STATE OF NEW JERSEY v. ERIK D. JOHNSON,

NOT FOR PUBLICATION WITHOUT THE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-3897-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ERIK D. JOHNSON, a/k/a
ERIC JOHNSON,

     Defendant-Appellant.
____________________________

                   Submitted September 15, 2020 – Decided September 29, 2020

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Warren County, Indictment Nos. 15-01-0035
                   and 18-10-0030.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karl R. Keys, Deputy Public Defender, of
                   counsel and on the brief).

                   James L. Pfeiffer, Warren County Prosecutor, attorney
                   for respondent (Dit Mosco, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Six months after being sentenced on two indictments to an aggregate five-

year prison term for violating probation, defendant Erik D. Johnson moved for

release under Rule 3:21-10(b)(2), alleging he faced a "distinct risk of serious

illness and death while incarcerated during the current [COVID-19] pandemic"

because he suffers from diabetes, high blood pressure, obesity and cerebral

palsy. He appeals from the trial court's order denying his motion, arguing:

            POINT I

            THE TRIAL COURT ERRED IN CREATING ITS
            OWN QUIXOTIC STANDARD TO DETERMINE
            WHETHER RELIEF WAS APPROPRIATE UNDER
            RULE[] 3:21-10B.

            POINT II

            THE TRIAL COURT ERRED IN MODIFYING ITS
            FACTFINDING AS TO [DEFENDANT'S] RISK TO
            THE COMMUNITY WITHOUT EXPLANATION.

Recognizing relief under Rule 3:21-10(b)(2) "must be applied prudently,

sparingly[] and cautiously," State v. Priester,  99 N.J. 123, 135 (1985), we

determine the trial court did not abuse its discretion in denying the motion, see

id. at 137; see also State v. Tumminello,  70 N.J. 187, 192-93 (1976).

      To further his Rule 3:21-10(b)(2) motion, defendant was required to first

demonstrate a change of circumstances resulting in a severe depreciation of his


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health since sentence was imposed. Priester,  99 N.J. at 136-37. If defendant

had made that predicate showing,

            the trial court [was compelled to] weigh various factors
            that affect the decision whether to grant a release such
            as, the nature and severity of the crime for which he is
            imprisoned, his criminal record, the risk that might
            result to the public by his release, . . . the nature of th[e]
            illness and the availability of appropriate medical
            services in prison to adequately treat or cope with that
            illness.

            [State v. Wright,  221 N.J. Super. 123, 127 (App. Div.
            1987).]

Defendant had to also establish "that the medical services unavailable at the

prison would be not only beneficial . . . but are essential to prevent further

deterioration in his health." Priester,  99 N.J. at 135.

      The trial court acknowledged the Supreme Court's recent holding that the

COVID-19 pandemic established a change of circumstances under Rule 3:21-

10(b)(2).   See In re Request to Modify Prison Sentences, Expedite Parole

Hearings, & Identify Vulnerable Prisoners, ___ N.J.___, ___ (2020) (slip op. at

21). The court also acknowledged defendant's medical issues.

      But the trial court found, notwithstanding defendant's current health

conditions and his submission of "numerous generally applicable scientific

reports, not specific to his case, indicating that the prison systems, including


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New Jersey's, are at an enhanced risk of spreading the COVID-19 infection,"

defendant "failed to provide any form of evidence indicating that further

incarceration would have a deleterious effect on [his] health." See Wright,  221 N.J. Super. at 130 (rejecting inmate's argument for release because he provided

no evidence that confinement would exacerbate his AIDS symptoms).

      "To 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." In re Request

to Modify Prison Sentences, ___ N.J. at ___ (slip op. at 20-21). Defendant failed

to meet the latter requirement. Unlike the defendant in Tumminello, whose

worsening diabetes mellitus necessitated multiple amputations and who was

unable to maintain the sanitary conditions in prison necessary to avoid

ulcerations, infections and further amputations,  70 N.J. at 190-91, defendant has

not established that continued imprisonment would cause his alleged underlying

conditions to deteriorate or that the DOC is unable to address his medical needs.

And, contrary to defendant's argument that the trial court's finding that

defendant was not infected with the COVID-19 virus wrongly imposed a

requirement that an inmate test positive before relief under Rule 3:21-10(b)(2)

is granted, the trial court simply recognized the Court's clear direction: "A


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generalized fear of contracting an illness is not enough." In re Request to

Modify Prison Sentences, ___ N.J. at ___ (slip op. at 21).

      The trial court also considered the crimes for which defendant is presently

incarcerated—fourth-degree obstruction,  N.J.S.A. 2C:29-1(a); second-degree

eluding,  N.J.S.A. 2C:29-2(b); and third-degree theft, N.J.S.A. 2C:20-3(a)—

noting that the eluding conviction "involved numerous law enforcement

agencies, two New Jersey State Police helicopters, speeds in excess of [ninety]

miles per hour as [defendant] drove through parking lots and residential

neighborhoods" and near collisions with two police cruisers as defendant fled to

avoid an outstanding warrant. Those circumstances, together with defendant's

criminal history, including his failures at probation, supported the trial court's

finding that defendant posed a risk to the public if released. The trial court's

prior assessment of defendant's risk—before he violated probation—does not

render the court's recent finding inconsistent.

      Defendant's remaining arguments lack sufficient merit to warrant

discussion in this opinion.    R. 2:11-3(e)(2).    The trial court balanced the

evidence relating to the Priester factors and properly denied defendant's motion.

      Affirmed.




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