The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2825-22
M.R.,
Appellant, APPROVED FOR PUBLICATION
April 19, 2024
v. APPELLATE DIVISION
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Argued March 6, 2024 – Decided April 19, 2024
Before Judges Accurso,1 Vernoia, and Gummer.
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).
1
Judge Accurso did not participate in oral argument. She joins the opinion
with the parties' consent. R. 2:13-2(b).
The 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 Compassionate 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 The CRA repealed an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 medical 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; see also State v. A.M., 472 N.J. Super. 51,
58 (App. Div. 2022) (finding State commission recommended Legislature
replace medical parole statute with a compassionate release statute having
2
We use initials to refer to M.R. because we discuss his medical condition.
State v. A.M., 252 N.J. 432, 444-47 (2023) (finding "if a court details a
defendant's medical condition in a compassionate release proceeding, it cannot
identify the defendant by name").
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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 (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.
[N.J.S.A. 30:4-123.51e(b).]
See also A.M., 252 N.J. at 440.
The Legislature defined a "[t]erminal condition, disease or syndrome" as
"a prognosis by the licensed physicians designated by the Commissioner of
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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. 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.
"[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 (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 (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 (quoting
N.J.S.A. 30:4-123.51e(d)(2)). "With that certificate, the inmate 'may petition
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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, N.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
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[diabetes mellitus], medulloblastoma [status post] tumor resection and C1 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 licensed 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
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persons in DOC facilities. See McCormick v. State, 446 N.J. Super. 603, 607-
08 (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] document[ed] '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
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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 physical 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.
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M.R. filed with this court a notice of appeal of that decision. The DOC
moved for a remand so M.R.'s request for compassionate release could be
reevaluated "in light of the fact that the two doctors who [had] evaluated M.R.
. . . reached different conclusions about his eligibility." With M.R.'s consent,
we granted that motion, retaining jurisdiction.
In an August 22, 2023 report, Dr. Pomerantz described M.R.'s diagnosis
as: "[status post] midline craniectomy, C1 laminectomy and partial superior
C2 laminectomy for medulloblastoma resection; [treatment] includes adjuvant
chemo with craniospinal [radiation therapy] . . . no evidence of recurrence on
MRI thus far; [patient] has moderate to severe dysarthria [and] voice
impairment." Dr. Pomerantz found M.R. did not have a terminal condition or
permanent physical incapacity, noting "no documented grave illness" and that
M.R. did not require twenty-four-hour care. As for continuing care needs, Dr.
Pomerantz concluded M.R. would "need regular neurosurgical [and]
oncological [follow up] for medulloblastoma [and] routine medical care for
[type two diabetes and] hyperlipidemia."
In his August 22, 2023 report, Dr. Hawes provided the following
information under "[d]iagnosis":
The patient is a 39-year-old man with a history of
Diabetes Mellitus, Hyperlipidemia and
Medulloblastoma. The patient is [status post] midline
craniectomy, C1 laminectomy and partial superior C2
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laminectomy for mass resection. He is undergoing
adjuvant chemo with craniospinal [radiation therapy].
As of 7/17/23, there was no evidence of recurrence on
MRI. Repeat MRI will continue imaging every 3
months until October 2023 at which point imaging
will be done every 6 months. The patient has
moderate-severe dysarthria and suspected voice
impairment, as evidenced by imprecise articulation,
decreased secretion management, irregular/slow rate
of speech, and strained and breathy vocal quality. He
also presents with moderate cognitive-linguistic
impairment with deficits in the areas of memory,
problem solving/ reasoning and orientation.
Dr. Hawes concluded M.R. did not have a terminal condition or a permanent
physical incapacity and did not need twenty-four-hour care.3 He identified the
same continuing care needs he had listed in his prior report.
In an August 23, 2023 memorandum, Dr. Kaldany advised the DOC
commissioner he had reviewed the new reports and found "no evidence that
[M.R.] is suffering from a terminal condition . . . or permanent physical
incapacity." He noted M.R. was "currently undergoing adjuvant chemotherapy
with craniospinal radiation treatment," a July 17, 2023 MRI had shown no
evidence of recurrence, and M.R. would "need repeated MRIs to monitor his
condition." He concluded M.R. was not eligible for compassionate release.
3
M.R. complains the physicians relied on dated medical records. The record
does not support that assertion. Instead, the record shows they reviewed a
recent MRI, among other records, in rendering their conclusions.
A-2825-22
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In an August 24, 2023 letter, Palmiere advised M.R. that according to
the recent reports, he did not have a terminal prognosis or a permanent
physical incapacity and "there [was] no indication that [he was] eligible for a
compassionate release." She told him he could "reapply" if he could "provide
evidence that [his] current medical condition has changed."
M.R. amended his notice of appeal to include the August 24, 2023 denial
of his request. 4 He argues the DOC failed to comply with the CRA and related
regulations by not physically examining M.R. and by failing to make requisite
findings in determining his medical eligibility for compassionate release.
Unpersuaded by those arguments, we affirm.
III.
We are mindful of the standard we apply in reviewing a final agency
decision. "The scope of our review of an agency decision is limited." Mejia v.
N.J. Dep’t of Corr., 446 N.J. Super. 369, 376 (App. Div. 2016). We
"recognize that state agencies possess expertise and knowledge in their
particular fields." Caucino v. Bd. of Trs., Tchrs.' Pension & Annuity Fund,
4
The DOC concedes the August 24, 2023 denial was its "final decision
denying M.R.'s request for a certificate of compassionate release" and does not
dispute our jurisdiction. See R. 2:2-3(a)(2); State v. F.E.D., 469 N.J. Super.
45, 59 n.9 (App. Div. 2021) (presuming an inmate could seek our review of a
denial of a request for a certificate of eligibility for compassionate release
under the CRA as a final agency decision), aff'd as modified, 251 N.J. 505
(2022).
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475 N.J. Super. 405, 411 (App. Div. 2023) (quoting Caminiti v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 431 N.J. Super. 1, 14 (App. Div. 2013)). "As a
general matter, we will disturb an agency's adjudicatory decision only if we
determine that the decision is 'arbitrary, capricious or unreasonable' or is
unsupported 'by substantial credible evidence in the record as a whole.'" Berta
v. N.J. State Parole Bd., 473 N.J. Super. 284, 302 (App. Div. 2022) (quoting
Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
"The burden of proving that an agency action is arbitrary, capricious, or
unreasonable is on the challenger." Parsells v. Bd. of Educ. of Borough of
Somerville, 472 N.J. Super. 369, 376 (App. Div. 2022). In determining
whether an agency action is arbitrary, capricious, or unreasonable, we consider
"(1) whether the agency's decision conforms with relevant law; (2) whether the
decision is supported by substantial credible evidence in the record; and (3)
whether, in applying the law to the facts, the administrative agency clearly
erred in reaching its conclusion." Conley v. N.J. Dep't of Corr., 452 N.J.
Super. 605, 613 (App. Div. 2018). We are not bound by an agency's statutory
interpretation or other legal determinations. Russo v. Bd. of Trs., Police &
Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Thus, we review de novo legal
determinations about the meaning of the CRA. A.M., 252 N.J. at 442.
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We are equally mindful of the guiding principles of statutory
construction. The paramount goal of "statutory interpretation is to 'determine
and give effect to the Legislature's intent.'" A.M., 252 N.J. at 450 (quoting
State v. Lopez-Carrera, 245 N.J. 596, 612 (2021)). To achieve that goal, we
"begin with the language of [the] statute, 'which is typically the best indicator
of intent.'" Ibid. (quoting State v. McCray, 243 N.J. 196, 208 (2020)). We
read the "[w]ords and phrases in a statute . . . not . . . in isolation" but "in
context, along 'with related provisions[,] . . . to give sense to the legislation as
a whole.'" Id. at 451 (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
When interpreting a statute, "[w]e must presume that every word in [the]
statute has meaning and is not mere surplusage." Cast Art Indus., LLC v.
KPMG LLP, 209 N.J. 208, 222 (2012) (quoting In re Att'y Gen.'s "Directive on
Exit Polling: Media & Non-Partisan Pub. Int. Grps.", 200 N.J. 283, 297-98
(2009)). We also "cannot presume the Legislature 'intended a result different
from what is indicated by the plain language or add a qualification to a statute
that the Legislature chose to omit.'" Simadiris v. Paterson Pub. Sch. Dist., 466
N.J. Super. 40, 49 (App. Div. 2021) (quoting Trumpson v. Farina, 218 N.J.
450, 467-68 (2014)). Nor can we "engage in conjecture or surmise which will
circumvent the plain meaning of the act." DiProspero, 183 N.J. at 492
(quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)). Our
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function is not "to 'rewrite a plainly-written enactment of the Legislature [] or
presume that the Legislature intended something other than that expressed by
way of the plain language.'" Ibid. (quoting O'Connell v. State, 171 N.J. 484,
488 (2002) (alteration in the original)). "Our duty is to construe and apply the
statute as enacted." Ibid. (quoting In re Closing of Jamesburg High Sch., 83
N.J. at 548).
"If a statute's plain language is clear, we apply that plain meaning and
end our inquiry." Garden State Check Cashing Serv., Inc. v. Dep't of Banking
& Ins., 237 N.J. 482, 489 (2019). "If the language is ambiguous, courts can
turn to extrinsic materials to determine the Legislature's intent," including
"[l]egislative history, committee reports, and other sources[, which] can 'serve
as valuable interpretive aid[s].'" A.M., 252 N.J. at 451 (quoting In re
Ridgefield Park Bd. of Educ., 244 N.J. 1, 19 (2020)).
Applying those principles, we reject M.R.'s interpretation of the CRA.
M.R. asserts the plain language of N.J.S.A. 30:4-123.51e(b) "demonstrates that
the physicians must physically examine the inmate." The problem with that
contention is that the statute says absolutely nothing about a physical
examination of the inmate. Instead, the statute requires the designated licensed
physicians to make a "medical diagnosis" and then enumerates the requisite
elements of that diagnosis, none of which is a physical examination. M.R.
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relies on a non-medical dictionary definition of "diagnosis," which is not proof
a "medical diagnosis" must include a physical examination or of a legislative
intent to require a physical examination, especially when the Legislature did
not include a physical examination in its list of requirements for the medical
diagnosis to be rendered by the designated licensed physicians.
M.R. also relies on subparagraphs (i) and (j) of the CRA, but neither of
those subparagraphs references or requires a physical examination.
Subparagraph (i) addresses the procedures for the compassionate release of an
inmate and authorizes the State Parole Board to "require an inmate to submit to
periodic medical diagnoses by a licensed physician" "as a condition of
compassionate release." N.J.S.A. 30:4-123.51e(i). Subparagraph (j) addresses
the possible return of a released inmate to confinement:
If, after review of a medical diagnosis required under
the provisions of subsection i. of this section, the State
Parole Board determines that a parolee granted
compassionate release is no longer so debilitated or
incapacitated by a terminal condition, disease or
syndrome, or by a permanent physical incapacity as to
be physically incapable of committing a crime or, in
the case of a permanent physical incapacity, the
parolee poses a threat to public safety, the State Parole
Board shall so notify the prosecutor, who may initiate
proceedings to return the inmate to confinement in an
appropriate facility designated by the Commissioner
of Corrections. . . .
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In each of those subparagraphs, the Legislature expressly used the phrase
"medical diagnosis," not "physical examination."
M.R. looks beyond the statute and relies on a regulation to support his
position, N.J.A.C. 10A:16-8.6(a),5 which provides:
The two designated physicians will complete the
required examinations and forward their attestations,
and all related medical records, to the health services
unit medical director for review. Following review of
the medical records, the medical director shall make a
medical determination of eligibility or ineligibility and
issue a memo to the Commissioner of the Department
of Corrections detailing the same.
Courts interpret regulations in the same way as they interpret statutes.
In re Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 542 (2016).
Just as with a statute, a court "cannot insert qualifications into a . . . regulation
that are not evident" from the regulatory language. U.S. Bank, N.A. v. Hough,
210 N.J. 187, 202 (2012). A regulation that is "at odds" with its related statute
must be set aside. Piatt v. Police & Firemen's Ret. Sys., 443 N.J. Super. 80,
101 (App. Div. 2015) (quoting Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of
Rev., 197 N.J. 339, 376 (2009)). Applying the same principles of statutory
construction we apply to the CRA, the regulation cited by M.R. is not at odds
with the statute. Like the CRA, the regulation says nothing about a "physical
5
M.R. also cites N.J.A.C. 10A:16-8.5, which contains some of the language
of N.J.S.A. 30:4-123.51e(b).
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examination." The regulation goes on to require the physicians to forward to
the medical director "relevant medical records." N.J.A.C. 10A:16-8.6(a). A
comprehensive reading of the actual language of the regulation leads us to
conclude "examination" is a reference to a medical-record examination and not
a requirement for a physical examination.
We perceive no ambiguity in the statutory language at issue. If we did
perceive an ambiguity, a review of the legislative history also would lead us to
conclude the Legislature did not intend in the CRA to require physical
examinations of inmates seeking compassionate release. As our Supreme
Court held in A.M., 252 N.J. at 439-40, the Legislature enacted the CRA to put
into place "a streamlined process" with fewer, not more, hurdles in the path of
inmates applying for compassionate release. Requiring inmates to undergo
physical examinations before the designated physicians render their medical
diagnoses would have the effect of delaying and complicating the process, not
streamlining it.
By reviewing medical records to render a medical diagnosis, the
designated physicians consider information "of a type reasonably relied upon
by other experts in the particular field." James v. Ruiz, 440 N.J. Super. 45, 65
(App. Div. 2015) (quoting N.J.R.E. 703). And if a designated physician – the
expert entrusted by the Legislature with this responsibility – believes the
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medical records about an applying inmate do not provide sufficient
information for the physician to render an accurate medical diagnosis, nothing
in the CRA prevents the physician from requesting or performing a physical
examination before giving the diagnosis.
We find no merit in M.R.'s argument "the DOC physicians failed to
provide statutorily required information in their attestations." The designated
physicians addressed each of the four subject matters the Legislature in
N.J.S.A. 30:4-123.51e(b) required designated physicians to address and the
reasons for their conclusions are clear. MRIs have shown no evidence of a
recurrence of the medulloblastoma since M.R.'s surgery nor was there
evidence of a permanent physical incapacity as defined by the statute.
The DOC's decision is supported by substantial credible evidence and is
based on a correct legal interpretation of the CRA. M.R. has failed to
demonstrate it was arbitrary, capricious or unreasonable. Accordingly, we
affirm.
Affirmed.
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