STATE OF NEW JERSEY v. ANDY R. TORRES, a/k/a ANDREW R. TORRES and ANDREW RUBEN TORRES

NOT FOR PUBLICATION WITHOUT THE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-1259-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANDY R. TORRES, a/k/a
ANDREW R. TORRES,
and ANDREW RUBEN TORRES,

     Defendant-Appellant.
_____________________________

                   Submitted November 16, 2021 – Decided November 23, 2021

                   Before Judges Fisher and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Warren County, Indictment No. 13-02-0051.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Frank M. Gennaro, Designated Counsel, on
                   the brief).

                   James L. Pfeiffer, Warren County Prosecutor, attorney
                   for respondent (Dit Mosco, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      In 2015, a jury convicted defendant of conspiracy to commit robbery,

armed robbery, felony murder, and weapons offenses, all committed in 2013

when he was twenty-three years old. In January 2016, the trial judge imposed a

forty-year prison term, subject to NERA,  N.J.S.A. 2C:43-7.2, on the felony-

murder conviction; shorter concurrent terms were imposed on those convictions

that did not merge. On direct appeal, we affirmed defendant's convictions but

remanded for resentencing because the judge had applied aggravated factor one,

 N.J.S.A. 2C:44-1(b)(1), and thereby engaged in impermissible double counting.

State v. Torres, No. A-2626-15 (App. Div. Mar. 4, 2019) (slip op. at 32-33).

      Defendant was resentenced on October 21, 2019; removing aggravating

factor one from the calculus, and again applying aggravating factors three, six,

and nine – while finding no mitigating factors – the judge imposed a thirty-five-

year prison term, with a thirty-year period of parole ineligibility. Defendant

appeals the judgment of conviction then entered, as well as its subsequent

amendments.1




1
  Defendant filed a notice of appeal on November 26, 2019. The trial judge later
filed amended judgments of conviction on December 27, 2019, and February 3,
2020, for reasons unrelated to the issues raised in this appeal. Defendant filed
an amended notice of appeal on May 14, 2020.
                                                                           A-1259-19
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      In appealing, defendant argues he is entitled to be resentenced because on

October 19, 2020, the Legislature amended  N.J.S.A. 2C:44-1(b), effective

"immediately," to include a new mitigating factor applicable to defendants

whose crimes were committed when they were under the age of twenty-six. L.

2020, c. 110 (codified at  N.J.S.A. 2C:44-1(b)(14)).

      Defendant argues that when he was resentenced the judge was obligated

to apply those aggravating and mitigating factors applicable at the time of

resentencing. This is certainly true. See State v. Jaffe,  220 N.J. 114, 122-24

(2014). But when defendant was resentenced in October 2019 the law did not

include the new age-based mitigating factor; the new law was enacted a year

later. Undaunted, defendant argues the new mitigating factor should be applied

retroactively. We reject this argument substantially for the reasons expressed,

albeit in dictum, in State v. Bellamy,  468 N.J. Super. 29, 48 (App. Div. 2021).2

Defendant is not entitled to the benefit of this new law because he had already

been sentenced and had begun serving that sentence when the new law was

enacted.

      Affirmed.


 2 On October 18, 2021, the Supreme Court granted certification to consider
whether the new mitigating factor should apply retroactively. State v. Lane, A-
17-21.
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