### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3872- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. DAVID ENGLISHMAN, a/k/a DAVE ENGLISHMAN, Defendant-Appellant.

_________________________

Submitted September 9, 2024

– Decided September 19, 2024 Before Judges Chase and Vanek. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 19- 06

- 0621. Kevin T. Conway, attorney for appellant. Mark Musella, Bergen County Prosecutor, attorney fo r respondent (K. Charles Deutsch, Assistant Prosecuto r, of counsel and 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3872

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Defendant David Englishman appeals from the denial of his motion for release from custody under Rule 3:21 -10 after pleading guilty to N.J.S.A. 2C:40- 26(b) and being sentenced to serve 180 days in the Bergen County jail with no parole eligibility. Because New Jersey decisional law precludes relief under Rule 3:21 -10 prior to serving a mandatory minimum sentence, we affirm the trial court's denial of defendant's motion. Howeve r, since the trial court erred in sua sponte ruling that the Compassionate Release Act (CRA), N.J.S.A. 30:4- 123.51(e), was inapplicable to defendant's county j ail sentence, we vacate that portion of the trial court's August 4, 2023 order a nd remand for further proceedings.
I. We recount the salient facts as gleaned from the m otion record before the trial court. On November 14, 2022, defendant pled guilty to one count of fourthdegree operating a motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(b). During the plea allocution, defendant admitted this was his second offense for driving while his driver's license was suspended. Accordingly, on March 10, 2023, the trial court sen tenced defendant to 180 days in the Bergen County jail with no eligibil ity for parole

— the mandatory minimum term of incarceration under N.J.S.A. 2C:40- 26(c). Defendant was also3 A- 3872

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sentenced to one year of probation upon release, al ong with requisite fines and

assessments. On March 21, 2023, the trial court was notified th e seventy-nine year old defendant was taken to the hospital due to blood cl ots, heart issues, and shortness of breath soon after he began serving his sentence. 1 On March 24, 2023, the trial court received a letter from Dr. Michael Hems ley, Medical Director of the Bergen County jail, requesting defendant be conside red for release on his own recognizance or home monitoring, due to his medical condition. Dr. Hemsley relayed that defendant suffers from severe chronic obstructive pulmonary disease (COPD) requiring supplemental oxygen, as we ll as hypertension, hypercholesterolemia, and bilateral deep venous thr ombi. On this basis, Dr. Hemsley concluded that release would be in defendan t's best interests. That same day, the trial court sua sponte stayed d efendant's sentence, ordered his release from incarceration pending further ord er, directed defendant to telephonically report to probation, and schedule d an in-person conference with counsel. The stay ordered by the court was co ntingent on defendant not operating a motor vehicle.

1 The trial court served a copy of the letter received from defendant's son on the State.4 A- 3872

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On June 9, 2023, the trial court sua sponte directe d defense counsel to file a motion for relief under N.J.S.A. 30:4-123.51(e) o f the CRA. On June 30, 2023, defendant filed a motion seeking release from his c ustodial sentence as the result of illness or infirmity pursuant to Rule 3:21 -10(b)(2). Specifically, defendant sought "permanent release from his sentence based o n his serious health issues and in the interests of justice." In addition to the written submissions on the motio n, the trial court considered defendant's June 28, 2023 letter from de fendant's physician, Dr. L.K. Lala, opining that defendant suffered from "thrombo phlebitis, hypertension, hypercholesterolemia, COPD with shortness of breath , prostate hypertrophy, arrhythmias, and pedal edema." Dr. Lala requested defendant be given a penalty other than incarceration. 2 During the August 4, 2023 oral argument, the State agreed to modification of defendant's jail sentence to non-custodial proba tion given defendant's medical issues and based on the temporary release ordered b y the trial court. However, the assistant prosecutor articulated the State's pr imary concern that defendant had, on multiple occasions, driven while intoxicate d with a suspended license, despite his advanced age.

2 Dr. Lala's letter is not included in the parties' a ppendices.5 A- 3872

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The trial court orally denied defendant's motion pr ior to entering a memorializing order, concluding defendant did not q ualify for release under Rule 3:21 -10(b)(2) because he had not served the mandatory m inimum 180 days of incarceration as required under our decisional c ase law, including State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). The trial court found there was no alternate statute under which defendant could be sentenced which would not require the same minimum term of confinement. The August 4, 2023 order also states the trial cour t sua sponte considered the application of the CRA to defendant and found r elief under that statute was precluded since "defendant is not a ward of the Com missioner of the New Jersey State Department of Corrections" based on his manda tory incarceration in the Bergen County jail. The trial court set forth it d id not reach the merits of whether defendant would qualify for compassionate release i f the CRA did apply to an inmate in a county jail. With the State's consent, the trial court granted a stay on the custodial portion of defendant's sentence to allow defendant to file the appeal now pending before us.6 A- 3872

- 22 II. Defendant argues the trial court erred in denying his motion for release under State v. Chavies, 247 N.J. 245 (2021), and ba sed on the CRA. Defendant's notice of motion and supporting certification filed with the trial court specified it sought "an [o]rder granting release from a sente nce of incarceration pursuant

to R[ule] 3:21-10(b)(2)." Thus, we begin by reviewing the trial court's denial of defendant's motion for release under Rule 3:21 -10(b)(2). On this issue, we affirm. Rule 3:21 -10(b)(2) 3 allows for the amendment of a custodial sentence t o permit a defendant's release from custody because o f illness or infirmity. Chavies, 247 N.J. at 249. The Rule does not create a judicial furlough program where a defendant is temporarily released for medic al treatment and then returned to custody. Rather, the Rule accomplishes a complete release from a custodial sentence with no conditions or supervisio n. In re Request to Modify Prison Sentences, 242 N.J. 357, 378-79 (2020); see also State v. Priester, 99 N.J. 123, 132 (1985).

3 Rule 3:21 -10(b)(2) provides that "[a] motion may be filed an d an order may be entered at any time . . . amending a custodial s entence to permit the release of a defendant because of illness or infirmity of t he defendant . . . ."7 A- 3872

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Our review of a trial court's decision to grant or deny a Rule 3:21 -10(b)(2) motion requires us to determine whether the trial c ourt abused its discretion. Chavies, 247 N.J. at 257 (quoting Priester, 99 N.J. at 137) (internal quotation marks omitted). "A court abuses its discretion whe n its 'decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis."'" Ibid. (quo ting State v. R.Y., 242 N.J. 48, 65 (2020)). Since Rule 3:21 -10(b)(2) "offers extraordinary relief" to prisoner s, it "must be applied prudently, sparingly, and cauti ously." Priester, 99 N.J. at 135. The Supreme Court has held that Rule 3:21 -10(b)(2) cannot be applied to afford relief until a defendant has served the mand atory parole ineligibility period of their sentence. See Chavies, 247 N.J. at 249. "[W]hen a parole ineligibility minimum term is required by statute, a court has no jurisdiction to consider a R[ule] 3:21-10(b) application." State v. Br own, 384 N.J. Super. 191, 194 (App. Div. 2006). Defendant was sentenced under N.J.S.A. 2C:40-26(c) for a second offense of operating a motor vehicle while his license was suspended for violation of N.J.S.A. 39:4-50. N.J.S.A. 2C:40-26(c) mandates "a fixed minimum sentence of not less than 180 days during which the defendan t shall not be eligible for8 A- 3872

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parole." Defendant served only a few weeks of the mandatory 180-day term before the trial court was apprised of his medical condition and temporarily stayed his custodial sentence. Based upon Chavies and its predecessors, we find no abuse of discretion in the trial court's conclus ion that it was precluded from granting defendant release under Rule 3:21- 10. We recognize the State consented to defendant's rel ease under Rule 3:21

- 10(b)(2) on the record at the conclusion of the Aug ust 4, 2023 oral argument. However, neither party proffers controlling case la w suggesting relief can be granted under this Rule upon prosecutorial consent, despite non-compliance with statutory and decisional law. Thus, we are co nstrained to affirm the trial court's denial of defendant's Rule 3:21 -10 motion for release.
III. We vacate the trial court's sua sponte consideratio n of the CRA's application to defendant's Rule-based motion as an improper advisory opinion. United States v. Fruehauf, 365 U.S. 146, 157 (1961) (defining an advisory opinion as an "advance expression[] of legal judgment upon issues" that are not before a court in the form of litigation involving concrete claims by adverse litigants); Klier v. Sordoni Skanska Constr. Co., 3 37 N.J. Super. 76, 83 (App. Div. 2001) (expressly rejecting "a procedure whereb y a judge sua sponte,9 A- 3872

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without notice to a party, resorts to a 'shortcut' for the purposes of 'good administration' and circumvents the basic requireme nts of notice and opportunity to be heard"). Defendant specifically sought relief under the Rule , not the CRA, as confirmed by defense counsel during oral argument b efore the trial court. The record does not establish that either party's trial court submissions addressed whether the CRA is an available remedy to defendant , since he was sentenced

to incarceration in a county jail rather than a state correctional facility. Nor did the trial court set forth any oral or written analy sis of this issue as required under Rule 1:7

- 4. 4 We, therefore, vacate the portion of the trial cour t's August 4, 2023 order which sua sponte deemed the CRA inapplicable based on defendant's custodial sentence in a county jail. It is only on appeal that defendant recasts his req uest for release as predicated on the CRA. Our Supreme Court has deter mined that a motion for relief under the CRA is governed by a separate stat ute and decisional lineage

4 Rule 1:7 -4(a), Required Findings, sets forth that "[t]he co urt shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motio n decided by a written order that is appealable as of right . . . ."10 A- 3872

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inapplicable to a Rule-based motion. State v. A.M. , 472 N.J. Super. 51, 73 (App. Div. 2022), aff'd as modified, 252 N.J. 432, 461 (2 023). The CRA, enacted in 2020, is intended to "provide[] for the release of inmates who suffer from a medical condition so seve re that they are incapable of committing a crime and, in certain cases, would not pose a threat to public safety if released." A.M., 252 N.J. at 438; see M. R. v. N.J. Dep't of Corr., 478 N.J. Super. 377, 380 (App. Div. 2024). The CRA "wa s designed to expand the use of compassionate release" because, previously, "[i]nmates convicted of certain serious crimes could not apply for relief." A.M., 252 N.J. at 438. In adopting the CRA, the Legislature intended relief t o be available "to all inmates." Ibid. The CRA requires the New Jersey Department of Corre ctions (DOC) to establish and maintain a process by which an inmate may obtain a medical diagnosis to determine whether the inmate is eligible for compassionate release. The medical diagnosis shall be made by two licensed physicians designated by the commissioner. The diagnosis shall include, but not be limited to: (1) a description of the terminal condition, diseas e or syndrome, or permanent physical incapacity; (2) a prognosis concerning the likelihood of recove ry from the terminal condition, disease or syndrome, o r permanent physical incapacity;11 A- 3872

- 22 (3) a description of the inmate's physical incapaci ty, if appropriate; and (4) a description of the type of ongoing treatment that would be required if the inmate is granted compassionate release. [N.J.S.A. 30:4-123.51e(b).]
"If an inmate is diagnosed with a terminal conditio n or permanent physical incapacity, the [DOC] 'shall promptly issue to the inmate a Certificate of Eligibility for Compassionate Release.'" A.M., 252 N.J. at 441 (quoting N.J.S.A. 30:4-123.51e(d)(2)). "With that certifica te, the inmate 'may petition the court for compassionate release' or ask the Pub lic Defender to do so." Ibid. (quoting N.J.S.A. 30:4-123.51e(d)(2) to (3)). Only after the trial court has been presented with a petition including the statutory certificate of eligibility does it procee d to the final step of analysis, considering

if . . . by clear and convincing evidence . . . the inmate is so debilitated or incapacitated by the terminal condition, disease or syndrome, or permanent physic al incapacity as to be permanently physically incapabl e of committing a crime if released and . . . the condit ions . . . under which the inmate would be released woul d not pose a threat to public safety. [N.J.S.A. 30:4-123.51e(f)(1).]12 A- 3872

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The CRA requires a defendant to comply with the sta tutory procedure prior to a trial court considering whether the subs tantive law warrants relief. Beyond the sua sponte oral conclusion the CRA was inapplica ble to defendant's county jail sentence, as memorialized in the August 4, 2023 order, there is no record on this issue for us to review on appeal. S ee Scott v. Salerno, 297 N.J. Super. 437, 447 (App. Div. 1997) ("[A]ppellate review is co nfined to the record made in the trial court."). Thus, we reject defend ant's arguments, made for the first time on appeal, that the CRA should be applied to grant d efendant's release from his custodial sentence. We remand the matter to the trial court for the ent ry of an order continuing the stay of defendant's custodial sentence pending further order and allowing defendant a finite period of time to file the previ ously-court ordered CRA motion. After allowing the parties sufficient time to brief the issues and orally argue, the trial court shall proceed to make findin gs of fact and conclusions of law, setting forth its analysis pursuant to Rule 1:7 -4, as to whether the CRA applies to defendant's custodial sentence in the Be rgen County jail prior to considering defendant's motion on the merits, if ap propriate. The trial court shall consider the State's position on appeal that county jail inmates are eligible13 A- 3872

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for compassionate release as a form of parole. 5 See N.J.S.A. 30:4-123.51(a) (jail inmate parole eligibility); N.J.S.A. 30:4-123.51e(a ) (defendants released on compassionate release grounds "shall be subject to custody, supervision and conditions" of parole); S. Judiciary Comm. Statemen t to A.2370 (Aug. 4, 2020) (L.2020, c. 106) (compassionate release is "the inm ate's parole"); A.M., 472 at 57 (referring to compassionate release as a form of parole). We offer no opinion on the outcome of these further proceedings. Affirmed in part. Vacated and remanded in part. W e do not retain jurisdiction.

5 The State also takes the position that although the CRA refers to the Commissioner of Corrections as the entity that ulti mately issues a certificate of eligibility, there is nothing in the statute that p revents county jail inmates from seeking a certificate from the Commissioner.