State v. R.K., DOCKET NOS. A-2022-18T2

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: SUMNERS, JR., J.A.D.
• Citation: 232 A.3d 487,463 N.J.Super. 386
• Decision Date: 27 April 2020
• Docket Number: DOCKET NOS. A-2022-18T2,A-2024-18T2
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. R.K., Defendant-Appellant.

463 N.J.Super. 386
232 A.3d 487

STATE of New Jersey, Plaintiff-Respondent,
v.
R.K., Defendant-Appellant.

DOCKET NOS. A-2022-18T2
A-2024-18T2

Superior Court of New Jersey, Appellate Division.

Argued January 13, 2020
Decided April 27, 2020

Stephanie A. Lutz, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Stephanie A. Lutz, of counsel and on the briefs).

Steven A. Yomtov, Deputy Attorney General, Trenton, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Steven A. Yomtov, Trenton, of counsel and on the briefs).

Before Judges Sabatino, Sumners and Natali.

232 A.3d 490

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

463 N.J.Super. 392

These consolidated appeals require us to determine whether two sentences imposed on convicted sexual offender R.K.¹ for violating a New Jersey Parole Board (Board) regulation imposing a supervised release condition banning the use of the Internet to access social media² are unconstitutional. R.K. contends the condition is unconstitutional on its face and as applied to him.³ The trial court denied R.K.'s motions to correct his illegal sentences, finding the ban did not violate R.K.'s constitutional rights. Because we conclude

463 N.J.Super. 393

the blanket social media prohibition is both unconstitutional on its face and as applied to R.K. individually, R.K.'s sentences impede his free speech rights, and we reverse and remand for further proceedings consistent with this decision.

I.

We begin with a discussion of the facts and procedural history pertinent to this appeal.

R.K.'s Previous Convictions ⁴

In October 1999, R.K. pled guilty to fourth-degree lewdness and third-degree endangering the welfare of a child, both in violation of N.J.S.A. 2C:14-4(a). About four months earlier, R.K., twenty-six years old at the time, approached two fourteen-year-old girls, asked them for sex, and exposed his penis. At his sentencing in June 2000, he was given a time-served sentence, three years' probation, and placed on Community Supervision for Life (CSL). His sentence also banned him from contacting minors. N.J.A.C. 10A:71-6.11(c).

In February 2004, R.K. was re-sentenced to four years in prison for violating probation. After a second parole violation in 2005, he was sentenced to four years at the Adult Diagnostic and Treatment Center.

In 2007, the Board added a new CSL special condition to R.K.'s parole, as it did with all other individuals serving a CSL

232 A.3d 491

sentence. Signing the Board's acknowledgement form, R.K. understood he was now prohibited from using social media on the Internet without the express authorization of the District Parole Supervisor.⁵ As we detail later, this prohibition was codified in N.J.A.C. 10A:71-6.11(b)(23) ("the social networking ban").

463 N.J.Super. 394

On May 12, 2011, R.K. was notified he was also "prohibited from accessing [on the Internet] any sexually-oriented websites, material, information or data." This new special condition recited: "Sexually oriented materials means any picture, photograph, negative, film, movie, videotape, DVD, CD, CD-ROM, streaming video, computer generated or virtual image or other representation, publication, sound recording or live performance, that contains a description or depiction of actual or simulated acts such as, but not limited to, sexual intercourse, oral sex, anal sex, masturbation, bestiality, sadism or masochism." The condition was instituted due to R.K.'s polygraph examination a month earlier when he "admitted to using his cell phone and public computers to search [Craigslist.org (Craigslist) ]⁶ and solicit prostitutes." According to the Board, "[i]mposition of this condition ... [was to] strengthen relapse prevention/safety plan and prevent [R.K.] from deleting/modifying any Internet history."

R.K.'s Violation of the Social Networking Ban

On April 12, 2012, R.K.'s parole officer made an unscheduled inspection at R.K.'s job and examined the Internet history and personal messages on R.K.'s cell phone. The inspection revealed R.K. had accessed, what the parole officer's report termed, a "dating site" by visiting Craigslist and had "responded to several personal/dating ads on that website." Additionally, the report noted R.K. had directly messaged four women who had posted

463 N.J.Super. 395

personal ads on the website. Several screenshots were taken by the parole officer documenting the five ads visited by R.K. and two email direct message conversations. The ads were posted by adult women looking for varying forms of relationships and having "fun" together, without any direct suggestion of sex. Three even mentioned a desire to marry or find a husband. The direct message conversations suggested mutual picture exchanges between R.K. and the women to verify the legitimacy of the posts.

Thereafter, R.K. was charged with "knowingly violat[ing] his [CSL] sentence by using his [cellphone] to create a social networking profile and/or to access any social networking service, site or chat room" in violation of N.J.S.A. 2C:43-6.4(d), a fourth-degree crime. He pled guilty on September 14, 2012, and four months later, he was sentenced to 364 days in county jail.

R.K.'s Motion to Correct Sentences

Almost six years after his conviction for violating the social networking ban, R.K.

232 A.3d 492

filed two separate motions to correct sentences not authorized by law. R.K. argued both the social networking restriction added to his June 2000 sentence related to his guilty plea in October 1999 and his 2012 CSL violation of those restrictions for accessing the Craigslist website, violated his rights under the First Amendment of the United States Constitution and Article I, Paragraphs 6 and 18 of the New Jersey Constitution because the restrictions are overbroad, vague, and criminalize his protected free speech. In the alternative, R.K. argued the restrictions are unconstitutional as applied to him. The State opposed the motion.

On December 13, 2018, the trial court entered an order, together with a fourteen-page written decision, denying R.K.'s motions. Citing J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327, 342, 344, 79 A.3d 467 (App. Div.), certif. denied, B.M. v. N.J. State Parole Bd., 217 N.J. 296, 88 A.3d 192 (2014) (" J.B. I"), the court determined the social networking ban had already been ruled facially constitutional because the Board "balance[d] the important safety

463 N.J.Super. 396

interests at stake with the offenders' interests in free expression and association."

The trial court rejected R.K.'s reliance on Packingham v. North Carolina, 582 U.S. ––––, 137 S. Ct. 1730, 198 L.Ed.2d 273 (2017), which found a North Carolina statute making it a criminal offense for convicted sex offenders to access social media unconstitutional because it violated their first amendment rights. The court reasoned the social networking ban on R.K. involved a supervised release parole condition imposed through a regulation as opposed to the criminal statute restrictions struck down in Packingham, 137 S. Ct. at 1731. See also State v. Hester, 233 N.J. 381, 388, 186 A.3d 236 (2018) ; J.I. v. N.J. State Parole Bd., 228 N.J. 204, 216, 226 n.6, 155 A.3d 1008 (2017).

In finding the social networking ban constitutional as applied to R.K., the trial court stated he was never "prevented from or penalized for accessing general websites such as Amazon.com or WebMD.com" as he argued, nor was he subject to the complete Internet ban struck down in J.I., 228 N.J. at 210, 155 A.3d 1008. The court relied on the combined holdings in State v. Perez, 220 N.J. 423, 437, 106 A.3d 1212 (2015), Hester, 233 N.J. at 387, 186 A.3d 236, and J.B. v. N.J. State Parole Bd., 229 N.J. 21, 41, 159 A.3d 1267 (2017) (" J.B. II"), to maintain that individuals on CSL may have their constitutional freedoms limited, since they are "supervised as if on parole," with "conditions appropriate to protect the public and foster rehabilitation." While acknowledging under J.I. a full Internet ban is unlawful, the court found a social networking restriction lawful. 228 N.J. at 210, 155 A.3d 1008.

Finally, the trial court found R.K.'s conviction for violating his CSL in 2012 "fully justified by a particular term of [R.K.'s] CSL separate and apart from the [social networking ban]." The court determined the CSL's sexually-oriented material ban was explicitly justified and applied solely to R.K., not for his underlying crime but for his "past history of soliciting prostitutes online and otherwise continuing to respond to personal advertisements."

463 N.J.Super. 397

The court held all the imposed bans were properly executed with sufficient notification to R.K., and it was his continued...