SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3858-19T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID CHAVIES, a/k/a

DAVID Q. CHAVIES, and

DAVE CHAVIES,

Defendant-Appellant.

__________________________

Submitted September 16, 2020 – Decided

Before Judges Vernoia and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Indictment No. 15-05-0564.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Olivia Moorhead, Assistant Deputy Public 

Defender, of counsel and on the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney 

for respondent (Christian E. Fisher, 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NOT FOR PUBLICATION WITHOUT THE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.

September 24, 2020
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Defendant David Chavies appeals from a June 10, 2020 order denying his 

Rule 3:21-10(b)(2) motion to be released from custody and denying his 

alternative request for a judicial furlough. We affirm, substantially for the 

reasons set forth in the well-reasoned opinion of Judge Peter E. Warshaw, Jr.

In June 2016, defendant pled guilty to an amended charge of seconddegree aggravated assault based on accomplice liability, N.J.S.A. 2C:12-1(b)(1)

and N.J.S.A. 2C:2-6. He was sentenced on August 5, 2016, to a ten-year prison 

term with an eighty-five percent period of parole ineligibility pursuant to the No 

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. 

In May 2020, due to concerns related to the COVID-19 pandemic, 

defendant filed a motion for release from custody pursuant to Rule 3:21-

10(b)(2); in the alternative, he requested relief by way of a judicial furlough. To 

support his application, defendant supplied his medical records dating back to 

August 2016. His medical records demonstrated he suffered from a variety of 

health issues, including asthma, latent tuberculosis, hypothyroidism, a heart 

murmur, and sickle cell anemia. 

Defendant argued his health conditions rendered him vulnerable to serious 

illness or death if he contracted COVID-19. Additionally, he claimed the prison 

facility where he was housed could not prevent the spread of the virus because 
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social distancing was not possible in a prison that held over 1000 inmates and 

because inmates were unable to control their contacts with others.

On June 10, 2020, without conducting a hearing, Judge Warshaw found 

defendant was barred from obtaining relief under Rule 3:21-10(b)(2). Citing to 

State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986), the judge 

determined that while the length of defendant's sentence was discretionary, "the 

eighty-five percent minimum period of parole ineligibility is statutorily 

mandated. N.J.S.A. 2C:43-6(a)(2)." 

For the sake of completeness, Judge Warshaw also considered whether 

defendant qualified for release under the factors outlined in State v. Priester, 99 

N.J. 123 (1985). First, the judge analyzed whether defendant's health issues

placed him at higher risk to suffer medical complications should he contract 

COVID-19 and whether the pandemic constituted a change in circumstances 

entitling defendant to seek relief from the court. The judge answered these 

inquiries in the affirmative, but noted he was aware of defendant's adverse health 

conditions when he imposed the NERA sentence. 

Next, Judge Warshaw determined the Department of Corrections had 

provided and would continue to provide treatment for defendant's preexisting 

conditions, as well as treat any potential COVID-19 infection. Also, the judge 
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found defendant did not establish that incarceration caused defendant's health to 

deteriorate. As defendant merely alleged a future possibility that he may 

contract the virus, Judge Warshaw concluded that "possible future degeneration 

does not satisfy the third Priester []factor." The judge also correctly noted that 

"our Supreme Court unequivocally stated: 'a generalized fear of contracting an 

illness is not enough.'" In the Matter of the Request to Modify Prison Sentences, 

Expedite Parole Hearings, and Identify Vulnerable Prisoners, ___ N.J. ___, ___ 

(2020) (slip op. at 21).

Turning to several other Priester factors, the judge examined the nature 

and severity of defendant's underlying crime; the severity of his sentence;

defendant's criminal record; the risk to the public posed by his release; and 

defendant's role, if any, in bringing about his current health status. Priester, 99 

N.J. at 137. We note that of these factors, "public security must be the 

paramount goal," because "primary among the hierarchy of governmental 

objectives is the obligation to protect the citizen against criminal attack." State 

v. Verducci, 199 N.J. Super. 329, 334-35 (App. Div. 1985). 

As Judge Warshaw observed, defendant was convicted of participating in 

the shooting of two innocent bystanders who required hospitalization for their 

multiple gunshot wounds. The judge found defendant "graduated from juvenile 
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delinquency to serious violence," signaling a "disturbing escalation of 

[d]efendant's aberrant conduct." Further, he determined that defendant's release 

would pose a danger to public safety and that overall, the Priester factors 

weighed against defendant's release from custody. Lastly, Judge Warshaw 

found defendant was not entitled to a judicial furlough under State v. Boone, 

262 N.J. Super. 220 (Law Div. 1992).

1

On appeal, defendant presents the following arguments for our 

consideration:

Point I 

Appellant is entitled to a hearing on his motion for 

release under New Jersey Court Rule 3:21-10(b)(2).

Point II

Appellant is not barred from Relief under Rule 3:21-

10(b)(2) due to parole disqualifier as it does not require 

a change of sentence.

Point III

Appellant has met the legal standard for release under 

State v. Priester, having shown the deleterious effect 

incarceration has had on his health, due to his 

1

 Defendant acknowledges at footnote five of his brief that although he initially 

requested alternative relief under Boone, he concedes this argument in light of 

the Court's ruling in Request to Modify Prison Sentences, ___ N.J. at ___ (slip 

op. at 19-20). 
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underlying medical conditions and ongoing C[ovid]-19 

pandemic, and seeks a new hearing.

Having considered these arguments, we are not persuaded.

Rule 3:21-10(b)(2) must be construed in a manner consistent with the 

Code of Criminal Justice. Mendel, 212 N.J. Super. at 113. Much like the 

constraints on a movant who seeks to attend a drug rehabilitation program 

under Rule 3:21-10(b)(1), relief under Rule 3:21-10(b)(2) due to the illness or 

infirmity of a defendant, "may not be accorded until a mandatory period of 

parole ineligibility has been served." Pressler & Verniero, Current N.J. Court 

Rules, cmt. 2.2 on R. 3:21-10 (2021). In Mendel, a Rule 3:21-10(b)(1) case, 

Judge Edwin H. Stern wrote that:

There is a distinction between an ineligibility term 

required by statute and one imposed as a matter of 

discretion by the court . . . . An application may be 

made under R. 3:21-10 when the defendant is serving a 

parole ineligibility term imposed by the court but not 

required by statute as a mandatory sentence. When 

defendant is serving a period of parole ineligibility 

imposed as a matter of discretion, the court can 

consider an application under R. 3:21-10(b) in 

accordance with the standards for consideration of such 

an application. See e.g., State v. Priester, 99 N.J. 123 

(1985); State v. Tumminello, 70 N.J. 187 (1976); State 

v. Davis, 68 N.J. 69, 84-86 (1975)[;] State v. 

McKinney, 140 N.J. Super. 160, 163 (App. Div.

1976). The court should also, of course, consider the 

aggravating and mitigating factors which led to the 
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sentence originally imposed including an ineligibility 

term.

However, a sentence cannot be changed or reduced 

under R. 3:21-10(b) below the parole ineligibility term 

required by statute. See N.J.S.A. 2C:43-6c. See 

also State v. DesMarets, 92 N.J. 62 (1983). R. 3:21-

10(b) was never intended to permit the change or

reduction of a custodial sentence which is required by 

law. See State v. Stanley, 149 N.J. Super. 326, 328 

(App. Div. 1977); . . . . R. 3:21-10 must be read in light 

of those provisions of the Code of Criminal Justice 

which require parole ineligibility terms. Where a 

parole ineligibility term is required or mandated by 

statute, an application may not be granted under R.

3:21-10(b) so as to change or reduce that sentence.

[212 N.J. Super. at 112-13.]

Although the Supreme Court did not directly address the application of 

Rule 3:21-10(b)(2) to defendants serving mandatory periods of parole 

ineligibility, in Request to Modify Prison Sentences, it is notable that the Court 

concluded that Boone "cannot be read as a basis for courts to order and oversee 

a wide-ranging furlough program in place of the Commissioner" and that Boone

"does not afford a basis for a broad-based judicial furlough process." ___ N.J. 

at ___ (slip op. at 19-20). In Boone, the inmate had not completed the period of 

mandatory ineligibility at the time he sought a "judicial furlough." 262 N.J. 

Super. at 221. The trial court held that a mandatory sentence did not preclude 

the grant of such a furlough. Id. at 222-24. 
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In Request to Modify Prison Sentences, the Court explained that "Boone

involved an extraordinary situation," an inmate with a rare, threatening 

condition which required that he be examined quickly for possible aortic 

replacement surgery, a surgery which could be performed only at a certain Texas 

hospital. Id. at 19. The Court further noted that in Boone, the Commissioner of 

the Department of Corrections sought the medical furlough and the trial court 

granted the request based on its "inherent authority to preserve life" – a "power 

[that] should be sparingly utilized in the very rarest of cases." Id. at 19 (quoting 

Boone, 262 N.J. Super. at 224). 

As the Court distinguished Boone and determined "Rule 3:21-10(b)(2) 

. . . does not give the Judiciary broad authority to oversee a furlough program," 

id. at 20, we likewise decline to read the Court's declaration that "Rule 3:21-

10(b)(b) gives all inmates an opportunity to seek direct relief in court," id. at 23,

as permitting relief from mandatory minimum parole ineligibility terms imposed 

under NERA. While all inmates may be able to seek relief under Rule 3:21-

10(b)(2), which specifically allows for "amending a custodial sentence to permit 

the release of a defendant" due to illness or infirmity, we are satisfied such relief 

should only be available to inmates who have served their mandatory parole 

ineligibility term.
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We are mindful that a Rule 3:21-10(b)(2) motion "is committed to the 

sound discretion of the court." Priester, 99 N.J. at 135. "It is an extension of 

the sentencing power of the court, involving the same complexity as the 

sentencing decision and the same delicate balancing of various factors." Ibid. 

Because the benefit an inmate enjoys from the provisions of this rule are 

extraordinary, it "must be applied prudently, sparingly, and cautiously." Ibid. 

Accordingly, to succeed on a Rule 3:21-10(b)(2) motion, it is the prisoner's 

burden to demonstrate that "medical services unavailable at the prison . . . are 

essential to prevent further deterioration in [the inmate's] health." Ibid. Guided 

by these standards, we are satisfied Judge Warshaw properly denied defendant's 

Rule 3:21-10(b)(2) motion and correctly determined defendant did not meet his 

burden under Priester or Boone to warrant the relief he requested. 

Finally, defendant's argument that we should remand this matter because 

Judge Warshaw did not conduct a hearing before he issued his June 10, 2020 

order is unconvincing. Rule 3:21-10(c) confirms a hearing "need not be 

conducted" on a Rule 3:21-10(b) motion unless the trial court determines that "a 

hearing is required in the interest of justice." Here, after carefully reviewing the 

voluminous submissions of the parties, the judge confirmed no hearing was 
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necessary because of the "high quality of the submissions." The judge's 

assessment in this regard is overwhelmingly supported by the record.

Affirmed.