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

NOT FOR PUBLICATION WITHOUT THE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.
2 A-1679-16T1

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 fourteenyear-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.
3 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 
4 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).
5 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 reincarcerated 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 
6 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] 
7 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.
8 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 bipolar 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 decisionmaking 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 
9 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 crimesrelated[,]" 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.
10 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 
11 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.
12 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 selfincrimination; 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 
13 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)).
14 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 
15 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
16 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.