SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 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

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- 2295. Joseph E. Krakora, Pu blic 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 A ssistant 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon an y court

. " A lthough 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

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October 21 , 20202 A

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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 cogen t written opinion of Judge Francisco Dominguez

. On April 19, 2013, following a jury trial, d efendant 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 unlawfu l purpose, N.J.S.A. 2C:39

- 4(a) ; fourth

- degree aggravated assault , N.J.S.A. 2C:12

- 1(b)(4) ; and fou rth

degree theft , N.J.S.A. 2C:20

- 3(a). With respect to the armed robbery charge, d efendant rece ived a ten

- year prison term , subject to a mandatory parole inel igibility 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 aggre gate term continued to be ten years, with the same parole ineli gibility period for the armed robbery offense.
Due to C OVID

- 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."3 A

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Judge Dom i n guez 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 suspe nsion 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 3:2 1

- 10(b)(2) DUE TO HIS SERVING A PERIOD OF PAROLE INELIGIBIIITY CONSTITUTED ERROR AS A MATTER OF LAW.

PO INT 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 COMP LICATIONS FROM THE VIRUS.4 A

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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 sentenc ing decision and the same delicate balancing of various factors." Ibid. Because the benefit s an inmate enjoys from the provision s of this R ule are extraordinary , it "must be applied prudently, sparingly, and cautiously." Ibid. Accordingly, to succeed o n 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 b ecause "medical services unavailable at the prison . . . are essential to prevent further deterioration in [the inmate's] heal th." Ibid. It is well established that Rule 3:21

- 10(b)(2) must be construed in a manner consistent with the Code of Criminal J ustice. State v. Mendel , 212 N.J. Super. 110, 113 (App. Div. 1986). Thus, m uch 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, C urrent N.J. Court Rules , cmt. 2.2 on R. 3:21

- 10 (2021). In Mendel , a Rule 3:21

- 10(b)(1) case, J udge Edwin H. Stern wrote:

There is a distinction between an ineligibility term required by statute and one imposed as a matter of5 A

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- 10 when the defendant is serving a parole ineli gibility 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 accordan ce 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); St ate 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 ineligibili ty term. However, a sentence cannot be changed or reduced under R [ule ] 3:21

- 10(b) below the par ole 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 per mit the change or reduction of a custodial sentence which is required by law. See State v. Stan ley , 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
infirmi ty'

-- a physical ailment or weakness

-- and the increased risk of harm incarceration poses to that condition. A generalized fear of contracting an6 A

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illness is not en ough." In re Request to Modify Prison Sentences, Expedite Parole Hearings, and Identify V ulnerable 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 peri ods of parole ineligibility
in Request to Modify Prison Sentences , it is notable the C ourt 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 , " adding that Boone "doe s 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. Howev er, in Request to Modify Prison Sentences , the Court explained that " Boone involved an extraordinary situation," an inmate with a rare, thre atening condition which required that he be promptly assessed for possible aortic replacement surgery, a surgery whi ch 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

cou rt's ' inherent authority to preserve life ' and 'granted a judicial furlough[,]'7 A

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. . . [aware] 'this power should be sparingly util ized 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 d irect 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
R ule, we are satisfied such relief should only be available to inmates w ho 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. at 379

. But this acknowledgment does not permit defendant to vault his parole disquali fier and obtain relief under Rule 3:21

- 10(b)(2) for the reasons we have discussed. Moreover, even if defendant had com pleted 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. Th at Executive Order specifically excluded inmates serving terms of incarceration pu rsuant to NERA.8 A

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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 , 9 9 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 afford ed 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.