STATE OF NEW JERSEY VS. CARL L. MOORE (16-07-0102, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-0903-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARL L. MOORE, a/k/a
CARL T. MOORE,
Defendant-Appellant.
_______________________
Submitted March 9, 2021 – Decided March 25, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 16-07-0102.
Joseph E. Krakora, Public Defender, attorney for
appellant (Olivia Moorhead, Assistant Deputy Public
Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Mohammad A. Mahmood, Deputy
Attorney General, of counsel and on the brief).
PER CURIAM
Defendant Carl L. Moore appeals from an October 19, 2020 order denying
his Rule 3:21-10(b)(2) motion for release due to an illness or infirmity. We
affirm.
Defendant was indicted for second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm,
N.J.S.A. 2C:39-9(e); and fourth-degree possession of dum-dum bullets, N.J.S.A.
2C:39-3(f). Prior to the start of his trial, he pled guilty to all three counts and
was sentenced to six years of incarceration with a three-and-one-half-year
period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).
The sentencing judge found no mitigating factors, and found the following
aggravating factors applied: N.J.S.A. 2C:44-1(a)(3), the risk that defendant will
commit another offense; N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior
criminal record and the seriousness of the offenses of which he has been
convicted; and N.J.S.A. 2C:44-1(a)(9), the need for deterring defendant and
others from violating the law.
We affirmed defendant's convictions. State v. Moore, Docket No. A-
5133-17 (App. Div. April 2, 2020) (slip op. at 22). Defendant remains
incarcerated and becomes parole eligible on October 15, 2021.
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In September 2020, defendant filed a motion for release pursuant to Rule
3:21-10(b)(2). He argued his emphysema put him at heightened risk of severe
illness if he became infected with COVID-19. In a thorough and well-written
decision, Judge Janetta D. Marbrey denied defendant's motion.
Citing State v. Mendel,1 the judge explained the relief sought was
procedurally barred because releasing defendant would "undermine the Graves
Act's mandatory parole ineligibility terms and the importance of deterring
handgun offenses." The judge found that even without the procedural bar,
defendant had presented no evidence warranting relief pursuant to the factors
set forth in State v. Priester, 99 N.J. 123 (1985). She noted our Supreme Court
recently found the COVID-19 pandemic constituted a change in circumstances
under Rule 3:21-10(b)(2).2 However, after reviewing 125 pages of defendant's
medical records, the judge concluded neither the records nor defendant's
circumstances warranted his release.
The judge noted defendant
has been a pack-a-day smoker since 2002. Defendant
. . . has had no active treatment for emphysema noted
1
212 N.J. Super. 110, 113 (App. Div. 1986) (holding "a sentence cannot be
changed or reduced under [Rule] 3:21-10(b) below the parole ineligibility term
required by statute.").
2
Matter of Request to Modify Prison Sentences, 242 N.J. 357, 379 (2020).
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in the medical records since intake. Moreover,
[d]efendant . . . was tested for COVID-19 using a
[saliva] test on May 21, 2020, to which those results
were recorded as negative on May 26, 2020. Since
intake, [d]efendant has had at least twenty-five contacts
with medical/dental services provided by the
Department of Corrections which include treatment for
acute medical complaints, extensive dental treatment,
and medical treatment review. None show any active
or ongoing condition that relate to emphysema or any
respiratory complaints that could potentially satisfy a
showing of the serious nature of a present illness or
infirmity, and the deleterious effect of incarceration.
. . . As to his alleged lung condition, [d]efendant
. . . presents limited evidence as to the severity or the
serious nature of the condition. There is no or limited
evidence as to the nature or prognosis of his lung
condition, or any imminent effect it has on his health.
Moreover, there is no evidence that incarceration[ h]as
had any specific deleterious effect on [d]efendant . . . .
Though the COVID-19 infection rate in prisons may be
higher than in the general public, there is no evidence
to indicate any present risk or present seriousness as to
these alleged conditions that cannot be adequately
treated at the prison.
....
Additionally, [d]efendant . . . does not require
emergency life-saving medical intervention only
available out-of-state, nor has he alleged that he
currently suffers from a life-threatening medical
condition.
The judge also found defendant's convictions are severe in nature.
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Additionally, the nature of the offense for which
[d]efendant . . . is currently sentenced and other aspects
of [d]efendant['s] history dictate that, even if he were
eligible, there are no conditions of parole supervision
or temporary home confinement that can safeguard the
health and safety of [d]efendant . . . and the general
public. Defendant . . . is currently sentenced for
carrying a loaded handgun without a permit. His prior
indictable convictions included terroristic threats and
unlawful possession of a handgun. The facts of the
present matter, coupled with his prior convictions,
demonstrate a pattern of weapons possession.
....
The [c]ourt finds that a substantial danger would
be posed to the public should [d]efendant . . . be
released from custody given the circumstances of his
present offenses and criminal history.
Defendant raises the following points on appeal:
POINT I. APPELLANT IS NOT BARRED FROM
RELIEF UNDER RULE 3:21-10B(2) DUE TO
PAROLE DISQUALIFIER AS IT DOES NOT
REQUIRE A CHANGE OF SENTENCE.
POINT II. APPELLANT HAS MET THE LEGAL
STANDARD FOR RELEASE UNDER STATE V.
PRIESTER, HAVING SHOWN THE DELETERIOUS
EFFECT INCARCERATION HAS ON HIS HEALTH,
DUE TO HIS UNDERLYING MEDICAL
CONDITIONS AND ONGOING PANDEMIC, AND
SEEKS A NEW HEARING.
Rule 3:21-10(b)(2) provides "[a] motion may be filed and an order may
be entered at any time . . . amending a custodial sentence to permit the release
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of a defendant because of illness of infirmity of the defendant[.]" 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)). Therefore, we will only reverse if a trial judge relies on an
"impermissible basis," considers irrelevant factors, or makes a clear error in
judgment. State v. S.N., 231 N.J. 497, 500 (2018).
In Priester our Supreme Court stated:
The predicate for relief under . . . [Rule 3:21-10(b)] is
proof of the serious nature of the defendant's illness and
the deleterious effect of incarceration on the prisoner's
health. As proof of the devastating effect of prison life
on a defendant's health, the court should consider the
availability of medical services in prison, including
rehabilitative therapy. However, this factor is
important only insofar as it tends to establish that
without such medical services the defendant's condition
will seriously worsen or deteriorate in prison. It is the
existence of this serious threat to defendant's physical
condition, rather than the prison system's ability to
provide beneficial and desirable medical services,
including rehabilitative health care, that is
determinative of a Rule 3:21-10(b)(2) motion.
Therefore, in order to prevail, the prisoner must show
that the medical services unavailable at the prison
would be not only beneficial . . . but are essential to
prevent further deterioration in his health. . . .
Moreover, a prisoner also must show that
changed circumstances in his health have occurred
since the time of the original sentence. . . .
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. . . The change of circumstances most likely to
have occurred between the sentencing and the hearing
is the severe deterioration of the prisoner's health.
However, the change may also represent a court's
securing information about the defendant's health
previously unknown to the sentencing court. . . .
In addition to the requirement of a change of
circumstances, among other factors we deem relevant
to the determination of a [Rule] 3:21-10(b)(2) motion
are 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.
[99 N.J. at 135-37.]
We affirm substantially for the reasons set forth in Judge Marbrey's
decision. We add the following comments.
Defendant's motion was clearly procedurally barred because he was parole
ineligible pursuant to the Graves Act. As we explained in Mendel,
[t]here 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 [Rule] 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 [Rule] 3:21-10(b) in
accordance with the standards for consideration of such
an application. The court should also, of course,
consider the aggravating and mitigating factors which
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led to the sentence originally imposed including an
ineligibility term.
However, a sentence cannot be changed or
reduced under [Rule] 3:21-10(b) below the parole
ineligibility term required by statute. [Rule] 3:21-10(b)
was never intended to permit the change or reduction of
a custodial sentence which is required by law.
[212 N.J. Super. at 112-13.]
Moreover, although the Court in Matter of Request to Modify Prison Sentences
stated all inmates in state prisons could seek relief under Rule 3:21-10(b)(2),
242 N.J. at 380, it did not hold the Rule authorizes the release of a prisoner
before the completion of a mandatory minimum term established by statute.
Finally, notwithstanding the procedural bar, we have no reason to second
guess the judge's application of the Priester factors. Defendant failed to
establish that either his medical condition or need for treatment warranted
release. The judge's conclusion that defendant's sentence, the severity of his
crimes and criminal record, and the concomitant risk to the public militated
against his release, was not an abuse of discretion.
Affirmed.
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