STATE OF NEW JERSEY v. DAVID LEE RICHMOND, JR

NOT FOR PUBLICATION WITHOUT THE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-3980-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DAVID LEE RICHMOND, JR.,
a/k/a JASON WILLIAMS,

     Defendant-Appellant.
_____________________________

                   Submitted September 22, 2020 – Decided September 30, 2020

                   Before Judges Fisher and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Warren County, Accusation No. 06-01-0042.

                   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
      In 2006, defendant pleaded guilty to third-degree endangering the welfare

of a child,  N.J.S.A. 2C:24-4(a), and was sentenced to a three-year prison term

and parole supervision for life (PSL). He was paroled in 2007 but reincarcerated

in 2019 due to a PSL violation. In May 2020, with the outbreak of the COVID-

19 pandemic, defendant moved for relief under Rule 3:21-10(b),1 claiming his

health placed him at a heightened risk of death or grievous physical injury.

      The motion judge didn't conduct an evidentiary hearing but did consider

all the medical evidence defendant provided, including a late submission

revealing he had tested positive for the virus. After considering this evidence

and the reasons for defendant's incarceration, Judge H. Matthew Curry denied

the motion. In appealing, defendant argues in a single point that the judge erred

"in creating [his] own standard to determine whether relief was appropriate"

under Rule 3:21-10(b). Recognizing that this rule "must be applied prudently,

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

State v. Tumminello,  70 N.J. 187, 192-93 (1976), we conclude Judge Curry did

not abuse his discretion and, therefore, affirm.




1
  Because we find no merit in this appeal, we need not consider the State's
argument that the matter should have been presented to the parole board rather
than the trial court.
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                                        2
      In seeking relief, defendant was first required to demonstrate a change of

circumstances resulting in a severe depreciation of his health since sentence was

imposed. Priester,  99 N.J. at 136-37. This factor was met. The Supreme Court

recently held that the COVID-19 pandemic establishes the change of

circumstances required by Rule 3:21-10(b)(2). See In re Request to Modify

Prison Sentences, Expedite Parole Hearings, & Identify Vulnerable Prisoner s,

 242 N.J. 357, 379 (2020). The judge adhered to the Court's holding.

      The judge was then required to weigh other factors, such as

            the nature and severity of the crime for which he [was]
            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).]

As for the last of these factors, defendant was required to establish that "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.

      In applying this test, as illuminated by Request to Modify Prison

Sentences,  242 N.J. at 379 (declaring an inmate must "present evidence of both

an 'illness or infirmity' – a physical ailment or weakness – and the increased risk


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                                          3
of harm incarceration poses to that condition"), the judge referred to and

accepted the truth of the evidential materials that defendant "is asthmatic, and

suffers from hypertension, an acute kidney injury, and seizure disorders," as well

as "the effects of glaucoma, and exposure to tuberculosis." The judge also noted

that despite defense counsel's urging of a rapid decision, counsel "realized to his

'horror' that he had not submitted the most up-to-date medical records that

included a positive diagnosis for COVID-19" that was reported on May 12,

2020. The judge accepted this additional information, which was presented on

June 24, 2020, and denied the motion five days later.

      In applying the legal authorities cited above, Judge Curry found defendant

failed to show he "was continuing to experience significant symptoms, or any

symptoms for that matter," or "whether [he] was asymptomatic, or facing any

other significant complaints." The judge also concluded there was an absence

of evidence to demonstrate whether any symptoms progressed to such "a level

[that] the Department of Corrections cannot sustain adequate healthcare

treatment." For these and other reasons contained in a thorough thirty-seven-

page written decision, the judge concluded defendant failed to make a predicate

showing that the nature of his illnesses or medical condition, as well as the

deleterious effects of continued incarceration, warranted release. See Wright,


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                                        4
 221 N.J. Super. at 130 (rejecting inmate's argument for release because he

provided no evidence that confinement would exacerbate his AIDS symptoms).

      The judge also properly considered the reasons for defendant's

incarceration and whether his release would present a heightened risk for the

public.     As noted, defendant was convicted and imprisoned in 2006 for

endangering the welfare of a child as a result of having sex with a fifteen-year-

old girl when defendant was twenty-years old; he was paroled but later

reincarcerated for having committed a PSL violation. The judge found that, if

released, defendant would remain "unwilling" to stay "at home and comply with

PSL [r]egistration requirements, as he has clearly demonstrated an

unwillingness to do, which ultimately heightens the risk to the public at large."

The factual record supports the judge's conclusion.

      In the final analysis, Judge Curry weighed all the evidence presented and

properly applied the legal standards described above. We conclude he did not

abuse his discretion, and we affirm the order under review substantially for the

reasons set forth by Judge Curry in his well-reasoned and thorough written

decision.

      Affirmed.




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