STATE OF NEW JERSEY v. JOHN RAISLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6149-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN RAISLEY,

Defendant-Appellant.

___________________________________

Argued May 24, 2011 Decided July 8, 2011

 

Before Judges Carchman and Waugh.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 09-074.

 

Joseph Hillman, Jr., argued the cause for appellant.

 

Ian D. Brater, Assistant Prosecutor, argued the cause for respondent (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant John Raisley appeals the Law Division's order denying his application to dismiss, or indefinitely postpone the trial on, a summons issued to him for driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.

I.

We discern the following factual and procedural history from the record on appeal.

Raisley was issued the DWI and other summonses on November 3, 2006. The municipal court trial was adjourned several times for various reasons, including the pendency of the special master's report in State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

In April 2009, Raisley filed a motion for dismissal of the charges, arguing that his physical and psychological condition rendered him incompetent to stand trial. The municipal judge held a hearing on November 23, 2009, at which Raisley's treating cardiologist, Scott Eisenberg, D.O., testified.1

Prior to the hearing, Raisley had submitted a letter from a psychiatrist who opined that (1) he was "competent to stand trial as he is able to give advice to his counsel, understand the proceedings against him, understand the functions of the judge and the prosecutor, and understand the consequences of being found guilty or innocent," (2) that he suffers from panic attacks, and (3) that a trial would result in increased panic attacks and anxiety. The psychiatrist expressed "concern[]" that the panic attacks and anxiety related to a trial or subsequent incarceration "would lead to a 'fatal myocardial infarction.'" The psychiatrist did not, however, testify at the hearing.

Eisenberg testified, in part, as follows:

[EISENBERG]: Historically he presented with multiple episodes of chest pain at rest. And we initially did non-invasive work up, including nuclear stress tests as well as CAT Scans, which did not significantly yield a major amount of coronary artery disease or blockage.

 

We treated him medically with anti-anginal medications. His medical history is such that it places him at moderate to severe risk for heart disease, with high blood pressure, high blood sugar, a family history of early coronary disease, a history of heavy smoking, and cholesterol issues.

 

Finally, because of multiple episodes of chest pain and presentations to various hospitals with chest pain, we elected to do a cardiac catheterization. And that was performed on, I'm sorry, that was performed on March 4th of 2009.

 

That showed that his heart function was normal. I saw calcification or beginning of plaque in both of his major coronary arteries, as well as a moderate blockage in one of his major coronary arteries, indicative that this would be a source of angina as well as a source of a potential heart attack for this patient.

 

We treated him accordingly, and so noted at that time that, it's been well documented that his risk is at least moderate to severe for a myocardial infarction or a heart attack at any time. And it was asked of me whether or not stress could worsen that situation, and my answer was absolutely. It's been well documented in medical literature as such.

 

. . . .

 

[EISENBERG]: He is at an increased risk for a cardiac event with the knowledge that there's documentation that he has already existing coronary disease, and he has existing moderate, or placing him at a more significant risk than someone without those risk factors.

 

. . . .

 

[EISENBERG]: He would be at least moderate, moderate to severe risk. So, his 10, -- his 20 percent general risk to having a myocardial infarction, in general, based on the presence of the cardiac catheterization and his inherent risk, would be elevated.

 

[DEFENDANT'S ATTORNEY]: And you're answering that by factoring in the additional stress of the trial?

 

[EISENBERG]: Any emotional stress. I could only answer from the fact that stress is now included, again in the medical literature, as equal in terms of stress induced angina as would be if he were to take a walk and get chest pain, or if he were to take a walk and get shortness of breath.

 

If a person gets stressed and has chest pain, and then removes himself or herself from that stressful situation and that chest pain resolved, that is now listed, again in medical literature, as being angina.

 

So, in this situation, in answer to your question, yes, this would, if he's getting chest pain, even without standing trial and coming in and getting chest pain and presenting to the emergency room last week, and has multiple admissions now, and two years in our office presenting with that fact, I can only, as his cardiologist, say this would present an undue stress.

 

. . . .

 

[PROSECUTOR]: Doctor, you said he has a moderate to severe risk, is that correct?

 

[EISENBERG]: That is correct.

 

[PROSECUTOR]: Did you say that was 10 to 20 percent?

 

[EISENBERG]: Well, when we look at the, over the next 10 years, is he less than 10 percent, is he 10 to 20 percent, or is he greater than 20 percent in terms of a risk of a fatal or nonfatal event?

 

[PROSECUTOR]: And what is he?

 

[EISENBERG]: I would say he's at least 10 to 20 percent. So he's at least moderate risk.

 

. . . .

 

[PROSECUTOR]: So, based on the Framingham Risk assessment, or the risk chart that you just described, there's a 10 to 20 percent chance that he'll have a heart attack in the next ten years?

 

[EISENBERG]: That is correct.

 

The judge denied the motion, finding that Raisley was not incapacitated. Raisley then entered a conditional plea of guilty to the DWI charge, for which he gave a factual basis. The municipal judge accepted the plea and dismissed the remaining charges. Because this was Raisley's fifth offense, the judge sentenced him to incarceration for 180 days, ten-year license and registration suspensions, and other required fines and penalties. The judge stated that she would consider allowing Raisley to serve half of the period of incarceration in an alcohol treatment program, if it were to be determined that he was amendable to such treatment.

Raisley appealed to the Law Division. Argument on the appeal was heard on December 7, 2009. Following argument, the judge determined that Raisley had not established an inability to participate in a trial, noting that he had participated in the municipal hearing on his capacity that would not have been much shorter than a trial of the DWI itself. He found Raisley guilty based upon the guilty plea and imposed the same sentence as the municipal judge, including the 180-day period of incarceration. He stayed the sentence pending disposition of this appeal.

II.

Raisley raises the following issues on appeal:

A. BURDEN OF PERSUASION AT TRIAL AND ON APPEAL.

 

B. INCOMPETENCY IS ONLY ONE OF THREE REASONS TO GRANT DISMISSAL OR CONTINUANCE.

 

C. THE TRIAL COURT SHOULD HAVE TAKEN INTO CONSIDERATION WHETHER OR NOT THE DEFENDANT'S HEALTH WOULD BE MATERIALLY AND ADVERSELY EFFECTED AS A RESULT OF INCARCERATION.

 

D. CUSTODIAL SENTENCING IN THIS INSTANCE REQUIRES A NEW HEARING TO CLARIFY DEFENDANT'S TREATEMENT UPON CONVICTION OR PLEA.

 

Raisley bases his appeal on a "common law defense" premised on ill health rather than mental incapacity, relying on our opinion in State v. Kaiser, 74 N.J. Super. 257, 271 (App. Div.), certif. denied, 38 N.J. 310 (1962). That reliance is misplaced. Although there was an effort to postpone the trial in Kaiser because of the defendant's ill health and the possibility that a trial would make it worse, the actual appeal in Kaiser did not address that issue. We framed the issue in Kaiser as follows: "It is [Kaiser's] contention, as stated in defendants' brief, that the 'paramount question' is 'whether her health was immediately affected to the degree that her perception and awareness of current events were dulled so that her ability to participate in the presentation of her defense was impaired.'" Id. at 270. We held that it was not.

Nevertheless, Kaiser does establish that the question of whether to adjourn a criminal trial because of ill health is "a matter within the discretion of the trial court." Id. at 271.

Among [the] factors deserving consideration by the court in the exercise of its discretion are medical reports, personal observation of the accused, the effect of a continuance upon the State's ability to produce evidence at a subsequent date, and whether or not the accused will be better able to stand trial at a later time.

 

[Ibid.]

The medical testimony in this case was that Raisley was at a "moderate" risk of suffering "a cardiac event" under the stress of a trial. And, as the Law Division judge observed, he had no difficulty sitting through the hearing on the motion itself and in testifying when he entered the conditional plea of guilty. We see no abuse of discretion in the denial of the motion to dismiss or to indefinitely postpone the trial.

Raisley cites State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007) for the proposition that the State bore the burden of proof on the issue of his ability to stand trial. That case and others cited by Raisley concern mental capacity under N.J.S.A. 2C:4-4 and its common law predecessor. Mental capacity is not an issue in this case, as demonstrated by the psychiatrist's opinion obtained by Raisley. Consequently, it was Raisley, rather than the State, who bore the burden of proof.

Having reviewed Raisley's additional arguments concerning the dismissal or continuance in light of the applicable law and the record, including Eisenberg's testimony, we find them to be without merit and not warranting additional discussion in a written opinion. R. 2:11-3(e)(2).

With respect to the sentence, the 180-day period of incarceration was mandatory rather than discretionary. N.J.S.A. 39:4-50(a)(3). Such a sentence cannot be reduced under the procedures set forth in Rule 3:21-10(b). State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). Whether that prohibition applies to release from prison due to deteriorating health while incarcerated, see State v. Priester, 99 N.J. 123, 135-41 (1985), does not appear to have been addressed in a reported decision. None were cited and we have not found any.

The State appears to concede that such relief might be available, but neither party has fully briefed the issue. More importantly, there has been no showing on the present record that such relief would be appropriate even if available.

The predicate for relief under the Rule is proof of the serious nature of the defendant's illness and the deleterious effect of incarceration on the prisoner's health. As proof of the devastating effect of prison life on a defendant's health, the court should consider the availability of medical services in prison, including rehabilitative therapy. However, this factor is important only insofar as it tends to establish that without such medical services the defendant's condition will seriously worsen or deteriorate in prison. It is the existence of this serious threat to defendant's physical condition, rather than the prison system's ability to provide beneficial and desirable medical services, including rehabilitative health care, that is determinative of a Rule 3:21-10(b)(2) motion. Therefore, in order to prevail, the prisoner must show that the medical services unavailable at the prison would be not only beneficial and, in the case of therapy, rehabilitative, but are essential to prevent further deterioration in his health.

 

[Id. at 135.]

State and county correctional facilities have a clear obligation to care for prisoners who are ill, a duty of constitutional dimension. See Saint Barnabas Med. Ctr. v. Essex Cnty., 111 N.J. 67, 74 (1988). Raisley must bring his medical condition to the attention of the Monmouth County Correctional Center before he reports to serve his sentence so that any necessary medical examination and treatment plans can be set in place. If he believes those provisions are inadequate or there is further deterioration of his condition, he can seek appropriate relief through the correctional system's administrative process or in the Law Division.

A

ffirmed.2

1 The municipal transcript reflects that Raisley opted not to call his treating general practitioner as an additional witness and also not to testify himself concerning his medical condition.

2 While the appeal was pending, Raisley moved before us for an order requiring Monmouth County to pay the expenses for medical reports and testimony. (Motion No. M-4948-10). In light of our disposition of the appeal, we deny that motion.