STATE OF NEW JERSEY VS. RAHEEM MCCOY (17-07-0730 AND 18-11-0909, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0553-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAHEEM MCCOY, a/k/a
RAHEEM T. MCCOY, and
RAHEEM T. MCCROY,
Defendant-Appellant.
_______________________
Submitted February 23, 2021 – Decided March 16, 2021
Before Judges Yannotti and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment Nos. 17-07-0730
and 18-11-0909.
Joseph E. Krakora, Public Defender, attorney for
appellant (John P. Flynn, Assistant Deputy Public
Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an order entered by the Law Division on July 28,
2020, which denied his motion to amend his sentence pursuant to Rule 3:21-
10(b)(2). We affirm.
I.
In Passaic County Indictment No. 17-07-0730, defendant was charged
with second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a)(1) (count one); second-degree unlawful possession of a weapon
(handgun) without a permit, N.J.S.A. 2C:39-5(b)(1) (count two); fourth-degree
aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(A)
(count three); third-degree aggravated assault on a law enforcement officer
causing bodily injury, N.J.S.A. 2C:12-1(b)(5)(A) (count four); fourth-degree
aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(A)
(count five); and third-degree resisting or eluding arrest, N.J.S.A. 2C:29-
2(a)(3)(A) (count six).
Defendant also was charged in Passaic County Indictment No. 18-11-0909
with third-degree possession of a controlled dangerous substance (CDS),
N.J.S.A. 2C:35-10(a)(1) (count one); second-degree manufacture or distribution
of a CDS, N.J.S.A. 2C:35-5(a)(1) (count two); third-degree manufacture or
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distribution of a CDS on or near school property or a school bus, N.J.S.A. 2C:35 -
7(a) (count three); second-degree unlawful possession of a weapon (handgun)
without a permit, N.J.S.A. 2C:39-5(b)(1) (count four); and second-degree
possession of a firearm while committing a CDS crime, N.J.S.A. 2C:39-4.1(a)
(count five). Defendant also was charged with the disorderly persons offense of
use and possession with intent to use drug paraphernalia, N.J.S.A. 2C:36 -2.
On July 10, 2019, defendant pled guilty to counts three and four of
Indictment No. 18-11-0909 and counts two and four of Indictment No. 17-07-
0730. The State agreed to dismiss the remaining charges under each indictment.
On August 16, 2019, defendant was sentenced under Indictment No. 18-
11-0909 to a five-year term of incarceration with three years of parole
ineligibility on count three, and a concurrent term of five years with forty-two
months of parole ineligibility on count four.
Defendant also was sentenced under Indictment No. 17-07-0730 to five
years of incarceration with forty-two months of parole ineligibility on count two,
and a concurrent term of four years on count four. The trial court ordered that
the sentences under Indictment No. 18-11-0909 shall be served concurrent with
the sentences imposed under Indictment No. 17-07-0730.
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The trial court entered judgments of conviction for each indictment, dated
August 16, 2019 and October 22, 2019. According to defendant's attorney,
defendant’s maximum release date is June 19, 2021.
II.
On June 23, 2020, defendant filed a motion in the trial court to change his
custodial sentence pursuant to Rule 3:21-10(b)(2) due to an illness or infirmity.
At that time, defendant was incarcerated at South Woods State Prison (SWSP).
In support of his motion, defendant submitted confidential medical records from
the Passaic County Correctional Facility and the New Jersey Department of
Corrections; a certification of Adrianne Fields, attorney with the Office of the
Public Defender, dated June 23, 2020; and letters from defendant's grandmother,
son, and others.
In her certification, Ms. Fields stated that defendant is a forty-three-year
old African-American male who suffers from hypertension and asthma. She
stated that defendant's then "current" parole eligibility date was January 19,
2022, and his then "current" maximum release date was April 14, 2022.
Ms. Fields asserted that the United States Centers for Disease Control
(CDC) has "indicated" that persons with heart conditions like pulmonary
hypertension and asthma may be at a higher risk for serious illness from COVID-
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19. Citing a publication entitled "Coronavirus (Covid 19): What People With
Asthma Need to Know," Ms. Fields asserted that COVID-19 presents an
"enhanced risk" even to persons with chronic conditions like hypertension and
asthma that are controlled by medication. She also cited a publication by Johns
Hopkins Medical Center as support for her assertion that African-Americans are
at a heightened risk of "severe reactions" to COVID-19.
Ms. Fields further commented that there was, at the time, no "specific
treatment for or vaccine" for COVID-19. She asserted that defendant's
continued incarceration "presents a real and continuing life-threatening risk to
his health and safety." She stated that defendant's son was willing and able to
accept defendant into his home.
The State opposed the motion. The State argued that Rule 3:21-10(b)(2)
does not permit the court to change a custodial sentence and release a defendant
who is required to serve a mandatory minimum sentence. The State further
argued that the application was governed by the standards established in State
v. Priester, 99 N.J. 123 (1985), and defendant did not meet the criteria for a
change of his sentence on medical grounds.
On July 28, 2020, Judge Adam Jacobs heard oral argument on defendant's
motion and placed his decision on the record. Judge Jacobs did not address the
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State's argument that defendant could not seek relief under Rule 3:21-10(b)(2)
until he completed his mandatory minimum sentence. The judge instead
addressed the merits of defendant's motion.
The judge stated that Priester controls the decision on defendant’s
application. The judge then considered the relevant factors under Priester. The
judge noted that defendant had shown a change of circumstances affecting his
health, specifically the COVID-19 pandemic.
The judge stated that defendant suffers from hypertension and asthma, but
he failed to show that medical services were not available in prison that are
essential to prevent deterioration of his conditions. The judge noted that
defendant's medical records appear to indicate that his "conditions are under
control." The judge stated that defendant is receiving treatment and medication
at SWSP and his conditions are "stable."
The judge also stated that defendant had pled guilty to crimes that were
of a "very serious nature," noting that the charges involved possession of a
firearm and assault on a police officer. The judge observed that defendant had
been sentenced to the minimum possible sentence. The judge concluded that he
could not "in good conscience grant this application."
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The judge added that if defendant asked him in writing, he would send a
letter to the Parole Board about his positive attributes and endorse his release to
a halfway house or early release program. The judge stated that defendant had
demonstrated he was ready to be reintegrated into society and, as the prosecutor
had indicated, he "will once more become a contributing member [of] society."
The judge memorialized his decision in an order dated July 28, 2020. This
appeal followed. On appeal, defendant argues:
POINT I
[DEFENDANT] WAS ENTITLED TO MEDICAL
RELEASE BECAUSE HIS COMORBIDITIES
EXACERBATE THE RISK OF DEATH OR SERIOUS
ILLNESS FROM COVID-19.
POINT II
BECAUSE RULE 3:21-10(B)(2) PROVIDES FOR
RELEASE WITHOUT CHANGING THE
UNDERLYING SENTENCE, [DEFENDANT'S]
MOTION WAS NOT PROCEDURALLY BARRED
BY HIS MANDATORY PAROLE DISQUALIFIER.
III.
Defendant contends the motion judge misapplied his discretion by
denying his motion for medical release under Rule 3:21-10(b)(2). He asserts
that he established grounds for relief under the Rule.
Rule 3:21-10(b)(2) provides a mechanism for an inmate to seek release
from incarceration due to an illness or infirmity. In re Request to Modify Prison
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Sentences, Expedite Parole Hearings, and Identify Vulnerable Prisoners, 242
N.J. 357, 379 (2020). The Rule states that "[a] motion may be filed and an order
may be entered at any time . . . amending a custodial sentence to permit the
release of a defendant because of illness or infirmity of the defendant." Rule
3:21-10(b)(2).
A motion for relief under Rule 3:21-10(b)(2) "is committed to the sound
discretion of the court." Priester, 99 N.J. at 135 (citing State v. Tumminello, 70
N.J. 187, 193 (1976)). Since Rule 3:21-10(b)(2) offers "extraordinary relief" to
an inmate, "the Rule must be applied prudently, sparingly, and cautiously." Ibid.When considering the motion, the court must engage in the "delicate balancing
of various factors." Ibid. "The predicate for relief under the Rule is proof of
the serious nature of the defendant's illness and the deleterious effect of
incarceration on the prisoner's health." Ibid.To warrant relief under Rule 3:21-10(b)(2), the inmate must establish that
the medical services that are "unavailable at the prison would be not only
beneficial . . . but are essential to prevent further deterioration in [the
defendant's] health." Id. at 135-36 (citing Tumminello, 70 N.J. at 193). The
inmate also must show circumstances in his health have changed since the time
of the original sentence. Id. at 136.
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The court also must consider 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." Id. at 137. The trial court's decision on the motion
should not be reversed on appeal unless the decision is shown to be a mistaken
exercise of discretion. Ibid. (citing State v. Roth, 95 N.J. 334, 364 (1984)).
On appeal, defendant argues he established that his underlying
comorbidities exacerbate the risk that he will suffer a serious illness from
COVID-19 while incarcerated. We disagree.
Here, the judge correctly found that the COVID-19 pandemic constituted
a "change in circumstances" affecting defendant's health. See Request to
Modify Prison Sentences, 242 N.J. at 379 (holding that the impact of the
COVID-19 pandemic upon New Jersey and its prison system constituted a
"change in circumstances" under Rule 3:22-10(b)(2)).
The judge further found that defendant would not pose a risk to the public
if he were to be released, noting that the prosecutor had agreed that defendant
would become a contributing member to society upon his release. The judge
considered defendant’s criminal record and noted that defendant had one prior
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indictable offense. The judge also took note of the efforts toward rehabilitation
that defendant has made during his incarceration.
The judge found, however, that several of the Priester factors weighed in
favor of denying the relief sought. The judge observed that defendant had been
convicted and was incarcerated for serious offenses, which include the unlawful
possession of a firearm and aggravated assault on a law enforcement officer.
The judge also pointed out that defendant had received the minimum possible
sentence under the Graves Act for unlawful possession of a firearm in violation
of N.J.S.A. 2C:39-5(b)(1), a charge that defendant pled guilty to under both
indictments, specifically a mandatory minimum term of forty-two months.
In addition, the judge weighed the nature of defendant’s illness, whether
incarceration will have a "deleterious effect" on his health, and the availability
of medical services in prison to address defendant's conditions. The judge found
that defendant failed to show that medical services were not available at SWSP
to treat defendant's conditions and avoid "further deterioration" of his health.
The judge noted the medical records that defendant had provided to the
court "appear . . . to indicate that [his] . . . conditions are under control." The
judge stated that defendant was being treated, he was receiving medication that
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he needed, and his conditions are stable. There is sufficient credible evidence
in the record to support those findings.
Defendant contends, however, that the judge erred by focusing on the fact
that his conditions were under control. He contends the judge minimized the
serious threat that COVID-19 poses to persons with his physical conditions in
jail. Our Supreme Court has held that, in the context of the COVID-19
pandemic, "[a] generalized fear of contracting an illness is not enough" to
warrant relief under Rule 3:21-10(b)(2). Request to Modify Prison Sentences,
242 N.J. at 379.
Here, the court did not place undue emphasis on the fact that defendant's
medical conditions are being treated and his conditions are stable. Defendant
has not shown that the State's correctional officials are not taking reasonable
steps to protect defendant from a deterioration of his health. Defendant's fear
that he may contract COVID-19 is not a sufficient basis for relief under Rule
3:21-10(b)(2).
We note that in a letter dated February 24, 2021, defendant's attorney
advised the court that on February 19, 2021, defendant received eight months of
public health emergency credits pursuant to L. 2020, c. 111, which counsel
asserts makes his maximum release date June 19, 2021. Counsel also asserts
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that COVID-19 infections continue to surge at SWSP. Among other things,
counsel asserts that since August 22, 2020, 342 inmates at SWSP have been
infected with COVID-19. This information is not part of the record on appeal.
R. 2:5-4(a) (stating that the record on appeal consists of all papers on file in the
trial court).
If defendant believes that new or additional information that was not
available when the trial court ruled on his motion may warrant a different result,
he is free to file a new motion in the trial court seeking relief under Rule 3:21-
10(b)(2). However, based on the record before the trial court when it ruled, we
are convinced the court did not abuse its discretion by denying defendant's
motion.
As stated previously, on appeal, defendant also argues that his mandatory
minimum sentence does not preclude him from seeking a change of his sentence
under Rule 3:21-10(b)(2). We note that the trial court did not deny the motion
on this basis and considered the merits of defendant's application. Therefore,
we need not address this argument.
Affirmed.
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