STATE OF NEW JERSEY v. NASIR SALAAM
Annotate this CaseNOT 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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3140-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NASIR SALAAM, a/k/a
NASIR JAMEEL SALAAM,
Defendant-Appellant.
________________________
Submitted March 16, 2022 – Decided April 14, 2022
Before Judges Accurso, Rose, and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 08-02-0310.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Jennifer E. Kmieciak, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Nasir Salaam appeals from a February 13, 2020 order, denying
his motion to correct an illegal sentence. He also urges us to remand this matter
for resentencing pursuant to the Legislature's amendment of N.J.S.A. 2C:44-1(b)
to include youth as a mitigating factor. We affirm.
I.
Because we outlined the underlying facts at length in the decision
resulting from defendant's direct appeal, State v. Salaam, A-2288-10 (App. Div.
Aug. 2, 2013) (slip op. at 3-5) (Salaam I), we provide only a summary of the
facts pertinent to this appeal. When defendant was seventeen years old, he was
involved in a robbery at a gas station that led to the death of one of the gas
station's employees. Following a jury trial, defendant was found guilty of two
counts of first-degree armed robbery, N.J.S.A. 2C:15-1; a lesser included third-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree possession of
a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful
possession of two revolvers, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b); third-
degree hindering prosecution, N.J.S.A. 2C:29-3(b)(1); and third-degree
conspiracy to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3), and N.J.S.A.
2C:5-2. The jury was unable to reach a unanimous verdict on three other counts
in the indictment and the trial judge declared a mistrial on these counts.
A-3140-19
2
In August 2010, pursuant to a negotiated plea agreement, defendant
entered a conditional guilty plea 1 to felony murder, N.J.S.A. 2C:11-3(a)(3). In
exchange for his guilty plea, the State recommended a prison term of thirty years
with a thirty-year parole ineligibility period and dismissal of the two remaining
charges.
Defendant was sentenced two months later on the convictions flowing
from the trial and plea bargain. After ordering the appropriate mergers, and
dismissing the charges contemplated under the plea agreement, the judge
imposed a thirty-year prison term, subject to thirty years of parole ineligibility
for defendant's felony murder conviction. Overall, defendant received an
aggregate sentence of forty years with a thirty-year period of parole ineligibility.
On direct appeal, we affirmed defendant's convictions and aggregate
sentence but remanded for correction of the judgment of conviction to accurately
reflect defendant's jail credits. Salaam I, (slip op. at 22). The Supreme Court
denied certification. 217 N.J. 292 (2014).
1
Defendant reserved the right to appeal the denial of his pre-trial motions to
suppress his statements and for a new trial.
A-3140-19
3
In 2019, following his unsuccessful bids to secure post-conviction relief,2
defendant filed a motion to correct an illegal sentence under Rule 3:21-10(b)(5).
On February 13, 2020, the motion judge, who was the sentencing judge, issued
a written opinion, denying defendant's application. The judge found
"[d]efendant received a legal sentence," because "the mandatory minimum of
thirty years" with a thirty-year parole bar was imposed at sentencing for
defendant's felony murder conviction. Further, the judge observed "other issues
with [defendant's] sentence were previously addressed on both direct appeal and
in post-conviction relief . . . proceedings."
II.
On appeal, defendant raises the following arguments:
POINT I
UNDER THE LEGAL AND SCIENTIFIC
PRINCIPLES EMBRACED IN MILLER V.
ALABAMA, 567 U.S. 460 (2012) AND STATE V.
ZUBER, 227 N.J. 422 (2017), THE MANDATORY
INELIGIBILITY PROVISIONS OF N.J.S.A. 2C:11-
3[(b)](1) AND N.J.S.A. 2C:43-7.2[] ARE
UNCONSTITUTIONAL AS APPLIED TO
JUVENILES.
2
See State v. Salaam, No. A-3989-14 (App. Div. Jan. 31, 2017) (slip op. at 1-
2) (Salaam II), and State v. Salaam, No. A-2320-17 (App. Div. July 15, 2019)
(slip op. at 4, 21) (Salaam III).
A-3140-19
4
POINT II
THIS COURT SHOULD APPLY THE LAW
REQUIRING SENTENCING MITIGATION FOR
YOUTHFUL DEFENDANTS RETROACTIVELY TO
THIS CASE BECAUSE THE NEW LAW IS
AMELIORATIVE IN NATURE, THE SAVINGS
STATU[T]E IS INAPPLICABLE, AND
FUNDAMENTAL FAIRNESS REQUIRES
RETROACTIVITY.
A. The Legislature Intended Retroactive
Application.
1. The Legislature Did Not Express a
Clear Intent for Prospective
Application Only.
2. The Other Language Contained
Within the Amendment is Indicative
of Retroactive Application; The
Presumption of Prospective
Application is Inapplicable; and the
law is Clearly Ameliorative.
These arguments are unavailing.
Regarding Point I, under Rule 3:21-10(b)(5), "an order may be entered at
any time . . . correcting a sentence not authorized by law including the Code of
Criminal Justice." See State v. Acevedo, 205 N.J. 40, 47 n.4 (2011) ("[A] truly
'illegal' sentence can be corrected 'at any time.'") (quoting R. 3:21-10(b)(5); R.
3:22-12). "[A]n illegal sentence is one that 'exceeds the maximum penalty . . .
for a particular offense' or a sentence 'not imposed in accordance with law.'" Id.
A-3140-19
5
at 45 (quoting State v. Murray, 162 N.J. 240, 247 (2000)). "That includes a
sentence 'imposed without regard to some constitutional safeguard.'" Zuber, 227 N.J. at 437 (quoting State v. Tavares, 286 N.J. Super. 610, 618 (App. Div.
1996)). "Whether [a] defendant's sentence is 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 the present case, defendant argues the mandatory ineligibility
provisions of N.J.S.A. 2C:11-3(b)(1) and N.J.S.A. 2C:43-7.23 are
unconstitutional as applied to juveniles because the mandatory parole
disqualifier "violates the Cruel and Unusual Punishment Clauses of the United
States and New Jersey Constitutions" and "does not recognize [the] difference
in culpability" between juveniles and adults by applying the sentencing
provisions "in the same manner." We are not persuaded.
3 N.J.S.A. 2C:11-3(b)(1) provides, in relevant part, that an individual convicted
of first-degree murder shall be sentenced "to a term of [thirty] years, during
which the person shall not be eligible for parole, or be sentenced to a specific
term of years which shall be between [thirty] years and life imprisonment of
which the person shall serve [thirty] years before being eligible for parole." Per
the No Early Release Act, N.J.S.A. 2C:43-7.2(a), an individual convicted of a
first- or second-degree offense, including murder, N.J.S.A. 2C:11-3, must serve
eighty-five percent of his or her sentence before parole eligibility.
A-3140-19
6
Statutes are presumed constitutional. State v. A.T.C., 239 N.J. 450, 466
(2019) (citations omitted). "A law can be declared void only if its 'repugnancy
to the constitution is clear beyond a reasonable doubt.'" N.J. Republican State
Comm. v. Murphy, 243 N.J. 574, 591 (2020) (quoting State v. Buckner, 223 N.J.
1, 14 (2015)).
Here, the sentencing judge imposed a term of thirty years with a thirty-
year parole bar pursuant to N.J.S.A. 2C:11-3(b)(1), not N.J.S.A. 2C:43-7.2(a).
Accordingly, we limit our consideration to N.J.S.A. 2C:11-3(b)(1), as
defendant's sentence was not affected by N.J.S.A. 2C:43-7.2(a).
Notably, in State v. Comer and State v. Zarate, 249 N.J. 359, 380-81
(2022), our Supreme Court declined to strike N.J.S.A. 2C:11-3(b)(1) as applied
to juveniles. Instead, the Court held that to
save the statute from constitutional infirmity, we will
permit juvenile offenders convicted under the law to
petition for a review of their sentence after they have
served two decades in prison. At that time, judges will
assess a series of factors the United States Supreme
Court has set forth in Miller v. Alabama, [567 U.S.
[460,] 476-78 (2012),] which are designed to consider
the "mitigating qualities of youth."
....
At the hearing, the trial court will assess factors
it could not evaluate fully decades before − namely,
whether the juvenile offender still fails to appreciate
A-3140-19
7
risks and consequences, and whether he [or she] has
matured or been rehabilitated. The court may also
consider the juvenile offender's behavior in prison
since the time of the offense, among other relevant
evidence.
After evaluating all the evidence, the trial court
would have discretion to affirm or reduce the original
base sentence within the statutory range, and to reduce
the parole bar to no less than [twenty] years.
[Id. at 370.]
Given the Court's holding in Comer, defendant's argument that N.J.S.A.
2C:11-3(b)(1) is unconstitutional as applied to juveniles fails. Although we
decline to find either statute unconstitutional as applied to juveniles, consistent
with the principles outlined in Comer, once defendant has served twenty years
of his mandatory minimum sentence, he can petition for review of his sentence.
At that time, the trial court will be authorized to impose a period of parole
eligibility of less than thirty years, but not less than twenty years. Comer, 249 N.J. at 406.
Regarding Point II, defendant argues he is entitled to resentencing under
recently enacted mitigating factor fourteen, N.J.S.A. 2C:44-1(b)(14), which
allows a trial court to consider a defendant's youth as a mitigating factor if the
defendant was under the age of twenty-six when the crime was committed. We
are not convinced.
A-3140-19
8
In State v. Bellamy, 468 N.J. Super. 29, 47-48 (App. Div. 2021), we held
mitigating factor fourteen does not apply retroactively to criminal convictions
that were not on direct appeal when the statute was enacted in October 2020,
unless there is an independent basis to order a new sentencing hearing. See also,
State v. Rivera, 249 N.J. 285 (2021). In Rivera, the Court had an independent
basis to remand for resentencing, i.e., the mistaken treatment of the defendant's
youth as an aggravating factor. Id. at 302-04.
Here, defendant exhausted his avenues of appeal several years before
N.J.S.A. 2C:44-1(b)(14) was enacted, and we find no independent basis to
remand for resentencing. We are mindful the Court has granted certification in
State v. Lane, No. A-0092-20 (App. Div. Mar. 23, 2021), in which the pure legal
question before the Court is whether, and if so, to what extent, N.J.S.A. 2C:44-
1(b)(14) applies retroactively. 248 N.J. 534 (2021). But unless and until such
time as the Court holds to the contrary in Lane, we abide by our holding in
Bellamy.
In sum, we are satisfied defendant's constitutional arguments regarding
the mandatory ineligibility provisions of N.J.S.A. 2C:11-3(b)(1) and N.J.S.A.
2C:43-7.2 as applied to juveniles fail, and the new statutory mitigating factor
A-3140-19
9
does not retroactively apply to defendant's 2010 convictions. Thus, we decline
to disturb defendant's sentence.
Affirmed.
A-3140-19
10
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