STATE OF NEW JERSEY VS. ERIK D. JOHNSON (15-01-0035 AND 18-10-0030, WARREN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3897-19T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIK D. JOHNSON, a/k/a
ERIC JOHNSON,
Defendant-Appellant.
____________________________
Submitted September 15, 2020 – Decided September 29, 2020
Before Judges Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Indictment Nos. 15-01-0035
and 18-10-0030.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karl R. Keys, Deputy Public Defender, of
counsel and on the brief).
James L. Pfeiffer, Warren County Prosecutor, attorney
for respondent (Dit Mosco, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Six months after being sentenced on two indictments to an aggregate five-
year prison term for violating probation, defendant Erik D. Johnson moved for
release under Rule 3:21-10(b)(2), alleging he faced a "distinct risk of serious
illness and death while incarcerated during the current [COVID-19] pandemic"
because he suffers from diabetes, high blood pressure, obesity and cerebral
palsy. He appeals from the trial court's order denying his motion, arguing:
POINT I
THE TRIAL COURT ERRED IN CREATING ITS
OWN QUIXOTIC STANDARD TO DETERMINE
WHETHER RELIEF WAS APPROPRIATE UNDER
RULE[] 3:21-10B.
POINT II
THE TRIAL COURT ERRED IN MODIFYING ITS
FACTFINDING AS TO [DEFENDANT'S] RISK TO
THE COMMUNITY WITHOUT EXPLANATION.
Recognizing relief under Rule 3:21-10(b)(2) "must be applied prudently,
sparingly[] and cautiously," State v. Priester, 99 N.J. 123, 135 (1985), we
determine the trial court did not abuse its discretion in denying the motion, see
id. at 137; see also State v. Tumminello, 70 N.J. 187, 192-93 (1976).
To further his Rule 3:21-10(b)(2) motion, defendant was required to first
demonstrate a change of circumstances resulting in a severe depreciation of his
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health since sentence was imposed. Priester, 99 N.J. at 136-37. If defendant
had made that predicate showing,
the trial court [was 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.
The trial court acknowledged the Supreme Court's recent holding that the
COVID-19 pandemic established a change of circumstances under Rule 3:21-
10(b)(2). See In re Request to Modify Prison Sentences, Expedite Parole
Hearings, & Identify Vulnerable Prisoners, ___ N.J.___, ___ (2020) (slip op. at
21). The court also acknowledged defendant's medical issues.
But the trial court found, notwithstanding defendant's current health
conditions and his submission of "numerous generally applicable scientific
reports, not specific to his case, indicating that the prison systems, including
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New Jersey's, are at an enhanced risk of spreading the COVID-19 infection,"
defendant "failed to provide any form of evidence indicating that further
incarceration would have a deleterious effect on [his] health." See Wright, 221
N.J. Super. at 130 (rejecting inmate's argument for release because he provided
no evidence that confinement would exacerbate his AIDS symptoms).
"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
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). Defendant failed
to meet the latter requirement. Unlike the defendant in Tumminello, 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 190-91, defendant has
not established that continued imprisonment would cause his alleged underlying
conditions to deteriorate or that the DOC is unable to address his medical needs.
And, contrary to defendant's argument that the trial court's finding that
defendant was not infected with the COVID-19 virus wrongly imposed a
requirement that an inmate test positive before relief under Rule 3:21-10(b)(2)
is granted, the trial court simply recognized the Court's clear direction: "A
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generalized fear of contracting an illness is not enough." In re Request to
Modify Prison Sentences, ___ N.J. at ___ (slip op. at 21).
The trial court also considered the crimes for which defendant is presently
incarcerated—fourth-degree obstruction, N.J.S.A. 2C:29-1(a); second-degree
eluding, N.J.S.A. 2C:29-2(b); and third-degree theft, N.J.S.A. 2C:20-3(a)—
noting that the eluding conviction "involved numerous law enforcement
agencies, two New Jersey State Police helicopters, speeds in excess of [ninety]
miles per hour as [defendant] drove through parking lots and residential
neighborhoods" and near collisions with two police cruisers as defendant fled to
avoid an outstanding warrant. Those circumstances, together with defendant's
criminal history, including his failures at probation, supported the trial court's
finding that defendant posed a risk to the public if released. The trial court's
prior assessment of defendant's risk—before he violated probation—does not
render the court's recent finding inconsistent.
Defendant's remaining arguments lack sufficient merit to warrant
discussion in this opinion. R. 2:11-3(e)(2). The trial court balanced the
evidence relating to the Priester factors and properly denied defendant's motion.
Affirmed.
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