STATE OF NEW JERSEY v. JOSE L. REYES

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2801-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSE L. REYES, a/k/a
JOSE LUIS REYES,
CHEQUI,

     Defendant-Appellant.
_______________________

                   Submitted February 2, 2021 – Decided February 19, 2021

                   Before Judges Yannotti and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 84-11-1051.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Morgan A. Birck, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Mark Niedziela, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Jose L. Reyes appeals from a December 20, 2018 Law Division

order denying his motion to correct an illegal sentence. We affirm.

      We briefly summarize the relevant facts. In 1984, a Passaic County grand

jury charged defendant with: burglary,  N.J.S.A. 2C:18-2 (count one); burglary,

 N.J.S.A. 2C:18-2b(1) and (2) (count two); murder,  N.J.S.A. 2C:11-3a(1) and (2)

(count three); felony murder,  N.J.S.A. 2C:11-3a(3) (count four); aggravated

assault,  N.J.S.A. 2C:12-1b(1) and (2) (counts five, nine and twelve); terroristic

threats,  N.J.S.A. 2C:12-3a and b (counts six and ten); attempted aggravated

sexual assault,  N.J.S.A. 2C:5-1 and 2C:14-2a(3), (4) and (6) (count seven);

attempted murder,  N.J.S.A. 2C:5-1 and 2C:11-3 (counts eight and eleven); and

possession of weapons for unlawful purposes,  N.J.S.A. 2C:39-4 (count thirteen).

The events that led to these charges were summarized by the Supreme Court in

State v. Reyes,  140 N.J. 344, 346-49 (1995).

      The matter was tried as a capital case. At trial, defendant did not dispute

he killed one of the victims and stabbed and wounded three others. Instead, he

asserted that "he did not recall the events and that he had been unable to form

the requisite mental intent because he suffered from voluntary intoxication and

diminished capacity due to mental defect or disease brought about by his long -

term ingestion of drugs and alcohol." Ibid.

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      After the State rested its case, the trial court dismissed count one, charging

burglary. Id. at 351. Defendant was found not guilty on count seven, in which

he was charged with attempted aggravated assault, and guilty of the remaining

charges. Ibid. Defendant was sentenced to an aggregate eighty-year prison term

with a forty-five-year period of parole ineligibility. Ibid.

      In his motion, defendant relied on Miller v. Alabama,  567 U.S. 460

(2012), and "leading cases [having] to do with juvenile cases where they're

sentenced for life without parole." Appointed counsel filed a supplemental brief

in which he argued that circumstances since defendant's incarceration warranted

mitigation in defendant's sentence. Judge Adam Jacobs held a hearing on April

12, 2017, but, due to an administrative error, defendant was not brought from

the prison to the court.

      In his April 12, 2017 oral decision, Judge Jacobs stated that "there really

isn't even a glimmer of hope" defendant's application would be granted and

found no reason to reschedule the hearing. The judge concluded defendant's

motion was an application to amend a sentence rather than "a standard post-

conviction relief application."    Judge Jacobs found defendant's application

"d[id] not meet . . . the criteria under Rule 3:21-10" or the "category of cases




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. . . having to do with juvenile offenders." The court issued an April 12, 2017

order denying defendant's motion.

      Defendant thereafter moved to vacate the April 12, 2017 order as

defendant was not present at the April 12th proceedings, an application to which

the State consented, and we granted. At the remanded December 20, 2018

proceeding, defendant requested that the court "expand[]" the holding in Miller

and State v. Zuber,  227 N.J. 422 (2017), to incorporate "youthful offender[s]."

      Judge Jacobs again denied defendant's application for similar reasons he

expressed in his April 12, 2017 oral decision. The judge determined a change

in defendant's sentence was not warranted under Rule 3:21-10 as he was "not

inclined to break new ground and . . . diminish the distinction between youthful

offender and juvenile offender."

      Defendant appeals, raising a single point:

            THE PAROLE BAR OF FORTY-FIVE YEARS WAS
            CRUEL AND UNUSUAL PUNISHMENT BECAUSE
            THE COURT IMPOSED IT UPON A TWENTY-
            FOUR-YEAR-OLD         OFFENDER    WITHOUT
            CONSIDERATION        OF  THE   BEHAVIORAL
            SCIENCE THAT COUNSELED STRONGLY
            AGAINST IMPOSING IT UPON A PERSON OF
            THAT AGE. U.S. CONST. AMEND. VIII, XIV; N.J.
            CONST. ART. I, ¶ 12.




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      Defendant argues if he had been under the age of eighteen, his sentence

which he characterized as "substantially a sentence of life without parole[,]"

would be presumptively unconstitutional. Relying on behavioral science studies

and articles, he maintains that the same science demonstrating that adolescents

are less culpable and more amenable to rehabilitation than adults, also applies

to youthful offenders who are under the age of twenty-five. We reject these

arguments as without sufficient merit to warrant discussion in a written opinion,

R. 2:11-3(e)(2), and affirm, essentially for the reasons expressed by Judge

Jacobs in his April 12, 2017 and December 20, 2018 oral decisions. We provide

the following discussion to amplify our decision.

      A petition to correct an illegal sentence can be filed at any time. R. 3:21-

10(b)(5); State v. Zuber,  227 N.J. 422, 437 (2017); State v. Acevedo,  205 N.J.
 40, 47 n.4 (2011). An illegal sentence is defined as one "not imposed in

accordance with the law." Zuber,  227 N.J. at 437 (quoting Acevedo,  205 N.J. at
 45). Whether a defendant's sentence is illegal or unconstitutional is "an issue of

law subject to de novo review." State v. Drake,  444 N.J. Super. 265, 271 (App.

Div. 2016) (citing State v. Pomianek,  221 N.J. 66, 80 (2015)).

      In three landmark decisions, the United States Supreme Court relied on

scientific data to find that age is an important factor when assessing juvenile


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culpability at sentencing. See Roper v. Simmons,  543 U.S. 551, 568-72 (2005);

Graham,  560 U.S. at 68-69; Miller,  567 U.S.  at 471-73. In Roper, the Court held

that the Eighth Amendment protection against cruel and unusual punishment

prohibits sentencing juveniles under eighteen years old to the death penalty.  543 U.S.  at 568, 578. In Graham, the Court held that the Eighth Amendment also

prohibits sentencing juveniles to life without parole for non-homicide offenses.

 560 U.S.  at 74-75. Finally, in Miller, the Court determined that a sentencing

judge must consider youth-related factors "before concluding that life without

any possibility of parole was the appropriate penalty."  567 U.S.  at 479. The

Miller Court stated that "although we do not foreclose a sentencer's ability to

make that judgment in homicide cases, we require it to take into account how

children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison." Id. at 480.

      In Zuber, the New Jersey Supreme Court noted that "in the past decade,

the United States Supreme Court has sent a clear message . . . : 'children are

different' when it comes to sentencing, and 'youth and its attendant

characteristics' must be considered at the time a juvenile is sentenced to life

imprisonment without the possibility of parole."  227 N.J. at 429 (quoting Miller,

 567 U.S.  at 465, 480). The Court approved consideration of a number of


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sentencing factors cited in Miller and held "that[] before a judge imposes

consecutive terms that would result in a lengthy overall term of imprisonment

for a juvenile, the court must consider the Miller factors along with other

traditional concerns." Ibid. (emphasis added) (citing State v. Yarbough,  100 N.J. 627 (1985)).

      Miller and Zuber, which apply only to juvenile defendants, have no

applicability here as defendant was not a juvenile but a twenty-four-year-old

adult when he committed the murder, attempted murders, aggravated assaults

and the other related offenses for which he was convicted and sentenced. There

is simply no legal basis for treating defendant as if he had been a juvenile, that

is, under the age of eighteen, when he committed those crimes. See  N.J.S.A.

2A:4A-22(a) (Code of Juvenile Justice definition of a juvenile as an individual

under the age of eighteen). Further, defendant's aggregate term of eighty years

of imprisonment with a forty-five-year period of parole ineligibility, which will

make him eligible for parole at age sixty-nine, is not the functional equivalent

of a life sentence without parole in any event.

      Finally, defendant's reliance before us on certain behavioral science

studies and articles is misplaced. First, we cannot discern from the record if

defendant ever presented these materials to Judge Jacobs. Second, even if he


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did support his application with those articles and studies, they are untethered

to the facts underlying defendant's crimes and his specific circumstances.

Indeed, the record is devoid of any expert proofs, judicially noticeable facts, or

relevant medical records explaining how defendant's violent, criminal actions

were caused by his purported "youthful" status. See Celino v. Gen. Accident

Ins.,  211 N.J. Super. 538, 544 (App. Div. 1986) ("Facts intended to be relied on

which do not already appear of record and which are not judicially noticeable

are required to be submitted to the [trier of fact] by way of affidavit or

testimony." (citing R. 1:6-6 and R. 4:46-2)).

      Affirmed.




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