STATE OF NEW JERSEY v. MARION JACOBS

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be bin ding 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-4205-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARION JACOBS,

          Defendant-Appellant.


                   Submitted September 23, 2020 – Decided October 7, 2020

                   Before Judges Fuentes and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Salem County, Indictment No. 86-06-0284.

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

                   John T. Lenahan, Salem County Prosecutor, attorney
                   for respondent (David M. Galemba, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant Marion Jacobs appeals a July 15, 2020 order denying a motion

to amend his sentence and permit his release for medical reasons pursuant to

Rule 3:21-10(b)(2). We affirm.

        Following a jury trial in 1986, defendant was found guilty of five counts

of first-degree armed robbery,  N.J.S.A. 2C:15-1. Defendant was sentenced to

an aggregate term of life imprisonment, with twenty-five years of parole

ineligibility as a persistent offender,  N.J.S.A. 2C:44-3(a), consecutive to the ten-

to twenty-year sentence he was serving in Pennsylvania. He becomes parole

eligible on November 6, 2026.

        Defendant moved for release from the remainder of his custodial sentence

due to the COVID-19 pandemic, arguing he suffers from diabetes and

hypertension and that these medical conditions and his age place him at risk.

The motion judge issued a written decision denying defendant's application. The

judge    considered   defendant's   submissions,     including:   prison   medical

documentation; the declarations of two medical doctors; the Department of

Corrections (DOC) Inmate Lookup Page; defendant's presentence report; and his

1986 judgment of conviction.

        Quoting our decision in State v. Mendel, the motion judge recognized

"[w]here a parole ineligibility term is required or mandated by statute, an



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application may not be granted under R[ule] 3:21-10(b) so as to change or reduce

a sentence."  212 N.J. Super. 110, 113 (App. Div. 1986). Because defendant is

serving a mandatory term of imprisonment1 the judge accordingly denied his

motion. In doing so, the judge rejected defendant's argument that our reasoning

in Mendel was limited to applications under subsection (b)(1) of the Rule, which

seek a change in custodial sentence to a rehabilitation or treatment center.

      For the sake of completeness, the motion judge also considered whether

defendant qualified for medical release under the factors outlined by our

Supreme Court in State v. Priester,  99 N.J. 123 (1985). These factors require a

court to consider: (1) "the availability of medical services in prison" to the extent

that "without such medical services, the defendant's condition will seriously

worsen or deteriorate in prison"; and (2) the existence of "changed

circumstances" in the defendant's health "since the time of the original

sentence." Id. at 135-36.

      Following her review of the current risk factors recognized by the Centers

for Disease Control and Prevention, the motion judge determined "defendant has



1
    Defendant does not contend that his parole ineligibility period was
discretionary. See  N.J.S.A. 2C:43-7(b); see also State v. Pennington,  154 N.J. 344, 360 (1998) (recognizing that "[a]lthough the decision whether to impose a
parole bar on a life sentence is discretionary, once the court decides to impose a
parole bar on an extended term of life, that bar must be twenty-five years").
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demonstrated that because he has been diagnosed with type 2 diabetes and

hypertension, he is at increased risk of severe illness if he contracts COVID-

19." Noting the initial onset of defendant's diabetes and hypertension diagnoses

was not stated in defendant's medical records, the judge nonetheless recognized

our Supreme Court "has determined that the worldwide pandemic (COVID-19)

'amounts to a change in circumstances under . . . Rule[3:21-10(b)(2)],'" thereby

satisfying the second Priester factor. In re Request to Modify Prison Sentences,

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

(2020) (slip op. at 21).

      However, the judge found defendant failed to allege his condition required

medical treatment that was unavailable in the prison.        Instead, defendant's

medical records demonstrate he "is receiving appropriate medical care for

diabetes and hypertension, although he has regularly refused the care available

to him[,]" including "medication and counseling." Accordingly, the judge found

defendant failed to satisfy the first Priester factor.

      Turning to several other Priester factors, the motion 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



                                                                           A-4205-19T4
                                           4 N.J. at 137.    Summarizing the circumstances of defendant's 1986 robbery

convictions, the motion judge noted defendant held five people at gunpoint at a

grocery store in Alloway Township, forced the victims to the second floor, and

stole their money and personal items. The judge also cited defendant's "history

of violence," which includes two prior robbery convictions in New Jersey, and

theft, attempted murder, robbery and aggravated assault convictions in

Pennsylvania.

      Recognizing defendant is seventy-two-years old, "confined to a

wheelchair and . . . ambulatory for short distances only[,]" the judge nonetheless

rejected defendant's contention that these circumstances render him incapable of

posing a threat of violence. To support her conclusion, the judge cited the DOC's

recent sanctions based on its finding that defendant had assaulted another

inmate, N.J.A.C. 10A:4-4.1(a)(1)(ii). The judge noted defendant appealed the

DOC's 2019 decision, which included a 181-day administrative segregation,

180-day loss of commutation time, and 30-day loss of phone privileges, and we

affirmed. Jacobs v. New Jersey Department of Corrections, No. A-3264-18

(App. Div. Apr. 22, 2020) (slip op. at 2).

      Accordingly, the judge found "defendant would pose a risk to the public

that would outweigh the risk to him from his continued confinement." We note



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that of the Priester 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, 335 (App. Div. 1985). This appeal followed.

      Defendant raises the following points on appeal:

                                     POINT I

            BECAUSE RULE 3:21-10(B)(2) PROVIDES FOR
            THE RELEASE OF A DEFENDANT WITHOUT A
            RESENT[EN]CING A DEFENDANT MAY BE
            RELEASED NOTWITHSTANDING A PERIOD OF
            PAROLE INELIGIB[I]LITY.

                                    POINT II

            THE MOTION COURT ABUSED ITS DISCRETION
            AND INCORRECTLY APPLIED RULE 3:21-10(B)(2)
            AND . . . PRIESTER IN DENYING [DEFENDANT'S]
            MOTION FOR RELEASE.

      Disposition of a motion brought pursuant to Rule 3:21-10(b)(2) "is an

extension of the sentencing power," and "is committed to the sound discretion

of the court." Priester,  99 N.J. at 135. We review decisions granting or denying

relief under the rule for abuse of that discretion. Id. at 137.

      Where, as here "a parole ineligibility minimum term is required by statute,

a court has no jurisdiction to consider a R[ule] 3:21-10(b) application." State v.

Brown,  384 N.J. Super. 191, 194 (App. Div. 2006). We do not interpret the

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Supreme Court's opinion in In re Request to Modify Prison Sentences, Expedite

Parole Hearings, & Identify Vulnerable Prisoners, to overturn settled principles

with respect to legislatively mandated minimum parole ineligibility periods.

The opinion simply acknowledges that inmates affected by COVID-19 have the

ability to file Rule 3:21-10(b)(2) motions but does not alter the legal standards

for eligibility for early release. Because defendant has not yet served the

statutory minimum term of imprisonment, the motion judge properly denied the

motion. See Brown,  384 N.J. Super. at 194; Mendel,  212 N.J. Super. at 113.

Accordingly, defendant's statutory ineligibility for parole clearly barred his

motion.

      Although the motion judge was not required to address the Priester factors

in light of the procedural bar, we discern no abuse of discretion here, where the

judge found defendant's appropriate medical treatment during incarceration, the

availability of such medical care, and the severity of his crime did not warrant

early release.    Because defendant failed to satisfy the burden necessary to

effectuate release from imprisonment under Rule 3:21-10(b)(2), the judge

properly applied her discretion in denying the motion. We therefore affirm

substantially for the reasons set forth in the motion judge's cogent decision.

      Affirmed.


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