STATE OF NEW JERSEY v. ALQUAN R. MUSLIM

NOT FOR PUBLICATION WITHOUT THE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-4585-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ALQUAN R. MUSLIM, a/k/a
ALTON BRYANT, TONY
BRYANT, ALQON BRYANT,
and BRYANT MCNIGHT,

     Defendant-Appellant.
__________________________

                    Submitted October 27, 2020 – Decided November 5, 2020

                    Before Judges Haas and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 96-11-3839.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Rebecca Fisher, Assistant Deputy Public
                    Defender, of counsel and 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 appeals from the Law Division's July 10, 2020 order denying

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

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

      Following a trial, the jury convicted defendant of a number of offenses,

including murder, aggravated assault, and possession of a weapon for an

unlawful purpose. On November 12, 1997, the judge imposed an aggregate

sentence of life in prison, plus a consecutive term of twenty-three years, with

thirty-seven-and-one-half years of parole ineligibility.

      In May 2020, defendant filed a motion under Rule 3:21-10(b)(2) to reduce

his sentence. Defendant suffers from a number of different medical conditions

that required him to be hospitalized earlier this year "for profound multifactorial

shock and multi end organ failure." At that time, his treating physician did not

believe defendant would survive.

      However, defendant's condition dramatically improved over the course of

his treatment and he was returned to the prison, where it is contemplated that he

will soon be able to re-enter the general population. Defendant filed his motion

due to the COVID-19 pandemic because he believed that his medical conditions

placed him at risk of contracting this disease.


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

burden of establishing the grounds for effectuating release by making two

showings. First, the inmate must establish that a "change of circumstances" has

led to a "severe depreciation" of the inmate's health since the time of the origin al

sentence. 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 found 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,  242 N.J. 357, 379

(2020). But, "the nature of the inmate's illness and the effect of continued

incarceration on his health" remain a necessary "predicate for relief" under Rule

3:21-10(b)(2). Ibid. (quoting Priester,  99 N.J. at 135). In addition, the trial

court must consider and weigh "the nature and severity of the crime, the severity

of the sentence, the criminal record of the defendant, the risk to the public if the

defendant is released, and the defendant's role in bringing about his current state

of health." Priester,  99 N.J. at 137.




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      Applying these factors, the trial judge denied defendant's motion for

release under Rule 3:21-10(b)(2). In keeping with the Supreme Court's recent

decision in In re Request to Modify Prison Sentences, the judge ruled that the

ongoing pandemic constituted the change of circumstances mandated by the

Rule. However, the judge found that defendant failed to establish that his

medical condition required his release from custody.

      In this regard, the judge noted that defendant's condition dramatically

improved with the treatment he received, which primarily occurred during the

height of the pandemic. Defendant still needs ongoing physical therapy and

cardiology follow-ups, but these services are available at the prison and through

"telehealth." While defendant's treating physician opined that "telehealth" was

"suboptimal," he admitted that the prison's course of treatment was "technically

adequate." In addition, defendant would be re-admitted to the hospital if his

condition required it.

      The judge also considered the other Priester factors, including the fact that

defendant was serving a life sentence for murder.          The judge found that

defendant has a "significant" prior criminal history, including two parole

violations, which strongly weighed against granting his motion. Under these




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circumstances, the judge concluded that defendant failed to meet the Priester

standards. This appeal followed.

      On appeal, defendant argues that "[t]he trial court committed reversible

error in denying defendant's Rule 3:21-10(b)(2) motion." We disagree.

      A sentencing amendment under Rule 3:21-10(b)(2) "must be applied

prudently, sparingly, and cautiously." Priester,  99 N.J. at 135. The disposition

of a motion brought under this Rule "is an extension of the sentencing power,"

and "is committed to the sound discretion of the [trial] court." Ibid.

      Having considered defendant's arguments, which are identical to those he

unsuccessfully raised before the trial judge, we affirm for the reasons expressed

in the judge's thorough oral decision. Because defendant failed to satisfy the

burden necessary to effectuate his release under Rule 3:21-10(b)(2), the judge

properly applied his discretion in denying the motion. 1

      Affirmed.




1
   Because the judge correctly denied defendant's motion under the Priester
standards, we need not address the State's alternate argument that the judge
could have also denied it because defendant has not yet completed the mandatory
period of parole ineligibility required by the Legislature for his murder
conviction. See State v. Mendel,  212 N.J. Super. 110, 113 (App. Div. 1986)
(holding that "a sentence cannot be changed or reduced under Rule 3:21-10(b)
below the parole ineligibility term required by statute").
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