NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be bin ding upon any court."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
A-4205-19T4 2 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"). A-4205-19T4 3 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
A-4205-19T4 5 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 . . .
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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
A-4205-19T4 2 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"). A-4205-19T4 3 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
A-4205-19T4 5 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
A-4205-19T4 6 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.
A-4205-19T4 7