The opinion
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APPROVAL OF THE APPELLATE DIVISION
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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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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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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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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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