NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4585-19T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALQUAN R. MUSLIM, a/k/a
ALTON BRYANT, TONY
BRYANT, ALQON BRYANT,
and BRYANT MCNIGHT,
Defendant-Appellant.
__________________________
Submitted October 27, 2020 – Decided November 5, 2020
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 96-11-3839.
Joseph E. Krakora, Public Defender, attorney for
appellant (Rebecca Fisher, Assistant Deputy Public
Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the Law Division's July 10, 2020 order denying
his motion to amend his sentence and permit his release for medical reasons
pursuant to Rule 3:21-10(b)(2). We affirm.
Following a trial, the jury convicted defendant of a number of offenses,
including murder, aggravated assault, and possession of a weapon for an
unlawful purpose. On November 12, 1997, the judge imposed an aggregate
sentence of life in prison, plus a consecutive term of twenty-three years, with
thirty-seven-and-one-half years of parole ineligibility.
In May 2020, defendant filed a motion under Rule 3:21-10(b)(2) to reduce
his sentence. Defendant suffers from a number of different medical conditions
that required him to be hospitalized earlier this year "for profound multifactorial
shock and multi end organ failure." At that time, his treating physician did not
believe defendant would survive.
However, defendant's condition dramatically improved over the course of
his treatment and he was returned to the prison, where it is contemplated that he
will soon be able to re-enter the general population. Defendant filed his motion
due to the COVID-19 pandemic because he believed that his medical conditions
placed him at risk of contracting this disease.
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An inmate seeking release from custody under Rule 3:21-10(b)(2) has the
burden of establishing the grounds for effectuating release by making two
showings. First, the inmate must establish that a "change of circumstances" has
led to a "severe depreciation" of the inmate's health since the time of the origin al
sentence. State v. Wright, 221 N.J. Super. 123, 127 (App. Div. 1987). Second,
the inmate must demonstrate that "medical services unavailable at the prison"
are "essential to prevent further deterioration of [the inmate's] health." State v.
Priester, 99 N.J. 123, 135 (1985).
Our Supreme Court has found that "the worldwide pandemic that has
afflicted New Jersey and its prison system amounts to a change in circumstances
under the [Rule.]" In re Request to Modify Prison Sentences, 242 N.J. 357, 379
(2020). But, "the nature of the inmate's illness and the effect of continued
incarceration on his health" remain a necessary "predicate for relief" under Rule
3:21-10(b)(2). Ibid. (quoting Priester, 99 N.J. at 135). In addition, the trial
court must consider and weigh "the nature and severity of the crime, the severity
of the sentence, the criminal record of the defendant, the risk to the public if the
defendant is released, and the defendant's role in bringing about his current state
of health." Priester, 99 N.J. at 137.
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Applying these factors, the trial judge denied defendant's motion for
release under Rule 3:21-10(b)(2). In keeping with the Supreme Court's recent
decision in In re Request to Modify Prison Sentences, the judge ruled that the
ongoing pandemic constituted the change of circumstances mandated by the
Rule. However, the judge found that defendant failed to establish that his
medical condition required his release from custody.
In this regard, the judge noted that defendant's condition dramatically
improved with the treatment he received, which primarily occurred during the
height of the pandemic. Defendant still needs ongoing physical therapy and
cardiology follow-ups, but these services are available at the prison and through
"telehealth." While defendant's treating physician opined that "telehealth" was
"suboptimal," he admitted that the prison's course of treatment was "technically
adequate." In addition, defendant would be re-admitted to the hospital if his
condition required it.
The judge also considered the other Priester factors, including the fact that
defendant was serving a life sentence for murder. The judge found that
defendant has a "significant" prior criminal history, including two parole
violations, which strongly weighed against granting his motion. Under these
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circumstances, the judge concluded that defendant failed to meet the Priester
standards. This appeal followed.
On appeal, defendant argues that "[t]he trial court committed reversible
error in denying defendant's Rule 3:21-10(b)(2) motion." We disagree.
A sentencing amendment under Rule 3:21-10(b)(2) "must be applied
prudently, sparingly, and cautiously." Priester, 99 N.J. at 135. The disposition
of a motion brought under this Rule "is an extension of the sentencing power,"
and "is committed to the sound discretion of the [trial] court." Ibid.
Having considered defendant's arguments, which are identical to those he
unsuccessfully raised before the trial judge, we affirm for the reasons expressed
in the judge's thorough oral decision. Because defendant failed to satisfy the
burden necessary to effectuate his release under Rule 3:21-10(b)(2), the judge
properly applied his discretion in denying the motion. 1
Affirmed.
1
Because the judge correctly denied defendant's motion under the Priester
standards, we need not address the State's alternate argument that the judge
could have also denied it because defendant has not yet completed the mandatory
period of parole ineligibility required by the Legislature for his murder
conviction. See State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986)
(holding that "a sentence cannot be changed or reduced under Rule 3:21-10(b)
below the parole ineligibility term required by statute").
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