JERSEY STATE PAROLE BOARD,              APPELLATE DIVISION


     Respondent.
______________________________________

          Argued May 23, 2017 – Decided September 26, 2017

          Before Judges Messano, Espinosa, and Suter.

          On appeal from the New Jersey State Parole
          Board.

          James H. Maynard argued the cause for
          appellant (Maynard & Sumner, LLC, attorneys;
          Mr. Maynard, on the brief).

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

     The opinion of the court was delivered by

SUTER, J.A.D.

     J.S. appeals the December 16, 2015 final agency decision of

the New Jersey State Parole Board (Board) that denied his "Petition

for International Parole Transfer" to the country of Sweden.        J.S.
is subject to the special sentence of community supervision for

life (CSL) required under the Violent Predator Incapacitation Act,

N.J.S.A. 2C:43-6.4,1 for certain offenses.          We reverse the Board's

denial because it did not consider whether it could supervise or

monitor J.S.'s compliance with the conditions of CSL or impose

special conditions, but incorrectly concluded that J.S. requested

to terminate CSL, which was error.

     In 2002, when he was then twenty-three-years old, J.S. had

sex with a fifteen-year-old, although he alleged not to be aware

of her age.      He pled guilty in January 2003, to third-degree

endangering the welfare of a child by engaging in sexual conduct

which would impair or debauch the morals of a child, N.J.S.A.

2C:24-4(a).     J.S. was sentenced to three years of probation, to

the registration and notification provisions under Megan's Law,

N.J.S.A. 2C:7-1 to -23, and to CSL, N.J.S.A. 2C:43-6.4.              He has

completed probation, but as a Tier One Megan's Law offender, he

is   required   to   register   and       also   remains   subject   to   CSL

requirements.

     J.S. is now married to a Swedish citizen and together they

have two children.     His wife's family owns a small business in



1
  Effective January 14, 2004, N.J.S.A. 2C:43-6.4 was amended. It
now provides for "parole supervision for life." L. 2003, c. 267,
§ 1 (codified at N.J.S.A. 2C:43-6.4(a)).

                                      2                              A-2203-15T1
Sweden.      J.S. and his wife want to move to Sweden to manage the

business for "a better quality of life for their young children"

and to earn more income.           J.S. requested a permanent residence

permit from Sweden.        He alleges that he gave the Swedish Migration

Board and the Swedish Embassy "full-disclosure of [his] offense

history,     and    the   terms   of   [his]    supervision."    The   Swedish

Migration Board granted him "a permanent residence permit . . .

based on family ties."

      J.S. filed a Petition for International Parole Transfer with

the Board.     On July 8, 2015, the Adult Panel of the Board denied

the application.          It asserted that if J.S. were "permitted to

reside in the country of Sweden, [he] will not be under supervision

and will not be under any restrictions which he . . . [is] subject

to under the present conditions of supervision."            The effect would

be to "terminate the special sentence of community supervision for

life" which is contrary to the legislature's intent and beyond the

Board's authority to order.

      J.S.'s appeal to the full Board was denied on December 16,

2015.     The Board agreed with J.S. that he "[was] not requesting

to be transferred to another state, the rules of the Interstate

Compact for Adult Supervision d[id] not apply and that there [were]

no   rules    that    exist[ed]    for    the    international   transfer     of

parolees."         However, the Board observed, "CSL is an essential

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component of the sentence to ensure the protection of the public

for at least a period of 15 years since the last conviction or

release from incarceration, whichever is later."                 It "recognize[d]

the statutory mandate that offenders . . . be supervised."                      The

Board found that permitting J.S. to reside outside of New Jersey

and the United States and in Sweden "without any ability of any

supervision     or    law   enforcement       authority     to   monitor   [J.S's]

compliance with the conditions of his CSL is in contravention of

the statute."         The Board noted that J.S. had the ability to

"petition the court for a release from CSL in January 2018."

      On    appeal,     J.S.   contends       the   Board   erred   because     the

legislature's purpose in establishing CSL was to "(1) protect the

public and (2) foster rehabilitation," and his relocation to Sweden

with his family would further the legislative intent behind CSL

and was not in conflict with it.               He alleges the Board erred in

treating his request as if he were requesting termination of the

CSL requirements.        He acknowledged he would "resume" his "duty to

report and be supervised" if he moved back to New Jersey.

      An administrative agency's final decision is sustained unless

it   is    arbitrary,    capricious,   or      unreasonable,      unsupported     by

substantial credible evidence in the record, or contrary to express

or implied legislative policies.              Saccone v. Bd. of Tr. of Police

and Firemen's Ret. Sys., 219 N.J. 369, 380 (2014); Lavezzi v.

                                          4                                A-2203-15T1
State, 219 N.J. 163, 171 (2014). We are not "bound by [the]

agency's interpretation of a statute or its determination of a

strictly legal issue[.]"        Id. at 173 (quoting Norfolk S. Ry. Co.

v. Intermodel Props., LLC, 215 N.J. 142, 165 (2013)).

     J.S. was sentenced to CSL.            "Community supervision for life

was 'designed to protect the public from recidivism by defendants

convicted of serious sexual offenses.'"             J.B. v. N.J. State Parole

Bd., 433 N.J. Super. 327, 336 (App. Div. 2013), aff'd in part and

mod. in part, 229 N.J. 21 (2017) (quoting Jamgochian v. N.J. State

Parole Bd., 196 N.J. 222, 237-38 (2008)).            CSL was enacted in 1994

as part of the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-

6.4, known as "Megan's Law."           State v. Hester, 449 N.J. Super.

314, 319 (App. Div. 2017).           CSL is a "special sentence" and as

such, it is punitive in nature, not remedial.                Ibid.; see State

v. Schubert, 212 N.J. 295, 308 (2012) (concluding "we are satisfied

that N.J.S.A. 2C:43-6.4 is punitive rather than remedial at its

core");   see   also    State   v.   Perez,   220    N.J.   423,   441   (2015).

"Persons who have been convicted between 1994 and 2004 of certain

sexual offenses enumerated within N.J.S.A. 2C:43-6.4(a) must serve

in addition to any existing sentence, 'a special sentence' of

'community supervision for life . . . .'"              J.B., supra, 433 N.J.

Super. at 336.         After 2004, the special sentence is "parole"

supervision for life.      Ibid.

                                       5                                 A-2203-15T1
     Under    the    1994   Act,    an   offender     sentenced     to   CSL    is

"supervised as if on parole and subject to conditions appropriate

to protect the public and foster rehabilitation."                   L. 1994, c.

130, § 2(b).        The Board promulgated regulations setting forth

general conditions for CSL "subject to any special conditions

established by the appropriate Board panel."                 N.J.A.C. 10A:71-

6.11(b).     Under the regulations, the offender is to "[r]eside at

a residence approved by the assigned parole officer" and must

"[o]btain the permission of the assigned parole officer prior to

any change of residence."          Moreover, permission must be obtained

"prior to leaving the state of the approved residence for any

purpose." Ibid. There are no provisions that address international

travel.2

     When J.S. committed the offense, the statute provided that a

"person sentenced to a term of community supervision for life may

petition     the    Superior   Court         for   release   from     community

supervision."      L. 1994, c. 130, § 2(c).        The court could grant the

application "only upon proof that the person has not committed a

crime for [fifteen] years since last conviction or release from

incarceration, whichever is later, and that person is not likely



2
  Other Board regulations address the state-to-state transfer of
parole supervision, which is not an issue here.     See N.J.A.C.
10A:71-6.10.

                                         6                               A-2203-15T1
to   pose   a   threat   to   the   safety   of   others   if   released   from

supervision."     Ibid.

      The Board treated J.S's petition as if he were asking to

terminate CSL.     We agree with the Board that CSL may be terminated

only upon application to the Superior Court and not by the Board.

However, we also agree with J.S. that his petition was to transfer

supervision based on a proposed change in residence and not to

terminate CSL.

      The Board's decision assumed that because J.S. requested to

reside in Sweden, he would be residing there "without any ability

of any supervision or law enforcement authority to monitor [J.S.'s]

compliance with the conditions of his CSL . . . in contravention

of the statute" that requires supervision for at least fifteen

years. However, the level of actual supervision to which J.S. is

subject is unclear, including the frequency in which he is required

to report to or meet with a parole officer, to take a polygraph

or the means utilized to ensure his compliance with the conditions

of his CSL.

      It was error not to consider if appropriate supervision of

J.S. could continue.          In Sanchez v. N.J. State Parole Bd., 368

N.J. Super. 181 (App. Div.), certif. granted, 182 N.J. 140 (2004),

appeal dismissed, 187 N.J. 487 (2006), we reversed a decision by

the Parole Board denying petitioner's request to live in New York

                                       7                              A-2203-15T1
State. New York declined the Board's request to accept supervision

of petitioner because of our Board's limitation in enforcement if

the petitioner violated conditions of his release or supervision.

In reversing the Board, we held that if the petitioner has "good

cause" to move to another state and that state will not accept

supervision, this was "an insufficient reason for keeping a CSL

defendant here."   Id. at 188.    "The spirit of the original Megan's

Law is best served by interpreting it to permit CSL defendants who

otherwise qualify for residence in another state under [the then

current parole transfer rules] to live in that state even if that

state declines supervision."         Ibid.      We held that "the Parole

Board may make the change in residence subject to conditions

appropriate to protect the public and foster rehabilitation."              Id.

at 188-89.

      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 certainly had the ability to require J.S. to

                                     8                                A-2203-15T1
suggest appropriate conditions.     However, on this record, the

Board did not undertake an informed consideration of any conditions

that might be appropriate before denying J.S.'s application.       We

deem arbitrary the Board's decision to reject summarily J.S.'s

request by treating it as an application to terminate CSL without

considering the merits of his application.

     Reversed and remanded for further proceedings consistent with

this opinion.   We do not retain jurisdiction.




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