                                NOT FOR PUBLICATION WITHOUT THE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-3786-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ALFREDO LOPEZ,

     Defendant-Appellant.
________________________

                   Submitted August 10, 2020 – Decided August 25, 2020

                   Before Judges Moynihan and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment Nos. 12-06-9271
                   and 13-10-1370.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Jennifer M. Blum, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (William P. Miller, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      While defendant Alfredo Lopez was serving a ten-year prison sentence

with five years of parole ineligibility, 1 he filed a motion to suspend the

remainder of the custodial term "until the current COVID-19 pandemic ceases,"

or, alternatively, to amend his sentence to permit his release under Rule 3:21-

10(b)(2) because of illness. Defendant appeals from the trial court's order

denying his motion, arguing:


            POINT I

            THE    TRIAL  COURT    MISAPPLIED        THE
            PREVAILING LAW AS IT RELATES TO THE
            'SERIOUS NATURE OF DEFENDANT'S MEDICAL
            CONDITION AND THE DELETERIOUS EFFECT OF
            INCARCERATION ON DEFENDANT'S HEALTH'
            UNDER STATE V. PRIESTER, 99 N.J. 123 (1985).

            POINT II

            THE TRIAL [COURT] FAILED TO PROPERLY
            WEIGH ALL OF THE PRIESTER FACTORS IN
            DETERMINING        THAT   DEFENDANT WAS
            INELIGIBLE . . . FOR RELEASE.

We disagree and affirm.




1
  Defendant completed an aggregate seven-year prison term with forty-two
months of parole ineligibility under Indictment No. 12-06-9271 before
commencing a current consecutive term under Indictment No. 13 -10-1370.
                                                                       A-3786-19T4
                                      2
      Defendant sought to amend his sentence and permit his release under Rule

3:21-10(b)(2) because the stage IV renal failure from which he suffered when

he was sentenced advanced to stage V, and he recently had an arterial venous

fistula implanted to facilitate kidney dialysis treatment. 2 He was thus required

to first demonstrate a change of circumstances resulting in a severe depreciation

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

defendant made that predicate showing,

            the trial court [would be 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.



2
  Defendant did not advance in his merits brief that any other medical condition,
including hypertension and secondary hyperthyroidism that are noted in the St.
Francis Medical Center records submitted to the trial court, are cause for the
relief he seeks.
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                                         3
      From the trial court's oral decision, we glean that the it considered 2017

prison records, a medical expert's submission detailing "statistics and data and

the risk posed by the spread of COVID-19 in our prison systems," and "more

recent medical records from St. Francis Medical Center," which the court found

"corroborate[d] and verif[ied] the medical conditions" from which defendant

suffers.

      The trial court found medical documentation provided to the sentencing

court established defendant was diagnosed with stage IV kidney failure in 2005.

After reviewing defendant's lengthy criminal record—including "a long history

of dealing drugs, including substantial quantities of heroin"—for which he

received multiple state-prison terms, the trial court deduced defendant's renal

failure did not prevent his escalating criminal activity, and did not "deter

[defendant] from getting arrested, getting convicted[] and re-offending," up

through the charges for which he was most recently sentenced which included:

second-degree eluding involving "a high-speed chase through several . . .

towns,"; third-degree hindering apprehension; second-degree possession of

heroin—approximately 2250 glassine bags—with intent to distribute; and third-

degree possession of heroin, consecutive to defendant's current sentence for

first-degree possession of heroin—10,750 glassine envelopes—with intent to


                                                                        A-3786-19T4
                                       4
distribute. The court found that despite defendant's profession of reformation,

"[t]hat does not lessen the severity or the risk in the event he were released "

because of defendant's repeated recidivism after release from prison.

      From the medical records, the trial court found: proof of defendant's

diagnosed medical condition; the spread of COVID-19 "within the New Jersey

prison system"; and "that he is at higher risk than the general population of

suffering serious illness or death in the event he contracts COVID -19." Further,

the trial court found the advancement of defendant's renal failure to stage V

"coupled with the increased risk . . . posed by the spread of COVID-19"

amounted to a change of circumstances. 3

      The trial court also found defendant was not yet undergoing dialysis

treatment, and was not presently infected with COVID-19.           And, despite

establishing the predicate change of circumstances, the court concluded

"defendant has been and continues to be provided with all necessary and




3
    Our Supreme Court recently considered the impact of the COVID-19
pandemic and found "the worldwide pandemic that has afflicted New Jersey and
its prison system amounts to a change in circumstances under . . . Rule [3:21-
10(b)(2)]." In re Request to Modify Prison Sentences, Expedite Parole Hearings,
& Identify Vulnerable Prisoners, ___ N.J.___, ___ (2020) (slip op. at 21).



                                                                         A-3786-19T4
                                       5
essential treatment for his medical conditions while in prison" by the

Department of Corrections (DOC).

      The trial court also considered the details of the crimes for which

defendant was sentenced, their severity, his criminal record, and the risk to the

public if defendant were released. We note the court carefully delineated the

facts that led to those findings. See Wright, 221 N.J. Super. at 127 (reiterating

the Court's mandate in State v. Tumminello, 70 N.J. 187, 194-95 (1976), that

"the trial court is required to detail the reasons for granting or denying the relief

to the end that there may be a meaningful review"). The trial court balanced the

evidence relating to the Priester factors and denied defendant's Rule 3:21-

10(b)(2) motion.

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

applied prudently, sparingly[] and cautiously," Priester, 99 N.J. at 135, we

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

id. at 137; Tumminello, 70 N.J. at 193. In his merits brief, defendant concedes,

as he admitted to the court during oral argument, he is able to receive dialysis

treatment inside the prison facility. Although he argues the trial court did not

properly evaluate that "it is the very real risk of contracting the virus . . . th at

creates the serious risk to [defendant's] health," our Supreme Court made clear


                                                                             A-3786-19T4
                                         6
"[a] generalized fear of contracting an illness is not enough." In re Request to

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

      We note the dearth of proof relating to the impact of the prison

environment on defendant's particular medical condition. See Wright, 221 N.J.

Super. at 130. As the trial court noted, defendant did not present any medical

evidence that his condition deteriorated in the three months prior to the motion

hearing, and he had twice refused to allow the implantation of the port used to

facilitate dialysis treatment, which had not yet commenced at the time the

motion was heard.      Unlike the defendant in Tumminello—a case which

defendant argues is apposite—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, defendant has not established that continued imprisonment would

cause his renal condition to deteriorate or that the DOC is unable to address his

medical needs. And unlike defendant, the defendant in Tumminello was a first-

time offender, id. at 193-94, whose medical condition was unknown to the

sentencing court, id. at 193.

      "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


                                                                           A-3786-19T4
                                        7
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). The trial court

properly considered all the pertinent factors and did not abuse its discretion in

balancing those factors and denying defendant's motion.

      Defendant's remaining arguments lack sufficient merit to warrant

discussion in this opinion.      R. 2:11-3(e)(2). The record belies defendant's

contention that the trial court failed to consider the impact of defendant's efforts

at rehabilitation on his risk of re-offense and that posed to the community.

During the first motion hearing, the court heard defense counsel's recitation of

defendant's in-prison efforts, and listened as defendant read what the trial court

characterized in its decision as a "heartfelt" letter describing those efforts and

more at the second motion hearing. The court stated it was

            certainly . . . incorporating [defendant's] statements to
            the [c]ourt . . . regarding his remorse, what he submits
            to th[e c]ourt is a change and a repentant attitude for his
            past crimes, and his assertion that he will change and,
            if released, he will not re-offend. So [the court]
            certainly consider[s] all of that in terms of [its] decision
            as well, although much of . . . it goes to the relative risk
            of re-offense and risk to the community.


But the trial court concluded,

            although [it] appreciate[s] his sentiments . . . and
            hope[s] they're sincere, that maybe . . . now he

                                                                            A-3786-19T4
                                         8
             appreciates the impact that his conduct and others who
             do the same thing have had on the community[, t]hat
             does not lessen the severity or the risk in the event he
             were released.

      We also reject defendant's contention that the trial court failed to properly

weigh the DOC's decision to transfer defendant to full-minimum status thus

recognizing defendant does not represent a risk. The risk posed by defendant

within the prison system does not equate with the risk the trial court found if

defendant was released. 4

      Defendant does not challenge the trial court's denial of his motion to

suspend the remainder of the custodial term "until the current COVID -19

pandemic ceases," mentioning only in the combined procedural history and

statement of facts section of his merits brief that the trial court distinguished this

case from State v. Boone, 262 N.J. Super. 220 (Law Div. 1992). See Jefferson

Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008). In any

event, we determine the trial court properly found Boone inapposite. As our

Supreme Court described:



4
   We agree with the State that defendant's inclusion of the DOC's reason for
disapproving of defendant's release under Executive Order #124 should not be
considered. That denial was made subsequent to the trial court's motion
decision. Defendant did not move to supplement the record, R. 2:5-5, and this
appeal does not involve the DOC's decision.
                                                                              A-3786-19T4
                                          9
                   The Law Division's decision in Boone does not
            afford a basis for a broad-based judicial furlough
            process. Boone involved an extraordinary situation that
            the Commissioner brought to the court's attention: an
            inmate with a rare and potentially dangerous condition
            needed to be examined quickly for possible aortic
            replacement surgery, which could be performed only at
            a hospital in Texas. 262 N.J. Super. at 222. The
            Commissioner had no statutory authority to grant a
            furlough outside of New Jersey, so he asked the court
            to intervene. Ibid. The trial [court] relied on the court's
            "inherent authority to act to preserve life" and "granted
            a judicial furlough." Id. at 223. At the same time, the
            court noted "this power should be sparingly utilized in
            the very rarest of cases." Id. at 224.

            [In re Request to Modify Prison Sentences, ___ N.J. at
            ___ (slip op. at 19).]

Defendant's medical condition does not present one of those "rarest of cases."

      Affirmed.




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                                       10
