DAVE CHAVIESP. JOHN P. FLYNN: GOOD MORNING JOHN AP.
ALEXANDER SHALOM: ALEXANDER SHALOM FROM THE AMERICAN CIVIL LIBERTIES UNION OF
NEW JERSEY ACTING AS A FRIEND OF THE COURT DO COAT ESSEX COUNTY ON BEHALF OF THE
COUNTY PROSECUTOR'S ASSOCIATION OF NEW JERSEY APPEARING AS A FRIEND OF THE COURT.
CAROL M. HENDERSON: CAROL HENDERSON FROM THE ATTORNEY GENERAL'S
OFFICE ACTING AS A FRIEND OF THE COURT. CHIEF JUSTICE RABNER:
WELCOME, COUNSEL. FOR THIS ARGUMENT WITH THE BENEFIT OF SIX
COUNSEL, WE WOULD APPRECIATE IF THE FOCUS COULD BE PRIMARILY ON THE INTERPLAY BETWEEN
THE RULE AND THE PERIOD OF PAROLE AND ELIGIBILITY TO THE EXTENT KOUBL WISH
TO ARGUE ABOUT THE APPLICATION OF PRIESTER FACTORS, WOULD HE ASK THAT YOU DO SO
BRIEFLY. MR. FLYNN. JOHN P. FLYNN: THANK YOU.
I REQUEST TWO MINUTES FOR REBUTTAL IF NECESSARY. CHIEF JUSTICE
RABNER: THAT'S FINE. JOHN P. FLYNN: MAY IT PLEASE THE COURT.
DAVID SHAEFBIES SUFFERS FROM MANY ILLNESSES INCLUDING SICKLE CELL AMEME YEAH TUB
YUSHGULOUS, ASTHMA AND OTHER DISEASES. HE HAS BEEN HOSPITALIZED MANY TIMES DUE
THE COMPLICATIONS FROM THESE DISEASES AS RECENTLY MAY, JUNE AND OCTOBER.
CDC AND PUBLIC HEALTH EXPERTS ROURT SECKEL SEAL DISEASE INCREASES THE RISK OF SERIOUS
ILLNESS OF DEATH FROM COVID-19 AND THAT COVID-19 SPREADS MUCH MORE RAPIDLY
IN PRISONS. THE STUISTICS NO DOUBT THAT COVID-19 POSES UNIQUE CHALLENGES IN
CORRECTIONAL SETTINGS. P MR. CHAVIES PROERPLY CALLED PAWN
OUR COURTS TO PROTECT HIS WELLBEING DURING THIS UNPRECEDENTED PAMD AND HIS
MOTION UNDER RULE 321B2 SHOULD HAVE BEEN GRANTED. INSTEAD IT WAS LOGICALLY
DENIED TO THE TWO UNNECESSARY BAZ FOR LEAF WITHOUT HEAVEEN HOLDING A HEARING. AT
FIRST ISSUE BEFORE THE COURT WHICH IS KIENLD OF THRESHOLD ISSUE IS WEFOCUSED ON
AND THAT IS WHETHER HIS APPLICATION UNDER THE RULE WAS BARRED AND MANDATORY
PERIOD OF PAROLE AND ELIGIBILITY. AND ADDRESSING THAT ISSUE I WOULD ASK THIS COURT
TO NOT IMPORT THE LOGIC OF DICKA IN THE APPELLATE DIVISION OPINION STOIFSH
MENTAL WHICH ADDRESSES AN APPLICATION UNDER B1 OF THE REFERRAL FOR TRANSFER TO THE
PROGRAM. INSTEAD THF NARROW SPECIFIC ISSUE BEFORE THE COURT HERE IS WHETHER
THE SLEJ INTEPDED TO DEVEST THE UDISHIARY OF ITS INHERENT AUTHORITY TO RELEASE
THE (ZOOM AUDIO GLITCH) WHEN YEARS AFTER THE COURT ADOPTED RULE 3210B2 IN
1975 LATER ENACTED MANDATORY IMMUNE SENTENCING STATUTES AND IN THIS REGARD THIS
ISN'T A CASE ABOUT WHETHER DEFENDANT CAN RECEIVE ANOTHER NONCUSTODIAL
DISPOSITION UNDER THE CODE WHETHER HE IS FACING A MANDATORY PERIOD OF PAROLE INIGIBILITY
BECAUSE THIS COURT HELD THIS DEFENDANT CAN'T RECEIVE SUCH NONCUSTODIAL
POSITION IN THOSE INSTANCES BAFF OSLEJ SAW TO ISSUE CERTAIN OF INCARCERATION WITHOUT
ANY REGARD TO REHABILITATION. HOWEVER, THE QUESTION HERE ISN'T ABOUT
REHABILITATION P. THILS IS A CASE THAT'S FUNDALLY ABOUT MERCY AND BASIC HUMANITY.
THE QUESTION HERE IS WHETHER MEN INCARCCAN ACCESS OUR COURTS WHEN THERE ARE
SIGNIFICANT RISKS TO INHERENT HEALTH DUE TO THE NATURE OF INCARCERATION AND
WHEN A JUDGE DETERMINES THAT THOSE ARE ELIGIBLE FOR RELEASE. JUDGE AGAINST THAT
THERE NARROW QUESTION BEFORE THIS COURT THE ANSWER IS NO, THERE IS NO SUCH
CAT GORUAL LARGE PURSUING RELEASE UNDER THE RULE WHEN A DEFENDANT IS SERVING
MANDATORY APEEATIVE ROLE OF INELIGIBILITY. BLIE REMOVING THAT BARRIER FOR A
DEFENDANT SEEKING ACCESS TO OUR COURTS UNDER THE RULE AS WELL AS WE WILL ADDRESS
LATER THE MEDICAL STANDARDS UNDER THIS COURT'S RECENTP OPINION ON THE RULE OR THE
LOWERT COURT ADDITIONAL APPLIED THE STANDARD THAT RETIRE THD DEFENDANT TO
CATCHB KOIFBD THE SERIOUS DETERIORATION OF HELT BEFORE THERE IS RELEASED. THIS
COURT ISN'T GOING TO BE HOLDING EVERY DEFENDANT WITH ANY ILLNESS IS ENTITLED
TO RELEASE UNDER THE RULE, BUT WHAT THEY WILL BE DOING IS INSURING THAT MEDICALLY
VERNERABLE INMATES HAVE A FAIR AND JUST OPPORTUNITY TO ACCESS OUR COURTS TO
PLEA TO PROTECT THE HEALTH AND WELLBEING DURING THIS DEVASTATING PAMD AND DURING
UNFORESEEN CIRCUMSTANCES IN THE FUTURE. THAT CONCLUDES MYOPEHUNG STATEMENT.
CHIEF JUSTICE RABNER: WITH RESPECT TO THE THRESH RRLD QUESTION, COULD
THE COURT OESH RIDE MANDATORY MINIMUM SENTENCE SET BY THE LEGISLATURE IN
IMPOSING SENTENCE INITIALLY? JOHN P. FLYNN: NO, YOUR HONOR AT THE TIME
OF THE SENTENCING THE COURT DOESN'T HAVE THE INHAIR AUTHORITY TO DUS SUSPECT
THE EXKUGDZ OF A SENTENCE. CHIEF JUSTICE RABNER: IF IT CAN'T DO SO
INITIALLY, WHAT AUTHORITY IS THERE FOR THE COURT TO BE ABLE TO DO SO LATER?
JOHN P. FLYNN: SO, I THINK IT'S IMPORTANT TO BEGIN WITH THE
FACT THAT THE MEDICAL RELEASE AUTHORITY UNDER RULE 32110B2 ACTUALLY PREIDATED
ADOPTION OF THE CODE WHEN THIS COURT PROMULGATED THAT RULE HIN 1975 THE
CODE WASN'T EVEN ADOPTED YET. AS THIS CLOURT'S DISCUSSION MAKE PZ CLEAR AND WHERE
IT'SP OFTEN QUOTED THE RULES WAS INTENDED TO GIVE THE COURT A CLEMENCY LIKE POW
ER WHERE VERY NARROW AND CIRCLEM SCRIBES CIRCUMSTANCES A COURT COULD RELEASE A
DEFENDANT FROM PRISON BASED ON A CHANGE IN CIRCUMSTANCE THAT IS OCCURRED
BETWEEN SENTENCING AND THE PRESENT TIME. THAT MATERIALLY AFFECTS DEFENDANT'S UNFORSAFE
INCARCERATION. SO -- CHIEF JUSTICE RABNER: FORGIVE ME, WE
UNDERSTAND THE RULE. THE QUESTION IS THE COURT'S AUTHORITY.
WHAT ATLAURT IF IT DOESN'T EXIST AT THE TIME OF THE IMPOSITION OF SENTENCE,
HOW DOES THE COURT ACQUIRE AUTHORITY TO MAKE A CHANGE AT A LATER POINT?
JOHN P. FLYNN: SO, IT'S MY POSITION, YOUR HONOR, THAT THE COURT ALWAYS
HAD THE AUTHORITY TO DO THIS MEDICAL RELEASE. ALSO THE COURT DOES HAVE
THEHERENT AUTHORITY TO SUSPECT THE EXKUG OF ANY SENTENCE. IF YOU LOOK AT A CASE
LIKE DEZ MARE WHICH IS THE 1908S CASE ABOUT DEPRAISED ACT AND WHETHER A COURT
CAN SUSPEND IT ON ITSELF, THE COURT IRN THAT SAID THE COURTS HISTORICALLY
BEEN UNDERSTOOD THAT THE POWER TO SUSPEND ANY SENTENCE. IN OTHER WORDS, THE SLEJ
JUST TOOK AWAY THAT ATLAURT WHETHER THEY ENACTED THE SENTENCING STATUTE.
IT MAKES SNS TO IMPOSE A MAND MOIR MINIMUM SENTENCE AND SAY THE VERY NEXT DAY
JUST BASD ON THE JUDGE'S VIEW ABOUT REHAPITATION OR INDIVIDUAL DEFENDANT
THAT THE COURT MAY SUSPEND IT. HOWEVER, IT'S A DIFFERENT QUESTION IS WHETHER THE
SLEJ TOOK AWAY A MUCH MORE NARLO CIRCUMSCRIBED AUTHORITY THAN THE COURT
RULE TO EXERCISE HIS AUTHORITY UNDER 32110B2. CHIEF JUSTICE RABNER:
CHIEF JUSTICE RABNER: LET'S TALK ABOUT THE COURT RULE THEN.
IS A MANDATORY IN MINIMUM SENTENCE CONTAINED IN A TACH TOWER A SUBSTANTIVE
PROVISION OF LAW? JOHN P. FLYNN: YESZ.
CHIEF JUSTICE RABNER: IF THE COURT CRAFTED A RULE TODAY THAT SAID IT COULD OVERRISE
JUST SUCH A PROVISION, WOULD THAT BE A SUBSTANTIVE RULE? JOHN
P. FLYNN: I THINK IN MOST EFFECTS IT WOULD BE AND THAT'S KIND OF SIMILAR TO THE
QUESTION BEFORE THE CLOURT. CHIEF JUSTICE RABNER: IF THAT'S
THE CASE, WOULD IT RUN INTO PROBLEMS UNDER LINBERRY? JOHN P.
FLYNN: IT WOULD POTENTIALLY RUN INTO PROBLEMS UNDER THAT. THE COURT RULES ARE
MEANT TO BE FOR THE MOST PART REARERAL AND FACILITATE PREVENT EXISTING POW
ER. CHIEF JUSTICE RABNER: IF WE INTERPRET THIS RULE AS PROVIDING
AUTHORITY TO OVERRIDE MANDATORY MINIMUM SENTENCE SET BY STATUTE, DOES THAT CREATE
A WIND BURRY PROBLEM? JOHN P. FLYNN: NISSTANCE SHS YOUR HONOR,
I DON'T THINK IT DOES BECAUSE THE KEY POINT IS THAT THIS COURT PREDATED
THE ENACTMENT OF ANY MANDATORY MINIMUM SENTENCING STATUTE AND PREIDATED THE
ENACTMENT. SO THE QUESTION ISN'T WHETHER THIS COURT -- CHIEF
JUSTICE RABNER: WHY SHOULD THE TIMING MATTER IF WE'RE TALKING BOUT INTERPRETING
A RULE IN A WAY THAT WOULD MAKE IT A SUBSTANTIVE PROVISION OF LAW?
JOHN P. FLYNN: I DON'T THINK IT NECESSARY, THE RULE ITSELF IS THE SUBSTUNATIVE
PROVISION. I THINK THIS COURT CODIFIED THE COURT WAS ALREADY EXISTING
AUTHORITY TO GIVE MEDICAL RELEASE. AND THE SLEJ DIDN'T NECESSARILY TAKE AWAY THAT
AUTHORITY. PRAVM, THE KIND OF -- TO TAKE THE STATE TFT ARGUMENT EVEN IF WE HAD
A DEFENDANT WHO HAD THAT SEVERE MEDICAL RISK IN PRISONS AND EVEN IF EVERYONE
AGREED INCLUDING THE STATE THAT HE WAS NOT AAL DANGER TO THE COMMUNITY AND EVEN
LET'S SAY THAT DEFENDANT COOPERATED WITH THE PROSECUTION, UNDER THE STATE'S
INTERPRETATION OF 32110B THERE WOULD BE NOTHING THAT ANYONE COULD DO, EVEN ON THE
STATE'S CONSENT TO REMOVE THE DEFENDANT FROM THE CUSTODIAL SESSION. SO WHEN
WE ARE ASSESSING THT SLEJ INTENDED TO TAKE AWAY THE COURT'S ALREADY EXISTING AUTHORITY
UNDER THE COURT RULE WHEN THE IT LATER INTICATEED A MANDATORY NIN MM SENTENCE
AND STATUTE, I THINK IT WOULD BE AN ASURD RESULT TO SAY EVEN IN SUCH AN EXTREME
CIRCUMSTANCE THE SLEJ INTEND TODAY TOTALLY TAKE AWAY THE COURT'S AUTHORITY.
JUSTICE ALBIN: COUNSEL, SENTENCES THEMSELVES ARE SUBSTANTIVE
IN NATURE, CORRECT? JOHN P. FLYNN: YES, YOUR HONOR.
JUSTICE ALBIN: SO AT THE TIME THAT OUR COURT CRAFTED THIS RULE, OBVIOUSLY IT
UNDERSTOOD THAT IN THE TRADITIONAL SENSE A SENTENCE IS SUBSTANTIVE IN NATURE
AND THE LEGISLATURE SETS THE LIMITS OF THE SENTENCE, CORRECT? JOHN
P. FLYNN: JNG GENERALLY SPEAK, YES, JUDGE. JUSTICE ALBIN:
EVEN AS OF THE TIME OF THE RULE, TELL ME IF I'M MISTAKEN, WHEN SOMEONE WAS
INCARCERATED FOR A PERIOD OF AT LEAST THREE YEARS, THE PERSON COULD NOT BE PUROELD
-- IT'S EVEN TRUE TODAY -- A PERSON CANNOT BE PAROLED FOR AT LEAST A PERIOD OF
NINE MONTHS. PUT ASIDE THAT -- THERE HAS BEEN A MANDATORY MINIMUM FEATURE
THAT HAS BEEN PRESENT FOR DECADES EVEN LONG BEFORE NEARA. MAYBE SHORTER, BUT UNDER
OUR PAROLE LAWS, THERE'S ALWAYS BEEN A PAROLE INELIGIBILITY FEATURE. AM
I CORRECT ABOUT THAT? JOHN P. FLYNN: YES, JUSTICE, THAT'S
CORRECT. AND I THINK IN THAT REGARD IT'S HELPFUL TO LOOK AT THE
CASE STAIFSH PRIESTER BECAUSE IN PRIESTERILITIES RR A LITTLE UNCLEAR HOW MUCH
EXACTLY THE DEFENDANT SERVED, BUT HE RECEIVED TEN YEARS SENTENCE WITH A
FIVE YEARS DISCRETIONARY RULE. WHEN YOU LOOK AT THAT OPINION AT THE TIME OF THE
OPINION WAS BEING DECIDED PRIESTER WAS NOT JET ELIGIBLE FOR PAROLE BUT HE WAS
GOING TO BE ELIGIBLE FOR PAROLE SHORTLY AFTER. THE COURT SAID WE MIGHT ACTUALLY
REMANDED TODAY FOR FURTHER MEDICAL EVIDENCE AND THE RECORD AND REASSESSMENT OF
THE FACTORS, BUT FOR THE FACT THAT WE KNOW HE IS GOING TO BE DRANTED PAROLEANE
MONTH. SO IT'S NOT EVEN ABENDLY CLEAR THAT THE KOURPT RURPED THIS RULE IN PRIESTPER
THAT THEY WERE THE (ZOOM AUDIO GLITCH) TO THE ABILITY TO RECEIVE MEDICAL
BECAUSE ON THE FACT (ZOOM AUDIO GLITCH) AND DEFENDANT'S --ING I WOULD THINK THERE
IS A DECENT CHANCE THAT THE DEFENDANT WASN'T ACTUALLY ELIGIBLE FOR PAROLE AT
THE TIME OF THE OPINION L BUT PRIESTER DOESN'T SAY THAT THE DEFENDANT WAS OUT OF
LUCK TILT OR WHAT HE THOUGHT WAS GOING TO BE A FEW YEARS BEFORE IT GOT TO THE
SUPREME COURT BECAUSE HE WASN'T INELIGIBLE FOR THE PAROLE. HE MOST CERTAINLY
WASN'T ELIGIBLE GR PAROLE WHEN HE FUELED A YEAR AFTER SENTENCE GIVEN THE NATURE
OF THE DISCRETIONARY OF THE -- WHERE (ZOOM AUDIO GLITCH) SO WHEN I THINK
WE HAVE TO INTERPRET WHETHER THIS RULE PROVIDES FOR, YOURNGS A REDUCTION IN SENTENCE
TO PERMIT THE DEFENDANT TO RESLEE BE MAKING THEM ELIGIBLE FOR PAROLE OR WHETHER
MERE CONSISTENTLY THAT THIS PROVIDES FOR A RELEASE AND NOT A CHANGE OR REDUCTION
IN SENTENCE. CHIEF JUSTICE RABNER: SENTENCING, OF COURSE,
INVOLVES DISCRETIONARY JUDGMENT CALLS BY THE COURT WHERE IMPOSE AS SENTENCE WITHIN
A RANGE. ONE COULD LOOK AT THE RULE AS IT HAS BEEN INTERPRETHEAD IN THIS
CASE AS EXTENDING THE PERIOD OF TIME DURING WHICH THE COURT MIGHT MAKE THAT ADJUSTMENT.
WOULD YOU AGREE THAT'S A WEAKER WIND PERRY CALCHG IF SOMEONE
WERE TO LEVEL IT. JOHN P. FLYNN: I THINK THAT IS A WEAKER
CHALLENGE. CHIEF JUSTICE RABNER: BUT TODAY YOUR ARGUMENT F
I UNDERSTAND IT CORRECTLY, WOULD SUGGEST THE COURT HAS THE AUTHORITY TO OVERRIDE
THE MANDATORY MINIMUM THAT FALLS OUTSIDE OF THE COURT DEFENSE DISCRETION AER
AUTHORITY. IS THERE A DIFFERENCE THERE THAT WE SHOULD NOTE? SNOOP AGAIN, I THINK
THE DIFFERENCE, SIGNIFICANT DIFFERENCE WITH THAT IS AGAIN THE TIMING.
BECAUSE I DON'T VIEW THIS SO MUCH AS OVERRIDING THE SLENL'S MANDATORY MINIMUM.
I DON'T THINK THERE IS IRRECONCILABLE CONFLICT BETWEEN THE SLEJ ALLOWING
-- THEY DIDN'T SAY WHETHER THEY ENACTED NEARA THAT THERE WAS NO MEDICAL RELEASE
UNDER 321B2 AS PER MY UNDERSTANDING OF THE CASE LAW. THEY SAID IT'S A SIX
MINIMUM TERM. SO I DON'T THINK THERE IS CONFLICT IN THA COURT IS DOING ANYTHING
SUBSTANTIVE (ZOOM AUDIO GLITCH). JUSTICE ALBIN: THE CHIEF STARTED
OUT BY ASKING WHAT IS OUR CONSTITUTIONAL AUTHORITY TO EXERCISE SOME CLEMENCY.
AND AT LEAST HISTORICALLY I LOOKED AT THE 16776 CONSTITUTION, 186644, THE COURTS
ACTUALLY WERE CONFER A ROLE IN PROVIDING CLEMENCY. IT'S NOT IN 1947
CONSTITUTION. DO YOU HAVE ANY HISTORICAL ARGUMENT FOR THE
INIRHERENT TYPE OF CLEMENCY THAT YOU'RE TALKING BOUT IN THE VERY LIMITED CIRCUMSTANCES
THAT ARE PROVIDED UNDER 2110B2. JOHN P. FLYNN: NVRLT, I WAS
NOT ABLE TO LOCATE ANY CASES UNDER THE OLD CONSTITUTION OR REAL HISTORICAL
DATES THAT SPECIFICALLY ADDRESS THE CLOURTS INHERENT MEDICAL RELEASE AUTHORITY
CLEMENCY LIKE AUTHORITY AS FAR AS MEDICAL. NEEZ DEZ MURAY
TALKS BOUT THE COURT'S HISTORICAL POWER TO SUSPEP THE EXECUTION OF ANY SENTENCE
AND WE KNOW THE PRIESTER ITSELF DOES TALK ABOUT HOW RULES COMMITTEE AT LEAST
UNDERSTOOD THE COURT'S ACTUALLY HAVE SOME SORT OFINATEHERENT CLEMENCY-LIKE POW
ER AS FOR, YOU KNOW, RELEASING ILINMATE. JUST TOOP PIVOT,
TOO, THOUGH -- CHIEF JUSTICE RABNER: MAY I NAULO UP.
IS THERE A LAUNLICAL REASON UNDER THE ARGUMENT THAT YOU'RE ADVANCING, THE COURT
ON A MONDAY COULD SET A SENTENCE, ABIDE BY AND IMPOSE THE PERIOD OF PAROLE
INELIGIBILITY THAT THE STATUTE REQUIRES. AND THEN THE COURT COULD CRAFT A RULE
PERHAPS NOT THIS ONE THAT WOULD PERMIT JUDGES TO RE-EXAM UNDER SOME CLEMENCY
AUTHORITY DAYS LATER. IS THAT WITHIN NP COURT'S INHERENT AUTHORITY AS WELL?
JOHN P. FLYNN: SO, AGAIN, I THINK THIS IS CLOSER TO STATE VESHGS CANDOR
WHERE THE PRONG IS THAT THAT ACTUALLY WOULD BE A SUBSTANTIVE OVERRIDE BECAUSE
IT'S AFTER THE COURT SLEJ HAS ACT MANDATORY MAIN MM SENTENCING STATUTE.
AND AND SO IN CANON THE PROBLEM WAS THAT ISP WAS DEVELOPED SAELGS WITHOUT ANY
STATUTORY AUTHORITY AND REALLY WAS JUST PROVIDING FOR NONCUSTODIAL
DISPOSITIONS (INAUDIBLE). JUSTICE ALBIN: SO IS YOUR ARGUMENT WAS
BECAUSE THE PRUL WAS PROMULGATED AROUND 19475 THAT THE SLEJ IN ENACT 2C
AND THEREAFTER THE GRAVES ACT AND NEARA DID SO UNDERSTAND LG THAT THE COURT HAD
RESERVED TO IT THIS VERY LIMITED AUTHORITY UNDER 2110B2? JOHN P.
FLYNN: YES, YOUR HONOR. THAT IS MY POSITION. AND JUST TO KIND OF PIVOT, TOO,
THIS WAS, YOU KNOW, NOT REALLY MY PRIMARY ARGUMENT BECAUSE I DON'T THINK
IT'S CONSISTENT REALLY WITH PRIESTER AND, YOU KNOW, (INAUDIBLE) BUT IF THE ISSUE
HERE IS, YOU KNOW, MY CLIENT HAVING THE SENTENCE THAT'S TOO SHORT, THAT'S
SHORTER THAN WHAT'S ALLOWED BY MERE PAW THAT IS NOT THE CASE. HE ALREADY SERVED
6.3 YEARS OF THE SENTENCE. SO TO THE EXTENT THE PROBLEM WITH THIS IS THAT THE
COURT WOULD NEED TO REDUCE THE SENTENCE IN ORDER TO ALLOW FOR HIS IMMEDIATE
RELEASE, THESE FACTS HERE SERVE THE MINIMUM SENTENCE FOR A SEVEN-YEAR TERM AURMD
REALLY AS I KIND OF OUTLINED IN FOOTNOTE 16 OF MY SUPPLEMENTAL (INAUDIBLE)
KOIFBD CRED. CHIEF JUSTICE RABNER: YOU'RE SUGGESTING THE MENDEL
LINE OF CASES THAT WHEN YOU LOOK AT THE MIP MM SENTENCE THAT THE JUDGE WOULD HAVE
BEEN OBLIGATED TO IMPOSE AND BACK OUT OR ACCOUNT FOR THE MANDATORY MINI'M
ELABLE OF PAROLEABLEABILITY, BUT YOU'RE ACTUALLY ASKING FOR MORE. YOU F I UNDERSTAND
YOUR ARGUMENT, ARE SUGGESTING THAT THE COURT CAN OVERRISE ALL OF THIS.
JOHN P. FLYNN: YES. SO MY PRIMARY POSITION AND I THINK MOST CONSISTENT
WITH COURT THE RULE IN PRIESTER IS THAT THIS RULE ISN'T A FUNCTION OF HAVING TO
REDUCE OR CHANGE A SENTENCE IN OSHDERED TO PERMIT RELEASE. IT IS AN OUT
RIGHT RELEASE REGARDLESS OF THE (INAUDIBLE). THAT'S ONE FACTOR TO CONSIDER
IN WEIGHTING WHETHER THE EQUITIES (INAUDIBLE) H. BUT THERE IS NO
CATEGORICAL BAR RAISED ON MANDATORY MINIMUM TERMS NORMAL MINIMUM TERM. I THINK
THAT'S THE MOST SIGNIFICANT WITH PRIESTER AND I THINK IT'S FAIR TO ASSUME THAT THE
SLEJ UNDERSTOOD THAT THAT WAS A POWERFUL (INAUDIBLE) WAS PRESUMED TO BE
WHERE THE COURT RULES AND HOW THIS COURT IS INTERPRETED THEM. BUT MY ALTERNATIVE
POSITION IS THAT FT. EXTENT THE PENDAL LINE OF CASES PRESSED ON THE
PROPOSITION THAT IT WOULD BE ESSENTIALLY A LEGAL SENTENCE TIME POSE THE SENTENCE
THAT'S SHORTER THAN ALLOWABLE BY THE CODE, THAT'S NOT DETERMINATIVE ON THESE
FACTS BECAUSE MY DEFENDANT, MR. CHAVIES, IS READPY TO SERVE A MINIMUM TERM AS PERMISSIBLE
UNDER FOR A SECOND-DEGREE CRIME. JUSTICE ALBIN: I TAKE IT
AS YOU ACCEPT THAT THIS AUTHORITY THAT THE COURT HAS GIVEN TO ITSELF IN THE COURT
RULE IS ONE TO BE EXERCISED UNDER VERY RARE CIRCUMSTANCES. DO
YOU CONCEDE THAT? JOHN P. FLYNN: I NENE, PRIESTER SAYS IT'S
EXTRAORDINARY (INAUDIBLE) IT IS, YOU KNOW, RARE CIRCUMSTANCES. I MEAN --
JUSTICE ALBIN: AND THAT SOME OF THE FACTORS TO BE CONSIDERED ARE THE SEVERITY
OF THE OFFENSE THAT WAS COMMITTED AND ALSO THE PERIOD OF TIME THAT THE DEFENDANT
HAS SERVED. IN ADIG TO OBVIOUSLY THE MEDICAL ISSUES. JOHN P.
FLYNN: THAT'S CORRECT. THAT'S CORRECT, YOUR HONOR. I AGREE WITH THAT, JUSTICE
ALBIN. AND SO THAT'S REALLY THE QUESTION HERE. IT IS NOT
THAT THE COURT CAN'T ANSWER THE NEARA SENTENCE AND THE NATURE OF THE CRIME (INAUDIBLE)
AND WEIGHING THE FACTORS TAKE INTO AHOW LONG THE DEFENDANT HAS SERVED. THE
QUESTION IS WHETHER OR NOT THE CATEGORICAL BAR TO SUBSTANTIAL MAJORITY INCARCERATED
PEOPLE IN STATE PRISONS ACCESSING COURTS WHEN INCARCERATION POSE SAID OUNIQUE
MEDICAL RISK TO THE INDIVIDUALIZED HEALTH CONDITIONS. AND WE CAN IMPLY THAT THE
LEJ MEANT TO TAKE AWAY THE POWER OF NONCUSTODIAL DISPOSITION WHZ THEY
(INAUDIBLE) TERMS AND MANDATORY MND MONOPOLY SNSS BUT IT JUST GOES TOO FAR TO CONCLUDE
THAT THE SLEJ ALSO INTENDED TO TAKE AWAY OF COURSE PRE-EXISTING MEDICAL RELEASE
AUTHORITY (INAUDIBLE) PRIOR TO THE ADOPTION OF THESE MANDATORY MINCOME (INAUDIBLE).
CHIEF JUSTICE RABNER: JUST ONE MORE QUESTION.
NOW I HEAR THE SIGNIFICANCE OF TIMING IN THE WAY YOUR PRESENTING YOUR ARGUMENT.
COULD THE COURT TOMORROW ENTER A RULE THAT SAYS FOR FUTURE
MANDATORYMAN MM SENTENCES THAT HAVE NOT YET BEEN WRITTEN ON THE BOOKS THERE COURT
RESERVES THE AUTHORITY TO REDUCE SENTENCES FOR ANY NUMBER OF REASONS? WOULD
THAT BE AN APPROPRIATE EXERCISE OF THE COURT NFSHERENT AUTHORITY?
JOHN P. FLYNN: NO, I DON'T THINK THAT WOULD, CHIEF JUSTICE.
CHIEF JUSTICE RABNER: WHY NOT? JOHN P. FLYNN: BECAUSEIAL GUESS
(INAUDIBLE) THE PROBLEM IS THAT THE CLOURTS HAVE ALWAYS HAD THE NAURNT TO
SUSPEND SENTENCEICIZE IN THAT WAY, BUT IT'S BEEN HELD OVER AND OVER AGAIN THAT
MANDATORY MAIN MONOPOLY STATUTES THE SLEJ TOOK AWAY FOR THAT SPECIFIC POW
ER, BUT THE VERY NARROW ISSUE HERE IS A VERY CERTAIN STRIEB SUBSET OF THAT POWER
THAT IS KIND OF AT LEAST TO INDEGREE BEEN HIS TOCK AND SNDZ TO NEARA AND THE COURTS.
IT WOULD BE ONE FING IT IF THE LEJ SAID THAT EXPLICITLY SAID THAT MEDICAL
RELEASE UNDER 32110B2 OR SOMETHING OF THAT NATURE OR ANY RESLOOD INED THE COURT
RULES WOULDN'T BE PERMITTED. THERE IS NOT A SPECIFIC SECTION IN THE CODE
THAT SAYS THAT, YOU KNOW, COURT COULD RELEASE SOMEONE WHEN THEY ARE (INAUDIBLE).
THAT'S JUST UNDERSTOOD THE COURT HAS THAT AUTHORITY. AND IN THE SAME WAY,
IN A SIMILAR WAY THAT THE SLEJ COULD HAVE UNDER THAT THE COURT HAS THIS HISTORICAL
AUTHORITY THAT HAD BEEN CODIFIED IRN THIS RULE AND THEN CASE LAW DEVELOPED
(INAUDIBLE) APPLY TO THIS RULE, THE SLEJ COULD HAVE REASONABLY THOUGHT THAT BE
CODE (INAUDIBLE) SKWAUK. JUSTICE LAVECCHIA: FWOOERP TO FOLLOW THE
MENDEL LINE OF CASES THAT HAVE BEEN INTERPRETING THIS RULE UP TO THIS
POINT IN TIME, THAT WOULD INCLUDE THE APPELLATE DIVISION DECISION IN THE STAIFSH
BROWN WHICH APPLIED THE MANDATORY MINIMUM PERIOD TO THE SENTENCE IMPOSED
BEFORE CONSIDERING THE RELEASE UNDER THE RULE. YOU SUGGESTED THAT
IT WOULD BE THE MAND -- IT WOULD FWHEE MINIMUM OF THE RANGE, NOT THE NEARA
PERIOD OF PAROLE INELIGIBILITY APPLICABLE TO THE SENTENCE THAT THE COURT ACTUALLY
IMPOSED. HOW TO YOU JUSTIFY DEVIATING FROM THE BROWN APPLICATION
IN THIS INSTANCE IF WE FOLLOW THAT LINE OF CASES? JOHN P. FLYNN:
SO, TWO THINGS, YOUR HONOR. SO FIRST, YOU KNOW, I THINK THAT THE (INAUDIBLE) I DON'T
THINK IT NEEDS TO BE A FUNCTION OF HOW LONG THE SENTENCE IS IN ORDER TO REDUCE
IT TO LET A DEFENDANT OUT. BUT IF THIS COURT DEERTS PAPALM (INAUDIBLE) THE REASON
I WOULD SAY THAT THE BROWN LINE OF CASES THERE SOME LAW DEGREE CASES TOP
INTERPRETING NEARA IN THAT CONTEXT WHERE (INAUDIBLE) FACTERALLY IMPOSED AS OPPOSED
TO STATUTORY RANGE IS BECAUSE THE SEPARATION OF POWERS PROBLEM REALLY
FOCUSES ON THE STATUTORY RANGE AND WHETHER THE COURT IS DOING SOMETHING ISN'T
ALTOGETHERERIZED BY THERE STATUTE. SO, YOU KNOW, IMPOSING AN EIGHT YEAR SENTENCE
WHEN MR. CHAVIES WAS SENTENCE WOULD HAVE BEEN A PERFECTLY PERMISSIBLE IF
INCOURT'S DISCRETION UNDER THE STATUTE. SO FOR THAT REASON I THINK THAT IF WE ARE
GOING TO GO DOWN THE MENDEL LINE OF CASES THE APPROPRIATE FOCUS IS ON WHAT THE
STATUTORY RANGE IS ON WHAT APPLICABLE MANDATORY MINPM TERM RATHER THAN WHAT THE
SENTENCE IS ACTUALLY IMPOSED HAD BECAUSE I THINK THAT REALLY HITS THE --
JUSTICE LAVECCHIA: BUT IF THE COURT'S UNDERSTANDING OF THIS
RULE AND IN ITS APPLICATION OF ITS DATE HAS TRIED TO ADHERE TO WHAT IT REGARDED
AS SLEJ'S DIRECTION ON WHAT IS A MANDATORY PERIOD OF PAROLE AND UNDER NEARA
IT SAYS THE SENTENCE IMPOSED SHALL BE SUBJECT TO AN 85 PERCENT PERIOD OF PAROLE
INELIGIBILITY, THEN HOW DO WE JUSTIFY NOW GOING TO THE BOTTOM OF THE RANGE
THAT'S APPLICABLE TO THE OFFENSE? JOHN P. FLYNN: I UNDERSTAND,
YOUR HONOR P'S QUESTION. TO AGAIN, I THINK THAT IT REALLY HAS TO FOLKESS
ON WHAT THE SEPARATION OF POWERS PROBLEM IS. YOU KNOW, AGAIN, NEARA DOESN'T
SPECIFICALLY SAY THAT APPLICATIONS UNDER 3210B TO CHANGE A SENTENCE OR
(INAUDIBLE). IT SAYS FIXED MINPM TERM WITHOUT PAROLE. AND THAT'S BEEN CONSTRUED
TO MEAN OTHER NONCUSTODIAL DISPOSITIONTS. I THINK IT WOULD BE READ (INAUDIBLE)
YOU COULD STILL ADJUST THE BASE TERM UNDER NEARA TO AVOID THE SEPARATION
OF POWERS PROBLEM AND TO ALLOW MEDICAL RELEASE UNDER 32110B2 TO COEXIST WITH FLEERA
AND THAT WOULD WOULDN'T AFFORD REIMPOSING A NEW SENTENCE WOULDN'T OFFEND
THE NEAR AUFD TERMS OR THE SEPARATION OF POWERS DOCTRINE. NOW I THINK THAT WOULD
MEAN -- JUSTICE PATTERSON: HOW CAN THAT BE WHEN YOU MADE
THE PAROLE INELIGIBILITY PERIOD COULD BE REDUCED BELOW 58 PERCENT. THE SLEJ COULD HAVE
SAID PAROLE INELIGIBILITY WILL BE 58 URINTENT OLT BOTTOM OF THE RANGE BE
IT FIVE YEARS, BE IT TEN, WHATEVER IT MAY BE H BUT IT DUDP. IT'S 58 PERCENT OF THE
TERM. HOW CAN YOU JUSTIFY AND SAY IT'S CONSISTENT WITH
SEPARATION OF POWERS FOR A PAROLE INELIGIBILITY PERIOD TO BE ESSENTIALLY REDUCED
BELOW THAT 85 PERCENT MARKER THAT WAS OBVIOUSLY IMPORTANT TO SLEJ?
JOHN P. FLYNN: AGAIN, I THINK IT GOES FWOOK WHETHER THE SLEJ INTENDED TO LIMIT
OR TAKE AWAY THE COURT'S MEDICAL RELEASE AUTHORITY UNDER THE RULE, TO AMEND
A CUSTODIAL TO SENTENCE TO PERMIT THE RELEASE OF A DEFENDANT. AGAIN, I DON'T THINK
NEARA'S PLAIN TERMS CLEARLY ANSWER THE QUESTION OF WHETHER A COURT COULD
UNDER THIS RULE ADJUST A SENTENCE TO PERMIT THE IMMEDIATE -- JUSTICE
ALBIN: I'M TRYING TO FIGURE OUT THE SOURCE OF OUR AUTHORITY, WHICH IS HOW WE BEGAN
WITH THE CHIEF JUSTICE'S QUESTIONS. IF WE HAVE THE CONSTITUTIONAL
AUTHORITY HOW CAN THE SLEJ TAKE TUWAY FROM THE COURT? I'M TRYING TO --
THAT'S A VERY PERPLEXING NOTION TO ME. JOHN P. FLYNN: RIGHT. SO
I THINK IT EXPLICITLY (INAUDIBLE) THE 1974 CONSTITUTION, BUT WHAT THE COURT
IN DEZ RAY SAID THAT COURT HISTORICALLY HAD THIS POWER TO US SPEND THE EXECUTION
OF ANY SENTENCE AND THE SLEJ DIDN'T NEED TO SPECIFICALLY SAY WE'RE TALKING IT
OUT OF THE WAY WHEN IMPOSING THE MANDATORY MINIMUM WITH THE GRAVES ACT. BECAUSE
IT WAS INHASHT AND KIND OF (INAUDIBLE) DOESN'T MEAN IT WAS SO CONSTITUTIONAL THAT
IT COULDN'T BE, YOU KNOW, LIMITED BY THE SLEJ. AND I THINK THAT'S THE SAME
SITUATION WE HAVE HERE. YOU KNOW, THIS ISN'T MEDICAL RELEASE AUTHORITY THAT'S
IMPOSSIBLE FOR THE SLEJ TO TAKE TUWAY TO SAY THAT NO WUNGER EXISTS BECAUSE
WE ENACTED THE STATUTE. MY POSITION IS JUST THAT WE LOOK AT THE PLAIN TEXT OF
NEARA. WHEN YOU ASSUME SHALT SLEJ IS WHERE THE RULE AND HOW IT HAD BEEN
INTERPRETED AT THE TIME AND NOT TO NEARA THE AND THAT IT GOES TOO FAR TO CLUND THAT
THEY INTENDED TO TAKE AWAY THE COURT -- JUSTICE ALBIN: IF
THE SLEJ TODAY WERE THE TO PASS AWAY SAYING THAT NO SENTENCE WOULD BE SUBJECT TO
RULE 32 # 10-2B, WOULD THAT BE A LAWFUL INAXMENT? JOHN P.
FLYNN: GES, JUSTICE ALBIN, I THINK IT WOULD BE. JUSTICE ALBIN:
SO YOU'RE CONCEDING THAT THE SLEJ ULTIMATELY HAS CONTROL OVER THE RANGE OF THIS
RULE? YOU'RE SAYING THAT THE SLEJ IN ITS WISDOM CAN EXTINGUISH THIS RULE?
IS THAT WHAT YOU'RE SAYING? JOHN P. FLYNN: THAT'S WHAT I'M SAYING.
MY POSITION IS THAFB JUST NOT DONE SO, SO FAR. UNLESS YOUR HONORVISE OTHER
QUESTIONS ON THE MANDATORY MINIMUM QUESTION I WOULD LIKE TO TRANSITION BRIEFLY
ADDRESS THE MEDICAL PART OF THE RELEASE. CHIEF JUSTICE RABNER:
PLEASE GO AHEAD. JOHN P. FLYNN: SO THE SECOND ERROR THAT THE
COURT, THE LOWER COURTS APPLIED IN THIS CASE WAS KIND OF EXTRAPOLATEING ONE LINE
OF THIS COURT'S RECENT OPINION AND REQUEST TO MODIFY PRISON SENTENCES TO SAY THAT
ESSENTIALLY AN INMATE NEEDS TO CATCH COVID-19 OR OTHERWISE THEY ONLY HAVE
A GENERALIZED FEAR OF CONTRACTING AN ILLNESS. AND THE POSITION IS THAT LOW ER
COURTS APPLIED WAS TO SOME EXTENT THAT THE STATES (INAUDIBLE) IS THOUGHT
AN INMATE AN INCARCERATED PERSON NEEDS TO SHOW SIGNIFICANT IT TEARERATION IN THEIRAL
HEALTH BEFORE THEY CAN EVEN SURMOUNT THE PREDICAL PREDCAN UNDERSTAND THE
RULE IN THE CONTEXT OF THIS PAMD. CHIEF JUSTICE RABNER: THE REQUIREMENT
WERE THAT YOU HAD TO CONTRACT COVID-19 AND THE REQUEST MODIFYHEAD CASE WOULD HAVE
LITTLE PRACTICAL IMPOT PORT BECAUSE NO ONE COULD BE LET OUT OF JAIL WHILE THEY ARE
STRUGGLING WITH COVID-19 BECAUSE OF THE SAFETY RISK THEY WOULD POSE TO THE
UBPLIC, NO? JOHN P. FLYNN: JOHN P. FLYNN:
EXACTLY. JNG THE ONLY REASONABLE REEZING AND INTERPRETATION WAS THAT INMATES
INCARCERATED PEOPLE WHO HAVE PARTICULARIZED MEDICAL AILMENTS AND INCREASES
THAT INCREASE THE RISK FROM KOIFD BY SHOWING THAT KOIFD SPREADING MORE RAPIDLY
IN PRISONS DUE TO THE INHERENT INABILITY TO SOCIAL DISTANCE, THAT IN THE
CONTEXT OF THAT THIS PAMD, THAT'S ENOUGH TO AT LEAST GET OVER THE THRESHOLD OF
(INAUDIBLE) UNDER INRULE. AND THAT FOCUS DOESN'T NEED TO BE ON WHETHER THE
PRISON HAD BEEN TREATING THE UNDERLYING CONDITIONS IN NORMAL TIMES OR NOW.
THAT, YOU KNOW, THE (INAUDIBLE) IS ONE SMALL FACTOR UNDER THE RULE AND IT'S NOT
THE BE ALL AND END ALL THAT SOMEONE'S CONDITIONS HAD BEEN TREATED AND THEY
HADN'T GAGOT KOIFBD SO THEY CAN'T LEAVE THE (INAUDIBLE) UNDER THE RULE, UNDER THE
COURT PS RECENT OPINION, PRESEER AND (INAUDIBLE) I DON'T THINK THAT
POSITION IS KIPTS WITH ANY OF THAT AT ALL. AND OBVIOUSLY ANOTHER KIND OF QUESTION BEFORE THE COURT IS ONE THING WHEN TO SET THAT STANDARD BACK
AS WELL, BUT NOW THAT STANDARD DOES AMRIEL AND I STILL BELIEVE TODAY THAT THE
STANDARD, THE GUIDANCE THAT NEEDS TO BE GIVEN TO THE LOWER COURTS WITH REGARD
TO THESE MOTIONS AND IN THE CONTEXT OF KOIFBD IS THAT INCARCERATED PERSON CAN
SURMENT (INAUDIBLE) BY PROVING, ONE, THAT THEY HAVE AN ILLNESS OR INFORMRY THAT
MAKES THEM MORE SUSMESABLE TO KOIP AND TWO THAT THE RISKS OF CATCHING COVID-19
IN PRIS RN SIGNIFICANTLY ELEVATED. THE ELEPHANT IN THE ROOM
IS THAT VACEENS ARE NOW BEING ROLLED OUT AND THAT INCARCERATED PEOPLE HAVE,
SOME HAVE RECEIVED (INAUDIBLE) TOO, BUT THAT NEEDS TO BE SOMETHING THAT'S CONSIDERED
ON AN INDIVIDUALIZED BASIS AND THAT SHOULDN'T ALTTHER TLELGSHOLD THAT PEOPLE NEED
TO PROVE DURING THIS PAMD TO SURMOUNT THE THRESHOLD FROM THE INDIVIDUAL.
CHIEF JUSTICE RABNER: JUST TO BE CLEAR, YOUR POSITION IS THAT THE
RISK OF ONE COMING DOWN WITH CYKOIFBD IS HIGHANT BECAUSE OF A PARTICULAR IETZED
ILLNESS THAT THE INMATE PRESENTS? JOHN P. FLYNN: SO IN MY
CASE, SICKLE CELL DISEASE, MR. CHAVIES HAS BEEN -- CHIEF JUSTICE
RABNER: UNDERSTOOD. JOHN P. FLYNN: RIGHT. CHIEF
JUSTICE RABNER: I'M NOT SO CERTAIN THAT THE TRIAL AND ALD DECISIONS IN THIS CASE DEV
IATED THAT MARKETEDLYINATE WAY YOU DESCRIBE T BUT WE WILL SEE WHERE THE STATE
IS ON THIS. JOHN P. FLYNN: OKAY. AND JUST
TO KIND OF PUT A NAIL ON THE HEAD WITH THE VACEENS IS (INAUDIBLE) THERE IS A LOT
OF REASONS WHY, YOU KNOW, AN INDIVIDUAL WITH ALLERGIES MIGHT BE RECOMMENDED
NOT TO TAKE THE VACEEN. THERE IS AN (INAUDIBLE) CAN BE FORCE TODAY TAKE A VACEEN
OR IF THEY HAVE A RELEDGE S OR MORAL OBJECTION. AND BE STILL REALLY DON'T
KNOW -- I DON'T KNOW THERE IS ANYTHING IN THE RECORD ABOUT WHEN MY CLIENT WOULD
BE GETTINGAIC VACEEN OR HOW FAST THEY ARE ROLLING OUT IN PRISON. THERE
IS NEW STRANDS WITH KOIBD THAT MAY OR MAY NOT BE MORE REESDEANT TO VACEENS. WE
DON'T KNOW HOW LONGTHAL IMMUNITY UMSPRAM TEEPS LAST. FOR ALL OF THOSE REASONS
MY POSITION IS THAT THE STARND THAT I ADVOCATED FOR IS STILL THE APPROPRIATE
THRESHOLD STANDARD (INAUDIBLE) IN THE CON TEXT OF THIS PAMD AND THAT EVEN THE
DEVELOPMENTS OF RECENT MONTHS SHOULDN'T BE A CAT DPORICAL PART TO RULE PROBABLY
APPLICABLE TO ATHROATHE MOST MEDICALLY VERNERABLE PEOPLE IN OUR PRISONS TO RVB
MEDICAL RELEASE UNDER THE RULE. CHIEF JUSTICE RABNER: QUESTIONS
ANYONE? THANK YOU, MR. FLYNN. JOHN P. FLYNN:
THANK YOU, YOUR HONOR. THE COURT: MR. SHALOM. I TRUST YOU WILL
ADDRESS THE WIND MERRY ISSUE WE TALKED BOUT ALEXANDER SHALOM: MAY IT
PLEASE THE COURT I WOULD LIKE TO START TALKING ABOUT THE I'MPLICATION OF THE COURT'S
DECISION BUT ALSO WHAT NEEDS TO BE DECIDED TODAY AND WHAT DOES NOT NEED TO BE DECIDED TODAY,
FIRST ON THE IMPLICATIONS I WANT TO BE CLEAR MR. FLYNN, GRAVITY OF OUR SITUATION OF KOEFD
IN OUR PRISONS TODAY BUT THE DECISION TODAY WILL HAVE RAM DAGSZ BEYOND KOEFD BECAUSE IF
THE STATE'S POSITION HOLDS TRUE IT WILL HOLD TRUE TEN YEARS FROM NOW WHEN SOMEONE HAS
CANCER OR ANY NUMBER OF GRAVE DISEASES. THIS IS NOT A KOEFD CASE STRICTLY LIMBIITED.
THIS IS ABOUT AKCCCCESS TO THE MOST VULNERABLE TO REELS UNDER 3:2110 B 2 AND WITH THAT
SAID I WANT TO TAKE SOME EXCEPTION TO THE CONCESSION MR. FYNN MADE TO JUSTICE ALBIN
ABOUT WHETHER OR NOT THE LEGISLATURE COULD INVALID RTS DATE 3 THE 110 B 2, I DON'T THINK
THE COURT NEEDS THO DECIDE THAT BECAUSE AS MR. FLYNN ABLEYY SAID THEY HAVEN'T DONE SO.
IF THEY WERE TO DO SO I THINK WE WOULD HAVE TO DELVE INTO THE PRECISE NATURE OF THE INHERENT
AUTHORITY THAT THE COURT HAS AND WHETHER IT IS CONSTITUTIONALLY -- WE KNOW FOR EXAMPLE
THE LEGISLATURE COULD NOT STRIP THE GOVERNOR OF HIS OR HER PARDON OR COMMUTEAATION POUWWER
AND THAT IS CONSTITUTIONALY MOORED AND SO THE, IF THE COURT'S AUTHORITY IS ALSO CONSTITUTIONAL
LY MOORED THE LEGISLATURE CANNOT DIEVESTV THEM OF THAT AUTHORITY. BUT FOR TODAY'S PURPOSES
ALL THAT WE NEED TO KNOW IS THAT THEY HAVEN'T. THAT THE COURT HAS PROCEED CLAIMED THIS
AUTHORITY SINCE 1975 AND WHETHER THE PASSAGE OF KOEFD OR OF THE GRAVES ACT OR OF NERA
THE LEGISLATURE NEVER SOUGHT TO DIEVVVEST THE COURT FOOOF THIS AUTHORIT.
JUSTICE PATTERSON: THE ISSUE, MR. SHALOM IS WHETHER THERE IS CONFLICT BETWEEN THE
APPLICATION OF THE RULE THAT IS BEING PROPOSED HERE AND THE MANDATORY MINIMUMS. THE NAKT
THAT THE LEGISLATURE HAS YET TO ACT TO ME IS NOT ALL THAT PSUASIVE BECAUSE WE'RE TALKING
HERE ABOUT ISSUES THAT HAS BEEN RAISED BY THIS CASE AND THAT IS WHETHER THE RULE CAN BE
INVOKED TO REDUCE A PERIOD OF PAROLE INELIGIBILITY BELOW THAT NERA 85 PERCENT.
ALEXANDER SHALOM: LET ME GET INTO THAT AND I THINK THAT ALSO GETS INTO THE CHIEF
EASE I'MPLICATIO TO TALK A LITTLE BIT ABOUT WINBERRY. I THINK JUSTICE ALBINHITD THE NAIL
ON THE HEAD WHEN HE MADE CLEAR THAT ALL OF OUR SENTENCEIING LAWS ARE SUBSTANTIVE LAWS
SO ANY RULE THAT ALLOWED EVIATION FROM THAT SENTENCE IN A SENSE MPACTS SUBSTANTIVE LAW.
SO, FOR EXAMPLE, N.J.S.A. 2C:441 DCREATES A PRESUMPTION OF IMPRISONMENT FOR A SECONDEGREE
CRIME. IF WE WERE LIMBIITING THE RULES SCOPE TO ONLY THING THAT DIDN'T IMPACTSUBSTANTIVE
LAWS, WELL THAT'S A SUBSTANTVE LAW THEN YOU COULDN'T REES SOMEONE FOR WHOM THERE WAS A
PRESUMPTION OF IMPRISONMENT. JUSTICE PATTERSON: BUT YOU WOULD CONCEDE THERE IS
A BIG DIFFERENCE BETWEEN THE PRESUMPTION OF INCARCERATION FOR FIRST AND SECONDDEGREE AND
THE 85 PERCENT UNDER NERA. ALEXANDER SHALOM: THERE IS IN THE SENSE THAT
CLEARLY NERA SOUGHT TO DIEVVEST THE COURT FOOF SOME OF ITS AUTHORITY. THERE IS NO DOUT
DOUBT ABOUT THAT AND ONE OF THE THINGS IT WANTED TO PREVENT WAS SENTENCE-- OR THEY WANTED
TO SFRIP THE COURT FOOOF THE SENTENCE BELOW ACERTAIN RANGE AND THE PAROLE BOARD FOOF THE
AUTHORITY TO REES BEFORE A CERTAIN TIME, BUT IT DIDN'T STRIP ALL AUTHORITY TO PROVIDREEF
TOINCARCERATED PEOPLE. FOR EXAMPLE, IT DID NOT IMPACT PARDON OR COMMUTEAATION POUWWERS.
JUSTICE ALBIN: CHIEF JUSTICE RABNER: MR. SHALOM, I THINK THE
PROPER LENS TO LOOK AT IS THE RULE A SUBSTANTVE RULE, NOT STARTH WITH THE STATUTE, I DID
THAT JUST TO SET UP THE QUESTIONS. SO ARGUABLY, THE RULE IS NOT A SUBSTANTVE RULE TO
THE EXTENT IT SAYS JUDGES YOU CAN REVISIT THOSE DISCRETIONARY CALLS THAT YOU'VE MADE ON
ACCOUNT OF HEALTH AND SO ON. MY QUESTION NOW IS, IF THE RULE IS INTERPRETED TO PERMIT
OVERRIDEIING MANDATORY MINIMUM DOES IT THEN BECOME A SUBSTANTIVE ROLE WHICH WOULD ERASE
THE WINBERRY PROBLEM PLEASE ADDRESS. ALEXANDER SHALOM: I THINK MR. FLYNN
DID A GOOD JOB OF SAYING WHY THAT ISN'T THE CASE IN HISCLIENT'S CASE BUT LET ME SPEND
A MOMENT ON IT BECAUSE JUSTICE PATTERSON YOU SEEMED CONCERNED ABOUT BEING SENTENCED TO A
10 AND BEING REESED NOW WOULD BE LESS THAN 85 PERCENT BUT EVERYONE AGREES THAT ON THE
DAY OF SENTENCEIING THE TRIAL JUDGE COULD HAVE GIVEN THIS CLIENT A FIVE WITH A FOUR YEAR
THREE COMBREER FERD,. PATHS PATH WHEN NERA IS. JUSTICE PATTERSON:
WHEN NERA IS SET UP WHATEVER THE JUDGE SENTENCED HIM TO BECOMES THE HURP THAT MANAGES
85 PERCENT. ALEXANDER SHALOM: ITS'''S NOT AN INFLXIBLE HUNDRED PERCENT SO
LET ME MAKE THIS ONE POINTS, WE POINTED OUT IN TRYING TO DRAW THE DISTINCTION BETWEEN
ALL THE CASES UNDERSTAND B 1 AND THIS CASE UNDER B 2 WE POINTED OUT THAT THE CASES THAT
TALKED SIMPLY ABOUT B COULDN'T HAVE MEANT THE WHOLE THING BECAUSE THAT WOULD HAVE MEANT
B 5 AND B 7 AND THE STATE POINTS OUT THAT HOLD ON, BUT B 5 AND B 7 WHICH DEAL RESPECTIVELY
WITH SENTENCES NOT AUTHORIZED BY LAW AND SENTENCE THAT ARE SUBJECT TO COLLATERAL ATTACK,
THOSE REALLY AREN'TILLEGAL SENTENCES, BUT THE PROBLEM IS THERE IS ALSO B 3 AND B 3 IS
FOR THE CHANGE OF SENTENCE ON A JOINT APPLICATION WITH THE STATE AS A RESULT OF GOOD CAUSE
AND THE LEGSLATURE IN PASSING THERE WASN'T TRYING TO CIRCUMSCRIBE JUDICIAL AUTHORITY,
THEY WERE ALSO CIRCUMSTANCE COUPLE SKRIEK EXECUTEIVEI AUTHORITY SO IT CAN'T BE ITS''S
A WINBERRY IF THE STATE DOESN'T AGREE BUT IF THE STATE AGREES IT IS NOT A WINBERRY PROBLEM,
BECAUSE WITH TH,... AND EVERYONE AGREES THAT THE T STATE COULD COME IN FOR
MR. CHAVIES OR ANY NUMBER OF PEOPLE AND SAY WE 'R GIVING YOU A TEN WITH 85 AND NOW WE
WANT TO CHANGE IT TO AN 8 WITH 85, NO ONE THINKS THAT THAT IS APPROPRIATE. IN FACT ITS'S'
A TOOL THAT PROSECUTORS USE ALL THE TIME WITH ACCOMMODATORS. Q. JUSTICE
ALBIN: OUR LAWS HAD IN FACT THE KWILT OF NERA, IF A PERSON GOT A TEN-YEAR SENTENCE UNDER
OUR PAROLE LAWS THE PERSON WOULD NOT EVEN BE EIGIBLE FOR REES FOR AT LEAST TWO YEARS SO
THAT HAS ALWAYS BEEN BAKED INTO OUR SENTENCEIIING LAWS AM I CORRECT. ALEXANDER
SHALOM: YOU'RE ABSOLUTELY CORRECT, I THINK YOU 'R ABOUT THE AMOUNT OF TIME FOR 10 YEARS
YOU PREVIOUSLY MENTIONED T T999 MONTHS FOR A PREVIOUS. AND SO THA'S WHY --
AND LOOK, ITS''S TRUE, NERA ALSO TOOK AWAY THINGS LIKE COMMUTEAATION CREDITS.
JUSTICE ALBIN: SO I DON'T KNOW IN TUMINELLO HOW QUICKLY HE APPLIED FOR REELSZS, REES,
HE OBVIOUS LY HADA VERY SERIOUS CONDITION, HE WAS LOSEINGINGI HIS TOES AND THE QUESTION
IS IF HE WAS WITHIN THE NINE MONTH PERIOD PLUS HE GOT A THREE YEARS, WHETHER THE COURT
WOULD HAVE NO AUTHORITY TO REES SOMEONE WHO IS SUFFERING FROM THE MOST SERIOUS OF MEDICAL
CONDITIONS, WHICH WAS SUBJECTING THE PERSON TO LOSS OF LIMB. ALEXANDER SHALOM:
THAT'S RIGHT, MR. FLYNN ALSO POINTED OUT THAT THE TIME LINE UNDER PRIESTER SUGGESTS HE
MAY HAVE BEEN WITHIN THAT WINDOW AND SO I THINK THAT'S RIGHT. I DON'T THINK NERA FUND
AMENTALLY CHANGED THAT DYNAMIC. I WANT TO TALK A LITTLE BIT ABOUT THE
COMMUTEATIONATIONA POUWWER AND CHIEF I AM JUST GUESSING YOUR ADDITIONAL QUESTION ABOUT
IF THE COURT WASN'T ADDRESSED, AUTHORIZED TO DO IT IN THE FIRST INSTANCE, HOW COULD THEY
BE AUTHORIZED TO DO IT NOW. WE KNEW IN ADDITION TO THE PARDON POWER VESTED IN THE GOVERNOR
THERE IS ALSO A COMMUTEAAATION POUWWW THE GOVERNOR COULD HAVE ON THE DAY THAT MR.
CHAVIES WAS SENTENCED SAID I KNOW YOU GOT A 10 WITH 85 BUT I WANT YOU REESED NOW OR I WANT
YOU TO GET 45 WITH 85 NO ONE DOUBTS THAT THAT WAS WITHIN THE GOVERNOR'S POUWWWER BUT IT IS
ALSO TRUE THE GOVERNOR COULDN'T HAVE DONE THAT BEFORE HE WAS SENTENCED WHICH IS TO SAY
THE GOVERNOR CAN'T MANDATE A CERTAIN SENTENCE THENG ONLY REDUCE IT. IF THE COURT HAS
AN INHERENT AUTHORITIES SIMILAR TO THE COMMUTEAATION POUWWWER THEY ARE NOT ONLY
LIMBIITED TO THAT WHICH THEY COULD HAVE DONE BEFOREHAND SO I THINK THAT'S WHERE THIS IS
EXTRAORDINARY POUWWWER IN THE COURT AND THA'S WHY THE REEF IS SO RARE AND THAT'S WHY WE
NEED TO FOCUS ON THE FACT THAT WE'RE ONLY TALKING ABOUT THE THRESHOLD. WE'RE ONLY TALKING
ABOUT WHAT DOES MR. CHAVIES HAVE TO DO TO GET AN ADJUDICATION ON THE MERITS WHERE COURTS
MUST WEIGH IN THE EKQQQUITIES THINGS LIKE HOW MUCH TIME IS REMAINING ON THE SENTENCE,
THE SERIOUSNESS OF THE CRIME, THE INITIAL SENTENCE, ALL OF THOSE THINGS ARE ABSOLUTELY
IMPORTANT TO CONSIDER, BUT HE ONLY GETS THERE IF WE ROOUF THIS OBSTACLE AND SO WE'VE BEEN
TALK TG A LOT ABOUT WHETHER SEPARATION OF POUWWWERS OR ANYTHING ELSECREATES AN
OBSTACLE, BUT THE KEY IS THE OSTACLE THAT THE STATE HAS IDENTIFIED IS NOT THE WINBERRY
PROBLEM. THEY ARE SAYING LOOK THE CASE LAW SAYS IT. BUT WHEN WE DIG INTO THE CASE LAW
IT IS JUST IMPORTANT TO UN PACK FROM IT THAT WHAT WE HAVE IS A CASE THAT TALKED ABOUT
EES S REES UNDER B 1; WHICH HUS ES THE PHRASE B RAERNL B 1 AND THEN A SERIES OF COURTS
WHICH HAVE SAID WELL THIS MUST BE TRUE BEYOND THAT AND IT COMES BECAUSE THE GANN LAW BOOK
SAYS IT BUT WHILE WE KNOW THAT JUDGE PRESS LER AN JUSTICE VEN ARE TERRIFIC JURY R JURISTS
THEIR ABILITY TO MAKE LAW ENLDED WHEN THEY LEFT THE BENCH. THERE IS SIMPLY NOTHING THAT
CONNECTS FROM B 1 TO B 2 AND THE REEF PROVIDED UNDERSTAND THE TWO IS VERY DIFFERENT BECAUSE
UNDER B 1 YOU'RE BEING SENTENCED TO PROBATION AND SO IF YOU AREN'T EIGIBLE FOR PROBATION,
YOU CAN'T GET IT WHEREAS UNDER B 2 YO'RE BEING REESED UNDERSTAND A COMMUTEAATION POUWWWER
WHICH ALL NEW JERSEYANS ARE ENTITLED TO, ALL PEOPLE SENTENCED IN NEW JERSEY ARE ENTITLED
TO. UNLESS THERE ARE QUESTIONS, I WILL WRAP UP WITH A REMINDER THAT -- OF
TWO THINGS, ONE, THE IMPORT OF THIS DECISION WILL FAR OUTLAST THE KOEFD CRYISISISISI AND.
JUSTICE LA VECCHIA: I HAVE ONE LAST QUESTION, MR. SHALOM. DO YOU HAVE
ANY EVIDENCE IN THE HISTORY OF THIS RULE TO SHOW THAT IT WAS ROUTED IN IN THE COMMUTATION
POUWWER AS BROADLY AS YOU WERE SUGGESTING AND BACK TO THE CONSTITUTIONA POUWWER, THAT WAS
WHAT WAS IN MIND? ALEXANDER SHALOM: SO I WANT TO CLARIFY IN CASE I MISSPOKE
LERL. I AM RELYING ON PRIESTER IS KINDS OF HEARKENING BACK TO THE '75 RULE AND I AM NOT
CERTAIN THAT THAT IS AN INHERENT POUWWER THAT IS OWED CONSTITUTIONAL MAGNITUDE MEANING
CANNOT BE OVERWRITTEN BY THE LEGSLATURE. I AM NOT TAKING A POSITION ON THAT AND I DON'T
THINK THE COURT NEEDS TO DO SO BECAUSE THERE IS NO DOUBT THAT THE LEGISLATURE HASN'T TRIED
TO STRIP THE COURT FOOOF ITS POUWWWER UNDERSTAND 3 :210 B 2. IF THE IT DOES THEN WE HAVE
TO DECIDE WHETHER ITS'''S SO DEEPLY ROUTED AVENLD CONSTITUTIONAL IN NATURE THAT IT CANNOT
BE STRIPPED BUT I DON' TAKE A POSITION ON WHETHER IT IS THAT LAV THANK YOU.
ALEXANDER SHALOM: MY LAST POINT IS AGAIN, WE'RE NOT ASKING, FROM OUR PERSPECTIVE WHAT
IT IS IMPORTANT WHAT THIS COURT DO IS NOT THAT THEY REES MR. CHAVIES BUT THAT THEY GIVE
MR. CHAVIES A CHANCE TO GIVE, MAKE HIS CASE BEFORE A JUDGE AND GIVE PEOPLE SIMILARLY
SITUATED TO MAKE A CASE BEFORE THE JUDGE. THANK YOU. CHIEF JUSTICE
RABNER: THANK YOU, MR. SHALOM, MR. BRUNO. MATTNEW F. BRUNO: THANK YOU,
YOUR HONOR, MY IT PLEASE THE COURT, CHIEF JUSTICE,ASSOCIATE JUSTICE ES, WE REPRESENT AM
MEESH OAE MEDICAL AND PUBLIC HEALTH EXPERTS, INCLUDE, PROFESSORS, MEDICAL DIRECTOR FROM
PLANNED PARENT HOOD AND THE MEDICAL DOCTOR FROM MASS GENERAL, WE SUBMITTED AN AMICI, MEDICAL
THE PUBLIC HEALTH XHUNLTS HAVE WITH RESPECT TO THE WELLFFARE OF THE PRISONS MOST VUNERABLE
POPULATION, INDIVIDUALS WITH MEDICAL CONDITIONS IDENTIFY BY THE CDC THAT PLACE THEM UNDER
RISK OF ILLNESS OR DEATH UNDER KOEFDZ. FIRST, I WOULD LIKE TO ADDRESS HOW THE
HEALTH CONCERNS IDENTIFIED BY THE CDC ARE EXASPERATED BYTHE CONDITIONS OF PRISON AND
SECOND WITH RESPECT TO TO THE REAL STANDARD SET FORTH BY THE MOTION COURT NDORSED BY THE
APPELLATE DIVISION NOW REQUIRES AN UNREASONABLE BURDEN OF PROOF FOR INDIVIDUALS SEEKING
REEF BY RULE 3:2110 B 2,... SINCE THEEMERGENCE OF KOEFDZ, THE KRSHG, CDC
HAS BEEN ONE OF THE LEADING AUTHORITIES STUDYING THE KORS AND ISSUE, AND IN IET CAPACITY,
MEDICAL CONDITIONS THAT IS IDENTIFIED AS PLACEIIING INDIVIDUALS OF VERY,. .
INCLUDED ON THAT LIST ARE ASTHMA AND SICKLE CELL ANEMIA, TWO CONDITIONS THAT MR. CHAVIES
SUFFERS FROM, NOW THE'VE BEEN IDENTIFIED BY THE CRIME SCENE, CDC BECAUSE AS A REMEMBERS
SPIRS RAT TORELY BASED DISEASE, KOEFDZ ATTACKS THE RESPIRATORY SYSTEM SO IT ATTACKS
INDIVIDUALS WHO SUFFER FROM ASSTTTHMA OR SICKLE CELL ANEMIA, NOW, IN ADDITION TO THAT,
THE CDC HASISSUED A LONG TERM IMPACT OF KOEFDZ ON INDIVIDUALS AND IN ADDITION TO ON THE
HEART MUSCLE KOEFRDZ HAS BEEN REPORTD, REPORTED TO MPACT LUNGE FUNCTION ABNORMALITY.
NOW, AFTER ALL THIS, YOUR HONOR, THE INHERENT REALITIES OF PRISON LEAVE THEM
PRONE TO THE OPERATEIIIVE CODE 19 AND IN THE OPPOSITE, T, HAVE ANY DEPARTMENT CORRECTION
OR CORRECTIONAL, WHO HAVE DONE A COMMENDABLE JOB UNDER THE CIRCUMSTANCES BUT IT BEARS
BY THE VERY NATURE OF THESE FACILITIES THAT IT MAKES IT DIFFICULT FOR THEM TO HE HAD TO
THE DIRECTIVES IN THE CDC, BASIC SAFETY PRECAUTIONS SUCH AS SOCIAL DISTANCEINGI,
FREQUENT HAND WASING AND THE AVOIDANCE OF COMMUNAL AND SOCIAL AREAS ARE DIFFICULT TO FOLLOW
IN A PRISON SETTING AND IT IS THESE EXACT SHORTCOMINGS THAT HAVE CONTRIBUTED TO THE
PRISONS HAVING FOUR TIMES THE INFECTION RATE OF KOEFDZ AS THE GENERAL PUBLIC AND TWICE
THE DEATH RATE AS SUCH, FROM THE PERSPECTIVE OF THE MEDICAL AND PUBLIC HEALTH
COMMUNITY THERE IS A SIGNIFICANT CONCERN THAT IN THE EVENT OF AN OUTBREAK THAT THESE
FACILITIES WILL NOT BE CAPEAAABLE OF PROVIDING THE NECESSARY CARE IN THE EVENT THAT THERE WERE
AN OUTBREAK TO SPREAD. AS BY THE UNITED STATES VERSUS PASHG, 456 F SUP, 557,
QUOTE, THE HIGLY NATURE OF KOEFDZ INCONJUNCTION WITH THE PRISON ENVIRONMENTS COULD AMOUNT TO A TICKING TIME BOMB. HERE, YOUR HONOR, WE HAVE WITNESSED ONE SUCH EXPLOSION
OF OUR FILING IN MID DECEMBER THE NUMBER OF CASES HAD GROWN TO 525. AND LERL THIS MORNING,
YOUR HONOR'S BEFORE TODAY'S HEARING I WENT TO THE BUREAU'S WEBSITE TO PROVIDE YOUR HONORS
WITH AN UPDATE AN THE NUMBER OF CONFIRMED CASES SINCE DECEMBER HAVE TRIPLED LD TO ONE
THOUSAND646. CHIEF JUSTICE RABNER: MR. BUNO, THE COURT HAS SOME FAMILIARITY
WITH THIS FROM OTHER MAERTS AND WHAT THE COURT HAS ALREADY ADDRESSED, COULD YOU TELL US
WHAT YOU BELIEVE THE APPROPRIATE LEGAL STANDARD WITH RESPECT TO MEDICAL CONDITION IS?
MATTNEW F. BRUNO: ABSOLUTELY. I THINK SOMETHING SIMILAR TO WHAT WE SEE WITH
IS SOMETHING THAT COURTS SHOULD APPLY HERE, WHERE IT IS ESSENTIALY IF AN INDIVIDUAL HAS
DEMONSTRATED THAT THEY HAVE UNDERLYING MEDICAL CONDITIONS IDENTIFIED BY THE CDC, THAT
PLACE THEM AT A SEFVVVERE RISK OF SEFVEREVEREV ILNESS OR DEATH FROM KOEFDZ, THAT THEY HAVE
DEMONSTRATED THE COMPELLING AND EXTRAORDINARY REASON FOR REEF AND TO SET UP THE SECOND
STEP THAT THE COURT THEN GOES THROUGH THE PUBLIC POLLICYICYI CONSIDERATIONS THAT WOULD
OTHERWISE WARRANT THE REES OF AN INDIVIDUAL AND, IN FACT, WITH RESPECT TO COLUMN 1, THE
DEARTMENT OF JUSTICE LERL THIS YEAR ISSUED A DIRECTIVE THAT DIRECTED ITS''S US..S.
ATTORNEYS THAT IN THE EFT AN INDIVIDUAL DEMONSTRATES EXISTENCE OF UNDERLYING MEDICAL
DNS TO CONCEDE THAT THEY SATISFIED THAT FIRST FACTOR THAT BY EXHIBITING UNDERLYING MEDICAL
CONDITIONS THEY HAVE SET AN EXTRAORDINARY AND COMPELLING REASON FOR REEF AN YET IN, THE
COURT IS LEFT TO CONSIDER THE SECOND FACTOR. BASED ON THE DIRECTIVES OF THE
U.S. ATTORNEY'S OFFICE AN AT THE FEDERAL LEVEL WE OULDSUBMIT TO YOUR HONORS THAT A SIMILAR
STANDARD OF REEF IS WARRANTED HERE AND I WON'T BELABOR THE POINT YOUR HONOR PREVIOUSLY
NOTED THAT DWELLING ON THE GENERALIZED FEARS ISN'T-- IS OVERPLAYED AND WAS NOT MEANT IN
THAT WAY BECAUSE THEN NOBODY WOULD BE REESED, BUT I DO SUBMIT FROM OUR PERSPECTIVE OF THE
MEDICAL AND PUBLIC HEALTH STANDPOINT THAT CONSIDERATION NEEDS TO BE GIVEN TO THE
DIRECTORS OF THE CDC TO THE STUDIES THAT HAVE BEEN COMING OUT STILL TO THIS DAY IN CONSIDERING
WHETHER OR NOT AN INDIVIDUAL DEMONSTRATES THE BAFKS OF REEF, IF THERE IS NO OTHER
QUESTIONS, YOUR HONOR, I WOULD SIMPLY SUBMIT TO YOUR HONORS THAT BASED ON THE FOREGOING
AND FOR REASONS SET FORTH IN HOUR PAPERS THIS MATTER SHOULD BE REMANTD TO YOUR MOTION
COURT FOR FURTHER CONSIDERATION. CHIEF JUSTICE RABNER: THANK YOU, MR.
BUNO, MR. PARAVECCHIA. JOSEPH PARAVECCHIA: THANK YOU, MR. CHIEF JUSTICE
AND MAY IT PLEASE THE COURT, THIS COURT SHOULD NOT DEPART FROM THE LOWER COURTS RULINGS
THAT THE DEFENDANT WAS PRECLUDED FROM REEF UNDERSTAND RULE 3222110 B 2 AND THAT THE
DECHT, DEFENDANT SDH NOT SATISFY THEMEDICAL PREDICATES, AS THIS COURT, STATE V. MENDEL
PROHIBITS THE DEFENDANT'S REES FROM INCARCERATION WHILE HE IS SERVING A STATUTORILY MANDATED
MINIMUM PERIOD OF PAROLE IN, IN ELIGIBILIT THE RECORD BELOW I THINK IS VERY IMPORTANT
TO EPHASIZE AS, THIS DEFENDANT PLEADED GUILTY ND WAS SENTENCED FOR HIS ROLE IN A SENSELESS
SHOOTH OF NNTS PAYTTRONS INSIDE OF A DELI IN THE CITY OF TRENTON, JUDGE WARSHAW SENTENCED
THE DEFENDANT TO THE TOP OF A RANGE FOR A NERA SENTENCE. THE KNOW EARLY REELS ACT REQUIRES
THAT THE DEFENDANT SERVE 85 PERCENT OF HIS TERM BEFORE HE'S EIGIBLE FOR PAROLE, AT THIS
TIME HE HAD HAD SEVERAL CONTACTS WITH THE CRIMINAL JUSTICE SYSTEM RANGEIIING FROM
JUVENILE ADJUDICATIONS TO INDICTABLE CON VIKDZ, BUT IMPORTANTLY THE DEFENDANT HAD REPORTED
THAT HE WAS IN POOR PHYSICAL HEALTH, THAT HE WAS SUFFERING FROM SICKLE CELL ANEMIA, ASSTTTHMA
AND A HEART MURMUR BUT HE WAS ALSO RECEIVING DAILY TREATMENT FOR THOSE CONDITIONS AS HE
NOTED AT THE TIME OF SENTENCING. IN SPOERT OF THE JUDGE'S SENTENCE JUDGE WARSHAW FOUND
AFS 3, 6 AND 9 AND KNOW R NO MIF TO APPLY. JUST SHY, THE DEFENDANT APPLIED
FOR REEF UNDERSTAND RULE 3:21 B 2 AND THE DEFENDANT ARGUED THAT HIS MEDICAL CONDITIONS
WHICH ALSO INCLUDE A LATE TENLT FORM FOOF TUBERCULOSIS IN ADDITION TO YPER TYROID
DIFRM, SEFVVVERE ILLNESS DUE TO THE KOEFDZ PUBLIC HEALTH CRYIISIS, JUDGE WARSHAW DECLINED
THE HEARING ON THE DEFENDANT'S MOTION DENIED THE APPLICATION FINDING THAT IT WAS PROCEDUREAAAL
LY -- AND IN THE ALTERNATIVE THAT THE DEFENDANT HAD NOT SATISFIED THE STANDARD IN PRIESTER
TO SHOW THAT HIS CONDITION WAS DEBT TEAR YATH WHILE HE WAS IN PRISON. THE APPELLATE
DIVISION OBVIOULY AFFIRMED AND WE ARE ASKING THIS COURT TO SIMILARLY DO SO, THE PRINCIPAL
IN MENDEL THAT THE DEFENDANT SERVE SENTENCE WITH MANDATORY PERIODS OF PAROLEINELIGIBILITY,
MANDATORY MINIMUM TERM HAS CONTROL AND HAS ESSENTIALY DICKTTTATED HOW THESE HAVE BEEN
DECIDED FOR 30 YEARS AND THIS IS FOR GOOD REASON, THE RULE MAKES SENSE OUR LEGSLATURE
HAS DECLARED THAT CERTAIN CRIMES DEESSSERVE MORE SEFVVERE PUNISHMENTS THAN OTHERS AND
FOR EXAMPLE STATUTES LIKE NERA WHICH APPLY TO THE MOST HEINOUS CRIMES IN NEW JERSEY, AS
THE CASE VOFLG MR., MR. CHAVIES OR EVEN THE GRAVES ACT WHICH APPLIES TO CERTAIN FIREARMS
OFFENSES, THOSE STATUTES REQUIRE THAT THE DEFENDANT SERVE MANDATORY MINIMUMS OF
INCARCERATION BEFORE THEY ARE EIGIBLE FOR PAROLE. THESE ARE, TERMS ARE JUST THAT, THEY ARE
MANDATORY, IF APPLICABLE, THE TRIAL COURT MUST IMPOSE THE SENTENCE THAT IMPOSES THE
MANDATORY MINIMUM TERM BUT EVEN THOUGH THEY ALWAYS RETAIN DISCRETION TO RETAIN, RANGE OR
EVEN SOME CONDITIONS, FOR EXAMPLE, RESITUTION OR NO CONTACTS WITH THE VICTIM AND EVEN
THOUGH RULE B 2 ALLOWS THE DEFENDANT TO FILE A MOTION TO AMEND A CUSTODYIIIAL SENTENCE
TO PERMIT THE EXTRAORDINARY REEF OF RELEASE DUE TO ILNESS OR INFIRMITY, AS INTERPRETED
IT DOES NOT PERMIT THE DEFENDANT'S REES WHILE HE IS SEVERING A MANDATORYMINIMUM TERM,
THE APPELLATE DIVISION IN MENDEL DECLARED THAT SUBSECTION B WAS NEVER INL TENLDED TO MAKE
A CHANGE OR REDUNGS OF A SENTENCE AS REQUIRED Y LAW. AND SO HOLDING THE MENDEL
COURT HOODZ, AUTHORITIES TO I'M MOES A SENTENCE WITHIN THEIR SOUND DISCRETION THAT AUTHORITY
IS NOT WITHOUT ITS''S LIMBIIITS AND EVEN THIS COURT HAS SAID THAT THE LEGISLATURE
ISEMPOWERED TO MANDATE MPRISONMENT FOR CERTAIN CRIMES LOOEFRG NO JUDICIAL DISCRETION, THE
DETERMINATION OF A CRIMINAL SENTENCE IS ALWAYS AN SOLELY COMMITTED TO THE DISCRETION OF THE
TRIAL COURT TO BE ERCISED WITHIN STANDARDS APPLIED BY THE CODE AND THE CRIMINAL CODE
REQUIRES THAT CERTAIN VIOLENT OFFENDERS LIKE MR. CHAVIES BE SENTENCED TO A MINIMUM TERM
OF 85 PERCENT BEFORE THEY ARE ELIGIBLE FOR PAROLE THE POLLIICY BEHIND NERA
IS VERY IMPORTANT TO EMPHASIZE AS WELL AND IT IS TO PROEKT THE PUBLIC FROM NEW JERSEY
MOST VIOLENT OFFENDER. WHAT THE DEFENDANT IS ASKING THE COURT TO DO IN THIS CASE IS IGNORE
THE WISDOM HINLD MANDATORY MINIMUMS AN PERMIT A CLASS OF INMATES TO SEEK REES FROM CUSTODY
AND TO ALLOW THE RULE TO FUNCTION THIS WAY WOULD FRUSTRATE THE LEGSLATIVE PURPOSE OF
PROVISIONS LIKE NERA THE GRAVES ACT OR EVEN THE SCHOOL ZONE STATUTE WHAT I WILL
DO AT THIS POINT, MR. CHIEF JUSTICE IF IT IS APPROPRIATE IS IT WILL RESPOND TO ANY
QUESTIONS REGARDING THE MENDEL ISSUE AND THEN PROCEED WITH THE ARGUEMMENT AS IT RELATES
TO THE PRIESTER FACTORS THAT WERE NOUND BELOW. CHIEF JUSTICE RABNER: THA'S
FINE. WITH RESPECT TO MENDEL WHICH YOU SAID YOU EMBRACE, MENDEL, INCLUDE FOR US A DISTINCTION
BETWEEN AN IN ELIGIBILITY TERM REQUIRED BY STACHT AND ONE IMPOSED AS A MATTER OF DISCRETION
BY THE COURT, DO YOU ACCEPT THAT DISTINCTION. JOSEPH PARAVECCHIA: YE, I
THINK THAT DISTINCTION MAKES PERFECT SENSE. IF WE CONSIDER WHATWE'RE DEALING WITH FOR
PURPOSES OF SEPARATION OF POUWWWERS THESPIRIT BEHIND THE MENDEL DECISION WAS ESSENTIA
LY TO DISTINGUISH THAT DISCRETION AS AFFORDED TO COURTS VERSUS THE LEGISLATURE'S ABILITY
TO REQUIRE CERTAIN SENTENCEINGI PROVISIONS OR TO EVEN ABLTH CERTAIN SENTENCEINGI PROVISIONS
SO I WOULD SAY THAT IT MAKES SENSE. THERE IS NO REASON TO NECESSARYIILY DEVIATE IT IN
THESE CIRCUMSTANCES. W'RE NOT TAKING ANYTHING AWAY FROM THE COURTS-- I AM SORERRRY, MR.
CHIEF JUSTICE. THE COURT: I WANTS TO PUT IT IN PRACTICAL TERMS SO IN A CASE
LIKE THIS ARE YOU SAYING A RULE CAN OR CANNOT APPLY AT THE 51 MONTH MARK THAT WOULD BE
85 PERCENT OF THE FIVE YEAR SENTENCE THE COURT WOULD BE OLIGATED TO MPOSE OR AT THE 85
MONTH MARK. JOSEPH PARAVECCHIA: I MUST HAVE MISS UNDERSTOOD THE QUESTION.
I WOULD SAY THAT IT DOESN'T APPLY UNDER THOSE CIRCUMSTANCES AND THE REASON I WOULD SAY
THAT. CHIEF JUSTICE RABNER: WHICH CIRCUMSTANCES. JOSEPH
PARAVECCHIA: SO IF WE WERE TO, FOR EXAMPLE APPLY WHAT THE PUBLIC DEFENDER IS ASKING IN
THIS CASE WHICH IS TO HAVE, TO AMRIEL 85 PERCENT OF THE FIVE-YEAR TERM TO ENABLE REEF
UNDER THE RULE IS THAT WHAT YOUR HONOR IS ALLUDEINGINGI TO? THE COURT: I
WAS ASKING IF YOU ADDHHHERE TO THE DISTINCTION DRAWN IN MENDEL WHICH APPEARS TO DO THAT.
JOSEPH PARAVECCHIA: RIGHT, WHAT I AM SUGGESTING MR. CHIEF JUSTICE IS THAT THE
RULE, THE WAY THE RULE FUNCTIONS IS IT IS A RULE OF REES, ITS''S NOT A RULE THAT FUNCTIONS
TO REAP DUES A SENTENCE AND THAT'S VERY CLEAR. THE WAY THAT IT HAS BEEN APPLIED IS TO
PERMIT THE OUTRIGHT REES OF A DEFENDANT. IT CAN'T BE APPLIED TO THEN REEXAMINE THE
CIRCUMSTANCES THAT ARE ATTENDANT TO THAT PARTICULAR DEFENDANT AN THEN CHANGE,
FUNDAMENTALLY CHANGE THE SENTENCE TO THEN THEY ARE BY ALLOW THE PERSON TO BE EIGIBLE FOR
PAROLE. I DON'T THINK THAT THAT IS THE TYPE OF DISCRETION THAT THE MENDEL COURT WAS CO
TEMPLATEINGINGI WHAT THEY WERE SAYING ESSENTIALY IS THAT THE COURTS HAVE DISCRETION TO
APPLY -- TO GO ABOVE THE MANDATORY TERM FOR EXAMPLE OR THEMINIMUM TERM FOR EXAMPLE, IN
GRAVES CASES, BUT IF YOU ARE TRYING TO APPLY FOR REEF UNDERSTAND B 2 YOU WOULDN'T BE EL
IGIBL FOR THAT REEF UNTIL YOU HAVE SERVED THAT MANDATORY MINIMUM PROVISION.
JUSTICE SOLOMON: IF THE COURT ALWAYS HAS THE RIGHT TO BRING A DEFENDANT BACK FOR
RESENTENCEIING, CONSISTENT WITH THE STATUTORY SENTENCEIING SCHEME, WHY CAN'T THEY DO THAT
IN THIS CASE? JOSEPH PARAVECCHIA: THE COURT HAS THE ABILITY TO ALWAYS CHANGE
AN ILLEGAL SENTENCE, JUSTICE SOLOMON. JUSTICE SOLOMON: NOT ILLEGAL.
CANNOT THE STATE OR THE DEFENDANT AN THEN THE STATE EITHER IN COOPERATION OR OPOSITION
MAKE A MOTION TO AMEND AN ALREADY IMPOSED SENTENCE. JOSEPH PARAVECCHIA:
UNDER SUBSECTION B 3 THEY WOULD BE ABLE TO UPON CONSENT OF THE PARTIES. THE DIFFERENCE,
THOUGH IS THAT WE'RE DEALING WITH A FUNDAMENTALLY DIFFERENT FORM FOOF REEF UNDER B 2.
WE'RE NOT TALKING ABOUT CHANGEIIING THE SENTENCE. WE'RE TALKING ABOUT REES. I
UNDERSTAND WE'RE NOT TALKING ABOUT REDUCING THE SENTENCE WE'RE TALKING ABOUT OUTRIGHT REES
BECAUSE OF ILL NELS AN IN FIRMIT, BECAUSE OF WHAT PRIESTER HAS SAID IS THE MOST EXTRAORDINARY
PART. IT IS THE BEST THING THAT A PRISONER COULD EXPERIENCE WHICH IS REES FROM PRISON.
JUSTICE SOLOMON: ACTUALLY, WE'RE NOT AT LEAST THAT'S NOT WHAT IS SUGGESTED
BY MENDEL IF YOU EXTRAPOLATE IT TO B . WHAT IT IS SUGGESTING IS SINCE THE COURT HAD
DISCRETION ON THE RANGE THAT COULD BE BROUGHT DOWN WITHOUT VIOLATING THE STACHT TO THE
BOTTOM OF THE RANGE AND THEN YOU WOULD CALCULATE 85 PERCENT OR HALF TO A THIRD, A MINIMUM
OF THREE TO THAT SENTENCE. IN OTHER WORDS, IF IT WASN'T SAYING AUTOMATIC REES AND I
AM NOT SUGGESTING AUTOMATIC REES, WHAT I AM SUGGESTING IS THE COURT HAS A RIGHT TO AMEND
A SENTENCE, NOT ANILLEGAL SENTENCE, A SENTENCE UNDER CERTAIN CIRCUMSTANCES -- WELL, THE
COURT HAS THE RIGHT TO DO THAT, WHY CAN IT NOT DO THAT HERE AND BRING THAT NUMBER DOWN
SO THAT THE 85 PERCENT IS AN OF FIVE YEARS AND NOT TEN YEARS . JOSEPH
PARAVECCHIA: ISN'T THAT ESSENTIALY -- I WOULD SAY YES, JUSTICE SOLOMON THE REASON THEY
WOULDN'T BE ABLE TO DO THAT IS IT WOULD OFFEND THE PURPOSE OF THE PAROLE DISQUALIFIER,
THE MANDATORY PERIOD THAT WAS EVEN AKD BY THE LEGISLATURE, THAT SAID W'RE DEALING WITH
THE SENTENCE IMPOSED. WE'RE DEALING WITH NERA FOR EXAMPLE, W'RE DEALING WITH THE SENTENCE
IMPOSED IN THIS CASE MR. CHAVIES WAS SENTENCED TO A 10 NEAR THAT 10 WAS SUBJECT TO 85 PERCENT.
UNDERSTAND B 2 IT CANNOT BE DISTURBED UNTIL HE HAS SATISFYIIIED THAT 8 AND A HALF YEAR
PERIOD OF PAROLEPAROLE INELIGIBILITY. JUSTICE ALBIN: LET'S TAKE ANOTHER
FACTUAL SCENARIO BECAUSE THE GRAVES ACT APPLIES TO CASES THAT AREN'T NECESSARYIIILY VIOLENT.
LET'S TAKE GUN OFFENSES, WE KNOW IF SOMEONE IS CONVICTED OF POSSESSION OF CARRYING A
GUN AND THAT MAY MEAN JUST TRPTING IN A CAR WITHOUT HAVING IT PROPERLY LOCKED, THA'S AN
AUTOMATIC FIVE WITH A THREE AND A HALF, CORRECT? JOSEPH PARAVECCHIA: CORRECT,
YOUR HONOR. JUSTICE ALBIN: NOW, I TAKE IT YOUR POSITION IS THAT A PERSON
SIMILARLY SITUATED TO MR. CHAVIES WHO HAS GOT -- MAY HAVE SICKLE CELL ANEMIA, WHO HAS
ASSTTHMA AND LET'S ADD ON TO IT, CANSCCER AND SOME OTHER GRIEVEOOUS ILNESS, YOUR POSITION
IS UNDER NO CIRCUMSTANCES DOES THIS COURT HAVE AUTHORITY UNDER 10 B 2 TO ORDER THE PERSONS
REESED IF KOEFD, IF THE PERSON IS EXPOSED TO KOEFD AND IS LIKELY TO GET IT AND DIE FROM
IT, YOUR POSITION IS THE COURT HAS NO AUTHORITY; AM I CORRECT? JOSEPH
PARAVECCHIA: JUSTICE ALBIN, I DON'T MEAN TO SOUND GIN SENSITIVE HERE, BUT YES THAT WOULD BE
OUR POSITION. WHAT WE'RE LOOKING AT HERE IS THE COURT ROLE WE'RE LOOKING AT A COURT RE
MEDY, THERE ARE OTHER FORMS OF REEF THAT ARE AVAILABLE TO A PERSON WHO IS FOR EXAMPLE
CONVICTED OF AN UNLAWFUL POSSESSION OF A HANDGUN. JUSTICE ALBIN: SO LET ME
-- LET ME ASK YOU THIS QUESTION, I DON'T KNOW IF IT HAS BEEN RAISED BY ANYONE AND ITS'''S
A POSSIBLE SOURCE OF AUTHORITY NOR 10 B 2 AND THAT IS ACCRUAL AND UNUSUAL PUNISHMENT
PROVISION IN OUR STATE CONSTITUTION AND THE QUESTION IS WHETHER OR NOT, GIVEN THE SORT
OF COMBINATION OF CIRCUMSTANCES THAT I HAVE GIVEN TO YOU, A SENTENCE IN A PARTICULAIZED
CASE, RARE CASE CAN CONSTITUTE RARE-- CRUEL AND UNUSUAL PUNISHMENT, A PERSON, YOU KNOW,
CROSSING FROM PENNSYLVANIA INTO NEW JERSEY, PAEA IN PENNSYLVANIA POSSESSION OF A GUN IS
LAWFUL, HERE IT IS NOT, FIRST ITS FIVE WITH A THREE AND A HALF, ITS''S ALL OF THE MEDICAL
CONDITIONS THAT I'VE DESCRIBED TO YOU, IN ADDITION, HE'S EXPOSED TO KOEFD, IS THE
CONTINUEAATION OF THE SENTENCE POTENTIALLY CRUE AN UNUSUAL AND WHETHER OR NOT 10 B 2 IS
SOMEHOW TAKING ACCOUNT OF THAT. JOSEPH PARAVECCHIA: SKWLA, TO BREAK DOWN
YOUR QUESTION, I BELIEVE TRIB BEE EVEN KNEE HAD ALREADY ADDRESSED THE CRUEL AN UNUSUAL
PUNISHMENT AS RELATED TO THE CONSTITUTIONALITY OF THE GRAVES ACT BUT TO ADD THE OTHER,
ADDITIONAL FACTORS YOU'RE HONOR IS DISCUSSING TALKING ABOUT THE REALITY OF KOEFD AND HOW
B 2 PLAYS INTO THAT, THERE ARE STILL OTHER TERMS, FORMS THAT WOULD BE AVAILABLE.
THE COURT, IS SO SERIOUS YOUR MEDICAL CONDITION IS DETERIORATEIING SO QUICKLY THAT INCARCERATION
IS NOT ADDRESSING IT AND YOU HAVE TO BE REESED BECAUSE THERE IS NO OTHER REEF THAT WOULD BE
AVAILABLE AT THIS POINT. FOR A PERSON SUBJECTED TO THE 42 MONTH PAROLE DISQUALIFIER
THAT PERSON IS NOT NECESSARYIIILY PRHIBITED FROM OTHER AVENUES OF REEF WHETHER IT BE FROM
A COMMISSIONER FUR LOEP OR EVEN, FURLOUGH OR EVEN FROM REEF THAT THE GOVERNOR HAS AFFORDED
TO PRISONERS UNDERSTAND THE EXECUTEIVEI ORDER AGAIN, WHAT W'RE LOOKING AT
-- ATLANTIC YOU'RE SAYING WE HAVE NO AUTHORITY, WHATEVER THEGOVERNOR MAY DO, WHATEVER
SOMEONE ELSE MAY DO, YOU'RE SAYING WE HAVE NO AUTHORITY IN THAT CIRCUMSTANCE UN 10 B
2 TO GIVE THIS PERSON REEF. JOSEPH PARAVECCHIA: THE COURT-- I WOULD SUBMIT
THAT THE COURT DOES NOT HAVE THE AUTHORITY TO GRANT THAT REEF UNDER THOSE CIRCUMSTANCES
SMPLY BECAUSE THE LEGISLATURE HAS ENABLED THE PAROLE DISQUALIFIERS, THE MINIMUM TERMS
THAT MUST BE SERVED BEFORE THE COURT THEN IS EPOWERED TO ADDRESS THE APPLICATION UN B
2, BUT UNLESS AN UNTIL THEN THAT DOESN'T -- AGAIN, THAT DOESN'T SUGGEST THAT THERE ARE
OTHER FORUMS OR OTHER AVENUES OF REEF. I THINK, AGAIN, JUST TO MAKE VERY CLEAR, IS WE
CANNOT FOREGGET THE FUNCTION OF B 2, THE FUNCTION THAT REES IS THE ULTIMATE REMEDY AND
IT IS DOOINED FOR PEOPLE LIKE IN TUMINELLO WHERE A PRISON COULD NOT ADDRESS HIS DEBILITATING
AND PROGRESSIVELY DESTRUCTIVE DIABETIC CONDITION. JUSTICE ALBIN: IMAGINE
THAT TUMINELLO WAS CONVICTED OF POSSESSION OF A GUN YO'RE NOT GOING TO CHANGE YOUR
POSSESSION, HE'S LOSEIING FINGERS, HE'S LOSEINGINGI TOES, YO'RE SAYING IN THAT
CIRCUMSTANCE, TUMINELLO'S SITUATION, IF TUMINELLO WASN'T A GAMBLER OR IF JUST POSSESSED
THE GUN ILLEGALLY, YOU'RE SAYING THE COURT COULD NOT REES HIM, HE WOULD HAVE TO SUFFER
AMPUTATION OF HIS TOES IN PRISON, CORRECT? JOSEPH PARAVECCHIA: IF THAT WERE
THE CASE, TUMINELLO WALS NOT SENTENCED TO A PAROLE DISQUALIFIER HE DID NOT HAVE A MINIMUM
TERM AND I BELIEVE JUSTICE ALBIN WE WOULD BE DEALING WITH A STATE V. BOONE SITUATION
WHERE THE, THEY WOULD BE MAKEIIING AN APPLICATION FOR A JUDICIAL FURLOUGH WHICH WE KNOW
THIS COURT HAS CAUTIONED HAS TO BE -- NOT NECESSARYIIILY THIS COURT BUT THE LAW
DIVISION WITH BOONE HAS SAID HAS TO BE RESERVED FOR THE MOST EXCEPTIONAL KALS ES AND I
WOULD SUBMIT THAT THAT WOULD BE AN EXCEPTIONAL KALS. IF WE'RE DEALING WITH A TUMINELLO
DEFENDANT OR WE'RE DEALING WITH A DEFENDANT IN GENERAL WHO HAS SUCH AN ILNESS OR IFIRMITY
THAT -- AND THE INCREASED INCARCERATION IN DEBT TAR YATH THAT CONDITION BUT THEY ARE SUBJECT
TO A MINIMUM TERM I BELIEVE WE WOULD BE PUTH OURSELVES IN ONE OF THOSE BOONE SITUATIONS
WHERE WE WOULD BE ASKING FOR THE RARE CIRCUMSTANCE. JUSTICE ALBIN:
BOONE IS REALLY LIMBIIITED BECAUSE THE ONLY REASON THE PERSON IN BOONE WAS REESED IS BECAUSE
HE COULD ONLY GET MEDICAL CARE OUT OF THE STATE . JOSEPH PARAVECCHIA: AND
IN BOONE, JUSTICE ALBIN, THE DOC WAS CONFINED BECAUSE THEY KUNLT AS YOUR HONOR JUST
MENTIONED THEY COULD ONLY RESORT TO TREATMENT IN NEW JERSEY, THEY DIDN'T HAVE THE AUTHORITY
TO GO OUT FOOF STATE SIMILARLY TO HOW THE COMMISSIONER WOULD NOT HAVE THE AUTHORITY IN
MR. CHAVIES'S CASE TO GRANT A FURLOUGH BECAUSE OF HIS DISQUALIFYING CONVICTION UNDER THE
DOC STATUTE. SO TO CONTINUE MY ARGUEMMENT, ASSUMING THAT THERE ARE NO MORE
QUESTIONS RELATED TO MENDEL FOR THE PAROLE DISQUALIFIER, IF WEEXAMINE THE RECORD BELOW
AND THIS ASSUMES, OF COURSE THAT THIS COURT FINDS THAT THE MENDEL RULE HAS NO FURTHER
APPLICATION IN LIGHT OF THE CURRENT CIRCUMSTANCES, IF WE LOOK AT THE RECORD BELOW
AND WE LOOK AT HOW JUDGE WARSHAW EXAMINED THE PRIESTER FACTORS IT IS VERY CLEAR.
CHIEF JUSTICE RABNER: MRP, COULD I ASK YOU TO GIVE US A CONCISE SUCCINCT STATEMENT OF
WHAT YOU BELIEVE IS REQUIRED IN ORDER TO MEET THE MEDICAL PRONG OF THE RU. JOSEPH
PARAVECCHIA: UNDERSTAND THE MEDICAL PRONG I WOULD SAY I CAN'T GET TREATMENT AND I'M ABOUT
TO DIE; THA'S IN ITS BASIC TERMS I THINK THAT'S THE STANDARD THAT WE WOULD BE LOOKING
AT HERE. WE KNOW THAT WE'RE LOOKING AT A DELETERIOUS EFFECT OF INCARCERATION ON A
PERSON'S CONDITION. WE'RE LOOKING AT A PERSON LIKE MR. CHAVIES WHO IS SUFFERING FROM A
HOST OF VERY SERIOUS ILNESSES SOME OF WHICH PUT HIM IN IN CLEESED RISK OF ILNESS DUE TO
THE EXPOSURE OF KOEFD -- THE COURT: MUST ONE HAVE CONTRACTED KOEFD TO BE
EIGIBLE AS YOU UNDERSTAND THE RULE? JOSEPH PARAVECCHIA: I SUBMIT YES, MR.
CHIEF JUTICE. CHIEF JUSTICE RABNER: WOULDN'T THE STATE THEN BE WITH VERY
FURTHER TO COME IN AND SAY YOU CAN'T REES THIS PERSON WHO WILL BE A RISK TO THE PUBLIC
THIS PERSON HAS KOEFD. WHEN WOULD THE RULE APPLY? JOSEPH PARAVECCHIA: I
GUESS THERE ARE TWO WAYS, I WILL ANSWER THAT QUESTION IN PART FIRST BY SAYING THAT IF W'RE
NOT GOING TO KNOW THE RISK OF KARGS RAGS UNTIL THAT PERSON IS ACTUALLY AFFLICTED BY KOEFD
WE KNOW THAT THE CDC HAS SAID THERE ARE CERTAIN CONDITIONS, SICKLE CELL ANEMIA BEING ONE THAT
COULD HAVE A SEFVVVERE IMPACT AT THE EXPOSURE OF KOEFD BUT WE ALSO KNOW, WHICH IS VERY
CLEAR FROM JUST LOOKING AT THE WAY THAT THE VIRUS BEHAVES THAT IT IS ERRATIC. IT BEHAVES
DIFFERENTLY NOTWITHSTANDING UNDERLYING CONDITIONS. CHIEF JUSTICE RABNER:
CAN YOU TELL US WHEN THE RULE WOULD APPLY IF THE REQUIREMENT WERE THAT AN INDIVIDUAL HAVE
KOEFD IN ORDER TO BE CONSIDERED? JOSEPH PARAVECCHIA: THE RULE WOULD APPLY
THE WAY IT IS DOOINED MR. CHIEF JUSTICE WHICH IS AT THE LAST RESORT YOU WOULD HAVE TO BE
ESSENTIALY IN THE POSITION WHERE YOU ARE SO AFFLICTED, YOUR CONDITION IS DETERIORATEIING
SO BADLY BECAUSE OF INCARCERATION AND NOTHING ELSE CAN BE DONE IN THAT PRISON TO MAKE
IT BETTER THAT LEAF UNDER THE RULE IS WARRANTED. I SMPLY DON'T THINK WE HAVE THAT IN
THIS CASE. I THINK IF WE LOOK AT THE RECORD BELOW WE HAVE A PERSON WHO WAS RECEIVING
TREATMENT AN KONSLTSLTSL TO RECEIVE TREATMENT AT THE PRISON AND WE KNOW THAT THAT TREATMENT
STILL EXISTS ANDESPECIALLYIF WE JUST LOOK AT THE STATISTICS AND THE WAY THAT THE PRISONS
HAVE ADDRESSED THE KOEFD PAND, WE'RE DEALING MORE OR LESS, I WOULD SUBMIT WITH THE GENERALIZED
THREAT THAT THE COURT CHARACTERIZED IN THE REQUEST TO MODIFY PRISON SENTENCES CASE.
THE COURT: SO A GENERALIZED THREAT ONE COULD INTERPRET SOMEBODY IS AFRAID THAT
THEY COULD GET KOEFD BECAUSE THERE IS NO SOCIAL DISTANCEIING IN JAIL, DO YOU VIEW THAT
IN PRECISLY THE SAME WAY AS AN INDIVIDUAL HO HAS DOUMENTD UNDERLYING HEALTH CONDITIONS
THAT PLACE THEM AT A HEIGHTENED RISK OF CONTRACTING KOEFD? JOSEPH
PARAVECCHIA: N, I DON'T THINK YOU CAN. I WOULD SUGGEST THAT THAT IS DIFFERENT. Y'RE
DEALING THEN WITH A PERSON WHO HAS SIGNS, BACKS UP THE FACT THAT THEY ARE MORE SUSCEPTIBLE
TO AN ILLNESS BECAUSE OF THEIR UNDERLYING CONDITIONS. THE COURT: PLACE TO
ONE SIDE THE GENERALIZED FEAR, THAT CONCEPT AND TELL US, AT WHAT POINT CAN AN INDIVIDUAL
WHO HAS MEDICAL CONDITIONS THAT THE CDC IS RECOGNIZED PLACE ONE AT GREATER RISK BE
ELIGIBLE FOR POTENTIAL REES UNDER THE RULE? JOSEPH PARAVECCHIA: WHEN THE
PRISON HAS ESSENTIALLY -- IS UNABLE TO PROVIDE ANY MORE TREATMENT FOR THAT PERSON BECAUSE
OF THEIR CONDITION. CHIEF JUSTICE RABNER: FOREGGIVE ME FOR COMING BACK
TO THIS, BUT THE SUGGESTION THEN IS THAT IF SOMEBODY IS IN A REALLY REALLY BAD SITUATION,
IN THE THROWS OF KOEFD WHICH WE KNOW IS SOMETHING THAT CAN EASILY BE SPREAD AND NDANGER
THE COMMUNITY, THAT'S WHEN THE COURTS SHOULD SANCTION A PERSON'S REES AN POTENTIALLY
ENDANGER THE PUBLIC; IS THAT REALLY THE POSITION THAT YO'RE ADD VOE DATEINGI?
JOSEPH PARAVECCHIA: I UNDERSTAND, MR. CHIEF JUTICE IT IS A DIFFICULT POSITION IT SOUNLDZ
DRAK DON'T YAN AND IT MAY EVEN APPEAR DRCONIAN BUT THAT IS WHAT THE RULE IS DOOINED FOR,
THE RULE IS DOOINED TO OUTRIGHT REES THE PERSON, THEY ARE NOT SERVING THEIR SENTENCE
ANYMORE. CHIEF JUSTICE RABNER: HOW WOULD YOU RESPOND NOT TO QUESTION OF
WHETHER ITS'S' TOO DRACONIAN TO USE YOUR WORDS, BUT THAT RULE WOULD PLACE THE PUBLIC AT
RISK. JOSEPH PARAVECCHIA: WELL, I GUESS IT PLACES THE PUBLIC AT RISK ASSUMING
THAT THE PERSON WOULD BE REESED INTO A SITUATION WHERE HE'D BE NECESSARYIIILYEXPOSED.
I MEAN THE IDEA THEN IS THAT THERE WOULD STILL DA-- AND I GUESS I AM SPECULATEIIING AT
THIS POINT YOUR HONOR, BUT I WOULD HOME P HOPE THAT UPON REES THERE WOULD BE SOME CONDITIONS
OF SOCIAL DISTANCEIING IN ADD ADDITION OR SOME SORT OF ISOLATION OF THE PERSON TO PREVENT
THEM FROM EXPOSEIING THE PUBLIC SO TO CONTINUE WITH THE PRIESTER FACTORS IF
WE LOOK AT THE RECORD BELOW AGAIN AND JUST TO KIND OF CIRCLE BACK TO WHAT THE COURT WAS
TALKING ABOUT WHEN THE PUBLIC DEFENDER AND THE AK L U WERE RESPONDING NO ONE CAN DISPUTE
THAT MR. CHAVIES WAS SUFFERING FROM A VERY, VERY SERIOUS SET OF CONDITIONS BUT WHERE THE
PARTIES DEPART WHICH IS OBVIOUS HERE IS THE DEETERIOUS EFFECTS OFINCARCERATION ON HIS
HEALTH AN THE STATE IS SUBMITTING THAT THE DEFENDANT HAS NOT SHOWN THAT NOTWITHSTANDING
THE SERIOUS ILNESSES HIS CONTINUEIING INCARCERATION IS WORSENING THOSE ILNESSES.
THE VOLUMINOUS MEDICAL RECORDS THAT HE HAS SUBMITTED SHOW THAT HEEGS BEING TREATED AND
THAT HE IS GOING TO CONTINUE TO BE TREATED WHILE HE IS SERVING HIS MINIMUM TERM OF CLOP
PAROLE EIGIBILITY. EVEN THOUGH THE THREAT OF KOEFD IN NEW JERSEY PRISONS WHICH THE STATE
ACKNOWLEDGES IS A VERY REAL THING, THIS COURT HAS SUGGESTED THAT THE THREAT OF CONTRACTING
THE ILLNESS IS NOT ENOUGH AND REALLY WHAT THE STATE IS ASKING THIS COURT TO CONSIDER IS
THE STATUTORY TIS PARTICULARS AND ALSO THE MESHMEASURES THAT HAVE BEEN TAKEN, THAT THE
PRISONS HAVE IMPOSED TO PREVENT THE ADDITIONAL SPREAD OF KOEFD. IF YOU LOOK AT THE NUMBERS
SINCE THE SUMMER THEY HAVE DROPPED DRAMATICALLY. THEY ALSO FLUCTUATE IN THE SENSE THAT
CASES HAVE INCREASED IN THELY KRENLT MONTHS SINCE AUGUST BUT MOST IMPORTANLY AND NOTEAAABLY
FOR THIS COURT'S CONSIDERATION IS THERE HASN'T BEEN A SINGLE DEATH SINCE JULY.
JUSTICE ALBIN: ARE YOU SUGGESTING THAT THIS COURT WENT TOO FAR IN ITS OPINION, IN RE:
REQUEST TOMODIFY PRISON SENTENCES OF LAST YEAR? BECAUSE YOUR POSITION THAT AN IN MEAT
HAS TO CONTRACT KOEFD DOES NOT SEEM TO BE CONSISTENT WITH THAT OPINION.
JOSEPH PARAVECCHIA: I DON'T SUGGEST THAT THE COURT WENT TOO FAR. I THINK I UNDERSTAND
YOUR QUESTION JUSTICE ALBIN, IN THE SENSE THAT WHAT THE COURT WAS DOING WAS PERMITTING
AN AVENUE OF REEF BY SAYING KOEFDZ SATISFIES THE CHANGE OF CIRCUMSTANCE UNDER THE PRIESTER
FACTORS WHICH WOULD NABLE PRISONERS TO SEEK REEF. I AM SUGGESTING AGAIN, IF THE RULE
IS SUPPOSED TO HAVE ANY SUBSTANCE, I GUESS FOR LACK OF A BETTER TERM IF IT IS SUPPOSED
TO MEAN ANYTHING, WE HAVE TO ACKNOWLEDGE THE FACT THAT REES, THE ULTIMATE RECMMMEDY OF
ROOES REES IS SO SERIOUS AND SO IMPORTANT THAT IT CAN'T APPLY TO A CLASS OF INDIVIDUALS
WHO ARE SIMPLY THREATENED BY THE EXPOSURE OF AN ILNES. JUSTICE ALBIN: WE
SAID THAT A GENERALIZED FEAR OF CONTRACTING AN ILLNESS IS NOT ENOUGH, BUT WE CERTAINLY
NEVER SUGGESTED OR IN TIMATE THAT YOU WOULD HAVE TO CONTRACT IT IN ORDER TO BE ELIGIBLE
FOR REEF UNDER B 2. AM I WRONG ABOUT THAT? JOSEPH PARAVECCHIA:
NO, I DON'T THINK YOU'RE WRONG AT ALL, JUSTICE ALBIN. I JUST DON'T THINK THAT WE WILL KNOW EXACTLY WHETHER OR NOT THE PERSON'S CONDITION IS DETERIORATEIING UNTIL THEY ARE
JUST KNOW THAT IT BEHAVES DIFFERENT LY MONG DIFFERENT PEOPLE. WE CERTAINLY HAVE SCIENCE
THAT SUGGESTS THAT PEOPLE WHO HAVE CERTAIN CONDITIONS ARE MORE VULNERABLE TO ILLNESS BUT
WE WON'T KNOW UNTIL THAT PERSON IS ACTUALLY FACED WITH THE SITUATION THAT THEIR HEALTH
IS DEBT TAR YATH WHERE THEY CAN THEN GET THE REEF UNDERSTAND B 2 THAT THE RULE CONTEMPLATES.
JUSTICE PIERRE-LOUIS: IT SOUNDS LIKE YOU ALSO MADE THE ARGUEMMENT THAT --
IT SOUNLDZ LIKE BASED ON YOUR ARGUMENT THAT EVEN IF SOMEONE DOES CONTRACT KOEFDZ, IF THEY ARE
GETHTTTING THE TREATMENT WITHIN THE JAIL THEN THEY STILL SHOULD NOT BE OR WOULD NOT BE
EIGIBLE FOR REES UNDER THE RULE; THAT'S WHAT I WAS FOLLOWING WITH YOUR ARGUEMMMENT; IS
THAT RIGHT? JOSEPH PARAVECCHIA: TO AN EXTENT, JUSTICE PIERRE-LOUIS SMPLY
BECAUSE I GUESS IF YOUEQUATE IT TO ANOTHER TYPE OF ILNESS IF YOU WERE TO CONTRACT SOMETHING,
DOES IT AUTOMATICALLY MEAN THAT Y'RE ENTITLED TO REEF UNDER B 2, IN THIS CASE IF YOU WERE
TO CONTRACT KOEFD, UNLESS YOU CAN PROVE THAT THAT ILLNESS OR INFIRMITY IS DETERIORATEIIING
BECAUSE OF INCARCERATION THEN YOU SMPLY DON'T GHET THE REEF UNDER B 2, YOU DON'T GET THE
REMEDY OF REES. CHIEF JUSTICE RABNER: ANYTHING YOU WOULD LIKE TO ADD, MR.
PARAVECCHIA? JOSEPH PARAVECCHIA: NOTHING FURTHER, MR. CHIEF JUSTICE, THANK YOU
YOU VERY MUCH. CHIEF JUSTICE RABNER: THANK YOU, YOU YOU MR. MR. DUCO.
FRANK J. DUCOAT: THANK YOU YOU YOUR HONOR'S MAY FIRST THANK THE COURT FOR IN VIETH IT
TO PARTICIPATE IN THIS CASE. S THANK THEER COURT FOR INVITING TO PARDON IN THIS CASE.
AND I WANT TO START WITH THE SEPARATION OF POWERS ISSUE THE COURTS TOUCHES ON MENDEL AND I
WOULD LIKE TO ANSWER A FEW QUESTIONS THAT I HEARD TODAY THROUGHOUT THEPRINTATION WIDE
DISCRETION WHEN IMPOSING SENTENCE, BUT IT'S IMPORTANT TO KEEP IN MIND THAT THE SOURCE OF
THAT DISCRETION COMES FROM THE LEGISLATURE ITSELF. AND WHEN THE LEGISLATURE IMPOSES
MANDATORY PERIODS OF PAROLE INELIGIBILITY IT'S ESSENTIALLY CURTAINING OR CUTTING OFF THAT
DISCRETION FOR FROM COURTS. AND WE ARE ASKING THIS COURT TO ADOPT THE REASONING AND THE
HOLDING OF MENDEL. NOW, THE ANALYSIS IN MENDHOLE WAS NOT RELATED TO B1 EXCLUSIVELY.
IT MENTIONS B1 BECAUSE THAT'S THE PROCEDURAL MECHANISM THAT BROUGHT THAT CASE TO THE
COURT. BUT IN JUDGE STERN'S OPINION IN HIS ANALYSIS, HIS FOCUS WAS NOT ON B1. HIS FOCUS
WAS ON THE RESULTS OF GRANTING A MOTION IN THAT SITUATION WHEN THERE IS MANDATORY PERIOD
OF PAROLE AM ELIGIBILITY. YOU RECOGNIZE THAT GRANTING THE MOTION IN THAT SITUATION REDUCE
S THE STATURE MANDIDATED PERIOD OF PAROLE INELIGIBILITY, WHICH IS INAPPROPRIATE. MR.
FLYNN POINTED OUT THAT THE LEGISLATURE PRESUMPTIVELY AWARE OF THE COURT RULES, BUT I
THINK WE WOULD ALL AGREE THAT THE LEGISLATURE IS ALSO AWARE OF JUDICIAL DECISIONS. THERE'S
NO DOUBT, THERE IS NO DOUBT IT IS AWARE OF MENDEL, WHICH IS NOW 35 YEARS OLD AND
INTERPRETED 32110B IN IT THAT WAY AND HAS NOT STEPPED IN TO DO ANYTHING ABOUT IT.
CHIEF JUSTICE RABNER: CAN I ASK YOU TO EXPLAIN WHAT YOU THINK PART OF MENDEL SAYS.
I HOPE MS. HENDERSON CAN DO LIKEWISE. IT IS THE NEXT TO LAR PARAGRAPH. IT BEGINS WITH
THIS SENTENCE. WE HOLD WHEN A DEFENDANT SERVING A SENTENCE REQUIRED BOO THIGRAVES ACT
HE MAY NOT MAKE AN APPLICATION UNDER THE RULES WE'RE TALKING BOUT. AND THEN THIS SENTENCE.
WHERE DEFENDANT IS SERVING A PAROLE INELIGIBILITY TERM ABOVE THAT REQUIRED TO BE SERVED
AS A MANDATORY MINIMUM PERIOD OF PAROLE INELIGIBILITY, THE APPLICATION UNDER THE RULE
CAN BE CONSIDERED. WHAT CIRCUMSTANCE DOES THOUGHT SECOND SENTENCE
REFER TO? WHEN DOES IT APPLY. FRANK J. DUCOAT: I'M NOT SURE TO BE HONEST
WITH YOU. I DO NOT KNOW. CHIEF JUSTICE RABNER: IT WOULD SEEM IT WOULD APPLY
IF YOU TURPTD THE CONSTRUCT HAD HAS BEEN DISCUSSED EARLIER. YOU CAN DROP DOWN TO THE
FIVE YEAR IN A #2RD AND PURPT THE APPLICATION FOR A PERIOD OF PAROLE INELIGIBILITY ABOVE
85 PERCENT OF THAT, BUT I DON'T KNOW WHERE IT WOULD APPLY IF YOU READ THE FIRST SENTENCE
TO SAY WHATEVER THE GRAVES ACT, WHATEVER THE 85 PERCENT PERIOD OF INELIGIBILITY IS END
OF STORY, CAN'T ANSWER THE RULE THEN. THEN I DON'T KNOW WHAT THE SECOND SENTENCE ACCOMP
LISHES. HOW DO YOU RECONCILE THAT. FRANK J. DUCOAT: I'M NOT
SURE EITHER. I THINK THAT'S A GREAT SAMPLE BECAUSE THAT CERTAINLY INCIDENT THE SITUATION
IN MEND. THAT WAS NOT MR. MENDEL'S SITUATION. AND I THINK MORE IMPORTANTLY WE HAVE TO
KEEP IN MIND THAT B2 IS NOT A RULE OF RESENTENCING. IT IS A RULE OF RELEASE. I
DON'T THINK THE RULE GIVES THE COURT THE AUTHORITY TO RESENTENCE INDEPENDENT. IT ALLOW
S THE COURT TO RELEASE THERE DEFENDANT CHANGING THE TOP NUMBER IS RESENTENCING.
CHIEF JUSTICE RABNER: I DON'T KNOW THAT ONE NECESSARILY HAS TO RESOLVE THE CASE ON THAT
SCORE. THE QUESTION WOULD THEN BECOME ELIGIBILITY FOR RELEASE AS INTERPRETED
UNDERTHAL GUIDE THAT THE COURT WOULD APPLY. THE QUESTION IS WHAT'S AN APPROPRIATE GUIDE?
FRANK J. DUCOAT: WELL, I THINK THE APPROPRIATE GUIDE IS THE RULE HAS TO BE
READ ALONG WITH THE NERA AND ALL THE OTHER SENTENCING STATUTES. NERA REQUIRES THAT THE
DEFENDANT SERVE 85 PERCENT OF THE SENTENCE IMPOSED. IN THIS CASE THAT SENTENCE IS TEN
YEARS. CHIEF JUSTICE RABNER: END OF STORY AND YOU DON'T LOOK AT WHAT THE
JUDGE MIGHT HAVE IMPOSED WITHIN THE COURT'S DISCRETION. FRANK J. DUCOAT:
CORRECT. END OF STORY. I THINK THERE'S SOMETHING TO PULL OUT OF THE RECENT CASE
MODIFIED PRISON SENTENCE THAT ACTUALLY I THINK ANSWERS ONE OF THE JUSTICE SOLOMON'S
QUESTIONS AS WELL. TIT COURT NOTED IN THAT CASE WHEN TALKING BOUT JUVENILE SENTENCES.
THE COURT'S RETAINING DISCRETION THROUGHOUT THE DURERATION OF THE SENTENCE TO CHANGE
THAT SENTENCE. THERE IS ESSENTIALLY NO SUCH THING AS AN ILLEGALLY LENIENT SENTENCE IN
JUVENILE. SO THE COURT ALWAYS MAINTAIN JURISDICTION OVER THAT SENTENCE. THEY CAN
ALWAYS COME BACK AND CHANGE IT AND THEY WILL LOOK AT A NUMBER OF FANTHERS TO DO THAT.
BUT THIS -- THAT'S NOT THE CASE WITH ADULTS. JUSTICE ALBIN:
I WANT TO GO BACK TO YOUR RESPONSE TO THE CHIEF ON MENDEL. YOU WERE SUGGESTING LEGISLATIVE
ACWESANCE, LIKE THE LEGISLATURE DIDN'T DO ANYTHING TO MENDEL, THEREFORE, THEY MUST HAVE
APPROVED IT. BUT LOOKING AT THE FACTS OF MENDEL, IN MENDEL THE DEFENDANT GOT AN EIGHT
YEAR SENTENCE OVER A FOUR, CORRECT? IF YOU REMEMBER. FRANK J. DUCOAT: I
BELIEVE THAT'S CORRECT. JUSTICE ALBIN: SO THE CHIEF READ TO YOU THE
LANGUAGE. A LITTLE BIT MORE OF THE OPINION IT GOES ON AS THE DEFENDANT WAS STILL SERVING
THE THREE-WREER MINE MM INELIGIBILITY TERM REQUIRED BY THE THE GRAVES ACT IN THIS CASE
THE COURT COULD NOT CHANGE OR REDUCE THE SENTENCE AT THE TIME OF THE APPLICATION.
THAT SUGGESTS WHEN YOU LOOK AT THE OPINION, THE BEGINNING OPINION AND THE END OF THE OPINION
THAT JUDGE STERN WAS SAYING WHEN BETWEEN THE THIRD H THIRD AND FOURTH YEAR THE COURT COULD
DO SOMETHING. DO YOU AGREE WITH THAURPTATION? BECAUSE THAT SEEMS TO BE
THE ONLY ONE THAT MAKES SENSE WHEN YOU CONSIDER THE SENTENCE THAT MENDEL GOT AND THE LANGUAGE
THAT JUDGE STERN EMPLOYED AT THE END OF THE OPINION. FRANK J. DUCOAT: I
DON'T THINK SO BECAUSE IF YOU REPLACE SOME OF THE WORDS IN THE OPINION WITH NERA, IT WAS
58 PERCENT, YOU WOULD HAVE THE DEFENDANT WOULD STILL SERVING THE 85 PERCENT REQUIRED BY
NERA. JUSTICE LAVECCHIA: ISN'T THE FALLACY HERE THAT YOU'RE COMPARE TG
TO NERA? LET'S GO BACK TO THE GRAVES ACT. THE GRAVES ACT GIVES THE JUDGE A RANGE OF
DISCRETION WITH REGARD TO THE MANDATORY PERIOD OF PAROLE INELIGIBILITY. JUDGE CALLSTER
DISCUSSES THIS HIN STAIFSH BROWN. THE MINIMUM MANDATORY PAROLE INELIGIBILITY PERIOD IS
THREE YEARS. IT'S THE LOWER AMOUNT. IT CAN'T GO BELOW THAT. SO IN BROWN
THAT WAS CONSIDERED THE MANDATORY MINIMUM PERIOD PAROLE INELIGIBILITY REGARDLESS OF WHAT THE
COURT ACTUALLY IMPOSED AS THE PERIOD OF PAROLE INELIGIBILITY. IN THIS CASE
THERE IS NO RANGE. THE MANDATORY PERIOD OF PAROLE INELIGIBILITY SET BY THE LEGISLATURE
IS 85 PERCENT OF THE SENTENCE IMPOSED BY THE COURT. SO, I FEEL LIKE WE'RE COMPARING
APPLES TO ORANGES TO FOCUS IN ON THIS LANGUAGE IN MENDEL WITHOUT LOOKING AT IT IN LIGHT
OF THE DIFFERENT LANGUAGE OF THE GRAVES ACT. FRANK J. DUCOAT: RIGHT SKWAUK.
MR. COLLOQUY: THE TWO STATUTES ARE DIFFERENT, YES. AND AS YOU POINT OUT,
JUSTICE LAVECCHIA, IT'S 85 PERCENT OF THE SENTENCE IMPOSED, NOT 85 PERCENT OF THE
MINIMUM SENTENCE THAT COULD HAVE BEEN IMPOSED. SO IN THIS CASE THAT SENTENCE IS TEN YEARS,
WHICH MEANS THAT 85 PERCENT IS EIGHT AND A HALF YEARS. THE TOP NUMBER CANNOT BE CHANGED
THROUGHOUT APPLICATION OF THIS RULE. JUSTICE LAVECCHIA: IT ALSO MAKES SENSE
THE SENTENCE IN MENDEL THAT YOU ARE BEING ASKED ABOUT BY CHIEF AND JUSTICE ALBIN, IT IS
THE MINIMUM THREE-YEAR PERIOD, WHICH IS EXACTLY THE WAY THE STATUTE WAS ENFORCED HIN STAIFSH
BROWN. THAT'S THE MANDATORY AMOUNT HAD THE LEGISLATURE HAS SAID MUST BE SERVED AS A
PAROLE INELIGIBILITY PERIOD. ANYTHING ABOVE THAT, EVEN WITHIN THE RANGE THAT THE COURT
HAS DEZ SNATED AS PERMISSIBLE MANDATORY MINIMUM IS FLAUT THE SAME AS THE THREE YEARS.
MR. COLLOQUY: CORRECT. I AGREE WITH THAT. I LIKE TO ADDRESS
NOW A COUPLE -- BEFORE I MOVE ON THERE WAS A SECOND POINT OF THIS COURT'S RECENT OPINION
INRAY MODIFIED PROIZEN SENTENCE IN ADDITION TO THE CONTINUING JURISDICTION OVER JUVENILES.
THIS GOES TO THE SEPARATION OF POWERS ISSUE. TWO POINTS IN THAT OPINION THE COURT TALK
S ABOUT HOW IT'S GOING TO USE ITS SUPERVISORY AUTHORITY TO ORDER THAT RULE 32110B2 MOELGZ
BE EXPEDITED, WHICH IS SAESHL WITHIN THE PURVIEW OF THIS COURT. BUT WHEN I TALKED ABOUT
WHAT THE EXECUTIVE MIGHT DO, THIS COURT URGED THE EXECUTIVE TO ALSO ACT RAPIDLY. THIS
COURT ALL NO POWER TO ORDER THE EXECUTIVE TO MOVE QUICKLY OR TO DO, TAKE ANY ACTION IN
PARTICULAR. SO I CAN THAT REALLY DRAWS THE PROPER DISTINCTION BECAUSE WHAT THE DEFENSE
IS KING FOR HERE IS NOT SIMPLY A WIND BERRY PROBLEM, IT IS THE WIND BURRY PROBLEM. IT IS
ASKING THE COURT TO ENCROACH UPON SOMETHING THAT HAS ALWAYS BEEN SEEN AS EXCLUSIVELY LEGISLATE
ATIVE, WHICH IS SETTING MANDATORY MINIMUM SENTENCES AND SET SENTENCING RANGES. SO I
THINK WHAT WOULD HAPPEN IN THIS CASE IF YOU GRANTED THE RELIEF DEFENDANT BEING SOFT, I
DON'T WANT TO SAY IT DOESN'T MATTER WHAT YOU CALL IT, BUT IN MANY WAYS, YOU KNOW, HOW YOU
DESCRIBE IT IS LESS RELEVANTTHEN FATHAKT THAT WHAT YOU'RE DOING IS REDUCING THAT MANDSATORY
MINIMUM. YOU'RE RELEASING THE DEFENDANT BEFORE NERA SAYS HE IS SUPPOSED TO BE RELEASED
AND YOU'RE DOING SO ON THE BASIS OF A COURT RULE. AND I THINK THAT CLEARLY VIOLATES THE
SEPARATION OF POWERS. JUSTICE ALBIN: WOULD YOUR POSITION BE THE SAME FOR
A FLAT SENTENCE WHERE APPERSON UNDER THE LAW HAS TO DO TWO UNDER OUR PAROLE LAW? I DON'T SEE
A DIFFERENCE BETWEEN NERA AND THE APPLICATION OF THE PAROLE STATUTES THAT SAY YOU HAVE
TO DO A MANDATORY MINIMUM PERIOD BEFORE YOU'RE ELIGIBLE FOR PAROLE. FRANK J.
DUCOAT: I HAVEN'T LOOKED TOO CLOSELY AT THOSE STATUTES IN PARTICULAR, BUT IF THEY READ
THE SAME WAY THAT NERA DOES, THAT A CERTAIN AMOUNT HAS TO BE SERVED BASED ON THE SENTENCE
IMPOSED, THEN THE ANSWER IS YES, MY POSITION WOULD BE EXACTLY THE SAME.
JUSTICE SOLOMON: CAN I CLARIFY ONE THING. I REFERRED FROM WHAT MR. PARAVECCHIA SAID THAT
IN ORDER TO ACCOMPLISH WHAT MENDEL SUGGESTS WITH RESPECT TO NERA, YOU ARE ESSENTIALLY
BE MAKING A MOTION TO CHANGE A SENTENCE FOR GOOD CAUSE UNDER B3IC RATHER THAN A B2 MOTION?
AND UNDER THOSE CIRCUMSTANCES IT'S GOT TO BE A JOINT MOTION WHICH WE DON'T HAVE HERE.
FRANK J. DUCOAT: . WHAT B3 PERMITS A TRIAL COURT TO DO IS TO RESENTENCE
THE DEFENDANT. AND A RESENTENCING CERTAINLY ANY LEGAL SENTENCE IN TERMS OF IN THIS CASE
IT WOULD BE FIVE TO TEN, WOULD BE ON THE TABLE. JUSTICE SOLOMON: AND IN
ORDER TO APPLY MENDEL TO THIS CASE, THESE FACTS, WE WOULD HAVE TO RESENTENCE UNDER B3?
IS THAT WHAT YOUR ARGUMENT IS. FRANK J. DUCOAT: I THINK SO, YES. I BELIEVE
THAT'S RIGHT. IT'S A SEPARATE POOVRT RULE THAT PERMITS A COURT TO DO SOMETHING DIFFERENT.
JUSTICE SOLOMON: ONCE JOW YOIN AN APPLICATION. FRANK J. DUCOAT:
RIGHT. AND THE RESULT OF THAT JOINT APPLICATION WOULD BE A RESENTENCING SKWAUK (INAUDIBLE).
JUSTICE ALBIN: IF YOUR POSITION IS WE DON'T HAVE B2 AUTHORITY WHY DO WE HAVE
B3 AUTHORITY? WHERE DOES THAT AUTHORITY COME THAT WE'RE PERMITTED TO SAY THAT WE CONSENT
THE PROSECUTOR AND THE DEFENDANT THERE CAN BE A RESENTENCE SNG WHERE DOES THAT AUTHORITY
COME FROM. FRANK J. DUCOAT: THAT'S WHAT B3 SAYS. JUSTICE ALBIN:
I KNOW WHAT IT SAYS. YOU'RE ARGUING WE DON'T HAVE THE CONSTITUTIONAL AUTHORITY UNDER
B2. IT MAY VERY WELL BE THAT THE LOGICAL END POINT OF YOUR ARGUMENT IS WE DON'T HAVE
B3 AUTHORITY AS WELL? ARE YOU FOLLOW HG ME? FRANK J. DUCOAT: YES. AND
I DON'T THINK THAT'S RIGHT BECAUSE I THINK -- B2 A TRIAL COURT IN GRANTING A B2 MOTION
RELEASES THE DEFENDANT WHICH UNDER B3 THE RESULT WOULD BE A RESENTENCE. AT THT RESENTENCE
THERE COURT COULDN'T IMPOSE IN AN ILLEGAL SENTENCE. IT COURT COULDN'T GIVE PROBATION
FOR MURDED ON A B3 APPLICATION. I THINK THAT WOULD BE IMLEGAL. BUT IN TLIS CASE ON A
B3 THE COURT COULD CERTAINLY GIVE A FIVE SKWAUK. JUSTICE ALBIN: IF WE HAVE
CONSTITUTIONAL AUTHORITY TO ALLOW RESENTENCING WITH THE CONSENT OF THE PROSECUTOR WHY
WOULDN'T WE HAVE CONSTITUTIONAL AUTHORITY TO DO SO WITHOUT THE CONSSENT OF THE PROSECUTOR?
FRANK J. DUCOAT: BECAUSE THE RULES ARE DIFFERENT -- ARE WRITTEN IN TWO
DIFFERENT WAYS. A TRIAL COURT IS ACTING IN TWO DIFFERENT WAYS DEPENDING ON THE RULES.
SO OF COURSE AT AT RESENTENCING THE COURT COULD IMPOSE A FIVE YEAR NERA TERM, BUT NOT
THE CASE WITH BKS 2. M THE FACT THAT THE RULES ARE NEXT TO EACH OTHER SHOULDN'T CUB FUSE
THE FACT THAT THE RULES ARE ACTUALLY REALLY DOING TWO SEPARATE THINGS. THIS B2 ALMOST
BELONGS IN ITS OWN CATEGORY GIVEN WHAT IT ALLOWS THE COURT TO DO. IT ALLOWS THE COURT
TO TAKE EXTRAORDINARY ACTION AS OPPOSED TO B3, WHICH SIMPLY PERMITS A RESENTENCING SKWAUK.
JUSTICE ALBIN: I UNDERSTAND THE POINT YOU'RE MAKING, BUT IF B -- IF WE HAD
A B3A AND IT SAID THAT THE COURT EXERCISED ITS INHERENT AUTHORITY COULD RESENTENCE THE
DEFENDANT UNDER CERTAIN CIRCUMSTANCES, WOULD WE HAVE THAT CONSTITUTIONAL AUTHORITY IN
YOUR OPINION? CHIEF JUSTICE RABNER: GO AHEAD. I'M SORRY. FRANK J.
DUCOAT: THE NEW -- THE THIEPTHETICAL RULE WOULD SAY? JUSTICE ALBIN: THE
COURT DOESN'T NEED CONSENT. THE COURT ON ITS OWN IN CERTAIN CIRCUMSTANCES HAS THE POWER
TO RESENTENCE THE DEFENDANT. DO YOU THINK WE WOULD HAVE THAT AUTHORITY?
MR. COLLOQUY: WELL, NOT IN A NERA CASE CERTAINLY BECAUSE ONCE THE SENTENCE
IS IMPOSED IN THE 85 PERCENT KICKS IN SMAUL, THEN ANY SENTENCE THAT WOULD REDUCE THE NUMBER
WOULD BE A PROBLEM. JUSTICE ALBIN: BUT YOU'RE SAYING YOU HAVE AUTHORITY
IF THERE IS A CONSENT OF THE PROSECUTOR, YES? FRANK J. DUCOAT: THAT'S WHAT
B3 SAYS, YES. CHIEF JUSTICE RABNER: CAN YOU CLARIFY AND EXPLAIN THE CRITICAL
POINT TO DHACHGING A SENTENCE B3 SAYS IF YOU WANT TO DHACHG SENTENCE, YOU NEED A JOINT
APPLICATION. YOU NEED CONSENT, RIGHT? FRANK J. DUCOAT: CORRECT.
CHIEF JUSTICE RABNER: B2 SAYS THE COURT CAN AMEND THE CUSTODIAL SENTENCE? WHAT'S THE
DIFFERENCE BETWEEN AMENDING AND CHANGING? FRANK J. DUCOAT: ON ITS FACE
NOTHING, BUT I THINK YOU HAVE TO READ ALL OF THE 2 WHICH SAYS AMENDING TO PERMIT RELEASE
AND I REALLY THINK THAT'S THE CRITICAL PART. CHIEF JUSTICE RABNER: WHAT IS
THE DIFFERENCE THERE? WHAT IS THE IMPEDIMENT. PTHE COURT HAS THE POWER TO AMEND THE
SENTENCE TO PERMIT RELEASE, ASSUMING ALL THE OTHER PARTIES APPLY, HOW IS THAT AN
IMPEDIMENT. MR. COLLOQUY: HOW IS WHAT AN IMPEDIMENT, YOUR HONOR? I'M NOT....
CHIEF JUSTICE RABNER: I DON'T UNDERSTAND WHY THOSE WORDS HAVE BECOME A
FOCAL POINT IN THE DISCUSSION 6789 HELP ME UNDERSTAND. FRANK J. DUCOAT:
THE WORDS TOAL PERMIT RELEASE? CHIEF JUSTICE RABNER: AMENDING A CUSTODIAL
SENTENCE. YOU SUGGESTED THAT THAT PLACES A SIGNIFICANT ROLE IN THE ANALYSIS OF 85
PERCENT OF A TEN-YEAR SENTENCE AS OPPOSED TO 85 PERCENT OF THE MINIMUM SENTENCE IN THE
RANGE OF FIVE YEARS. LOOK AT THE LANGUAGE AND EXPLAIN TO ME WHY THAT'S SO, WHO ITHE COURT
COULDN'T AMEPD A CUSTODIAL SENTENCE. FRANK J. DUCOAT: BECAUSE IF YOU AMEND
A CUSTODIAL SENTENCE TO PERMIT RELEASE WHILE THE SFT IS STILL SERVING THE 58 PERCENT OF
HIS SENTENCE SYMPOSED YOU ARE RUNNING AFOUL OF NERA. THAT'S THE DIFFERENCE BECAUSE THAT'S
THE EFFECT OF WHAT HAPPENS IS IF YOU'RE PERMITTING, TAKE MR. CHAVIESP FOR EXAMPLE, IF
YOU'RE ISSUING AN ORDER ALLOWING HIM TO BE RELEASED, HIS SENTENCE IS TEN YEARS. AND HE
IS ONLY SERVING -- HE IS SERVING LESS THAN THE 85 PERCENT. CHIEF JUSTICE RABNER:
IF YOU AMEND THE CUSTODIAL SENTENCE, DOES THAT REDUCE THE 58 PERCENT? ? FRANK
J. DUCOAT: IT WOULD HAVE TO. IT WOULD HAVE TO BECAUSE YOU AMENDED THE SENTENCE TO LESS
THAN THAT, THE 58 PERCENT WOULD BE LESS, BUT WHAT'S IMPORTANT IS THAT HE'S ALREADY BN
SENTENCED. THE TEN YEARS HAS ALREADY BEEN IMPOSED. THE EIGHT AND A HALF YEARS IS NOW
SET BY LAW. IF THIS COURT GRANTS, YOU KNOW, THE COURT GRANTS THE APPLICATION, AND YOU'RE
CHANGING THE RESULT OF THAT. THEY CAN'T BE READ AMENDING CAN'T BE READ SEPARATELY FROM
PERMANENT RELEASE. IT IS ALL ONE PART OF THE RULE. AND I THINK ONE SENTENCE -- ONCE
JUDGE WAR SHAGS ISSUED THE SENTENCE, THE EIGHT AND A HALF YEARS BECAME MANDATED BY LAW.
JUSTICE LAVECCHIA: CAN I ASK THE QUESTION IN A DIFFERENT WAY. IF
THERE IS AN AMENDMENT UNDER B2 OR A CHANGE UNDER B3, WHAT HAPPENS TO THE JOC? ? IN THE
AMENDMENT TO THE CUSTODIAL SENTENCE DOES THE JOC INDICATE A DIFFERENT INITIAL SENTENCE
THAT WAS IMPOSED UNDER B3 IF THE SENTENCE IS CHANGED, DOES A NEW JOC ISSUE THAT REFLECTS
THE IMPOSITION OF AN ENTIRELY DIFFERENT SENTENCE? FRANK J. DUCOAT: YES,
THAT IS MY UNDERSTANDING OF THE RULE, A GRANTED APPLICATION UNDER 2 THERE WOULD BE AN
ORDER RELEASING THE DEFENDANT FROM THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS.
UNDER 3 AND AT LEAST I KNOW THIS FROM EXPERIENCE HAVING SEEN THESE -- THAT'S WHAT HAPPENED
HAPPEN IS A NEW SENTENCING WOULD TAKE PLACE AND A NEW JUDGMENT OF CONVICTION WOULD BE
ISSUED. JUSTICE LAVECCHIA: SO IN YOUR RESPONSE TO THAT QUESTION THE CHOICE
OF VERB IN THIS RULE HAS SOMETHING OF SIGNIFICANCE? MR. COLLOQUY: IT
DOES. B2 IS THE ONLY ONE THAT USES THAT TERM. JUSTICE LAVECCHIA: IT IS.
FRANK J. DUCOAT: MANDATE SXG CHANGING TO THE LAW PERSON, I THINK THEY ARE
KIND OF THE SAME, BUT THERE IS A DIFFERENCE THERE. AND THERE IS A DIFFERENCE, I THINK
-- I AM NOT VERY GOOD WITHILATEEN. CERTAINLY ONE WORD WOULD BE USED SEVERAL TIMES AND
THE BODY OF THE RIGHTS OF THE LAW THE COURT WILL USE A DIFFERENT WORD, THAT DIFFERENCE
HAS TO USUALLY HAS SOME KIND OF MEANING. CHIEF JUSTICE RABNER: DOES THE
COMMITTEE SHORT SHED LIGHT ON THE DIFFERENT TERMS? FRANK J. DUCOAT: IT
DOESN'T, BUT WHAT THE COMMITTEE REPORT DOES SHED LIGHT ON AND THIS GOES TO ONE OF YOUR
QUESTIONING EARLIER, JUSTICE LAVECCHIA, THIS IS EARLY ON PAGE 10 OF OUR BRIEF THAT THE
RULE WAS NOT DESIGNED TO REDUCE A MANDATORY JAIL TERM AND THAT'S RIGHT OUT OF THE COMMENTS
TO THE RULE. SUCH AN ORDER CANNOT BE ENTERED REDUCING A MANDATORY JAIL TERM.
JUSTICE ALBIN: AREN'T YOU AGREED THAT IF THE PROSECUTOR ON JOINT APPLICATION WITH THE
DEFENDANT APPLIED TO THE COURT IN A CASE LIKE THIS, MR. CHAVIES'S CASE, IF BOTH AGREED
TO REDUCE THE SENTENCE, LET'S SAY TO SEVEN YEARS, SO THAT HE WOULD BE ELIGIBLE FOR RELEASE,
THAT COULD BE DONE? YOU HAVE NO PROBLEM WITH THAT, CORRECT? FRANK J. DUCOAT:
YES R BECAUSE THAT'S WHAT THE RULE PERMITS. THAT IS THE DISTINCTION. THERE IS A DISTINCTION
THERE. JUSTICE ALBIN: B2 SAYS CERTAIN THINGS, BUT YOU'RE CLAIMING WE DON'T
HAVE THE AUTHORITY THERE, BUT YOU SAY WE DO HAVE THE AUTHORITY UNDER B3. FRANK J.
DUCOAT: RIGHT. BUT UNDER B324 COURT COULDN'T IMPOSE AN ILLEGAL SENTENCE. THE DEFENDANT
IS CONVICTED OF MURDTHER STATE AND THE DEFENDANT CAN'T AGREE THAT HE SHOULD GET OUT ON
PROBATION AT THIS POINT. CHIEF JUSTICE RABNER: I WOULD HOPE THE STATE
WOULDN'T AGREE TO AN ILLEGAL SENTENCE. HOW AROUTE YOU? FRANK J. DUCOAT:
EVEN IF YOU HAD A ROGUE PROSECUTOR TWHAUNTED TO, THAT HOPEFULLY WOULDN'T BE ACCEPTED BY
THE COURT AND JUST SAYING IT'S SMD B3 DOESN'T GIVE THE STATE AND THE DEFENDANT THE ABILITY
TO CONSPIRE TO ISSUE SOME ILLEGAL SENTENCE. CHIEF JUSTICE RABNER: ANYTHING
YOU WOULD LIKE TO ADD? FRANK J. DUCOAT: I THINK I TOUCHED ON EVERYTHING.
THE ONLY OTHER THING I WANT TO RESPOND TO IS JUSTICE ALBIN, YOU MENED THE EIGHT AMENDMENT
AND I KNOW THAT'S NOT PART OF THIS CASE. BUT THAT WOULD BE -- STAIFSHUBE EN THAT AN EIGHT
AMENDMENT CHALLENGE, SUCCESSFULLY IS AN ILLEGAL SENTENCE. IT IS AN ILLEGAL SENTENCE BECAUSE
IT IS UNCONSTITUTIONAL. IF THERE WAS A SITUATION WHERE THE STATE DID NOT APPLY THAT THE
DEFENDANT WAS SERVING AN ILLEGAL SENTENCE OR -- LET ME RESTATE THAT. IF
THERE WAS A SITUATION FACTUALLY THAT ROSE TO THE LEVEL OF AN AIKT AMENDMENT VIOLATION
OF COURSE THE COURTS HAVE THE POWER UNDER THE ABILITY TO CORRECT AN ILLEGAL,UNSE CAUTION
TUPZAL SENTENCE TO ACT IN THAT SITUATION. APPLYING AIKT AMENDMENT PRECEDENCE AND
APPLYING THE LAW IN THAT AREA. SO THE COURTS WOULD NOT BE POWERLESS JUST BECAUSE A
DEFENDANT WDZ NATD BE ABLE TO PRO VEIL ON A B2 MOTION THE COURTS WOULD NOT BE POWERLESS
TO REMEDY THAT KIND OF OUTRAGEOUS SITUATION YOUR QUESTION WAS REFERRING TO. CHIEF
JUSTICE RABNER: THANK YOU. SPLN. CAROL M. HENDERSON: THANK
YOU. GOOD AFTERNOON. I'M TRY TO ANSWER SOME OF THE QUESTIONS THAT HAVE
COME UP DURING THE ARGUMENT. THE B-2 RULE, I WANT TO EXPLAIN THAT 32110A LIMITS THE
AUTHORITY OF THE COURT TO RESENTENCE A DEFENDANT THAT BEYOND THE 57 DAYS THE COURT HAS
NO AUTHORITY TO RESENTENCE A DEFENDANT EXCEPT UNDER THE EXCEPTION B. SO YOU HAVE TO READ
A AND B TOGETHER THAT A, THERE COULD BE A MOTION FOR CHANGE OF SENTENCE AND THE COURT
COULD CHANGE A SENTENCE, BUT THEY KAENTD DO IT AFTER 57 DAYS AND THAT'S JURISDICTIONAL.
SO YOU GET TO B WHERE THE EXCEPTIONS ARE WHICH IS WHY THE B WHERE WHERE
IT SAYS ON THE CONSENT OF THE PROSECUTOR AND DEFENSE COUNSEL THAT GIVES THE COURT
JURISDICTION GEN TO RESENTENCE. WITH YOU LOOK AT B2 THE ONLY THING YOU'RE ALLOWED TO DO
IS TO AMEND THE CUSTODIAL SENTENCE TO RELEASE SOMEONE. YOU'RE NOT RESENTENCING SOMEONE.
YOU'RE NOT CHANGING THEIR SENTENCE. YOU ARE JUST SAYING THIS SENTENCE YOU'RE GOING TO BE
RELEASED, WHICH IS WHY WE ALWAYS EMPHASIZE THAT THAT'S WHY IT'S SUCH AN EXTRAORDINARY
REMEDY BUZZ WHERE ANY OR SITUATION WHERE A PRISONER WAS BEING RELEASED OR FURLOUGHED
THERE IS SOME KIND OF MONITOR SXG THERE IS ALSO A POSSIBILITY OF BEING RETURNED TO PRISON.
SOY PEOPLE WHO GOT MEDICAL FURLOUGHS THEY ARE RELEASED FOR THE TREATMENT, BUT THEY ARE
GOING TO GO BACK AND IN OTHER SITUATIONS WHERE THERE IS SOME KIND OF RELEASE, THEY GO
BACK. THIS IS A COMPLETE RELEASE WITH NO SUPERVISION AT ALL. SO THAT'S A DISTINCTION
WHY B3, YOU CAN RESENTENCE WITH A CONCEPT BECAUSE THAT IS AMENDING A TO GIVE YOU THE AUTHORITY
TO BE SENTENCED WHICH THE CLOUFRT UNDER THE RULE -- NOW, CERTAINLY THE COURT COULD AMEND
THE RULE ITSELF AND SAY THE COURT CAN RESENTENCE AT ANY TIME AND, YOU KNOW, THAT'S IN THE
COURT'S PREROGATIVE, BUT IT'S THE COURT'S OWN RULE THAT SAYS YOU CANNOT RESENTENCE AFTER
57 DAYS. CHIEF JUSTICE RABNER: LOOKING JUST AT THE LANGUAGE THAT YOU READ
FOR US NOW, WHY COULDN'T THE COURT AMEND THE SENTENCE IN A CASE LIKE THIS TO FIVE YEARS
AND DO 85 PERCENT. MR. ATTORNEY: BECAUSE B2 DOESN'T GIVE THE AUTHORITY
TO RESENTENCE. B2 IS ONLY A RELEASE. AND THE ONLY AUTHORITY UNDER B2 IS THE DISCRETION
THAT WAS ORIGINALLY GIVEN IN SENTENCING AND AT THAT TIME THE JUDGE IMPOSED A SENTENCE
BASED ON THWEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS AND IN MOST SITUATIONS
WHEN YOU HAVE A PRIESTER SITUATION YOU LOOK AT THE SITUATION OF THE DEFENDANT AT SENTENCING
AND AT THE MOTION TO SEE IF THERE IS A CHANGE IN CIRCUMSTANCES. NOW P THIS
INDIVIDUAL ALL HIS MEDICAL CONDITIONS NOW EXISTED AT THE TIME OF SENTENCE. SO THE ONLY
REASON HE HAS A CHANGE OF CIRCUMSTANCE IS BECAUSE OF COVID AND THAT'S BASED ON THIS COURT
WAS PRIOR DECISION ON NART OF RELEASE INSTEAD THF COVID SITUATION SAETS CREATES A CHANGED
CIRCUMSTANCE, BUT IF WE DO GET A DEFENDANT WHO COMES BEFORE THE COURT WHO IS FACING A
MANDATORY SENTENCE AND DOES HAVE CANCER, WHO DOES HAVE A HEART CONDITION, THAT COURT AWARE
OF THAT AT SENTENCING AND BASED ON THEIR DISCRETION AND NAKTERS, IF THEY DECIDE TO IN
CARCERATE SOMEONE, TO COME BACK TO SAY I WILL COME BACK ONE YEAR LATER AND SAY LET ME OUT
BECAUSE I'M SICK, IF YOU HAVE THE SAME ILLNESS YOU HAD BEFORE, YOU'RE NOT GOING TO GET
OUT, BUT IF YOU'RE ABLE TO SHOW THAT THE PRISON CANNOT TREAT YOU OR THE TREATMENT THEY
ARE GIVING YOU IS NOT ENOUGH AND YOUR CONDITION IS DETERIORATING SO MUCH THAT YOUR LIFE
IS IN JEOPARDY, THEN B2 MAYBE AN OPTION, BUT IT MAY NOT BE AN A IF YOU HAVE A MANDATORY
SENTENCE. AND GOING TO THE MANDATORY SENTENCE WE DISCUSSED IN OUR BRIEF AND WE WILL FOCUS
ON THAT LATER THAT THERE ARE ALTERNATIVES TO PEOPLE WHO ARE SICK WHO CANNOT GET RELIEF
UNDER B2 AND ARE SUFRNGING MANDATORY SENTENCES. BUT THE MAIN FOCUS OF THE
B2 IS THAT IT'S NOT A RESENTENCING. THAT IS JUST A RELEASE IN EXTRAORDINARY CIRCUMSTANCES.
CHIEF JUSTICE RABNER: HOW DO YOU INTERPRET MENDEL? MR. ATTORNEY:
MENDEL, I AGREE THAT MENDEL HOILD THAT WHEN SOMEONE IS SERVING DPRATER THAN THA MINIMUM
TERM REQUIRED PIE THE LAW. MAPDATORY MINIMUM, THEY ARE ELIGIBLE FOR SEEKING RELIEF UNDER
32110B. THAT'S AN EXAMPLE OF AN VINYL WHO GOT A FOUR YEAR PAROLE INELIGIBILITY TERM BUT
THE STATUTE ONLY REQUIRED THREE YEARS. SO ONCE YOU SATISFIED THE THREE YEARS, THEN AFTER
THAT IT BECOMES DISCRETIONAIRE WHICH THE CLOURTS COULD HAVE AT THE TIME OF SENTENCING
GIVEN THREE YEARS, HAD TO GIVE THREE YEARS. IT IDDANT HAVE TO GIVE FOUR. SO THE MANDATORY
PART IS ONLY THE THREE PART OF THE STATUTE. JUSTICE PATTERSON: HOW DOES
THAT APPLY TO 85 PERCENT TERMS UNDER NERA? CAROL M. HENDERSON: WELL, AGREE
WITH JUSTICE LAVECCHIA THAT WHEN YOU LOOK AT THE STATUTE THE LANGUAGE IN THE NERA IS ONLY
FOCUSING ON 58 PEROF THE SENTENCE IMPOSED, NOT 85 PERCENT OF THE MINIMUM SENTENCE FOR THE
CRIME. SO THEY COULD HAVE SAID YOU GET 58 PERCENT OF THE MINIMUM SENTENCE FOR A FIRST,
SECOND OR #3RD OFFENSE. THEY SAID NO, MANDATORY MINIMUM 85 URPSENT OF THE SENTENCE IMPOSED.
WHERE AS WITH GRAVES ACT THEY ARE TALKING BOUT A SPECIFIC NUMBER. IT'S EITHER NOW IT'S
ONE HALF THE SENTENCE IMPOSED OR 42 MONTHS. BUT AT THE TIME IN MENDEL THE MINIMUM TERM
WAS THREE YEARS. JUSTICE ALBIN: HOW IS IT (ZOOM AUDIO GLITCH) MENDEL GETS
AN EIGHT YEAR SENTENCE, THE JUDGE GAVE FOUR, BUT THE JUDGE COULD HAVE GIVEN THREE, AN
EIGHT OVER THREE. IN THIS PARTICULAR CASE THE JUDGE GAVE TEN BUT PIN HIS DISCRETION HE
COULD HAVE GIVEN SEVEN YEARS. HE COULD HAVE WEIGHED THEORETICALLY THE AGGREGATE SXG MIFTS
TO GET TO SEVEN IN THE SAME WAY ONE COULD ARGUE IN MENDEL FOR THE MANDATORY MINIMUM HE COULD
HAVE GOTTEN FOUR TO THREE. SO WHAT IS THE DIFFERENCE? I'M TRYING TO UNDERSTAND THAT?
CAROL M. HENDERSON: THERE DIFFERENCE IS IN THE TWO STATUTES THAT THE
GRAVES ACT YOU HAVE TO GIVE A MINIMUM -- AT THAT TIME A MINIMUM OF THREE. IF WE LOOK
AT GRAVES ACT NOW IT'S HALF THE SENTENCE IMPOSED OR 42 MONTHS, WHICHEVER IS GREATER. SO
IF THE JUDGE NOW DECIDE TODAY PGIVE THE SENTENCE -- I HAVE TOOK OF THE NUMBERS, 42 MONTHS,
LET'S SAY IF YOU'RE EVICTED OF A #1RD OFFENSE THEY ARE GIVE YOU A 20 YEARS. THE JUDGE
DWIFSHS HIM 10 YEARS WHOUT PAROLE, UNDER THE GRAVES ACT, TEN YEARS WITHOUT PAROLE MAY BE
GREATER THAN -- MAYBE NOT, BUT IT'S A... JUSTICE ALBIN: I UNDERSTAND THAT.
BUT IN BOTH CASES WE ARE STILL DEALING WITH THE EXERCISE OF JUDICIAL DISCRETION THAT COULD
HAVE BEEN -- THAT COULD HAVE BEEN XUSHZED IN A DIFFERENT WAY. SO IN MENDEL
THAT WAS DOWN TO THREE, HE WAS GIVEN FOUR AND JUDGE STERN CAME UP WITH A RULE SAYING
THE MANDATORY MINIMUM WAS THREE AND UNDER THESE CIRCUMSTANCES WE WILL PERMIT YOU TO BE
ELIGIBLE AFTER THREE. MR. ATTORNEY: NO, THEY ARE RECONCILABLEABLE. THE
THING IS THE SENTENCE IMPOSED TO EIGHT WITH FOUR, ONLY HAVE TO GIVE THREE. SO IN THIS
INDIVIDUAL, OUR INDIVIDUAL WHO LET'S SAY GOT TEN YEARS, HE HAS TO GET 85 PERCENT OF THAT.
THE JUDGE DIDN'T HAVE DISCRETION TO GO ABOVE THAT. THE JUDGE COULDN'T SAY I'M GOING TO
GIVE YOU TEN YEARS AND MAKE YOU SERVE NINE. THERE IS NO LEGAL WAY TO DO THAT.
JUSTICE ALBIN: BUT THE JUDGE COULD HAVE GIVEN HIM SEVEN IN THE EXERCISE OOF HIS DISCRETION.
IN THE SAME WAY OZIN MENDEL IN THE EXERCISE OF THE JUNL'S DISCRETION. HE COULD HAVE
GIVEN HIM THREE INSTEAD OF THE FOUR. ARE YOU FOLLOWING ME? MR. ATTORNEY:
THERE IS A DIFFERENCE. THE THREE IN THE MENDEL IS NOT DISCRETIONARY. HE HAD TO GIVE
THAT. WHEN YOU LOOK AT NERA -- JUSTICE ALBIN: THE FOUR. THE FOUR WAS
DISCRETIONARY. MR. ATTORNEY: THAT'S RIGHT. AND THAT'S WHY HE IS ONLY PRECLUDED
FROM SEEKING RELIEF UNDER B2 UNTIL HE SERVES THREE. JUSTICE ALBIN: I
UNDERSTAND. SO THE JUDGE COULD HAVE GIVEN SEVEN. THAT WAS DISCRETIONARY, BUT HE DECIDE
TODAY GIVE HIM TN. MR. ATTORNEY: THATS ROIRTH. AND THE MANDATORY FOR THE
TERM FOR THE SENTENCE WAS THREE WHETHER HE GAVE HIM FROOIFB, SIX, SEVEN, SAITH, NIEP OR
TEN. JUSTICE LAVECCHIA: I TAKE IT FROM YOUR ANSWER YOU ARE SUGGESTING YOU
CAN'T MIX THE DISCRETION FROM THE RANGE CHAZ THE MINIMUM OF FIVE HERE WITH THE PART OF THE
STATUTE THAT'S MANDATORY, WHICH IS 85 PERCENT OF THE SENTENCE IMPOSED? THAT PART ONCE
SET BY THE JUDGE IS THE MANDATORY ASPECT THAT THE LEGISLATURE HAS DECREED, CORRECT?
MR. ATTORNEY: THAT'S CORRECT. THAT WHEN YOU'RE DEALING WITH NERA, YOU KNOW,
THE JUDGE WEIGHATHIZE GRAVT AND MIFT TO DECIDE WHAT THE BASE TERM IS GOING TO BE. ONCE
-- AND THAT'S WHERE THEY ARE EXERCISING THEIR DISCRETION, BUT THERE IS NO DISCRETION
ON THE PAROLE INELIGIBILITY TERM, THAT'S 58 PERCENT OF WHATEVER THEY DECIDE TO IMPOSE TO
SAY NOW WE ARE GOING TO DISREGARD WHAT THIS JUDGE THOUGHT WAS AN APPROPRIATE SENTENCE AND
THE AGGREGATE SXG MITIGATE SXG WE ARE GOING TO READ THE STATUTE TO SAY THE 85 PERCENT
IS THE 85 PERCENT OF THE MINIMUM SENTENCE FOR THAT TIME. AND THAT'S NOT THE WAY THE
STATUTE IS WRITTEN. I THINK THAT'S WHY THE -- THERE ARE OTHER MANDATORY
SENTENCES IN THE CODE THAT WHERE THERE IS PROBABLY A LITPLE MORE DISCRETION INVOLVED.
BUT CERTAINLY NEAR SUIS NOT ONE OF THEM. I WANTED TO ADDRESS ANOTHER QUESTION
THAT IF SOMEONE GETS A FLAT SENTENCE THEY ARE NOT PAROLED UNTIL THEY SERVE A CERTAIN AMOUNT
OF TIME. WELL, THE DISTINCTION WITH THAT IS THAT THE COURT ALWAYS RETAINATHIZE
DISCRETION TO SUSPEND A SENTENCE, NOT A MANDATORY SENTENCE, BUT IF AN INDIVIDUAL GOT A
FLAT FOUR YEAR SENTENCE, THE JUDGE COULD SUSPEND THAT AT ANY TIME. WHICH IS WHY THE JUDGE
COULD RELEASE AT ANY TIME UNDER B2 H. BECAUSE THE JUDGE IS STILL EXERCISING THE AUTHORITY
THAT THEY HAD TO BEGIN WITH AT SENTENCING WHERE AS THE JUDGE NEVER HAD THE DISCRETION
AT SENTENCING TO REDUCE A MANDATORY PENALTY TO SUSPEND IT OR NOT IMPOSE IT AT ALL. IF
THAT WAS DONE IN ANY SITUATION WITH A MANDATORY SENTENCE, AN ILLEGAL SENTENCE THAT CAN
BE APPEALED BY THE STATE, I THINK THAT -- JUSTICE ALBIN: YOU'RE SAYING A
JUDGE HAS THE INHERENT AUTHORITY ON HIS OWN TO SUSPEND A TEN-YEAR TN? MR.
ATTORNEY: AT THE ORIGINAL -- SKWAUK. JUSTICE ALBIN: A FLAT SENTENCE, NOT
A NERA SENTENCE. MR. ATTORNEY: ON THE ORIGINAL SENTENCING, YES, THE JUDGE
HAS THE AUTHORITY. IF THERE IS NO MANDATORY TERM, THE JUDGE CAN SUSPEND ANY SENTENCE.
JUSTICE ALBIN: THE OTHER THING I WANT TO BE CERTAIN ABOUT WHAT I THINK YOU
SAID. THE -- OUR COURT HAS THE CONSTITUTIONAL AUTHORITY TO PROMULGATE A RULE
SIMILAR TO B3 BUT WHICH WOULD SAY THAT THE COURT ON ITS OWN MOTION CAN CHANGE THE SENTENCE
AT ANY TIME. WE CAN DO THAT AND THAT WOULDN'T BE A CONSTITUTIONAL IMPEDANT? MR.
ATTORNEY: NO. CERTAINLY YOU CAN. YOU ARE THE ONE WHO WROTE A, THAT LIMITED WHEN HE CAN
CHAVENG THE SENTENCE, SO IF YOU WANT TO CHANGE A TO SAY THE COURT HAS THE AUTHORITY AT
ANY TIME TO CHANGE A CUSTODIAL SENTENCE OR ANY SENTENCE TO RECONSIDER ANY SENTENCE,
CERTAINLY YOU CAN DO THAT BECAUSE IT DOESN'T CONFLICT WITH THE LEGISLATURE. THE
LEGISLATURE SETS THE RANGE OF SENTENCE AND IF IT'S MANDATORY WHAT THE DEGREE FOR THE OFFENSES
ARE WHICH ALSO GOES BACK TO THE ARGUMENT ABOUT HOW THERE IS A PRESUMPTION OF IMPRISONMENT
OR NOTERSE O EVENIAR BURROW. THE LEGISLATURE IS NOT TELLING YOU LOW TO IMPOSE THE SENTENCE.
THEY ARE SAYING HERE IS THE RANGE OF SENTENCE AND YOU DECIDE HOW 84 RR GOING TO DO IT.
AND DECIDING HOW TO DO IT, WE HAVE ALROGATING AND MIFTS AND ACTUALLY THE PRESUMPTIONF
IMPRISON IS IN THE STATUTE SO THE LEGISLATURE DID SAY THAT. WHAT THE --
JUSTICE ALBIN: YOU'RE SUGGESTING IF WE HAD SUCH A RULE, WHICH WE DON'T AT THIS
POINT, THEN THE COURT COULD HAVE -- COULD REVISIT THE SENTENCE SUCH AS THIS? BFRJS IF
THE COURT HAD A RULE THAT SAID -- THAT -- A COURT HAS THE ATLURT RESENTENCE AT ANY TIME,
YES. I MEAN, THE LEGISLATURE CAN'T TELL YOU WHEN TO SENTENCE AND YOUR AUTHORITY TO SENTENCE.
IT ONLY CAN TELL YOU THAT YOU CAN'T IMPOSE AN ILLEGAL SENTENCE OR CHANGE A SENTENCE THAT
HAS A MANDATORY TERM, BUT, I MEAN, THAT'S WHY THE RULE IS WRITTEN A SAYS YOU CAN'T DO
IT BEYOND THIS TIME PERIOD AND HERE ARE HAD TEPGZS. AND THE EXCEPTION IS B. B2 AND B2
SAYS YOU CAN AMEND AND RELEASE SOMEONE FOR MEDICAL REASONS AND THEN YOU GET INTO THE
ANALYSIS OF THE PRIESTER FACTORS ON WHETHER OR NOT SOMEBODY SHOULD BE RELEASED OR NOT,
BUT THAT DOESB MEAN YOU HAVE THE AUTHORITY TO SAY THERE IS A MANDATORY SENTENCE. WE'RE
GOING TO VACATE IT BECAUSE THE COURT DIDN'T HAVE THUTLAURT TO BEGIN WITH AT THE ORIGINAL
SENTENCING. AND THAT GOES BACK TO DEZ METS AND EVEN BEFORE THE CODE TOOK EFFECT THERE WAS
A LIFE SENTENCE FOR MURDER I BELIEVE THERE WAS A CASE BEFORE THAT IN THE 70S THAT SAID
THEY DIDN'T HAVE THE AUTHORITY TO RELEASE SOMEBODY WHO WAS SERVING THAT SENTENCE.
SO THIS IS DAEKS I KNOW MR. SHALOM IS SAYING YOU HAVE TO CHAG THIGS, LOOK WHAT'S
GOING TO HAPPEN. THIS HAS BEEN HAPPENING SINCE 1908 SOMETHING. THIS HAS BEEN THE RULE
AND THE ONLY THING THAT'S CHANGED IS WE HAVE COVID NOW AND THE QUESTION IS ARE WE GOING
TO CHANGE THE LAW BECAUSE OF WHAT HAPPENED DURING COVID? I JUST WANTED TO POINT OUT THAT
THERE ARE ALTERNATIVES. I KNOW WE HEARD WHAT IF SOMEONE GETS TASHABLY ILL OR SICK.
THIS IS NOT WITHOUT COMPASSION THAT IF YOU DID HAVE SOMEONE WHO HAS A MANDATORY SENTENCE
AND DEVELOPED TERRIBLE MEDICAL CONDITIONS, THAT'S WHAT WB3 IS FOR, TO GO BACK ON A JOINT
APPLICATION. THERE SULS A -- CHIEF JUSTICE RABNER: WASZ YOUR UNDERSTANDING
OF THE APPROPRIATE MEDICAL STANDARD? MR. ATTORNEY: WELL, OUR OFFICE IS
NOT INVOLVED IN THE PRIESTER AT THAT POINT IN THIS BRIEF. I THINK THE APPROPRIATE --
CHIEF JUSTICE RABNER: NOT THE APPLICATION OT FACTORS, BUT WHETHER ONE NEEDS
TO CONTRACT COVID, FOR EXAMPLE? KAEPT GET TREATMENT ABOUT TO DIE. CAROL M.
HENDERSON: AGAIN, WE DIDN'T BRIEF THE ISSUE. I DON'T THINK WE WOULD TAKE A POSITION THAT
SOMEBODY HAS TO GET COVID TO GET RELIEF. I THINK THE POSITION WOULD HAVE TO BE UNDER
PRIESTER THAT THE CHANGED CIRCUMSTANCES AND THAT YOUR SITUATION IS SUCH THAT YOU CANNOT
BE ADEQUATELY TREATED IN PRISON. AND THAT'S ALWAYS BEEN THE STARND, THE SHORT HAND IS
CAN YOUR CONDITION BE TREATED? AND THE ANSWER IS, YES, PEOPLE ARE BEING TREATED FOR COVID.
NO ONE HAS DIED IN THE PRISON SINCE JUNE 29TH. SO PEOPLE ARE GETTING TREATMENT. WE SEE
THAT THIS INDIVIDUAL HIMSELF FROM ALL THE MEDICAL RECORDS HE IS BEING TREATED FOR HIS
CONDITION, I DON'T THINK THE THREATS SAYING BECAUSE OF MY CONDITION IF I CATCH THIS I'M
GOING TO DIE. I DON'T THINK THAT'S ENOUGH TO SAY SOMEONE COULD GET OUT BECAUSE THERE ARE
A LOT OF PEOPLE IN JAIL WITH A LOT OF SERIOUS ILLNESSES AND I AGREED WITH THE QUESTIONING
IS THAT WHEN HE GETS COVID IF HE GOT COVID, THAT'S NOT THE TIME WE WILL RELEASE SOMEBODY.
THAT'S THE TIME WE WILL TREAT THEM OR PUT THEM IN A HOSPITAL BECAUSE WE ARE NOT GOING
TO RELEASE A SICK PERSON OUTSIDE EXPOSING THE GENERAL PUBLIC OR CERTAINLY NOT. WE ARE
GOING TO TREAT THEM. THE QUESTION HAS ALWAYS BEEN CAN THE DOK DOK TREAT THE INDIVIDUALS
AND THINGS WERE PROBABLY DIFFERENT BACK IN APRIL AND MAY, MARCH. THINGS ARE MUCH DIFFERENT
NOW. I MEAN, VACCINES HAVE BEEN GIBBON TO PRISONERS RITH NOATLCHLT IS A PLAN IN PLACE
WITH DISTRIBUTION OF THE VACCINES. I DISAGREE WITH THE CLAIMS THAT THE DOK IS NOT DOING
ANYTHING TO MINIMIZE SOCIAL DISTANCING. IF YOU GO ONTO THE DEPARTMENT OF CORRECTIONS
WEBSITE, THEY MINIMIZEATHIZE TYPES OF SOCIALIZATION THAT GOES ON, THE NUMBER OF
PEOPLE THAT ARE INVOLVED THSHGSZ WAY THEY ARE HANDLING CERTAIN SITUATIONS. AND YOU CAN
SEE FROM THE DEPARTMENT OF CORRECTIONS WEBSITE THE NUMBERS AND INFECTIONS HAVE BEEN GOING
DOWN. I MEAN, I'M NOT IN A POSITION, I CAN'T FIGURE OUT THE STATISTICS, BUT I DON'T
THINK THE IFFECTION RATE IN THE JAIL IS THAT MUCH GREATER THAN WHAT IT IS IN THE GENERAL
PUB LLGZ. CHIEF JUSTICE RABNER: YOU'RE SAYING AS A GENUINE FRIEND OF THE
COURT BY ANSWERING QUESTIONS YOU HAVEN'T BRIEFED. I APPRECIATE THAT.
IT DOES SEEM AS THOUGH THE STARND ASPOUSE LITTLE ROOM FOR LITTLE RELEE INED
THD RULE WRPTS TO KOIFBD. IS THAT FAIR? MR. ATTORNEY: THAT'S
NOT TRUE. I THINK, LET'S SAY HIS CONDITION HAS DETERIORATED NOT, YOU KNOW, THAT HIS NORMHOLE
CONDITIONS HAVE GOTTEN WORSE SUCH THAT HE IS MUCH MORE SUSSUSABLE. IT IS ONE THING TO SAY
I HAVE ASTHMA AND I HAVE, YOU KNOW, SOME OTHER CONDITIONS. IF THEY ARE BEING MONITORED
AND THEY HAVE BEEN, YOU KNOW, PRETTY STABLE THROUGH THE WHOLE TIME HE HAS BEEN IN JAIL,
THAT'S ONE SITUATION TO LOOK AT. BUT IF WE'RE LOOKING AT SITUATION WHERE HIS MEDICAL
RECORDS SHOW THAT HE HAS BEEN DETERIORATING SO MUCH THAT, YOU KNOW, THAT HIS INDIVIDUAL
SITUATION WOULD MAKE IT SUCH THAT IT WOULD BE COMPLETELY LIFE THREATENING. AGAIN, THAT
IT CAN'T BE TREATED, BUT MOST OF THE APPLICATIONS THAT WE HAVE BEEN GETTING UNDER 3221
SOAND QUITE FRANKLY AFTER THIS COURT'S DECISION IN THE POIN TO RELEASE PRISONERS, YOU KNOW,
IT WAS ANTICIPATED WE WERE GOING TOOEFSH CELLMED WITH P21 APPLICATIONSISM WE BE NOT BEEN.
AND EVEN ON THE APPELLATE POINT OF VIEW I DON'T THINK I HAVE SEEN MORE THAN 30. SO IT WAS
ANTIPATED THAT THERE WAS GOING TO BE THIS HUGE GROUND SWELL AND ALL OF THE ONES WITH THE
EXCEPTION OF ONE WHICH WAS THE SUBJECT OF THIS COURT ORDER AT ONE POINT WHERE WE WERE
LOOKING FOR RELIEF TO APPEAL THEY HAVE ALL BEEN DENIED ON BROOESER GROUNDS. I THINK THERE
IS ONE CASE OUT THERE IN THE APPELLATE DIVISION WHERE THE STATE IS APPEALING THE RELEASE,
BUT IN ALL THE OTHER CASES THEY DIDN'T MEAD THE PRIESTER CRITERIA EITHER. SO I DON'T THINK
IT'S ENOUGH TO -- IN THIS IS JUST A GENERALIZED, YOU KNOW, REQUEST FOR RELIEF SAYING I HAVE
THESE MEDICAL CONDITIONS AND THERE IS NO DISPUTE THAT HE DOES. THERE IS NO DISPUTE HE HAD
THOSE CONDITIONS AT THE TIME HE WAS ORIGINALLY SENTENCED. AND THE JUDGE KNEW THAT WHEN
HE IMPOSED THE SENTENCE, BUT WE'RE DEALING WITH WHEN WE'RE DEALING WITH -- CHIEF
JUSTICE RABNER: IT'S A LITTLE DIFFERENT THAN THAT. I HAVE THESE MEDICAL CONDITIONS THAT
AUTHORITATIVE MEDICAL COURSES SAY LEAD TO A HEIGHTENED RISK OF A COVID. NOT ENOUGH IN
YOUR UNDERSTANDING OF THE STANDARD GENERALLY? LET'S SET ASIDE HOW IT WOULD BE APPLIED
ACROSS THE FACTORS HERE. THAT ALONE IS NOT ENOUGH? MR. ATTORNEY: NO.
THAT'S NOT ENOUGH. BECAUSE WE -- THERE ARE A LOT OF PEOPLE IN JAIL WITH A LOT OF SERIOUS
CONDITIONS. WE DO HAVE PEOPLE -- WE HAVE ELDERLY PEOPLE IBJAIL. WE HAVE PEOPLE WITH
CANCER AND THEY MAY, YOU KNOW, THEY MAY OR MAY NOT, I MEAN, AS WE SAID WOOEFSHGS SEEN
PEOPLE WHO ARE NOT IN PRISON WHO HAVE DIFFERENT CONDITIONS WHO SURVIVE AND PEOPLE WITH
NO CONDITIONS WHO DON'T. SO THE QUESTION IS, KWOUN, CAN THE PRISON TREAT THE INDIVIDUAL?
JUSTICE LAVECCHIA: WHAT THE CHIEF JUST DESCRIBERED WAS NOT A GENERALIZED
RISK OR FEAR OF RISK OF CONTRACTING. IT WAS AN INDIVIDUALIZED FEAR OF THEIR RESPECT OF
CONTRACTING THAT IS BASD ON THE MEDICAL CONDITION MADE BY THE CDC DUE TO THESE PARTICULAR
UNDERLYING MEDICAL CONDITIONS OR INFIRMITIES THAT THE APT HAS. YOU DISAGREE THAT WOULD
BE ENOUGH OF A TEST TO SATISFY PRIESTER? IS THAT A PRONG OF PRIESTER? MR.
ATTORNEY: YES, I DO. I MEAN, IT'S THERE IS NOTHING TO BE SAID THAT DEPARTMENT OF
CORRECTIONS CANNOT TREAT THE INDIVIDUAL IF HE DOES GET THE COVID. AND IT'S HYPOTHETICAL
TO SAY WE KNOW PEOPLE WITH THESE KIND OF CONDITIONS, YOU KNOW, THEY MAY SUFFER, YOU
KNOW, DIFFERENT OR WORSE SYMPTOMS OR WHATEVER, BUT HE HAS BEEN IN A WHILE, YOU KNOW, THEY ARE
TAKING CARE OF HIM. THERE ARE PRECAUTIONS IN PLACE THAT I'M SURE, YOU KNOW, THERE ARE
OTHER THINGS THAT COULD BE DONE THAT I JUST DON'TP THINK YOU ARE COMING IN AND SAYING
I HAVE THESE MEDICAL CONDITIONS AND IF I GET COVID, YOU KNOW, IT COULD BE MUCH MORE
SERIOUS THAN THE NORMAL PERSON. I THINK THE FACT THAT THE PRISON IS PUTTING THINGS IN
PLACE TO -- WITH THE VACCINES THAT THE NUMBERS HAVE GONE DOWN ON THE NUMBER OF INMATES
AFFECTED. I THINK THEY ARE PUTTING PROCEDURES IN PLACE AND AGAIN, EVEN UNDER PRIESTER,
EVEN ASSUMING THAT THAT WAS ENOUGH, LET'S SAY THAT'S ENOUGH, HE'S GOT A SERIES, HE STILL
HAS TO COME TO THE THIRD IF YOU LOOK AT THE CRIME IN THE SENTENCE IMPOLESED AND --
JUSTICE LAVECCHIA: OF COURSE. CHIEF JUSTICE RABNER: WE ARE PUTTING THOSE
TO ONE SIDE. MR. ATTORNEY: GOT IT. JUSTICE LAVECCHIA: IN
THETUME NEALO CASE WE DIDN'T HAVE TO WAIT UNTIL MR. TUMMINELLO LOST THE ADDITIONAL TOES.
THE RISK WAS PRESENT BASED UPON THE PRIOR CONDITION THAT HAD MANIFESTED ITSELF AND PAST
DIFFICULTIES AND THE RISK OF PROGRESSION. WHY WOULDN'T THAT BE ENOUGH HERE?
MR. ATTORNEY: WELL, MR. TUMMINELLO WHEN HE WENT INTO JAIL, HIS CONDITION CAME AFTERWARDS.
SO IT WAS A CHANGED CONDITION. AND IT WAS SERIOUS ENOUGH THAT THINGS WERE HAPPENING
ALMOST ON A MONTHLY BASIS. HERE THERE IS NOTHING THAT'S HAPPENING TO THIS INDIVIDUAL.
HE IS BEING TREATED AND HE IS JUST SAYING IF I GET IT, IT WOULD BE LIKE MR. TUMMINELLO
SAY FIGURE I GET BIDETEIES I MAY LOSE MY TOES AND I HAVE DIABETES IN MY FAMILY. SO I'M
REAL AT AT A RISK FOR GETTING THIS AND IF I DO, IT WILL BE REALLY BAD. I DON'T KNOW WHAT
TUMMINELLO WOULD HAVE BEEN LIKE IF HE HAD A MANDATORY SENTENCE, THAT'S A WHOLE --
JUSTICE LAVECCHIA: I DON'T MEAN TO PRESS YOU TOO FAR. CHIEF JUSTICE RABNER:
WE HAVE YOUR POSITION ON THIS ISSUE. IS THERE ANYTHING ELSE YOU WOULD LIKE
TO ADDRESS? MR. ATTORNEY: I JUST WANTED TO POINT OUT THAT EFFECTIVE YESTERDAY
A COMPASSIONATE RELEASE STASH UFT WAS ENACTED WHERE INDIVIDUALS CAN BE RELEASED IF THEY
HAVE TERMINAL CONDITIONS, DISEASE, IF THEY HAVE ALPERMIT PHYSICAL INCAPACITY THAT WOULD
PREVENTHEM FROM CRIMINAL ACTIVITY THERE IS A PROCESS IN PLACE FOR THEM TO RECEIVE THIS
COMPASSIONATE RELEASE. THEY ARE ENTITLED TO THE PREPTATION BY THE PUBLIC DEFENDERSE'S
OFFICE. THEY WOULD BE IN THE CUSTODY OF PAROLE AND THE OTHER FACTOR IS THAT IF THEY GET
BETTER THEY GO BACK TO JAIL. AND AGAIN, THAT'S THE DISTINCTION BETWEEN 32 OCOMBHIE IT'S
SO EXTRAORDINARY. THEY DON'T GO BACK TO JAIL WHERE AS IN EVERY OTHER FACTOR THEY DO.
JUSTICE ALBIN: I HAVEN'T READ THE STATUTE, YOU HAVE AND YOU'RE FAMILIAR WITH
THE FACTS OF THIS CASE. WOULD THIS DEFENDANT BE ELIGIBLE FOR THIS COMPASSIONATE
RELEASE UNDER THE STATUTE THAT YOU'VE NOW BROUGHT TO OUR ATTENTION? MR. ATTORNEY:
NOT RIGHT NOW BECAUSE HE DOESN'T HAVE A PERMITINIZE IF CAPACITY. AND THE THING IS HE
HAD ALL OF THESE DISEASES WHEN WHICH HE COMMITTED THE CRIME. I'M LITTLE HARD PRESSED
TO SAY HIS ILLNESS WILL PRESENT HIM FROM GO AROUND SHOOTING PEOPLE. CHIEF
JUSTICE RABNER: DO YOU HAVE A CITATION FOR THE STATUTE? MR. ATTORNEY: 30
VMENT VMENT 4-123 SHGS 51E. CHIEF JUSTICE RABNER: THANK YOU.
JUSTICE LAVECCHIA: WHAT IS THE STATUTE NUMBER? MR. ATTORNEY: STATUTE IS
NJS NJS TITLE 30. JUSTICE LAVECCHIA: THE SESSION LAW NUMBER? MR.
ATTORNEY: THE SESSION LAW NUMBER. I HAVE IT 2020 NEW JERSEY SESSION LAW CHAPTER 106.
JUSTICE LAVECCHIA: THANK YOU. CHIEF JUSTICE RABNER: ANYTHING
ELSE, SPLN 1234. MR. ATTORNEY: NO, I THINK THAT'S IT. CHIEF JUSTICE
RABNER: THANK YOU. PREF MR. FLYNN, WU HAVEN'T HEARD FROM YOU IN A LITTLE WHILE? DID
YOU WANT TO OFFER A BRIEF REPUTEAL. JOHN P. FLYNN: VERY BRIEFLY. IT IS
ON TWO FACTORS. SO THE ATTORNEY GENERAL CONTENDED THAT MR. CHAVIES WOULD
BE UNDER NO SUPERVISION IF HE IS NOT NEDICAL RELEASE. THAT IS NOT CORRECT. AS HE RECEIVE
ADTHREE YEAR PERIOD OF PAROLE SUPERVISION, SO MR. CHAVIES AND OTHER NERA DEFENDANTS WOULD
STILL BE SUGGEST TO THAT PERIOD OF SUPERVISION (INAUDIBLE) EEB FN THEY RECEIVED MEDICAL
RELEASE UNDER THE RULES. AND SECONDLY I BELIEVE BOTH THE STATE AND THE ATTORNEY GENERAL
CONTENDED THAT THERE IS OTHER OPTIONS AVAILABLE FOR INCARCERATED PEOPLE (INAUDIBLE) FURLOUGH
FRAUT COMMISSIONER OF THE DOKO RER LEASE UNDER THE EXECUTIVE ORDER 124, MR. CHAVIES LIKE
ALL NERA DEFENDANTS STATATORILY BARRED FROM RELEASE UNDER THE EXECUTIVE ORDER AND HE WAS
ALSO BARRED BASED ON HIS CONDITION (INAUDIBLE) IN PURSUING A MEDICAL FURLOUGH FROM THE
CONDITIONER. MORE OVER AS I NOTED IN MY RELY BRIEF THERE IS NOT ANY RELEGZS OR FORMAL
GUIDANCE FROM THE DOK ABOUT HOW THAT GO ABOUT APPLYING FOR MEDICAL FURLOUGH AND I DO SPEAK
FROM EXPERIENCE THERE IS NOT REALLY A MRAER IN PLACE FOR THAT TO ACTUALLY REALISTIC AND
POSSIBLE OPTIONS WHERE AN ATTORNEY OR SOMEONE WITHOUT AN ATTORNEY TO PROCEED.
SO I WOULD JUST WANTED TO CORRECT THOSE TWO FACTUAL POINTS OF THE RECORD AND OTHERWISE
JLD RESPECTFULLY REQUEST THAT THIS COURT DEFERS. RRJS THANK YOU FOR URFINE ARGUMENTS.
THEY ARE WELL PREPARED ARGUMENTS.