NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3858-19T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID CHAVIES, a/k/a DAVID Q. CHAVIES, and DAVE CHAVIES,
Defendant-Appellant. __________________________
Submitted September 16, 2020 – Decided September 24, 2020
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 15-05-0564.
Joseph E. Krakora, Public Defender, attorney for appellant (Olivia Moorhead, Assistant Deputy Public Defender, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Christian E. Fisher, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant David Chavies appeals from a June 10, 2020 order denying his
Rule 3:21-10(b)(2) motion to be released from custody and denying his
alternative request for a judicial furlough. We affirm, substantially for the
reasons set forth in the well-reasoned opinion of Judge Peter E. Warshaw, Jr.
In June 2016, defendant pled guilty to an amended charge of second-
degree aggravated assault based on accomplice liability, N.J.S.A. 2C:12-1(b)(1)
and N.J.S.A. 2C:2-6. He was sentenced on August 5, 2016, to a ten-year prison
term with an eighty-five percent period of parole ineligibility pursuant to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In May 2020, due to concerns related to the COVID-19 pandemic,
defendant filed a motion for release from custody pursuant to Rule 3:21-
10(b)(2); in the alternative, he requested relief by way of a judicial furlough. To
support his application, defendant supplied his medical records dating back to
August 2016. His medical records demonstrated he suffered from a variety of
health issues, including asthma, latent tuberculosis, hypothyroidism, a heart
murmur, and sickle cell anemia.
Defendant argued his health conditions rendered him vulnerable to serious
illness or death if he contracted COVID-19. Additionally, he claimed the prison
facility where he was housed could not prevent the spread of the virus because
A-3858-19T4 2 social distancing was not possible in a prison that held over 1000 inmates and
because inmates were unable to control their contacts with others.
On June 10, 2020, without conducting a hearing, Judge Warshaw found
defendant was barred from obtaining relief under Rule 3:21-10(b)(2). Citing to
State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986), the judge
determined that while the length of defendant's sentence was discretionary, "the
eighty-five percent minimum period of parole ineligibility is statutorily
mandated. N.J.S.A. 2C:43-6(a)(2)."
For the sake of completeness, Judge Warshaw also considered whether
defendant qualified for release under the factors outlined in State v. Priester, 99
N.J. 123 (1985). First, the judge analyzed whether defendant's health issues
placed him at higher risk to suffer medical complications should he contract
COVID-19 and whether the pandemic constituted a change in circumstances
entitling defendant to seek relief from the court. The judge answered these
inquiries in the affirmative, but noted he was aware of defendant's adverse health
conditions when he imposed the NERA sentence.
Next, Judge Warshaw determined the Department of Corrections had
provided and would continue to provide treatment for defendant's preexisting
conditions, as well as treat any potential COVID-19 infection. Also, the judge
A-3858-19T4 3 found defendant did not establish that incarceration caused defendant's health to
deteriorate. As defendant merely alleged a future possibility that he may
contract the virus, Judge Warshaw concluded that "possible future degeneration
does not satisfy the third Priester []factor." The judge also correctly noted that
"our Supreme Court unequivocally stated: 'a generalized fear of contracting an
illness is not enough.'" In the Matter of the Request to Modify Prison Sentences,
Expedite Parole Hearings, and Identify Vulnerable Prisoners, ___ N.J. ___, ___
(2020) (slip op. at 21).
Turning to several other Priester factors, the 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
N.J. at 137. We note that of these 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, 334-35 (App. Div. 1985).
As Judge Warshaw observed, defendant was convicted of participating in
the shooting of two innocent bystanders who required hospitalization for their
multiple gunshot wounds. The judge found defendant "graduated from juvenile
A-3858-19T4 4 delinquency to serious violence," signaling a "disturbing escalation of
[d]efendant's aberrant conduct." Further, he determined that defendant's release
would pose a danger to public safety and that overall, the Priester factors
weighed against defendant's release from custody. Lastly, Judge Warshaw
found defendant was not entitled to a judicial furlough under State v. Boone,
262 N.J. Super. 220 (Law Div. 1992).1
On appeal, defendant presents the following arguments for our
consideration:
Point I
Appellant is entitled to a hearing on his motion for release under New Jersey Court Rule 3:21-10(b)(2).
Point II
Appellant is not barred from Relief under Rule 3:21- 10(b)(2) due to parole disqualifier as it does not require a change of sentence.
Point III
Appellant has met the legal standard for release under State v. Priester, having shown the deleterious effect incarceration has had on his health, due to his
1 Defendant acknowledges at footnote five of his brief that although he initially requested alternative relief under Boone, he concedes this argument in light of the Court's ruling in Request to Modify Prison Sentences, ___ N.J. at ___ (slip op. at 19-20). A-3858-19T4 5 underlying medical conditions and ongoing C[ovid]-19 pandemic, and seeks a new hearing.
Having considered these arguments, we are not persuaded.
Rule 3:21-10(b)(2) must be construed in a manner consistent with the
Code of Criminal Justice. Mendel, 212 N.J. Super. at 113. Much like the
constraints on a movant who seeks to attend a drug rehabilitation program
under Rule 3:21-10(b)(1), relief under Rule 3:21-10(b)(2) due to the illness or
infirmity of a defendant, "may not be accorded until a mandatory period of
parole ineligibility has been served." Pressler & Verniero, Current N.J. Court
Rules, cmt. 2.2 on R. 3:21-10 (2021). In Mendel, a Rule 3:21-10(b)(1) case,
Judge Edwin H. Stern wrote that:
There is a distinction between an ineligibility term required by statute and one imposed as a matter of discretion by the court . . . . An application may be made under R.
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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-3858-19T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID CHAVIES, a/k/a DAVID Q. CHAVIES, and DAVE CHAVIES,
Defendant-Appellant. __________________________
Submitted September 16, 2020 – Decided September 24, 2020
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 15-05-0564.
Joseph E. Krakora, Public Defender, attorney for appellant (Olivia Moorhead, Assistant Deputy Public Defender, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Christian E. Fisher, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant David Chavies appeals from a June 10, 2020 order denying his
Rule 3:21-10(b)(2) motion to be released from custody and denying his
alternative request for a judicial furlough. We affirm, substantially for the
reasons set forth in the well-reasoned opinion of Judge Peter E. Warshaw, Jr.
In June 2016, defendant pled guilty to an amended charge of second-
degree aggravated assault based on accomplice liability, N.J.S.A. 2C:12-1(b)(1)
and N.J.S.A. 2C:2-6. He was sentenced on August 5, 2016, to a ten-year prison
term with an eighty-five percent period of parole ineligibility pursuant to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In May 2020, due to concerns related to the COVID-19 pandemic,
defendant filed a motion for release from custody pursuant to Rule 3:21-
10(b)(2); in the alternative, he requested relief by way of a judicial furlough. To
support his application, defendant supplied his medical records dating back to
August 2016. His medical records demonstrated he suffered from a variety of
health issues, including asthma, latent tuberculosis, hypothyroidism, a heart
murmur, and sickle cell anemia.
Defendant argued his health conditions rendered him vulnerable to serious
illness or death if he contracted COVID-19. Additionally, he claimed the prison
facility where he was housed could not prevent the spread of the virus because
A-3858-19T4 2 social distancing was not possible in a prison that held over 1000 inmates and
because inmates were unable to control their contacts with others.
On June 10, 2020, without conducting a hearing, Judge Warshaw found
defendant was barred from obtaining relief under Rule 3:21-10(b)(2). Citing to
State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986), the judge
determined that while the length of defendant's sentence was discretionary, "the
eighty-five percent minimum period of parole ineligibility is statutorily
mandated. N.J.S.A. 2C:43-6(a)(2)."
For the sake of completeness, Judge Warshaw also considered whether
defendant qualified for release under the factors outlined in State v. Priester, 99
N.J. 123 (1985). First, the judge analyzed whether defendant's health issues
placed him at higher risk to suffer medical complications should he contract
COVID-19 and whether the pandemic constituted a change in circumstances
entitling defendant to seek relief from the court. The judge answered these
inquiries in the affirmative, but noted he was aware of defendant's adverse health
conditions when he imposed the NERA sentence.
Next, Judge Warshaw determined the Department of Corrections had
provided and would continue to provide treatment for defendant's preexisting
conditions, as well as treat any potential COVID-19 infection. Also, the judge
A-3858-19T4 3 found defendant did not establish that incarceration caused defendant's health to
deteriorate. As defendant merely alleged a future possibility that he may
contract the virus, Judge Warshaw concluded that "possible future degeneration
does not satisfy the third Priester []factor." The judge also correctly noted that
"our Supreme Court unequivocally stated: 'a generalized fear of contracting an
illness is not enough.'" In the Matter of the Request to Modify Prison Sentences,
Expedite Parole Hearings, and Identify Vulnerable Prisoners, ___ N.J. ___, ___
(2020) (slip op. at 21).
Turning to several other Priester factors, the 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
N.J. at 137. We note that of these 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, 334-35 (App. Div. 1985).
As Judge Warshaw observed, defendant was convicted of participating in
the shooting of two innocent bystanders who required hospitalization for their
multiple gunshot wounds. The judge found defendant "graduated from juvenile
A-3858-19T4 4 delinquency to serious violence," signaling a "disturbing escalation of
[d]efendant's aberrant conduct." Further, he determined that defendant's release
would pose a danger to public safety and that overall, the Priester factors
weighed against defendant's release from custody. Lastly, Judge Warshaw
found defendant was not entitled to a judicial furlough under State v. Boone,
262 N.J. Super. 220 (Law Div. 1992).1
On appeal, defendant presents the following arguments for our
consideration:
Point I
Appellant is entitled to a hearing on his motion for release under New Jersey Court Rule 3:21-10(b)(2).
Point II
Appellant is not barred from Relief under Rule 3:21- 10(b)(2) due to parole disqualifier as it does not require a change of sentence.
Point III
Appellant has met the legal standard for release under State v. Priester, having shown the deleterious effect incarceration has had on his health, due to his
1 Defendant acknowledges at footnote five of his brief that although he initially requested alternative relief under Boone, he concedes this argument in light of the Court's ruling in Request to Modify Prison Sentences, ___ N.J. at ___ (slip op. at 19-20). A-3858-19T4 5 underlying medical conditions and ongoing C[ovid]-19 pandemic, and seeks a new hearing.
Having considered these arguments, we are not persuaded.
Rule 3:21-10(b)(2) must be construed in a manner consistent with the
Code of Criminal Justice. Mendel, 212 N.J. Super. at 113. Much like the
constraints on a movant who seeks to attend a drug rehabilitation program
under Rule 3:21-10(b)(1), relief under Rule 3:21-10(b)(2) due to the illness or
infirmity of a defendant, "may not be accorded until a mandatory period of
parole ineligibility has been served." Pressler & Verniero, Current N.J. Court
Rules, cmt. 2.2 on R. 3:21-10 (2021). In Mendel, a Rule 3:21-10(b)(1) case,
Judge Edwin H. Stern wrote that:
There is a distinction between an ineligibility term required by statute and one imposed as a matter of discretion by the court . . . . An application may be made under R. 3:21-10 when the defendant is serving a parole ineligibility term imposed by the court but not required by statute as a mandatory sentence. When defendant is serving a period of parole ineligibility imposed as a matter of discretion, the court can consider an application under R. 3:21-10(b) in accordance with the standards for consideration of such an application. See e.g., State v. Priester, 99 N.J. 123 (1985); State v. Tumminello, 70 N.J. 187 (1976); State v. Davis, 68 N.J. 69, 84-86 (1975)[;] State v. McKinney, 140 N.J. Super. 160, 163 (App. Div. 1976). The court should also, of course, consider the aggravating and mitigating factors which led to the
A-3858-19T4 6 sentence originally imposed including an ineligibility term.
However, a sentence cannot be changed or reduced under R. 3:21-10(b) below the parole ineligibility term required by statute. See N.J.S.A. 2C:43-6c. See also State v. DesMarets, 92 N.J. 62 (1983). R. 3:21- 10(b) was never intended to permit the change or reduction of a custodial sentence which is required by law. See State v. Stanley, 149 N.J. Super. 326, 328 (App. Div. 1977); . . . . R. 3:21-10 must be read in light of those provisions of the Code of Criminal Justice which require parole ineligibility terms. Where a parole ineligibility term is required or mandated by statute, an application may not be granted under R. 3:21-10(b) so as to change or reduce that sentence.
[212 N.J. Super. at 112-13.]
Although the Supreme Court did not directly address the application of
Rule 3:21-10(b)(2) to defendants serving mandatory periods of parole
ineligibility, in Request to Modify Prison Sentences, it is notable that the Court
concluded that Boone "cannot be read as a basis for courts to order and oversee
a wide-ranging furlough program in place of the Commissioner" and that Boone
"does not afford a basis for a broad-based judicial furlough process." ___ N.J.
at ___ (slip op. at 19-20). In Boone, the inmate had not completed the period of
mandatory ineligibility at the time he sought a "judicial furlough." 262 N.J.
Super. at 221. The trial court held that a mandatory sentence did not preclude
the grant of such a furlough. Id. at 222-24.
A-3858-19T4 7 In Request to Modify Prison Sentences, the Court explained that "Boone
involved an extraordinary situation," an inmate with a rare, threatening
condition which required that he be examined quickly for possible aortic
replacement surgery, a surgery which could be performed only at a certain Texas
hospital. Id. at 19. The Court further noted that in Boone, the Commissioner of
the Department of Corrections sought the medical furlough and the trial court
granted the request based on its "inherent authority to preserve life" – a "power
[that] should be sparingly utilized in the very rarest of cases." Id. at 19 (quoting
Boone, 262 N.J. Super. at 224).
As the Court distinguished Boone and determined "Rule 3:21-10(b)(2)
. . . does not give the Judiciary broad authority to oversee a furlough program,"
id. at 20, we likewise decline to read the Court's declaration that "Rule 3:21-
10(b)(b) gives all inmates an opportunity to seek direct relief in court," id. at 23,
as permitting relief from mandatory minimum parole ineligibility terms imposed
under NERA. While all inmates may be able to seek relief under Rule 3:21-
10(b)(2), which specifically allows for "amending a custodial sentence to permit
the release of a defendant" due to illness or infirmity, we are satisfied such relief
should only be available to inmates who have served their mandatory parole
ineligibility term.
A-3858-19T4 8 We are mindful that a Rule 3:21-10(b)(2) motion "is committed to the
sound discretion of the court." Priester, 99 N.J. at 135. "It is an extension of
the sentencing power of the court, involving the same complexity as the
sentencing decision and the same delicate balancing of various factors." Ibid.
Because the benefit an inmate enjoys from the provisions of this rule are
extraordinary, it "must be applied prudently, sparingly, and cautiously." Ibid.
Accordingly, to succeed on a Rule 3:21-10(b)(2) motion, it is the prisoner's
burden to demonstrate that "medical services unavailable at the prison . . . are
essential to prevent further deterioration in [the inmate's] health." Ibid. Guided
by these standards, we are satisfied Judge Warshaw properly denied defendant's
Rule 3:21-10(b)(2) motion and correctly determined defendant did not meet his
burden under Priester or Boone to warrant the relief he requested.
Finally, defendant's argument that we should remand this matter because
Judge Warshaw did not conduct a hearing before he issued his June 10, 2020
order is unconvincing. Rule 3:21-10(c) confirms a hearing "need not be
conducted" on a Rule 3:21-10(b) motion unless the trial court determines that "a
hearing is required in the interest of justice." Here, after carefully reviewing the
voluminous submissions of the parties, the judge confirmed no hearing was
A-3858-19T4 9 necessary because of the "high quality of the submissions." The judge's
assessment in this regard is overwhelmingly supported by the record.
Affirmed.
A-3858-19T4 10