State v. Chavies

• Decision Date: 12 July 2021
• Docket Number: 084999,A-25 September Term 2020
• Citation: 254 A.3d 589,247 N.J. 245
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. David CHAVIES, a/k/a David Q. Chavies, and, Dave Chavies, Defendant-Appellant.
• Court: New Jersey Supreme Court

247 N.J. 245

254 A.3d 589

STATE of New Jersey, Plaintiff-Respondent,

v.David CHAVIES, a/k/a David Q. Chavies, and, Dave Chavies, Defendant-Appellant.

A-25 September Term 2020

084999

Supreme Court of New Jersey.

Argued February 2, 2021

Decided July 12, 2021

John P. Flynn, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; John P. Flynn, of counsel and on the briefs).

Joseph Paravecchia, Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Mercer County Prosecutor, attorney; Randolph E. Mershon, III, Assistant Prosecutor, of counsel and on the briefs, and Laura Sunyak, Assistant Prosecutor, on the briefs).

Alexander Shalom, Newark, argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the brief).

Matthew F. Bruno, Florham Park, argued the cause for amici curiae Medical and Public Health Experts (Greenberg Traurig, attorneys; Matthew F. Bruno, of counsel and on the brief).

Frank J. Ducoat, Special Deputy Attorney General/Acting Essex County Assistant Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Esther Suarez, President, County Prosecutors Association of New Jersey, attorney; Frank J. Ducoat, of counsel and on the brief).

Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Carol M. Henderson, of counsel and on the brief).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

In this case, the Court determines whether an inmate may be released from prison under Rule 3:21-10(b) when that inmate is still in the process of serving a period of parole ineligibility imposed in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

According to Rule 3:21-10(b)(2), "[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." Here, defendant David Chavies argues that because he has been diagnosed with asthma

, latent tuberculosis, and sickle cell anemia, and is at a higher risk for serious illness or death should he contract COVID-19 in prison, he should be released. The issue is whether defendant's application for release under the Rule should have been granted, despite the fact that he had not yet served 85% of his sentence imposed at the time of his application, as required by NERA.

The Appellate Division held that relief under Rule 3:21-10(b)(2) is available only to inmates who had first served their mandatory parole ineligibility term and that the trial judge "correctly determined defendant did not meet his burden under [ State v. Priester, 99 N.J. 123, 491 A.2d 650 (1985) ] or [ State v. Boone, 262 N.J. Super. 220, 620 A.2d 476 (Law Div. 1992) ] to warrant the relief he requested."

We agree. NERA mandates that a defendant serve 85% of the sentence "actually imposed" for certain crimes before becoming eligible for parole. N.J.S.A. 2C:43-7.2(b). Allowing defendants to proceed with a Rule 3:21-10(b)(2) motion prior to serving that 85% would circumvent the Legislature's objectives and its approach to violent crimes. Moreover, the timing of defendant's motion aside, he failed to meet his burden under Priester since he cannot prove the necessary devastating effect that incarceration had on his health, in addition to various other Priester factors.

Therefore, we affirm the judgment of the Appellate Division.

I.

A.

We begin by summarizing the pertinent facts and procedural history. On October 20, 2014, Trenton police responded to a report of gun shots at a deli. Upon their arrival, the officers discovered two gunshot victims, both claiming to be innocent bystanders. Both individuals were transported to a nearby hospital where they were treated for non-life-threatening injuries.

One victim told detectives that he noticed three or four men, all wearing ski masks, walk toward the deli prior to the shooting. The men then opened fire on him as he ran toward the back of the store. At the time of the shooting, there were three other customers inside the deli as well as three employees. Surveillance footage captured the suspected vehicle -- a gold Chevrolet Trailblazer -- and revealed three individuals wearing black clothing walking toward the vehicle following the shooting. Defendant was identified as one of the individuals walking back to the car and arrested the same day as the shooting.

Defendant was charged with two counts of first-degree murder, contrary to N.J.S.A. 2C:11-3 ; six counts of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) ; second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) ; and second-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b). On June 2, 2016, defendant pled guilty to a final amended charge of second-degree aggravated assault based on accomplice liability, contrary to N.J.S.A. 2C:12-1(b)(1) and 2C:2-6(a).

Defendant's prison intake form, dated August 2, 2016, indicated that his health was poor and that he suffered from asthma

, sickle cell anemia, and a heart murmur.

Three days later, on August 5, 2016, defendant was sentenced to a ten-year term of imprisonment with an 85% period of parole ineligibility under NERA. Additionally, the court imposed a three-year period of parole supervision following defendant's release. In sentencing defendant, the court found applicable aggravating factors three, the risk that defendant will reoffend; six, the extent of defendant's criminal record and the seriousness of his current offense; and nine, the need to deter future offenses. See N.J.S.A. 2C:44-1(a)(3), (6), (9). The court found no mitigating factors. The court also found that defendant had accumulated 655 days in time credits since being taken into custody on October 20, 2014.

B.

In May 2020, defendant filed a Rule 3:21-10(b)(2) motion for release from custody and, in the alternative, sought a judicial furlough under Boone, 262 N.J. Super. 220, 620 A.2d 476, until the COVID-19 pandemic subsided. Defendant provided voluminous medical documents in support of his motion showing he had been undergoing treatment at Garden State Youth Correctional Facility for sickle cell anemia

, asthma, latent tuberculosis, hypothyroidism, and a heart murmur.

In denying the motion and furlough request, the court first denied defendant's request for a hearing, given the quality of the written submissions and the over 1,000 pages of medical records submitted. Citing State v. Mendel, 212 N.J. Super. 110, 113, 514 A.2d 67 (App. Div. 1986), the court next determined that defendant was barred from relief under Rule 3:21-10(b)(2) because he had not yet served 85% of his sentence, the period of parole ineligibility, as mandated by NERA.

Although the court determined that by virtue of NERA, defendant could not be released from prison without serving 85% of his custodial term, it still assessed the various factors for considering Rule 3:21-10(b)(2) motions as set forth in Priester, 99 N.J. 123, 491 A.2d 650. First, the court found that defendant's conditions were serious and could potentially place him at a higher risk for serious illness or death should he contract COVID-19 in prison. The Court also acknowledged, citing In re Request to Modify Prison Sentences, 242 N.J. 357, 379, 231 A.3d 667 (2020), that the COVID-19 pandemic constituted a change in circumstances under Priester.

Ultimately, however, the court determined that while defendant's "health may have deteriorated, he [did] not show[ ] that incarceration [was] the cause." The court understood defendant's motion as being based on the future fear of contracting COVID-19 while incarcerated. Additionally, the court noted there was no lifesaving drug that was available to the public yet unavailable to defendant and that defendant's argument that the public had greater access to preventative care and treatment for COVID-19 could not support his release. The court also noted the violent nature of defendant's offenses, the stance the Legislature took against such offenses in enacting NERA, and the "disturbing escalation" of defendant's criminal history -- from drug possession to possession of a machine gun to the current offense -- all of which the court found to weigh against defendant's release. The court concluded that defendant was a danger to the public under the Priester analysis and was thus not entitled to relief under Rule 3:21-10(b)(2).

As for defendant's alternative request for a judicial furlough, which is not the subject of defendant's current appeal, the court emphasized that defendant did not presently face near-certain death or even require additional medical treatment, contrary to the facts in Boone.

The Appellate Division affirmed for substantially the same reasons cited by the motion court. The panel noted that relief under Rule 3:21-10(b)(2) was not available "until a mandatory period of parole ineligibility has been served." According to the Appellate Division, although Mendel involved a Rule 3:21-10(b)(1) motion and a defendant who had sought to change his sentence to facilitate drug treatment, it also provided support for the motion court's conclusion that Rule 3:21-10(b)(2) could not be used to reduce defendant's term below the mandatory parole ineligibility period.

Moreover, the panel found that defendant failed to meet his burden for relief under both Priester and Boone and that the motion court appropriately exercised its discretion in denying defendant's motion and furlough request. Last, the Appellate Division rejected defendant's request for a remand to conduct a hearing on his Rule 3:21-10(b)(2) motion, finding that the motion court's decision to rely on the parties’ submissions was ...