NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4105-19T4






                   Submitted September 23, 2020 – Decided October 21, 2020

                   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).

      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


      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 fourth-

degree 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."

      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
                    TEMPORARY        SUSPENSION     OF
                    SENTENCE PURSUANT TO RULE
                    3:21-10(b)(2) DUE TO HIS SERVING A
                    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
                    DEATH OR SERIOUS HEALTH
                    COMPLICATIONS    FROM    THE

      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

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

            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

            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

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 wide -

ranging 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[,]'

. . . [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

   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.
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.


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