STATE OF NEW JERSEY v. DAVID CHAVIES

NOT FOR PUBLICATION WITHOUT THE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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3858-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DAVID CHAVIES, a/k/a
DAVID Q. CHAVIES, and
DAVE CHAVIES,

     Defendant-Appellant.
__________________________

                   Submitted September 16, 2020 – Decided September 24, 2020

                   Before Judges Vernoia and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Indictment No. 15-05-0564.

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

                   Angelo J. Onofri, Mercer County Prosecutor, attorney
                   for respondent (Christian E. Fisher, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant David Chavies appeals from a June 10, 2020 order denying his

Rule 3:21-10(b)(2) motion to be released from custody and denying his

alternative request for a judicial furlough. We affirm, substantially for the

reasons set forth in the well-reasoned opinion of Judge Peter E. Warshaw, Jr.

      In June 2016, defendant pled guilty to an amended charge of second-

degree aggravated assault based on accomplice liability,  N.J.S.A. 2C:12-1(b)(1)

and  N.J.S.A. 2C:2-6. He was sentenced on August 5, 2016, to a ten-year prison

term 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.

      In May 2020, due to concerns related to the COVID-19 pandemic,

defendant filed a motion for release from custody pursuant to Rule 3:21-

10(b)(2); in the alternative, he requested relief by way of a judicial furlough. To

support his application, defendant supplied his medical records dating back to

August 2016. His medical records demonstrated he suffered from a variety of

health issues, including asthma, latent tuberculosis, hypothyroidism, a heart

murmur, and sickle cell anemia.

      Defendant argued his health conditions rendered him vulnerable to serious

illness or death if he contracted COVID-19. Additionally, he claimed the prison

facility where he was housed could not prevent the spread of the virus because


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social distancing was not possible in a prison that held over 1000 inmates and

because inmates were unable to control their contacts with others.

      On June 10, 2020, without conducting a hearing, Judge Warshaw found

defendant was barred from obtaining relief under Rule 3:21-10(b)(2). Citing to

State v. Mendel,  212 N.J. Super. 110, 113 (App. Div. 1986), the judge

determined that while the length of defendant's sentence was discretionary, "the

eighty-five percent minimum period of parole ineligibility is statutorily

mandated. N.J.S.A. 2C:43-6(a)(2)."

      For the sake of completeness, Judge Warshaw also considered whether

defendant qualified for release under the factors outlined in State v. Priester,  99 N.J. 123 (1985). First, the judge analyzed whether defendant's health issues

placed him at higher risk to suffer medical complications should he contract

COVID-19 and whether the pandemic constituted a change in circumstances

entitling defendant to seek relief from the court. The judge answered these

inquiries in the affirmative, but noted he was aware of defendant's adverse health

conditions when he imposed the NERA sentence.

      Next, Judge Warshaw determined the Department of Corrections had

provided and would continue to provide treatment for defendant's preexisting

conditions, as well as treat any potential COVID-19 infection. Also, the judge


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found defendant did not establish that incarceration caused defendant's health to

deteriorate.   As defendant merely alleged a future possibility that he may

contract the virus, Judge Warshaw concluded that "possible future degeneration

does not satisfy the third Priester []factor." The judge also correctly noted that

"our Supreme Court unequivocally stated: 'a generalized fear of contracting an

illness is not enough.'" In the Matter of the Request to Modify Prison Sentences,

Expedite Parole Hearings, and Identify Vulnerable Prisoners, ___ N.J. ___, ___

(2020) (slip op. at 21).

      Turning to several other Priester factors, the judge examined the nature

and severity of defendant's underlying crime; the severity of his sentence;

defendant's criminal record; the risk to the public posed by his release; and

defendant's role, if any, in bringing about his current health status. Priester,  99 N.J. at 137.    We note that of these factors, "public security must be the

paramount goal," because "primary among the hierarchy of governmental

objectives is the obligation to protect the citizen against criminal attack." State

v. Verducci,  199 N.J. Super. 329, 334-35 (App. Div. 1985).

      As Judge Warshaw observed, defendant was convicted of participating in

the shooting of two innocent bystanders who required hospitalization for their

multiple gunshot wounds. The judge found defendant "graduated from juvenile


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delinquency to serious violence," signaling a "disturbing escalation of

[d]efendant's aberrant conduct." Further, he determined that defendant's release

would pose a danger to public safety and that overall, the Priester factors

weighed against defendant's release from custody.        Lastly, Judge Warshaw

found defendant was not entitled to a judicial furlough under State v. Boone,

 262 N.J. Super. 220 (Law Div. 1992).1

      On appeal, defendant presents the following arguments for our

consideration:

                               Point I

            Appellant is entitled to a hearing on his motion for
            release under New Jersey Court Rule 3:21-10(b)(2).

                               Point II

             Appellant is not barred from Relief under Rule 3:21-
            10(b)(2) due to parole disqualifier as it does not require
            a change of sentence.

                               Point III

            Appellant has met the legal standard for release under
            State v. Priester, having shown the deleterious effect
            incarceration has had on his health, due to his


1
  Defendant acknowledges at footnote five of his brief that although he initially
requested alternative relief under Boone, he concedes this argument in light of
the Court's ruling in Request to Modify Prison Sentences, ___ N.J. at ___ (slip
op. at 19-20).
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            underlying medical conditions and ongoing C[ovid]-19
            pandemic, and seeks a new hearing.

      Having considered these arguments, we are not persuaded.

      Rule 3:21-10(b)(2) must be construed in a manner consistent with the

Code of Criminal Justice. Mendel,  212 N.J. Super. at 113. 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 that:

            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. 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. 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


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            sentence originally imposed including an ineligibility
            term.

            However, a sentence cannot be changed or reduced
            under R. 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. 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); . . . . R. 3:21-10 must be read in light
            of those provisions of the Code of Criminal Justice
            which require parole ineligibility terms. Where a
            parole ineligibility term is required or mandated by
            statute, an application may not be granted under R.
            3:21-10(b) so as to change or reduce that sentence.

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

      Although the Supreme 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 that 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" and that Boone

"does not afford a basis for a broad-based judicial furlough process." ___ N.J.

at ___ (slip op. at 19-20). 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.

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      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 examined quickly for possible aortic

replacement surgery, a surgery which could be performed only at a certain Texas

hospital. Id. at 19. The Court further noted that in Boone, the Commissioner of

the Department of Corrections sought the medical furlough and the trial court

granted the request based on its "inherent authority to preserve life" – a "power

[that] should be sparingly utilized in the very rarest of cases." Id. at 19 (quoting

Boone,  262 N.J. Super. at 224).

      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,"

id. at 20, we likewise decline to read the Court's declaration that "Rule 3:21-

10(b)(b) gives all inmates an opportunity to seek direct relief in court," id. at 23,

as permitting relief from mandatory minimum parole ineligibility terms imposed

under NERA. While all inmates may be able to seek relief under Rule 3:21-

10(b)(2), which specifically allows for "amending a custodial sentence to permit

the release of a defendant" due to illness or infirmity, we are satisfied such relief

should only be available to inmates who have served their mandatory parole

ineligibility term.


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      We are mindful that a Rule 3:21-10(b)(2) motion "is committed to the

sound discretion of the court." Priester,  99 N.J. at 135. "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 benefit 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 "medical services unavailable at the prison . . . are

essential to prevent further deterioration in [the inmate's] health." Ibid. Guided

by these standards, we are satisfied Judge Warshaw properly denied defendant's

Rule 3:21-10(b)(2) motion and correctly determined defendant did not meet his

burden under Priester or Boone to warrant the relief he requested.

      Finally, defendant's argument that we should remand this matter because

Judge Warshaw did not conduct a hearing before he issued his June 10, 2020

order is unconvincing.     Rule 3:21-10(c) confirms a hearing "need not be

conducted" on a Rule 3:21-10(b) motion unless the trial court determines that "a

hearing is required in the interest of justice." Here, after carefully reviewing the

voluminous submissions of the parties, the judge confirmed no hearing was




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necessary because of the "high quality of the submissions."       The judge's

assessment in this regard is overwhelmingly supported by the record.

      Affirmed.




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