SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3786-19T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALFREDO LOPEZ,

Defendant-Appellant.

________________________

Submitted August 10, 2020 – Decided August 25, 2020

Before Judges Moynihan and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment Nos. 12-06-9271

and 13-10-1370.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Jennifer M. Blum, Assistant Deputy Public 

Defender, of counsel and on the brief).

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (William P. Miller, Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.
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While defendant Alfredo Lopez was serving a ten-year prison sentence 

with five years of parole ineligibility,

1 he filed a motion to suspend the 

remainder of the custodial term "until the current COVID-19 pandemic ceases," 

or, alternatively, to amend his sentence to permit his release under Rule 3:21-

10(b)(2) because of illness. Defendant appeals from the trial court's order 

denying his motion, arguing:

POINT I 

THE TRIAL COURT MISAPPLIED THE 

PREVAILING LAW AS IT RELATES TO THE 

'SERIOUS NATURE OF DEFENDANT'S MEDICAL 

CONDITION AND THE DELETERIOUS EFFECT OF 

INCARCERATION ON DEFENDANT'S HEALTH'

UNDER STATE V. PRIESTER, 99 N.J. 123 (1985).

POINT II

THE TRIAL [COURT] FAILED TO PROPERLY 

WEIGH ALL OF THE PRIESTER FACTORS IN 

DETERMINING THAT DEFENDANT WAS 

INELIGIBLE . . . FOR RELEASE.

We disagree and affirm.

1

 Defendant completed an aggregate seven-year prison term with forty-two 

months of parole ineligibility under Indictment No. 12-06-9271 before 

commencing a current consecutive term under Indictment No. 13-10-1370.
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Defendant sought to amend his sentence and permit his release under Rule

3:21-10(b)(2) because the stage IV renal failure from which he suffered when 

he was sentenced advanced to stage V, and he recently had an arterial venous 

fistula implanted to facilitate kidney dialysis treatment.

2 He was thus required 

to first demonstrate a change of circumstances resulting in a severe depreciation 

of his health since sentence was imposed. Priester, 99 N.J. at 136-37. If 

defendant made that predicate showing,

the trial court [would be compelled to] weigh various 

factors that affect the decision whether to grant a 

release such as, the nature and severity of the crime for 

which he is imprisoned, his criminal record, the risk 

that might result to the public by his release, . . . the 

nature of th[e] illness and the availability of appropriate 

medical services in prison to adequately treat or cope 

with that illness. 

[State v. Wright, 221 N.J. Super. 123, 127 (App. Div. 

1987).]

Defendant had to also establish "that the medical services unavailable at the 

prison would be not only beneficial . . . but are essential to prevent further 

deterioration in his health." Priester, 99 N.J. at 135.

2

 Defendant did not advance in his merits brief that any other medical condition, 

including hypertension and secondary hyperthyroidism that are noted in the St. 

Francis Medical Center records submitted to the trial court, are cause for the 

relief he seeks. 
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From the trial court's oral decision, we glean that the it considered 2017 

prison records, a medical expert's submission detailing "statistics and data and 

the risk posed by the spread of COVID-19 in our prison systems," and "more 

recent medical records from St. Francis Medical Center," which the court found 

"corroborate[d] and verif[ied] the medical conditions" from which defendant 

suffers. 

The trial court found medical documentation provided to the sentencing 

court established defendant was diagnosed with stage IV kidney failure in 2005. 

After reviewing defendant's lengthy criminal record—including "a long history 

of dealing drugs, including substantial quantities of heroin"—for which he 

received multiple state-prison terms, the trial court deduced defendant's renal 

failure did not prevent his escalating criminal activity, and did not "deter 

[defendant] from getting arrested, getting convicted[] and re-offending," up 

through the charges for which he was most recently sentenced which included: 

second-degree eluding involving "a high-speed chase through several . . . 

towns,"; third-degree hindering apprehension; second-degree possession of 

heroin—approximately 2250 glassine bags—with intent to distribute; and thirddegree possession of heroin, consecutive to defendant's current sentence for 

first-degree possession of heroin—10,750 glassine envelopes—with intent to 
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distribute. The court found that despite defendant's profession of reformation, 

"[t]hat does not lessen the severity or the risk in the event he were released"

because of defendant's repeated recidivism after release from prison. 

From the medical records, the trial court found: proof of defendant's 

diagnosed medical condition; the spread of COVID-19 "within the New Jersey 

prison system"; and "that he is at higher risk than the general population of 

suffering serious illness or death in the event he contracts COVID-19." Further, 

the trial court found the advancement of defendant's renal failure to stage V 

"coupled with the increased risk . . . posed by the spread of COVID-19" 

amounted to a change of circumstances.3 

The trial court also found defendant was not yet undergoing dialysis 

treatment, and was not presently infected with COVID-19. And, despite 

establishing the predicate change of circumstances, the court concluded 

"defendant has been and continues to be provided with all necessary and 

3

 Our Supreme Court recently considered the impact of the COVID-19 

pandemic and found "the worldwide pandemic that has afflicted New Jersey and 

its prison system amounts to a change in circumstances under . . . Rule [3:21-

10(b)(2)]." In re Request to Modify Prison Sentences, Expedite Parole Hearings, 

& Identify Vulnerable Prisoners, ___ N.J.___, ___ (2020) (slip op. at 21).
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essential treatment for his medical conditions while in prison" by the

Department of Corrections (DOC). 

The trial court also considered the details of the crimes for which 

defendant was sentenced, their severity, his criminal record, and the risk to the 

public if defendant were released. We note the court carefully delineated the 

facts that led to those findings. See Wright, 221 N.J. Super. at 127 (reiterating 

the Court's mandate in State v. Tumminello, 70 N.J. 187, 194-95 (1976), that

"the trial court is required to detail the reasons for granting or denying the relief 

to the end that there may be a meaningful review"). The trial court balanced the

evidence relating to the Priester factors and denied defendant's Rule 3:21-

10(b)(2) motion.

Recognizing a sentencing amendment under Rule 3:21-10(b)(2) "must be 

applied prudently, sparingly[] and cautiously," Priester, 99 N.J. at 135, we

determine the trial court did not abuse its discretion in denying the motion, see

id. at 137; Tumminello, 70 N.J. at 193. In his merits brief, defendant concedes, 

as he admitted to the court during oral argument, he is able to receive dialysis

treatment inside the prison facility. Although he argues the trial court did not 

properly evaluate that "it is the very real risk of contracting the virus . . . that 

creates the serious risk to [defendant's] health," our Supreme Court made clear 
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"[a] generalized fear of contracting an illness is not enough." In re Request to 

Modify Prison Sentences, ___ N.J. at ___ (slip op. at 21). 

We note the dearth of proof relating to the impact of the prison 

environment on defendant's particular medical condition. See Wright, 221 N.J. 

Super. at 130. As the trial court noted, defendant did not present any medical 

evidence that his condition deteriorated in the three months prior to the motion 

hearing, and he had twice refused to allow the implantation of the port used to 

facilitate dialysis treatment, which had not yet commenced at the time the 

motion was heard. Unlike the defendant in Tumminello—a case which 

defendant argues is apposite—whose worsening diabetes mellitus necessitated 

multiple amputations and who was unable to maintain the sanitary conditions in 

prison necessary to avoid ulcerations, infections and further amputations, 70 

N.J. at 190, defendant has not established that continued imprisonment would 

cause his renal condition to deteriorate or that the DOC is unable to address his 

medical needs. And unlike defendant, the defendant in Tumminello was a firsttime offender, id. at 193-94, whose medical condition was unknown to the 

sentencing court, id. at 193. 

"To prevail on a [Rule 3:21-10(b)(2)] motion, inmates must . . . present

evidence of both an 'illness or infirmity' -- a physical ailment or weakness -- and 
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the increased risk of harm incarceration poses to that condition." In re Request 

to Modify Prison Sentences, ___ N.J. at ___ (slip op. at 20-21). The trial court 

properly considered all the pertinent factors and did not abuse its discretion in 

balancing those factors and denying defendant's motion.

Defendant's remaining arguments lack sufficient merit to warrant 

discussion in this opinion. R. 2:11-3(e)(2). The record belies defendant's 

contention that the trial court failed to consider the impact of defendant's efforts 

at rehabilitation on his risk of re-offense and that posed to the community.

During the first motion hearing, the court heard defense counsel's recitation of 

defendant's in-prison efforts, and listened as defendant read what the trial court 

characterized in its decision as a "heartfelt" letter describing those efforts and 

more at the second motion hearing. The court stated it was 

certainly . . . incorporating [defendant's] statements to 

the [c]ourt . . . regarding his remorse, what he submits

to th[e c]ourt is a change and a repentant attitude for his 

past crimes, and his assertion that he will change and, 

if released, he will not re-offend. So [the court]

certainly consider[s] all of that in terms of [its] decision 

as well, although much of . . . it goes to the relative risk 

of re-offense and risk to the community. 

But the trial court concluded, 

although [it] appreciate[s] his sentiments . . . and 

hope[s] they're sincere, that maybe . . . now he 
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appreciates the impact that his conduct and others who 

do the same thing have had on the community[, t]hat 

does not lessen the severity or the risk in the event he 

were released.

We also reject defendant's contention that the trial court failed to properly 

weigh the DOC's decision to transfer defendant to full-minimum status thus 

recognizing defendant does not represent a risk. The risk posed by defendant 

within the prison system does not equate with the risk the trial court found if 

defendant was released.

4

Defendant does not challenge the trial court's denial of his motion to 

suspend the remainder of the custodial term "until the current COVID-19 

pandemic ceases," mentioning only in the combined procedural history and 

statement of facts section of his merits brief that the trial court distinguished this 

case from State v. Boone, 262 N.J. Super. 220 (Law Div. 1992). See Jefferson 

Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008). In any 

event, we determine the trial court properly found Boone inapposite. As our 

Supreme Court described:

4

 We agree with the State that defendant's inclusion of the DOC's reason for 

disapproving of defendant's release under Executive Order #124 should not be 

considered. That denial was made subsequent to the trial court's motion 

decision. Defendant did not move to supplement the record, R. 2:5-5, and this 

appeal does not involve the DOC's decision. 
10 A-3786-19T4

The Law Division's decision in Boone does not 

afford a basis for a broad-based judicial furlough 

process. Boone involved an extraordinary situation that 

the Commissioner brought to the court's attention: an 

inmate with a rare and potentially dangerous condition 

needed to be examined quickly for possible aortic 

replacement surgery, which could be performed only at 

a hospital in Texas. 262 N.J. Super. at 222. The 

Commissioner had no statutory authority to grant a 

furlough outside of New Jersey, so he asked the court 

to intervene. Ibid. The trial [court] relied on the court's 

"inherent authority to act to preserve life" and "granted 

a judicial furlough." Id. at 223. At the same time, the 

court noted "this power should be sparingly utilized in 

the very rarest of cases." Id. at 224.

[In re Request to Modify Prison Sentences, ___ N.J. at 

___ (slip op. at 19).]

Defendant's medical condition does not present one of those "rarest of cases."

Affirmed.