Justice Fernandez-Vina continued in relevant part: NERA mandates that a defendant serve 85% of the sentence “actually imposed” for certain crimes before becoming eligible for parole. N.J.S.A. 2C:43-7.2(b). Allowing defendants to proceed with a Rule 3:21-10(b)(2) motion prior to serving that 85% would circumvent the Legislature’s objectives and its approach to violent crimes. Moreover, the timing of defendant’s motion aside, he failed to meet his burden under Priester since he cannot prove the necessary devastating effect that incarceration had on his health, in addition to various other Priester factors.
Under NERA, “a court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection (d) . . . shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole.” N.J.S.A. 2C:43-7.2(a). Defendant’s conviction for aggravated assault is covered under subsection (d). Subsection (b) mandates further that the period of parole ineligibility “shall be calculated based upon the sentence of incarceration actually imposed.” N.J.S.A. 2C:43-7.2(b). In State v. Mendel, the Appellate Division found that “a sentence cannot be changed or reduced under Rule 3:21-10(b) below the parole ineligibility term required by statute.” 212 N.J. Super. 110, 112-13 (App. Div. 1986).
In the court’s view, the Rule “was never intended to permit the change or reduction of a custodial sentence which is required by law.” Ibid. And in State v. Brown, the Appellate Division held that a discretionary minimum period of incarceration could be modified but that courts are without jurisdiction to consider Rule 3:21-10(b) motions until any mandatory parole ineligibility period has been served. 384 N.J. Super. 191, 194, 196 (App. Div. 2006).
A response to the Court’s ruling could be to make a motion to modify the base term of a sentence. Since NERA parole ineligibility is calculated by 85% of the base term, a reduction would naturally lead to a reduction in the parole ineligibility period.