M.R. v. N.J. Dep't of Corr.

314 A.3d 503

478 N.J.Super. 377

M.R., Appellant,

v.NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

DOCKET NO. A-2825-22

Superior Court of New Jersey, Appellate Division.

Argued March 6, 2024

Decided April 19, 2024

On appeal from the New Jersey Department of Corrections.

Colin Sheehan, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Colin Sheehan, of counsel and on the briefs).

Christopher Josephson, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Sara M. Gregory, Assistant Attorney General, of counsel; Christopher Josephson, on the brief).

Before Judges Accurso,¹ Vernoia, and Gummer.

₃₇₉The opinion of the court was delivered by

GUMMER, J.A.D.

M.R. appeals from a final agency decision of the New Jersey Department of Corrections (DOC), denying his application for a certificate of eligibility for compassionate release under the Compassionate₃₈₀ Release Act (CRA), N.J.S.A. 30:4-123.51e.² M.R. contends the DOC’s decision was arbitrary, capricious, and unreasonable because the physicians opining about his condition were required to but failed to physically examine him and failed to make requisite findings when determining M.R.’s medical eligibility for compassionate release. We disagree and affirm.

I.

The Legislature enacted the CRA in 2020. The CRA repealed an existing medi- cal parole statute, formerly codified at N.J.S.A. 30:4-123.51c, and replaced it "with a streamlined process to apply for compassionate release." A.M., 252 N.J. at 439-40, 286 A.3d 660; see also State v. A.M., 472 N.J. Super. 51, 58, 275 A.3d 30 (App. Div. 2022) (finding State commission recommended Legislature replace medical parole statute with a compassionate release statute having similar standards "but with different procedural mechanisms intended to accelerate the decision-making process" (citing N.J. Crim. Sent’g & Disposition Comm’n, Annual Report: November 2019 30-32 (2019))), aff'd as modified, 252 N.J. 432, 286 A.3d 660 (2023).

The CRA called on the Commissioner of Corrections to:

establish and maintain a process by which an inmate may obtain a medical diagnosis to determine whether the inmate is eligible for compassionate release. The medical diagnosis shall be made by two licensed physicians designated by the commissioner. The diagnosis shall include, but not be limited to:

(1) a description of the terminal condition, disease or syndrome, or permanent physical incapacity;

(2) a prognosis concerning the likelihood of recovery from the terminal condition, disease or syndrome, or permanent physical incapacity;

(3) a description of the inmate’s physical incapacity, if appropriate; and

(4) a description of the type of ongoing treatment that would be required if the inmate is granted compassionate release.

₃₈₁[N.J.S.A. 30:4-123.51e(b).]

See also A.M., 252 N.J. at 440, 286 A.3d 660.

[1, 2] The Legislature defined a "[t]er-minal condition, disease or syndrome" as "a prognosis by the licensed physicians designated by the Commissioner of Corrections pursuant to subsection b. of this section that an inmate has six months or less to live." N.J.S.A. 30:4-123.51e(l); see also A.M., 252 N.J. at 440, 286 A.3d 660. It defined a "[p]ermanent physical incapacity" as a prognosis by the designated licensed physicians "that an inmate has a medical condition that renders the inmate permanently unable to perform activities of basic daily living, results in the inmate requiring 24-hour care, and did not exist at the time of sentencing." N.J.S.A. 30:4-123.51e(l); see also A.M., 252 N.J. at 440, 286 A.3d 660. "[T]he term ‘activities of basic daily living’ in N.J.S.A. 30:4-123.51e(l) includes eating, mobility, bathing, dressing, using a toilet, and transfers, and excludes instrumental activities such as shopping, house cleaning, food preparation, and laundry." State v. F.E.D., 251 N.J. 505, 529, 279 A.3d 406 (2022). To demonstrate a " ‘permanent physical incapacity’ " under the CRA, an inmate must prove by clear and convincing evidence his medical condition "renders him permanently unable to perform two or more activities of basic daily living." Id. at 531, 279 A.3d 406 (quoting N.J.S.A. 30:4-123.51e(1)).

"If an inmate is diagnosed with a terminal condition or permanent physical incapacity, the [DOC] ‘shall promptly issue to the inmate a Certificate of Eligibility for Compassionate Release.’" A.M., 252 N.J. at 441, 286 A.3d 660 (quoting N.J.S.A. 30:4-123.51e(d)(2)). "With that certificate, the inmate ‘may petition the court for compassionate release’ or ask the Public Defender to do so." Ibid. (quoting N.J.S.A. 30:4-123.51e(d)(2) to (3)).

II.

In 2015, M.R. pleaded guilty to first-degree racketeering, N.J.S.A. 2C:41-2(c) and -2(d), and was sentenced to a sixteen- year term of imprisonment subject to the No Early Release Act, ₃₈₂N.J.S.A. 2C:43-7.2. Forty-years old, he currently has a parole eligibility date of March 18, 2027.

The parties do not dispute M.R. at some point was diagnosed with medulloblastoma, a malignant form of brain cancer. When he received that diagnosis is not clear from the documents provided in the appellate record, which does not appear to contain a complete set of M.R.’s medical records. A chart note states medulloblastoma typically begins in the cerebellum. According to a neurological-consultation record dated September 10, 2020, doctors recommended M.R. be sent to a hospital for a "more complete neurological evaluation" after a cervical spine magnetic resonance imaging (MRI) performed on M.R. showed an "indication … that there seems to be an abnormality in the cerebellum."

Some of M.R.’s medical records show he underwent surgery and other treatment for the medulloblastoma, but when that occurred is unclear. A February 4, 2021 chart note states M.R. has a "[past medical history] of [diabetes mellitus], medulloblastoma [status post] tumor resection and Cl and partial C2 laminectomy on 1/14/21." A September 1, 2022 chart note states M.R. has a history of "medulloblastoma [status post] midline craniotomy, C1 laminectomy and partial superior C2 laminectomy on 6/21/22." A November 16, 2022 office-visit record lists under "Diagnosis" "medulloblastoma – mid[-]line craniectomy [status post] chemo and radiation treatment" and "craniectomy suboccipital resection cerebellar tumor." Under an "Oncology Follow-up Visit" heading in that record, "[c]urrent treatment" is described as "none." Under a "Chronic Care Assessment & Plan" heading, the following information is provided: "[n]o evidence of any mass lesion in last MRI brain in 9/2022," "[n]o evidence of any metastasis in MRI spine in 9/2022," and "[h]as [follow up] MRI head order in for 3 month [follow up] in 12/2022."

On or about February 9, 2023, M.R. submitted to the DOC a request to determine his eligibility for compassionate release under the CRA. A copy of the request was not included in the appellate record. Pursuant to N.J.S.A. 30:4-123.51e(b), two licensed₃₈₃ physicians, Drs. Jeffrey Pomerantz and Ruppert Hawes, issued reports in response to M.R.’s request. Drs. Pomerantz and Hawes were affiliated with Rutgers University Correctional Health Care (UCHC), which is responsible for providing medical care to incarcerated persons in DOC facilities. See McCormick v. State, 446 N.J. Super. 603, 607-08, 144 A.3d 1260 (App. Div. 2016).

In his February 9, 2023 report, Dr. Pomerantz identified medulloblastoma, type two diabetes, and hyperlipidemia as M.R.’s diagnoses. He found M.R. had a terminal condition with six months or less to live. He concluded M.R. did not have a permanent physical incapacity, meaning he did not believe M.R. was unable to perform two activities of daily living such that he needed twenty-four-hour care. Dr. Pomerantz acknowledged a "neurologist [had] documented] ‘progressive neurological deficits with ataxic gait, speech dysarthria, and loss of dexterity on his hands predominantly on the right’ " and that M.R. used a walker and wheelchair. Regarding M.R.’s continuing care needs, Dr. Pomerantz opined he would need "oncologic [and] neurologic care as well as generalist control of [his diabetes and] hyperlipidemia."

Unlike Dr. Pomerantz, Dr. Hawes in his February 16, 2023 report concluded M.R. did not have a terminal condition. He also found M.R. did not have a permanent physical incapacity. He identified the same diagnoses: diabetes, hyperlipidemia, and medulloblastoma. He described M.R.’s continuing care needs as ongoing oncology and neurology follow-up evaluations, "continued management of his diabetes and hyperlipidemia," and physical and speech therapy "due to residual neurologic deficits (dysarthria, cranial 7 palsy, lack of coordination)."

In a February 22, 2023 memorandum, Dr. Herbert Kaldany, who identified himself as the "Director of Psychiatry, in lieu of DOC Medical Director," advised the DOC’s commissioner that he had reviewed the reports provided by Drs. Pomerantz and Hawes and determined "[b]ased on those attestations reflecting the electronic medical record, there is no evidence that [M.R.] is suffering from a terminal condition, disease or syndrome, or permanent ₃₈₄physical incapacity." Incorrectly reporting both doctors had found M.R. did not have a prognosis of six-months or less to live, Dr. Kaldany concluded M.R. was not eligible for compassionate release.

In a February 27, 2023 letter, Lisa Palmiere, who was the Director of Classification of the DOC’s Division of Operations, advised M.R. "the medical diagnosis and prognosis prepared in [his] case . did not indicate that [he was] suffering from a terminal condition, disease, or syndrome, or a permanent physical incapacity." She also stated that "based on [his] medical evaluation, there [was] no indication that [he was] eligible for a compassionate release." She also advised him to contact medical staff or the administrator’s office at his facility if his medical condition changed.

...