STATE OF NEW JERSEY v. JOSE LUIS SUAREZ

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4000-19T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

JOSE LUIS SUAREZ,

Defendant-Appellant.
___________________________

Submitted September 22, 2020 – Decided October 8, 2020

Before Judges Yannotti and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 07-04-0573.

Joseph E. Krakora, Public Defender, attorney for
appellant (Jessica K. Spencer, Assistant Deputy Public
Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).

PER CURIAM
Defendant appeals from an order entered by the Law Division on July 2,

2020, which denied his motion pursuant to Rule 3:21-10(b)(2) for release due to

illness or infirmity. We affirm.

Defendant was charged under Indictment No. 07-04-0573 with murder,

N.J.S.A. 2C:11-3(a)(1) or (2); felony murder, N.J.S.A. 2C:11-3(a)(3); and

robbery, N.J.S.A. 2C:15-1. On August 28, 2007, defendant pleaded guilty to an

amended charge of aggravated manslaughter under N.J.S.A. 2C:11-4(a)(1), a

first-degree offense.

In his plea colloquy, defendant stated that on November 8, 2006, he went

to Roberto Prieto's home to ask him for a loan. At the time, defendant was

twenty-nine years old. Prieto was seventy-four. Defendant and Prieto argued.

Defendant stated that Prieto hit him. Defendant punched Prieto in the face,

causing him to sustain significant injuries. Defendant fled the house, leaving

Prieto bleeding on the floor. Prieto died as a result of the injuries he sustained

in the altercation.

Thereafter, defendant filed a motion to withdraw his guilty plea. The trial

court denied the motion. At sentencing, the judge found aggravating factor nine.

N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the

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law). The judge found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7)

(defendant has no history of delinquency or criminal activity or has led a law -

abiding life for a substantial period of time); nine, N.J.S.A. 2C:44-1(b)(9)

(defendant's character and attitude indicate he is unlikely to commit another

offense); and the non-statutory mitigating factor of remorse.

The judge found the mitigating factors outweighed the aggravating factors

and sentenced defendant to sixteen years of incarceration, 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. The judge entered a judgment of conviction dated

November 18, 2008.

Defendant appealed and challenged his sentence. The appeal was heard

on our Excessive Sentence Oral Argument calendar. We entered an order

affirming defendant's sentence. State v. Suarez, No. A-3672-08 (App. Div. Jan.

11, 2012). The Supreme Court denied defendant's petition for certification.

State v. Suarez, 210 N.J. 479 (2012). While the appeal was pending, defendant

filed a motion to change or reduce his sentence. The trial court denied the

motion.

Defendant later filed another motion to reconsider or reduce his sentence.

By order entered on November 12, 2015, the trial court denied the motion. We

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affirmed the trial court's order. State v. Suarez, No. A-1518-15 (App. Div. May

23, 2017) (slip op. at 4). In our opinion, we noted that NERA imposes a

mandatory period of parole ineligibility for certain offenses, including first-

degree aggravated manslaughter. Id. at 3. We stated that "[a] sentence cannot

be changed or reduced under Rule 3:21-10(b) below the parole ineligibility term

required by statute." Ibid. (quoting State v. Mendel, 212 N.J. Super. 110, 113

(App. Div. 1986)).

According to defendant, he became eligible for transfer to a halfway house

on June 1, 2020. It is unclear from the record whether the NJDOC approved the

transfer. Defendant claims that, as a result of the COVID-19 pandemic, he has

remained incarcerated at South Woods State Prison (SWSP).

On June 18, 2020, defendant filed a motion for release pursuant to Rule

3:21-10(b)(2), based on an illness or infirmity. Defendant asserted that due to

his medical conditions, diabetes and high blood pressure, he was at risk of

suffering a serious illness if he contracted COVID-19. Defendant also claimed

his continued incarceration at SWSP violated his rights under the Eighth

Amendment to the United States Constitution. The State opposed defendant's

release.

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Judge Patrick J. Arre heard oral argument and thereafter entered an order

dated July 2, 2020, denying defendant's motion. In an accompanying written

opinion, Judge Arre stated that Rule 3:21-10(b)(2) does not permit the court to

change or reduce a sentence until after a defendant has completed his or her

parole ineligibility term mandated by statute. The judge noted that NERA

applies to defendant's sentence for aggravated manslaughter, and he will not be

eligible for parole until June 1, 2022. The judge found that defendant could not

seek relief under Rule 3:21-10(b)(2) until he serves the mandatory minimum

term of incarceration required by NERA.

The judge nevertheless considered the merits of defendant's motion and

found that he did not meet the criteria for release under the Rule. The judge also

rejected defendant's contention that his continued incarceration at SWSP

violated his rights under the Eighth Amendment to the United States

Constitution. This appeal followed.

II.

On appeal, defendant argues the trial court erred by concluding he could

not seek release under Rule 3:21-10(b)(2) until he completes the mandatory

minimum term imposed pursuant to NERA. Defendant also argues he meets the

criteria for release under the Rule.

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Rule 3:21-10(b)(2) provides in pertinent part that "[a] motion may be filed

and an order may be entered at any time . . . amending a custodial sentence to

permit the release of a defendant because of illness or infirmity of the

defendant." The Rule allows the court to grant "extraordinary relief to a

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

A motion for relief under Rule 3:21-10(b)(2) "is committed to the sound

discretion of the court." Ibid. (citing State v. Tumminello, 70 N.J. 187, 193

(1976)). When considering the motion, the court must engage in the "delicate

balancing of various factors." Ibid. "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." Ibid.

To warrant relief under Rule 3:21-10(b)(2), the inmate must establish that

the medical services that are "unavailable at the prison would be not only

beneficial . . . but are essential to prevent further deterioration in [the

defendant's] health." Id. at 135-36 (citing Tumminello, 70 N.J. at 193). The

inmate also must show circumstances in his health have changed since the time

of the original sentence. Id. at 136.

Further, the court must consider the "nature and severity of the crime, the

severity of the sentence, the criminal record of the defendant, the risk to the

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public if the defendant is released, and the defendant's role in bringing about his

current state of health." Id. at 137. The trial court's decision on the motion

should not be reversed on appeal unless the decision is shown to be a mistaken

exercise of discretion. Ibid.

As noted, defendant argues Rule 3:21-10(b)(2) authorizes the court to

order his release even though he has not completed the mandatory minimum

prison term required by NERA. He argues that Priester permits the court, in the

exercise of its authority under the Rule, to order his "outright release."

In Priester, the defendant pled guilty to aggravated sexual assault, in

violation of N.J.S.A. 2C:14-2(a)(4) and (6). Priester, 99 N.J. at 129. The trial

court sentenced defendant to a ten-year custodial term with a five-year period of

parole ineligibility. Id. at 130. About one year after he was sentenced, the

defendant sought relief under Rule 3:21-10(b)(2), asserting he suffered from

certain medical conditions and that he would benefit from medical treatment and

rehabilitative services that were available outside of the prison environment. Id.

at 130-31.

The trial court denied relief. Id. at 131. This court reversed and excised

the defendant's parole ineligibility term, so that the Parole Board could consider

whether and under what circumstances the defendant should be released on

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parole. Ibid. The Supreme Court held "that Rule 3:21-10(b)(2) may be applied

only to release a prisoner from prison but not to reduce or change his sentence."

Id. at 141. The Court therefore reversed our judgment "excising" the defendant's

parole ineligibility term. Ibid.

Here, defendant was convicted of an offense to which NERA applies. See

N.J.S.A. 2C:43-7.2(d)(2). NERA imposes a mandatory minimum period of

incarceration, which is eighty-five percent of the sentence imposed. N.J.S.A.

2C:43-7.2(a). Release of a defendant from incarceration before the completion

of his mandatory minimum period of incarceration would essentially represent

a change or reduction in the sentence imposed. We reject defendant's contention

that Priester allows the court to order his release under Rule 3:21-10(b)(2).

Defendant also argues that Mendel supports his contention that he may

seek release under Rule 3:21-10(b)(2). In Mendel, the defendant filed a motion

for a change or reduction of sentence pursuant to Rule 3:21-10(b)(1). 212 N.J.

Super. at 112. The defendant pled guilty to two counts of robbery and one count

of conspiracy to commit those offenses, and he had been sentenced to two

concurrent eight-year sentences, with four years to be served before parole

eligibility on each. Ibid.

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We held that a defendant may move under Rule 3:21-10 for a change or

reduction of sentence when the parole ineligibility term is imposed by the court

"but not required by statute as a mandatory sentence." Id. at 112-13. We stated

that the Rule "was never intended to permit the change or reduction of a

custodial sentence which is required by law." Id. at 113.

Here, defendant argues that a sentence subject to NERA does not have a

fixed period of parole ineligibility mandated by statute. He asserts NERA

merely imposes a "proportional period" of parole ineligibility, which is applied

to his sentence. He notes that in this matter, the trial court could have sentenced

him to a term of ten-to-thirty years.

Defendant's argument is entirely without merit. The period of parole

ineligibility established by NERA is "required by statute as a mandatory

sentence." Id. at 112-13. Although the trial court has discretion in determining

the length of the underlying sentence, the eighty-five percent period of parole

ineligibility is mandated by NERA. Thus, Mendel does not support defendant's

contention that he is entitled to seek release under Rule 3:21-10(b)(2).

We note that in its recent decision in In Re Request to Modify Prison

Sentences, Expedite Parole Hearings, & Identify Vulnerable Prisoners , 242 N.J.
357, 367 (2020), the Court addressed Executive Order 124, which established a

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process whereby certain inmates in state prison, who are particularly vulnerable

to COVID-19, would be eligible for expedited parole consideration or a medical

furlough.

In its opinion, the Court noted the Executive Order does not apply to all

inmates in state prison but stated that Rule 3:21-10(b)(2) "gives all inmates an

opportunity to seek direct relief in court." Id. at 380. The Court said the Rule

allows "individual inmates to apply for release from jail based on their physical

condition." Id. at 379.

The Court also stated that all inmates in state prisons could seek relief

under Rule 3:21-10(b)(2). Id. at 380. The Court did not, however, hold that

Rule 3:21-10(b)(2) authorizes the release of a prisoner before the completion of

a mandatory minimum term required by established by statute.

In any event, even if we were to conclude defendant could seek relief

under Rule 3:21-10(b)(2) before the completion of his period of parole

ineligibility, the record supports Judge Arre's determination that defendant did

not meet the criteria under Priester for release. In his opinion, the judge noted

that under Request to Modify Prison Sentences, defendant has shown the

COVID-19 pandemic "amounts to a change of circumstances under the [Rule]."

242 N.J. at 379.

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However, Judge Arre found defendant did not satisfy the remaining

criteria for release under Rule 3:21-10(b)(2). The judge explained that although

defendant provided documentation regarding his diabetes and high blood

pressure, he did not present any evidence showing that the NJDOC had failed to

provide him with treatment for either of those conditions while in jail. The judge

noted the record shows the NJDOC has continued to meet defendant's medical

needs and taken steps to mitigate and protect against the spread of COVID -19

in its correctional facilities.

Judge Arre also found defendant did not establish that the COVID-19

pandemic was having an actual deleterious effect upon his health conditions.

The judge pointed out that defendant claimed he is at risk of suffering an illness

he has not contracted. Our Supreme Court has observed that "[a] generalized

fear of contracting an illness" is not a sufficient basis for relief under Rule 3:21-

10(b)(2). Ibid.

The judge further found "the nature and severity of [defendant's] crime

and sentence . . . weigh heavily against release." As stated previously, defendant

is incarcerated as a result of his conviction of aggravated manslaughter. The

judge noted that the Legislature considered this offense to be sufficiently severe

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to warrant imposition of a custodial term with an eighty-five percent period of

parole ineligibility, as provided in NERA.

We are therefore convinced the judge did not err by denying defendant's

motion for release under Rule 3:21-10(b)(2). The judge considered the relevant

factors under Priester and found they weighed against defendant's release. There

is sufficient credible evidence to support the judge's findings of fact. We

conclude the denial of defendant's motion for release was not a mistaken

exercise of discretion.

III.

Defendant also argues his continued incarceration in the alleged "high-

risk" environment at SWSP violates his rights under the Eighth Amendment to

the United States Constitution and Article 1, paragraph 12 of the New Jersey

Constitution. These constitutional provisions both bar the infliction of cruel and

unusual punishments.

"It is undisputed that the treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny under the Eighth

Amendment." Helling v. McKinney, 509 U.S. 25, 31 (1993). "[D]eliberate

indifference to serious medical needs of prisoners constitutes the 'unnecessar y

and wanton infliction of pain,' proscribed by the Eighth Amendment." Estelle

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v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153,

173 (1976)).

To establish a violation of the Eighth Amendment, an inmate first must

show the deprivation, objectively, is "sufficiently serious" as to result in the

denial of "the minimal civilized measure of life's necessities." Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (citations omitted). Second, the prisoner

must show that the corrections official had a "sufficiently culpable state of

mind" and acted with "'deliberate indifference' to [the inmate's] health or safety

. . . ." Ibid. (quoting Wilson, 501 U.S. at 297) (citations omitted).

The New Jersey courts have applied this standard in considering claims

by prisoners regarding the adequacy of their medical care. See J.D.A. v. N.J.

Dep't of Corr., 189 N.J. 413, 414-15 (2007) (considering an Eighth Amendment

claim by inmates that the right to adequate medical care includes the

maintenance of complete and adequate medical records); Pryor v. Dept. of

Corrs., 395 N.J. Super. 471 (App. Div. 2007) (addressing inmates' Eighth

Amendment claim that the State was deliberately indifferent to their serious

medical needs). The New Jersey courts have not established a different standard

for consideration of such claims under the New Jersey Constitution.

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In this matter, Judge Arre found that defendant has not shown the NJDOC

has been deliberately indifferent to the risk COVID-19 presents to inmates who

suffer from medical conditions including diabetes and high blood pressure. The

record supports the judge's finding that the "NJDOC has taken reasonable

measures to abate the risk [that COVID-19] pose[s] to all inmates currently in

custody."

Thus, defendant has not shown that requiring him to remain at SWSP

represents a sufficiently serious deprivation. He also has not shown the NJDOC

acted with deliberate indifference to his health or safety. We therefore conclude

defendant failed to establish that his continued incarceration at SWSP violates

his rights under the Eighth Amendment to the United States Constitution or

Article 1, paragraph 12 of the New Jersey Constitution.

Affirmed.

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