Justice LaVecchia filed a dissenting opinion. She was joined by Justice Albin and Justice Pierre-Louis. The dissent would reverse and remand the disposition of defendant’s application and issue an interim order immediately revising the language of Rule 3:21-10(b)(2). The dissent views the majority’s approach as ceding part of a court’s authority to adjust a base term of a defendant’s sentence whenever a NERA sentence is implicated.
The dissent observes that the Court has the constitutional authority, through its rulemaking powers, to amend Rule 3:21-10 — a product of the Court’s own creation — and stresses that such an amendment would be consistent with the innate power of a court to resentence at any time. So long as a resentenced defendant is not released during the NERA parole ineligibility period of 85% of a resentenced base term, the dissent states, a defendant should be able to utilize an application under subsection (b)(2) to seek release for medical reasons controlled through the Priester analysis.
In the dissent’s view, NERA does not preclude a resentencing; it only precludes a release before 85% of the refixed base term is served in prison. The dissent would immediately amend Rule 3:21-10 so it can be of meaningful use during a pandemic that is still sickening and killing people in this state and nation, as well as for use by future inmates who are seriously ill or infirm.
This is another example of a narrow 4-3 New Jersey Supreme Court decision in which the Court appears to be divided along ideological lines in matters of criminal law, criminal procedure, and evidence. Justice Albin, Justice LaVecchia and Justice Pierre-Louis sided with the defense. Justice Fernandez-Vina, Justice Solomon, and Justice Patterson sided with the prosecution. Chief Justice Rabner cast the swing vote as is often the case. The dissent convincingly rebutted the majority’s logic regarding the will of the Legislature since the Court Rule at issue was created by the Judiciary.
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