On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Garibaldi, J.
New Jersey Court Rule 3:21-10(b)(2) provides for the amendment of a "custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant." The issues presented in this appeal are (1) what factors should a court consider when exercising its discretion in determining whether a prisoner should be released from prison under Rule 3:21-10(b)(2), and (2) may a court apply this Rule not to release a prisoner, but to reduce his sentence.
The trial court denied the defendant, Dennis Priester's motion for release from his custodial sentence. The Appellate Division reversed the trial court and amended Priester's sentence by "excising his parole ineligibility term." We granted the State's petition for certification. 97 N.J. 637 (1984).
In the early morning hours of December 22, 1979, two fourteen-year-old girls were babysitting at the apartment of a neighbor. Priester and a friend arrived at the apartment and asked for the neighbor. When the girls informed the two men that she was not at home, they asked if they could enter the apartment to use the telephone. Shortly thereafter, Priester, armed with a beer bottle, raped one of the young girls while his friend raped the other. The girls reported the incident to the police later that day.
On March 6, 1980, Priester was arrested under a Bergen County indictment for a different offense and was incarcerated at the Bergen County Jail. On May 12, 1980, based upon his acts in this case, Priester was charged in Passaic County with aggravated sexual assault, in contravention of N.J.S.A. 2C:14-2(a)(4) and (6), and with possession of a weapon with purpose to use it unlawfully, in violation of N.J.S.A. 2C:39-4(d). Priester has an extensive criminal record. His juvenile record extends back to 1961 and his adult record is comprised of a series of burglary and robbery arrests. At the time Priester committed the acts with which he was charged in Bergen County and in this case, he was in violation of parole for a conviction of armed robbery in Florida.
On August 24, 1980, during the pendency of the charges in this case, Priester escaped from the Bergen County Jail. In the course of that escape, he suffered serious spinal injuries with severe and permanent sequelae, including weakness in the lower extremities, diminished use of his legs, and impairment of bladder, bowel and sexual functions. He underwent surgery and was hospitalized for an extended period.
On April 9, 1981, Priester entered a retraxit plea of guilty to the aggravated sexual assault charge. In exchange for this plea, the State agreed to dismiss one count of the indictment and to recommend that his custodial sentence not exceed a term of ten years. The State indicated that Priester's "physical condition" was a factor considered in formulating the plea. At the time of his sentencing, defendant submitted a medical report prepared by Dr. J. Ladenheim, dated June 12, 1981, which described defendant's condition. The report was based upon a consultation with Priester conducted on September 4, 1980.
On examination the patient had weakness in both lower extremities with anesthesia in scattered portions of the legs and in the private area. The patient has impairment of bladder and bowel function. * * * The patient also received injuries impairing sexual function.
The doctor further noted that as a result of therapy, Priester was ambulatory with the aid of a cane and had learned to catheterize himself. He concluded that the patient required continued rehabilitation, preferably at a center with rehabilitation facilities and access to urological care.
The trial court sentenced Priester on July 8, 1981, to the custody of the Department of Corrections for a term of ten years with a five-year period of parole ineligibility. It found the plea agreement to be overly lenient, given the seriousness of the crime, but accepted it because of defendant's physical condition. The court stated:
As to mitigating circumstances, the Court can find absolutely none. I might say, parenthetically, that the Court wrestled for some time with whether or not I would accept this plea bargain. Frankly, I think you deserve the full measure of the law, the full 20 years. However, a higher authority has intervened in this matter and, for that reason, I am going to go along with the plea negotiations.
Priester appealed, seeking credits for time served prior to conviction. R. 3:21-8. On July 28, 1982, the Appellate Division modified his sentence, approving those credits requested. Priester was incarcerated at Trenton State Prison where he was initially placed in the prison hospital and later transferred to the prison's "medical clemency" wing.
On August 12, 1982, approximately a year after he was sentenced, Priester moved for reconsideration of his sentence pursuant to Rule 3:21-10(b)(2). Neither defendant nor the State introduced new testimony. Priester submitted his own certification and the certification of his attorney. He also produced letters from chaplains at Trenton State Prison and from physicians.
Dr. Ladenheim's letter dated June 12, 1981, was resubmitted along with a supplemental letter, dated October 14, 1981, in which the physician requested "medical clemency" for the patient. A letter from another doctor, who had evaluated defendant's condition in November 1981, stated that Priester "would greatly benefit by the availability of rehabilitative services,
both physical rehabilitation or medical treatment, outside of the prison environment." A letter from a third doctor, dated November 27, 1981, described defendant as "in need of an intensive rehabilitative program to help him walk better and for urological reasons." This third physician concluded that medical clemency should be allowed "if the State of New Jersey's prison system does not have the opportunity for a rehabilitation program in the form of physical therapy." None of the doctors who submitted letters had examined the defendant recently; their observations were based on visits that had occurred at least 11 months prior to the defendant's motion.
The trial court, in denying Priester's motion, stated:
Taking the totality of the circumstances, all of the circumstances involved, I cannot, under any circumstances, see my way clear to making any kind of amelioration of the sentence that was imposed. * * *
The trial court added, however, that it would contact the proper authorities in an attempt to obtain the ...