STATE OF NEW JERSEY v. IZAIYAH GRISSOM

NOT FOR PUBLICATION WITHOUT THE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-4503-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

IZAIYAH GRISSOM,

     Defendant-Appellant.
_______________________

                    Submitted November 2, 2020 – Decided December 2, 2020

                    Before Judges Fasciale and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 17-11-3140.


                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Earnest G. Ianetti, Designated Counsel, on
                    the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Frank J. Ducoat,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant, Izaiyah Grissom, appeals from an August 3, 2020 order

denying his release under Rule 3:21-10(b)(2) due to the COVID-19 pandemic.

Along with entering that order, Judge Michael Ravin also rendered a

comprehensive twelve-page written opinion. We affirm.

      Defendant pled guilty to conspiracy to commit theft. In exchange for

defendant's guilty plea, the State agreed to dismiss robbery and related weapons

charges. Judge Ravin sentenced defendant to probation. Thereafter, defendant

was arrested and charged with assault, theft, and obstructing the administration

of law. He also failed to cooperate in substance abuse testing and counseling as

directed by his probation officer.    Accordingly, Judge Ravin revoked his

probation and re-sentenced defendant to a four-year prison term. Defendant

becomes eligible for parole in February 2021.

      Defendant raises the following contentions for our consideration:

            POINT I
            THE MOTION JUDGE'S      FINDING THAT
            DEFENDANT-APPELLANT'S HEALTH IS NOT
            RAPIDLY DETERIORATING DOES NOT JUSTIFY
            DENYING DEFENDANT-APPELLANT RELEASE
            TO PARTICIPATE IN AN IN-PATIENT DRUG
            REHABILITATION PROGRAM.


            POINT II
            REQUIRING   DEFENDANT-APPELLANT  TO
            SERVE THE REMAINING TWO YEARS OF HIS

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            SENTENCE IN ISOLATION VIOLATES THE
            EIGHTH AMENDMENT'S CRUEL AND UNUSUAL
            CLAUSE AND THE CRUEL AND UNUSUAL
            CLAUSE OF THE NEW JERSEY CONSTITUTION,
            ART. I, ¶ 12.

      We disagree with defendant's arguments and affirm substantially for the

reasons set forth in Judge Ravin's thorough and thoughtful written opinion. We

add the following remarks.

      An inmate seeking release from custody under Rule 3:21-10(b)(2) has the

burden of establishing the grounds for release by making two showings. First,

the inmate must establish that a "change of circumstances" has led to a "severe

depreciation" of his or her health since the time of sentencing. State v. Wright,

 221 N.J. Super. 123, 127 (App. Div. 1987).             Second, the inmate must

demonstrate that "medical services unavailable at the prison" are "essential to

prevent further deterioration" of [the inmate's] health." State v. Priester,  99 N.J.
 123, 135 (1985).

      Our Supreme Court has recognized that "the worldwide pandemic that has

afflicted New Jersey and its prison system amounts to a change in circumstances

under the Rule." In re Request to Modify Prison Sentences, Expedite Parole

Hearings, and Identify Vulnerable Prisoners,  242 N.J. 357, 379 (2020).

Nonetheless, "the nature of the inmate's illness and the effect of continued


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incarceration on his health" continue to remain the necessary "predicate for

relief" under Rule 3:21-10(b)(2).      Ibid. (quoting Priester,  99 N.J. at 135).

Furthermore, disposition of a motion under this Rule is "an extension of the

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

Priester,  99 N.J. at 135. A court abuses its discretion when it relies on an

impermissible basis, considers irrelevant factors, or makes a clear error in

judgment. See State v. S.N.,  231 N.J. 497, 500 (2018).

      Judge Ravin found that defendant's medical records support his claim that

he suffers from asthma and acknowledged that persons with moderate to severe

asthma are at higher risk of severe illness due to COVID-19.             The judge

nonetheless determined that defendant failed to establish a basis for release,

finding no indication that defendant has been exposed to the virus or that he is

in imminent danger of deteriorating health. The judge also noted that defendant

is presently separated from the general prison population for his protection.

Furthermore, the judge found that defendant failed to meet his burden of

showing that the medical services he sought outside of the prison would be

"essential to prevent further deterioration of his health." Priester,  99 N.J. at 135.

      Finally, Judge Ravin considered the circumstances of the offense and

defendant's conduct that resulted in revocation of his probation and re -


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                                         4
sentencing. Defendant's failure to abide by the conditions of his probation —

including community service and cooperation with substance abuse evaluation

and counseling—weighed heavily against granting the relief he seeks.

      In sum, the record clearly shows that Judge Ravin carefully considered

defendant's medical records and all relevant aggravating and mitigating factors.

In view of our deferential standard of review, we see no reason to disturb the

trial court's well-articulated findings.

      Defendant also contends, for the first time on appeal, that requiring him

to serve the remainder of his custodial sentence in "isolation" violates the Eighth

Amendment. This lacks sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(2).

      Affirmed.




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