SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4105-19T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD C. RANDALL,

Defendant-Appellant.

_________________________

Submitted September 23, 2020 – Decided

Before Judges Accurso and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 12-09-2295.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Timothy W. Dalton Jr., Assistant Deputy 

Public Defender, of counsel and on the brief).

Jill S. Mayer, Acting Camden County Prosecutor, 

attorney for respondent (Rachel M. Lamb, Special 

Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE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.

October 21, 2020
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Defendant Donald C. Randall appeals from a June 22, 2020 denial of his 

Rule 3:21-10(b)(2) motion to be released from custody. We affirm, substantially 

for the reasons set forth in the cogent written opinion of Judge Francisco 

Dominguez. 

On April 19, 2013, following a jury trial, defendant received an aggregate 

ten-year prison sentence for first-degree armed robbery, N.J.S.A. 2C:15-1A(2); 

second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-

4(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); and fourthdegree theft, N.J.S.A. 2C:20-3(a). With respect to the armed robbery charge, 

defendant received a ten-year prison term, subject to a mandatory parole 

ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2. We affirmed defendant's conviction in 2014 but remanded for resentencing. 

When defendant was resentenced, his aggregate term continued to be ten years, 

with the same parole ineligibility period for the armed robbery offense. 

Due to COVID-19, as well as a claim that defendant is "pre-diabetic" and 

suffers from hypertension and respiratory issues, he filed a Rule 3:21-10(b)(2)

motion to permit his release from prison. This Rule allows a trial court to 

"amend[] a custodial sentence to permit the release of a defendant because of 

illness or infirmity." 
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Judge Dominguez denied defendant's application, concluding he was not 

entitled to relief under Rule 3:21-10(b)(2), as defendant had "not yet served his 

period of parole ineligibility." The judge also noted that defendant withdrew 

his alternative argument for suspension of his sentence under State v. Boone, 

262 N.J. Super. 220, 221 (Law Div. 1992). 

On appeal, defendant raises the following arguments:

POINT I

 THE TRIAL COURT'S DENIAL OF 

DEFENDANT'S APPLICATION FOR 

TEMPORARY SUSPENSION OF 

SENTENCE PURSUANT TO RULE

3:21-10(b)(2) DUE TO HIS SERVING A 

PERIOD OF PAROLE INELIGIBIIITY 

CONSTITUTED ERROR AS A 

MATTER OF LAW.

POINT II

THE COVID-19 PANDEMIC IS A 

CHANGE IN CIRCUMSTANCES 

THAT HAS RESULTED IN 

INCARCERATION HAVING A 

DELETERIOUS EFFECT ON THE 

DEFENDANT'S HEALTH BECAUSE 

HIS UNDERLYING MEDICAL 

CONDITIONS MAKE HIM 

PARTICULARLY SUSCEPTIBLE TO 

DEATH OR SERIOUS HEALTH 

COMPLICATIONS FROM THE 

VIRUS.
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A Rule 3:21-10(b)(2) motion "is committed to the sound discretion of the 

court." State v. Priester, 99 N.J. 123, 135 (1985). "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 

benefits 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 an amendment of a custodial sentence is warranted because 

"medical services unavailable at the prison . . . are essential to prevent further 

deterioration in [the inmate's] health." Ibid. 

It is well established that Rule 3:21-10(b)(2) must be construed in a 

manner consistent with the Code of Criminal Justice. State v. Mendel, 212 N.J. 

Super. 110, 113 (App. Div. 1986). Thus, 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:

There is a distinction between an ineligibility term 

required by statute and one imposed as a matter of 
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discretion by the court . . . . An application may be 

made under R[ule] 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[ule] 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 

sentence originally imposed including an ineligibility 

term.

However, a sentence cannot be changed or reduced 

under R[ule] 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[ule]

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); . . . Where a parole ineligibility term 

is required or mandated by statute, an application may 

not be granted under R[ule] 3:21-10(b) so as to change 

or reduce that sentence.

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

Our Supreme Court recently instructed that "[t]o 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 the increased risk of harm 

incarceration poses to that condition. A generalized fear of contracting an 
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illness is not enough." In re Request to Modify Prison Sentences, Expedite 

Parole Hearings, and Identify Vulnerable Prisoners, 242 N.J. 357, 379 (2020). 

Although the 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 the Court concluded 

that Boone "cannot be read as a basis for courts to order and oversee a wideranging furlough program in place of the Commissioner," adding that Boone

"does not afford a basis for a broad-based judicial furlough process." Id. at 378. 

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. However, 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 promptly assessed

for possible aortic replacement surgery, a surgery which could be performed 

only at a certain Texas hospital. Request to Modify Prison Sentences, 242 N.J. 

at 378. The Court further noted that in Boone, the Commissioner of the 

Department of Corrections sought a furlough and the trial court "relied on the 

court's 'inherent authority to preserve life' and 'granted a judicial furlough[,]' 
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. . . [aware] 'this power should be sparingly utilized in the very rarest of cases.'" 

Ibid. (quoting Boone, 262 N.J. Super. at 223-24). 

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," 

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

10(b)(2) gives all inmates an opportunity to seek direct relief in court," id. at 

380, as permitting relief from mandatory minimum parole ineligibility terms 

imposed under NERA. While all inmates may be able to seek relief under this 

Rule, we are satisfied such relief should only be available to inmates who have 

served their mandatory parole ineligibility term.1

Regarding defendant's Point II, our Supreme Court recently acknowledged 

that the impact of COVID-19 on "New Jersey and its prison system amounts to 

a change in circumstances" under Rule 3:21-10(b)(2). Request to Modify Prison 

Sentences, 242 N.J. at379. But this acknowledgment does not permit defendant 

to vault his parole disqualifier and obtain relief under Rule 3:21-10(b)(2) for the 

reasons we have discussed. Moreover, even if defendant had completed his 

1

 Our conclusion is consistent with Executive Order 124, issued by Governor 

Philip Murphy on April 10, 2020, which offered relief to inmates possessing an 

underlying medical condition that increased their risk of death or serious illness 

from COVID-19. That Executive Order specifically excluded inmates serving 

terms of incarceration pursuant to NERA.
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period of parole ineligibility, and the trial court acknowledged his circumstances 

changed as a result of the pandemic, he still would need to prove the serious 

nature of his illness and the "deleterious effect of incarceration on [his] health,"

since a "generalized fear of contracting an illness is not enough." Ibid. Further, 

defendant would be required to demonstrate that the "medical services 

unavailable at the prison would be not only beneficial . . . but . . . essential to 

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

Additionally, the motion judge would be required to consider other Priester

factors, such as the "nature and severity of the crime, the severity of the 

sentence, the criminal record of the defendant, the risk to the public if the 

defendant is released, and the defendant's role in bringing about his current state 

of health." Priester, 99 N.J. at 137. 

We decline to speculate about whether defendant will be entitled to the 

extraordinary relief afforded under Rule 3:21-10(b)(2) once he becomes eligible. 

In the interim, we are satisfied there is no basis to disturb Judge Dominguez's 

June 22, 2020 order. 

Affirmed.